MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. Depositor OPTION ONE MORTGAGE CORPORATION Servicer BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING Servicer WELLS FARGO BANK, N.A. Master Servicer, Trust Administrator and Custodian and Trustee...
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
Depositor
OPTION
ONE MORTGAGE CORPORATION
Servicer
BARCLAYS
CAPITAL REAL ESTATE INC.
d/b/a
HOMEQ SERVICING
Servicer
XXXXX
FARGO BANK, N.A.
Master
Servicer, Trust Administrator and Custodian
and
U.S.
BANK
NATIONAL ASSOCIATION
Trustee
Dated
as
of August 1, 2007
Mortgage
Pass-Through Certificates
Series
2007-HE2
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 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.
|
[Reserved].
|
|
SECTION
4.11.
|
Collateral
Accounts.
|
|
SECTION
4.12.
|
Rights
and Obligations Under 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 CE Certificate
|
|
Exhibit
A-16
|
Form
of Class P Certificate
|
|
Exhibit
A-17
|
Form
of Class R Certificate
|
|
Exhibit
A-18
|
Form
of Class R-X Certificate
|
|
Exhibit
A-19
|
Form
of Class 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
|
[Reserved]
|
|
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
|
[Reserved]
|
|
Exhibit
L
|
Annual
Statement of Compliance pursuant to Section 3.20
|
|
Exhibit
M
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
N
|
Form
of Swap Administration Agreement
|
|
Exhibit
O
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
P
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
Q
|
Additional
Disclosure Notification
|
|
Exhibit
R-1
|
Form
of Delinquency Report
|
|
Exhibit
R-2
|
Form
of Monthly Remittance Advice
|
|
Exhibit
R-3
|
Form
of Realized Loss Report
|
|
Schedule
1
|
Mortgage
Loan Schedule
|
|
Schedule
2
|
Prepayment
Charge Schedule
|
This
Pooling and Servicing Agreement, is dated and effective as of August 1, 2007
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. as Depositor, OPTION
ONE
MORTGAGE CORPORATION as a Servicer, BARCLAYS CAPITAL REAL ESTATE INC. d/b/a
HOMEQ SERVICING as a Servicer, XXXXX 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, 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
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||
|
I
|
Variable(2)
|
$
|
40.23
|
August
2037
|
||||
|
I-1-A
|
Variable(2)
|
$
|
1,690,260.71
|
August
2037
|
||||
|
I-1-B
|
Variable(2)
|
$
|
1,690,260.71
|
August
2037
|
||||
|
I-2-A
|
Variable(2)
|
$
|
2,178,061.22
|
August
2037
|
||||
|
I-2-B
|
Variable(2)
|
$
|
2,178,061.22
|
August
2037
|
||||
|
I-3-A
|
Variable(2)
|
$
|
2,665,151.69
|
August
2037
|
||||
|
I-3-B
|
Variable(2)
|
$
|
2,665,151.69
|
August
2037
|
||||
|
I-4-A
|
Variable(2)
|
$
|
3,147,981.89
|
August
2037
|
||||
|
I-4-B
|
Variable(2)
|
$
|
3,147,981.89
|
August
2037
|
||||
|
I-5-A
|
Variable(2)
|
$
|
3,621,936.53
|
August
2037
|
||||
|
I-5-B
|
Variable(2)
|
$
|
3,621,936.53
|
August
2037
|
||||
|
I-6-A
|
Variable(2)
|
$
|
4,082,045.31
|
August
2037
|
||||
|
I-6-B
|
Variable(2)
|
$
|
4,082,045.31
|
August
2037
|
||||
|
I-7-A
|
Variable(2)
|
$
|
4,523,337.91
|
August
2037
|
||||
|
I-7-B
|
Variable(2)
|
$
|
4,523,337.91
|
August
2037
|
||||
|
I-8-A
|
Variable(2)
|
$
|
4,936,583.75
|
August
2037
|
||||
|
I-8-B
|
Variable(2)
|
$
|
4,936,583.75
|
August
2037
|
||||
|
I-9-A
|
Variable(2)
|
$
|
5,305,451.82
|
August
2037
|
||||
|
I-9-B
|
Variable(2)
|
$
|
5,305,451.82
|
August
2037
|
||||
|
I-10-A
|
Variable(2)
|
$
|
5,473,022.30
|
August
2037
|
||||
|
I-10-B
|
Variable(2)
|
$
|
5,473,022.30
|
August
2037
|
||||
|
I-11-A
|
Variable(2)
|
$
|
5,367,580.71
|
August
2037
|
||||
|
I-11-B
|
Variable(2)
|
$
|
5,367,580.71
|
August
2037
|
||||
|
I-12-A
|
Variable(2)
|
$
|
5,124,390.50
|
August
2037
|
||||
|
I-12-B
|
Variable(2)
|
$
|
5,124,390.50
|
August
2037
|
||||
|
I-13-A
|
Variable(2)
|
$
|
4,891,495.93
|
August
2037
|
||||
|
I-13-B
|
Variable(2)
|
$
|
4,891,495.93
|
August
2037
|
||||
|
I-14-A
|
Variable(2)
|
$
|
4,670,317.10
|
August
2037
|
||||
|
I-14-B
|
Variable(2)
|
$
|
4,670,317.10
|
August
2037
|
||||
|
I-15-A
|
Variable(2)
|
$
|
4,458,368.84
|
August
2037
|
||||
|
I-15-B
|
Variable(2)
|
$
|
4,458,368.84
|
August
2037
|
||||
|
I-16-A
|
Variable(2)
|
$
|
4,258,846.36
|
August
2037
|
||||
|
I-16-B
|
Variable(2)
|
$
|
4,258,846.36
|
August
2037
|
||||
|
I-17-A
|
Variable(2)
|
$
|
4,070,684.59
|
August
2037
|
||||
|
I-17-B
|
Variable(2)
|
$
|
4,070,684.59
|
August
2037
|
||||
|
I-18-A
|
Variable(2)
|
$
|
3,910,569.58
|
August
2037
|
||||
|
I-18-B
|
Variable(2)
|
$
|
3,910,569.58
|
August
2037
|
||||
|
I-19-A
|
Variable(2)
|
$
|
3,760,750.21
|
August
2037
|
||||
|
I-19-B
|
Variable(2)
|
$
|
3,760,750.21
|
August
2037
|
||||
|
I-20-A
|
Variable(2)
|
$
|
4,286,893.12
|
August
2037
|
||||
|
I-20-B
|
Variable(2)
|
$
|
4,286,893.12
|
August
2037
|
||||
|
I-21-A
|
Variable(2)
|
$
|
5,042,380.37
|
August
2037
|
||||
|
I-21-B
|
Variable(2)
|
$
|
5,042,380.37
|
August
2037
|
||||
|
I-22-A
|
Variable(2)
|
$
|
5,331,013.42
|
August
2037
|
||||
|
I-22-B
|
Variable(2)
|
$
|
5,331,013.42
|
August
2037
|
||||
|
I-23-A
|
Variable(2)
|
$
|
4,826,526.87
|
August
2037
|
||||
|
I-23-B
|
Variable(2)
|
$
|
4,826,526.87
|
August
2037
|
||||
|
I-24-A
|
Variable(2)
|
$
|
4,373,163.51
|
August
2037
|
||||
|
I-24-B
|
Variable(2)
|
$
|
4,373,163.51
|
August
2037
|
||||
|
I-25-A
|
Variable(2)
|
$
|
3,665,249.24
|
August
2037
|
||||
|
I-25-B
|
Variable(2)
|
$
|
3,665,249.24
|
August
2037
|
||||
|
I-26-A
|
Variable(2)
|
$
|
2,896,981.19
|
August
2037
|
||||
|
I-26-B
|
Variable(2)
|
$
|
2,896,981.19
|
August
2037
|
||||
|
I-27-A
|
Variable(2)
|
$
|
2,382,909.04
|
August
2037
|
||||
|
I-27-B
|
Variable(2)
|
$
|
2,382,909.04
|
August
2037
|
||||
|
I-28-A
|
Variable(2)
|
$
|
2,262,201.49
|
August
2037
|
||||
|
I-28-B
|
Variable(2)
|
$
|
2,262,201.49
|
August
2037
|
||||
|
I-29-A
|
Variable(2)
|
$
|
2,146,464.25
|
August
2037
|
||||
|
I-29-B
|
Variable(2)
|
$
|
2,146,464.25
|
August
2037
|
||||
|
I-30-A
|
Variable(2)
|
$
|
2,040,312.61
|
August
2037
|
||||
|
I-30-B
|
Variable(2)
|
$
|
2,040,312.61
|
August
2037
|
||||
|
I-31-A
|
Variable(2)
|
$
|
1,972,858.39
|
August
2037
|
||||
|
I-31-B
|
Variable(2)
|
$
|
1,972,858.39
|
August
2037
|
||||
|
I-32-A
|
Variable(2)
|
$
|
1,971,438.30
|
August
2037
|
||||
|
I-32-B
|
Variable(2)
|
$
|
1,971,438.30
|
August
2037
|
||||
|
I-33-A
|
Variable(2)
|
$
|
1,933,805.95
|
August
2037
|
||||
|
I-33-B
|
Variable(2)
|
$
|
1,933,805.95
|
August
2037
|
||||
|
I-34-A
|
Variable(2)
|
$
|
1,869,191.91
|
August
2037
|
||||
|
I-34-B
|
Variable(2)
|
$
|
1,869,191.91
|
August
2037
|
||||
|
I-35-A
|
Variable(2)
|
$
|
1,748,839.38
|
August
2037
|
||||
|
I-35-B
|
Variable(2)
|
$
|
1,748,839.38
|
August
2037
|
||||
|
I-36-A
|
Variable(2)
|
$
|
1,623,516.54
|
August
2037
|
||||
|
I-36-B
|
Variable(2)
|
$
|
1,623,516.54
|
August
2037
|
||||
|
I-37-A
|
Variable(2)
|
$
|
1,478,667.48
|
August
2037
|
||||
|
I-37-B
|
Variable(2)
|
$
|
1,478,667.48
|
August
2037
|
||||
|
I-38-A
|
Variable(2)
|
$
|
1,360,800.11
|
August
2037
|
||||
|
I-38-B
|
Variable(2)
|
$
|
1,360,800.11
|
August
2037
|
||||
|
I-39-A
|
Variable(2)
|
$
|
1,264,589.09
|
August
2037
|
||||
|
I-39-B
|
Variable(2)
|
$
|
1,264,589.09
|
August
2037
|
||||
|
I-40-A
|
Variable(2)
|
$
|
1,200,330.07
|
August
2037
|
||||
|
I-40-B
|
Variable(2)
|
$
|
1,200,330.07
|
August
2037
|
||||
|
I-41-A
|
Variable(2)
|
$
|
1,140,331.32
|
August
2037
|
||||
|
I-41-B
|
Variable(2)
|
$
|
1,140,331.32
|
August
2037
|
||||
|
I-42-A
|
Variable(2)
|
$
|
1,082,817.72
|
August
2037
|
||||
|
I-42-B
|
Variable(2)
|
$
|
1,082,817.72
|
August
2037
|
||||
|
I-43-A
|
Variable(2)
|
$
|
1,028,854.35
|
August
2037
|
||||
|
I-43-B
|
Variable(2)
|
$
|
1,028,854.35
|
August
2037
|
||||
|
I-44-A
|
Variable(2)
|
$
|
977,731.15
|
August
2037
|
||||
|
I-44-B
|
Variable(2)
|
$
|
977,731.15
|
August
2037
|
||||
|
I-45-A
|
Variable(2)
|
$
|
929,448.13
|
August
2037
|
||||
|
I-45-B
|
Variable(2)
|
$
|
929,448.13
|
August
2037
|
||||
|
I-46-A
|
Variable(2)
|
$
|
883,295.24
|
August
2037
|
||||
|
I-46-B
|
Variable(2)
|
$
|
883,295.24
|
August
2037
|
||||
|
I-47-A
|
Variable(2)
|
$
|
839,982.54
|
August
2037
|
||||
|
I-47-B
|
Variable(2)
|
$
|
839,982.54
|
August
2037
|
||||
|
I-48-A
|
Variable(2)
|
$
|
798,444.94
|
August
2037
|
||||
|
I-48-B
|
Variable(2)
|
$
|
798,444.94
|
August
2037
|
||||
|
I-49-A
|
Variable(2)
|
$
|
759,747.52
|
August
2037
|
||||
|
I-49-B
|
Variable(2)
|
$
|
759,747.52
|
August
2037
|
||||
|
I-50-A
|
Variable(2)
|
$
|
722,470.19
|
August
2037
|
||||
|
I-50-B
|
Variable(2)
|
$
|
722,470.19
|
August
2037
|
||||
|
I-51-A
|
Variable(2)
|
$
|
687,322.99
|
August
2037
|
||||
|
I-51-B
|
Variable(2)
|
$
|
687,322.99
|
August
2037
|
||||
|
I-52-A
|
Variable(2)
|
$
|
654,305.92
|
August
2037
|
||||
|
I-52-B
|
Variable(2)
|
$
|
654,305.92
|
August
2037
|
||||
|
I-53-A
|
Variable(2)
|
$
|
622,353.92
|
August
2037
|
||||
|
I-53-B
|
Variable(2)
|
$
|
622,353.92
|
August
2037
|
||||
|
I-54-A
|
Variable(2)
|
$
|
592,532.06
|
August
2037
|
||||
|
I-54-B
|
Variable(2)
|
$
|
592,532.06
|
August
2037
|
||||
|
I-55-A
|
Variable(2)
|
$
|
564,485.30
|
August
2037
|
||||
|
I-55-B
|
Variable(2)
|
$
|
564,485.30
|
August
2037
|
||||
|
I-56-A
|
Variable(2)
|
$
|
537,148.60
|
August
2037
|
||||
|
I-56-B
|
Variable(2)
|
$
|
537,148.60
|
August
2037
|
||||
|
I-57-A
|
Variable(2)
|
$
|
511,587.00
|
August
2037
|
||||
|
I-57-B
|
Variable(2)
|
$
|
511,587.00
|
August
2037
|
||||
|
I-58-A
|
Variable(2)
|
$
|
487,445.49
|
August
2037
|
||||
|
I-58-B
|
Variable(2)
|
$
|
487,445.49
|
August
2037
|
||||
|
I-59-A
|
Variable(2)
|
$
|
464,369.04
|
August
2037
|
||||
|
I-59-B
|
Variable(2)
|
$
|
464,369.04
|
August
2037
|
||||
|
I-60-A
|
Variable(2)
|
$
|
10,071,269.89
|
August
2037
|
||||
|
I-60-B
|
Variable(2)
|
$
|
10,071,269.89
|
August
2037
|
||||
|
II
|
Variable(2)
|
$
|
16.43
|
August
2037
|
||||
|
II-1-A
|
Variable(2)
|
$
|
690,239.29
|
August
2037
|
||||
|
II-1-B
|
Variable(2)
|
$
|
690,239.29
|
August
2037
|
||||
|
II-2-A
|
Variable(2)
|
$
|
889,438.78
|
August
2037
|
||||
|
II-2-B
|
Variable(2)
|
$
|
889,438.78
|
August
2037
|
||||
|
II-3-A
|
Variable(2)
|
$
|
1,088,348.31
|
August
2037
|
||||
|
II-3-B
|
Variable(2)
|
$
|
1,088,348.31
|
August
2037
|
||||
|
II-4-A
|
Variable(2)
|
$
|
1,285,518.11
|
August
2037
|
||||
|
II-4-B
|
Variable(2)
|
$
|
1,285,518.11
|
August
2037
|
||||
|
II-5-A
|
Variable(2)
|
$
|
1,479,063.47
|
August
2037
|
||||
|
II-5-B
|
Variable(2)
|
$
|
1,479,063.47
|
August
2037
|
||||
|
II-6-A
|
Variable(2)
|
$
|
1,666,954.69
|
August
2037
|
||||
|
II-6-B
|
Variable(2)
|
$
|
1,666,954.69
|
August
2037
|
||||
|
II-7-A
|
Variable(2)
|
$
|
1,847,162.09
|
August
2037
|
||||
|
II-7-B
|
Variable(2)
|
$
|
1,847,162.09
|
August
2037
|
||||
|
II-8-A
|
Variable(2)
|
$
|
2,015,916.25
|
August
2037
|
||||
|
II-8-B
|
Variable(2)
|
$
|
2,015,916.25
|
August
2037
|
||||
|
II-9-A
|
Variable(2)
|
$
|
2,166,548.18
|
August
2037
|
||||
|
II-9-B
|
Variable(2)
|
$
|
2,166,548.18
|
August
2037
|
||||
|
II-10-A
|
Variable(2)
|
$
|
2,234,977.70
|
August
2037
|
||||
|
II-10-B
|
Variable(2)
|
$
|
2,234,977.70
|
August
2037
|
||||
|
II-11-A
|
Variable(2)
|
$
|
2,191,919.29
|
August
2037
|
||||
|
II-11-B
|
Variable(2)
|
$
|
2,191,919.29
|
August
2037
|
||||
|
II-12-A
|
Variable(2)
|
$
|
2,092,609.50
|
August
2037
|
||||
|
II-12-B
|
Variable(2)
|
$
|
2,092,609.50
|
August
2037
|
||||
|
II-13-A
|
Variable(2)
|
$
|
1,997,504.07
|
August
2037
|
||||
|
II-13-B
|
Variable(2)
|
$
|
1,997,504.07
|
August
2037
|
||||
|
II-14-A
|
Variable(2)
|
$
|
1,907,182.90
|
August
2037
|
||||
|
II-14-B
|
Variable(2)
|
$
|
1,907,182.90
|
August
2037
|
||||
|
II-15-A
|
Variable(2)
|
$
|
1,820,631.16
|
August
2037
|
||||
|
II-15-B
|
Variable(2)
|
$
|
1,820,631.16
|
August
2037
|
||||
|
II-16-A
|
Variable(2)
|
$
|
1,739,153.64
|
August
2037
|
||||
|
II-16-B
|
Variable(2)
|
$
|
1,739,153.64
|
August
2037
|
||||
|
II-17-A
|
Variable(2)
|
$
|
1,662,315.41
|
August
2037
|
||||
|
II-17-B
|
Variable(2)
|
$
|
1,662,315.41
|
August
2037
|
||||
|
II-18-A
|
Variable(2)
|
$
|
1,596,930.42
|
August
2037
|
||||
|
II-18-B
|
Variable(2)
|
$
|
1,596,930.42
|
August
2037
|
||||
|
II-19-A
|
Variable(2)
|
$
|
1,535,749.79
|
August
2037
|
||||
|
II-19-B
|
Variable(2)
|
$
|
1,535,749.79
|
August
2037
|
||||
|
II-20-A
|
Variable(2)
|
$
|
1,750,606.88
|
August
2037
|
||||
|
II-20-B
|
Variable(2)
|
$
|
1,750,606.88
|
August
2037
|
||||
|
II-21-A
|
Variable(2)
|
$
|
2,059,119.63
|
August
2037
|
||||
|
II-21-B
|
Variable(2)
|
$
|
2,059,119.63
|
August
2037
|
||||
|
II-22-A
|
Variable(2)
|
$
|
2,176,986.58
|
August
2037
|
||||
|
II-22-B
|
Variable(2)
|
$
|
2,176,986.58
|
August
2037
|
||||
|
II-23-A
|
Variable(2)
|
$
|
1,970,973.13
|
August
2037
|
||||
|
II-23-B
|
Variable(2)
|
$
|
1,970,973.13
|
August
2037
|
||||
|
II-24-A
|
Variable(2)
|
$
|
1,785,836.49
|
August
2037
|
||||
|
II-24-B
|
Variable(2)
|
$
|
1,785,836.49
|
August
2037
|
||||
|
II-25-A
|
Variable(2)
|
$
|
1,496,750.76
|
August
2037
|
||||
|
II-25-B
|
Variable(2)
|
$
|
1,496,750.76
|
August
2037
|
||||
|
II-26-A
|
Variable(2)
|
$
|
1,183,018.81
|
August
2037
|
||||
|
II-26-B
|
Variable(2)
|
$
|
1,183,018.81
|
August
2037
|
||||
|
II-27-A
|
Variable(2)
|
$
|
973,090.96
|
August
2037
|
||||
|
II-27-B
|
Variable(2)
|
$
|
973,090.96
|
August
2037
|
||||
|
II-28-A
|
Variable(2)
|
$
|
923,798.51
|
August
2037
|
||||
|
II-28-B
|
Variable(2)
|
$
|
923,798.51
|
August
2037
|
||||
|
II-29-A
|
Variable(2)
|
$
|
876,535.75
|
August
2037
|
||||
|
II-29-B
|
Variable(2)
|
$
|
876,535.75
|
August
2037
|
||||
|
II-30-A
|
Variable(2)
|
$
|
833,187.39
|
August
2037
|
||||
|
II-30-B
|
Variable(2)
|
$
|
833,187.39
|
August
2037
|
||||
|
II-31-A
|
Variable(2)
|
$
|
805,641.61
|
August
2037
|
||||
|
II-31-B
|
Variable(2)
|
$
|
805,641.61
|
August
2037
|
||||
|
II-32-A
|
Variable(2)
|
$
|
805,061.70
|
August
2037
|
||||
|
II-32-B
|
Variable(2)
|
$
|
805,061.70
|
August
2037
|
||||
|
II-33-A
|
Variable(2)
|
$
|
789,694.05
|
August
2037
|
||||
|
II-33-B
|
Variable(2)
|
$
|
789,694.05
|
August
2037
|
||||
|
II-34-A
|
Variable(2)
|
$
|
763,308.09
|
August
2037
|
||||
|
II-34-B
|
Variable(2)
|
$
|
763,308.09
|
August
2037
|
||||
|
II-35-A
|
Variable(2)
|
$
|
714,160.62
|
August
2037
|
||||
|
II-35-B
|
Variable(2)
|
$
|
714,160.62
|
August
2037
|
||||
|
II-36-A
|
Variable(2)
|
$
|
662,983.46
|
August
2037
|
||||
|
II-36-B
|
Variable(2)
|
$
|
662,983.46
|
August
2037
|
||||
|
II-37-A
|
Variable(2)
|
$
|
603,832.52
|
August
2037
|
||||
|
II-37-B
|
Variable(2)
|
$
|
603,832.52
|
August
2037
|
||||
|
II-38-A
|
Variable(2)
|
$
|
555,699.89
|
August
2037
|
||||
|
II-38-B
|
Variable(2)
|
$
|
555,699.89
|
August
2037
|
||||
|
II-39-A
|
Variable(2)
|
$
|
516,410.91
|
August
2037
|
||||
|
II-39-B
|
Variable(2)
|
$
|
516,410.91
|
August
2037
|
||||
|
II-40-A
|
Variable(2)
|
$
|
490,169.93
|
August
2037
|
||||
|
II-40-B
|
Variable(2)
|
$
|
490,169.93
|
August
2037
|
||||
|
II-41-A
|
Variable(2)
|
$
|
465,668.68
|
August
2037
|
||||
|
II-41-B
|
Variable(2)
|
$
|
465,668.68
|
August
2037
|
||||
|
II-42-A
|
Variable(2)
|
$
|
442,182.28
|
August
2037
|
||||
|
II-42-B
|
Variable(2)
|
$
|
442,182.28
|
August
2037
|
||||
|
II-43-A
|
Variable(2)
|
$
|
420,145.65
|
August
2037
|
||||
|
II-43-B
|
Variable(2)
|
$
|
420,145.65
|
August
2037
|
||||
|
II-44-A
|
Variable(2)
|
$
|
399,268.85
|
August
2037
|
||||
|
II-44-B
|
Variable(2)
|
$
|
399,268.85
|
August
2037
|
||||
|
II-45-A
|
Variable(2)
|
$
|
379,551.87
|
August
2037
|
||||
|
II-45-B
|
Variable(2)
|
$
|
379,551.87
|
August
2037
|
||||
|
II-46-A
|
Variable(2)
|
$
|
360,704.76
|
August
2037
|
||||
|
II-46-B
|
Variable(2)
|
$
|
360,704.76
|
August
2037
|
||||
|
II-47-A
|
Variable(2)
|
$
|
343,017.46
|
August
2037
|
||||
|
II-47-B
|
Variable(2)
|
$
|
343,017.46
|
August
2037
|
||||
|
II-48-A
|
Variable(2)
|
$
|
326,055.06
|
August
2037
|
||||
|
II-48-B
|
Variable(2)
|
$
|
326,055.06
|
August
2037
|
||||
|
II-49-A
|
Variable(2)
|
$
|
310,252.48
|
August
2037
|
||||
|
II-49-B
|
Variable(2)
|
$
|
310,252.48
|
August
2037
|
||||
|
II-50-A
|
Variable(2)
|
$
|
295,029.81
|
August
2037
|
||||
|
II-50-B
|
Variable(2)
|
$
|
295,029.81
|
August
2037
|
||||
|
II-51-A
|
Variable(2)
|
$
|
280,677.01
|
August
2037
|
||||
|
II-51-B
|
Variable(2)
|
$
|
280,677.01
|
August
2037
|
||||
|
II-52-A
|
Variable(2)
|
$
|
267,194.08
|
August
2037
|
||||
|
II-52-B
|
Variable(2)
|
$
|
267,194.08
|
August
2037
|
||||
|
II-53-A
|
Variable(2)
|
$
|
254,146.08
|
August
2037
|
||||
|
II-53-B
|
Variable(2)
|
$
|
254,146.08
|
August
2037
|
||||
|
II-54-A
|
Variable(2)
|
$
|
241,967.94
|
August
2037
|
||||
|
II-54-B
|
Variable(2)
|
$
|
241,967.94
|
August
2037
|
||||
|
II-55-A
|
Variable(2)
|
$
|
230,514.70
|
August
2037
|
||||
|
II-55-B
|
Variable(2)
|
$
|
230,514.70
|
August
2037
|
||||
|
II-56-A
|
Variable(2)
|
$
|
219,351.40
|
August
2037
|
||||
|
II-56-B
|
Variable(2)
|
$
|
219,351.40
|
August
2037
|
||||
|
II-57-A
|
Variable(2)
|
$
|
208,913.00
|
August
2037
|
||||
|
II-57-B
|
Variable(2)
|
$
|
208,913.00
|
August
2037
|
||||
|
II-58-A
|
Variable(2)
|
$
|
199,054.51
|
August
2037
|
||||
|
II-58-B
|
Variable(2)
|
$
|
199,054.51
|
August
2037
|
||||
|
II-59-A
|
Variable(2)
|
$
|
189,630.96
|
August
2037
|
||||
|
II-59-B
|
Variable(2)
|
$
|
189,630.96
|
August
2037
|
||||
|
II-60-A
|
Variable(2)
|
$
|
4,112,730.11
|
August
2037
|
||||
|
II-60-B
|
Variable(2)
|
$
|
4,112,730.11
|
August
2037
|
||||
________________
|
(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)
|
$
|
218,306,738.76
|
August
2037
|
|
II-LTA1
|
Variable(2)
|
$
|
1,187,070.00
|
August
2037
|
|
II-LTA2
|
Variable(2)
|
$
|
257,500.00
|
August
2037
|
|
II-LTA3
|
Variable(2)
|
$
|
170,750.00
|
August
2037
|
|
II-LTA4
|
Variable(2)
|
$
|
56,505.00
|
August
2037
|
|
II-LTM1
|
Variable(2)
|
$
|
83,535.00
|
August
2037
|
|
II-LTM2
|
Variable(2)
|
$
|
76,855.00
|
August
2037
|
|
II-LTM3
|
Variable(2)
|
$
|
46,780.00
|
August
2037
|
|
II-LTM4
|
Variable(2)
|
$
|
41,210.00
|
August
2037
|
|
II-LTM5
|
Variable(2)
|
$
|
38,985.00
|
August
2037
|
|
II-LTM6
|
Variable(2)
|
$
|
30,070.00
|
August
2037
|
|
II-LTM7
|
Variable(2)
|
$
|
22,280.00
|
August
2037
|
|
II-LTM8
|
Variable(2)
|
$
|
33,415.00
|
August
2037
|
|
II-LTM9
|
Variable(2)
|
$
|
20,045.00
|
August
2037
|
|
II-LTM10
|
Variable(2)
|
$
|
28,955.00
|
August
2037
|
|
II-LTZZ
|
Variable(2)
|
$
|
2,361,284.57
|
August
2037
|
|
II-LTP
|
Variable(2)
|
$
|
100.00
|
August
2037
|
|
II-LT1SUB
|
Variable(2)
|
$
|
7,892.78
|
August
2037
|
|
II-LT1GRP
|
Variable(2)
|
$
|
31,634.19
|
August
2037
|
|
II-LT2SUB
|
Variable(2)
|
$
|
3,223.12
|
August
2037
|
|
II-LT2GRP
|
Variable(2)
|
$
|
12,918.22
|
August
2037
|
|
II-LTXX
|
Variable(2)
|
$
|
222,706,310.03
|
August
2037
|
|
II-LTIO
|
Variable(2)
|
(3)
|
August
2037
|
|
________________
|
(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)
|
$
|
237,414,000.00
|
August
2037
|
|
Class
A-2
|
Variable(2)
|
$
|
51,500,000.00
|
August
2037
|
|
Class
A-3
|
Variable(2)
|
$
|
34,150,000.00
|
August
2037
|
|
Class
A-4
|
Variable(2)
|
$
|
11,301,000.00
|
August
2037
|
|
Class
M-1
|
Variable(2)
|
$
|
16,707,000.00
|
August
2037
|
|
Class
M-2
|
Variable(2)
|
$
|
15,371,000.00
|
August
2037
|
|
Class
M-3
|
Variable(2)
|
$
|
9,356,000.00
|
August
2037
|
|
Class
M-4
|
Variable(2)
|
$
|
8,242,000.00
|
August
2037
|
|
Class
M-5
|
Variable(2)
|
$
|
7,797,000.00
|
August
2037
|
|
Class
M-6
|
Variable(2)
|
$
|
6,014,000.00
|
August
2037
|
|
Class
M-7
|
Variable(2)
|
$
|
4,456,000.00
|
August
2037
|
|
Class
M-8
|
Variable(2)
|
$
|
6,683,000.00
|
August
2037
|
|
Class
M-9
|
Variable(2)
|
$
|
4,009,000.00
|
August
2037
|
|
Class
M-10
|
Variable(2)
|
$
|
5,791,000.00
|
August
2037
|
|
Class
CE Interest
|
Variable(3)
|
$
|
26,732,956.66
|
August
2037
|
|
Class
P Interest
|
N/A(4)
|
$
|
100.00
|
August
2037
|
|
Class
Swap-IO Interest
|
N/A(5)
|
N/A(5)
|
August
2037
|
|
_______________
|
(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)
|
$26,732,956.66
|
August
2037
|
_______________
|
(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
|
August
2037
|
_______________
|
(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
|
August
2037
|
________________
|
(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 VI 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 $445,524,056.66.
In
consideration of the mutual agreements herein contained, the Depositor, the
Servicers, the Master Servicer, the Trust Administrator, the Custodian 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
Servicing 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
Servicing 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 August
30, 2007, 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.
“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 Florida, the State of New York, or in any city in
which
the Corporate Trust Office of the Trustee or the Corporate Trust Office of
the
Trust Administrator are located, are authorized or obligated by law or executive
order to be closed.
“Certification
Parties”: The meaning set forth in Section 4.06(a)(iv).
“Certificate”:
Any one of the Mortgage Pass-Through Certificates, Series 2007-HE2, Class A-1,
Class A-2, Class A-3, 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 CE,
Class P, Class R, Class R-X or Class 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
|
1.150
|
2.300
|
|
A-2
|
II-LTA2
|
0.700
|
1.400
|
|
A-3
|
II-LTA3
|
0.900
|
1.800
|
|
A-4
|
II-LTA4
|
1.100
|
2.200
|
|
M-1
|
II-LTM1
|
1.500
|
2.250
|
|
M-2
|
II-LTM2
|
1.750
|
2.625
|
|
M-3
|
II-LTM3
|
2.000
|
3.000
|
|
M-4
|
II-LTM4
|
2.000
|
3.000
|
|
M-5
|
II-LTM5
|
2.000
|
3.000
|
|
M-6
|
II-LTM6
|
2.000
|
3.000
|
|
M-7
|
II-LTM7
|
2.250
|
3.375
|
|
M-8
|
II-LTM8
|
2.250
|
3.375
|
|
M-9
|
II-LTM9
|
2.250
|
3.375
|
|
M-10
|
II-LTM10
|
2.250
|
3.375
|
__________
|
(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).
“Charged-Off
Loan”: Any second lien Mortgage Loan with respect to which a Servicer determines
that no significant recovery is possible through foreclosure proceedings or
other liquidation of the related Mortgage Property and which a Servicer elects
to charge off either at the time the related first lien mortgage loan
has been liquidated or at any time thereafter.
“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-15 and evidencing (i) a Regular Interest in
REMIC IV, (ii) the obligation to pay Net WAC Rate Carryover Amounts and Swap
Termination Payments and (iii) the right to receive the Class IO Distribution
Amount.
“Class
CE
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class CE Certificates, evidencing a Regular
Interest in REMIC III for purposes of the REMIC Provisions.
“Class
IO
Distribution Amount”: As defined in Section 4.08
hereof. For purposes of clarity, the Class IO Distribution Amount for
any Distribution Date shall equal the amount payable to the Trust Administrator
on such Distribution Date in excess of the amount payable on the Class SWAP-IO
Interest on such Distribution Date, all as further provided in Section 4.08
hereof.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-5 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-1 Principal Distribution Amount” With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M-1 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 57.60%
and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,227,620.28.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-6 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-2 Principal Distribution Amount” With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date) and (iii) the Certificate Principal Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 64.50% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,227,620.28.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-7 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-3 Principal Distribution Amount” With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date) and (iv) the Certificate
Principal Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 68.70% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,227,620.28.
“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 Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (v) the Certificate Principal Balance of the Class M-4 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 72.40% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,227,620.28.
“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 Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date) and (vi) the Certificate
Principal Balance of the Class M-5 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 75.90% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,227,620.28.
“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 Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal Balance of the Class M-6 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 78.60% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,227,620.28.
“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 Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date) and (viii) the Certificate
Principal Balance of the Class M-7 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 80.60% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,227,620.28.
“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 Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date) and (ix) the Certificate Principal Balance of the Class M-8 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 83.60% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,227,620.28.
“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 Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date) and (x) the Certificate Principal
Balance of the Class M-9 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 85.40% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
the excess of the aggregate Stated Principal Balance of the Mortgage Loans
as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) over $2,227,620.28.
“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 Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (iii) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (iv) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date) and (xi) the Certificate Principal Balance of the Class M-10 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 88.00% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,227,620.28.
“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-16 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-17 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-18 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.
“Class
X
Certificate”: The Class X Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-19, representing the right to distributions as set forth herein.
The Class X Certificates do not represent a regular interest in any
REMIC.
“Closing
Date”: August 30, 2007.
“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 2007-HE2, Mortgage Pass-Through Certificates” and with
respect to the Collection Account created and maintained by Option One Mortgage
Corporation, shall be entitled “Option One Mortgage Corporation, as a Servicer
for U.S. Bank National Association, as Trustee, in trust for the registered
holders of MASTR Asset Backed Securities Trust 2007-HE2, 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, 00 Xxxxxxxxxx Xxxxxx,
XX-XX-XX0X, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance/MASTR
2007-HE2, 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, Xxxxx Fargo Bank, N.A., Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Services—MASTR 2007-HE2
and (B) for all other purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager—MASTR 2007-HE2, 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
A-2
|
|
II-LTA3
|
Class
A-3
|
|
II-LTA4
|
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-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 Group I Principal Distribution Amount
and
the Group II 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”: Xxxxxxx Fixed Income Services Inc., a Colorado
corporation, 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 Xxxxx Fargo.
“Cut-off
Date”: With respect to each Original Mortgage Loan, August 1,
2007. 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 Freddie 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 “Xxxxx
Fargo Bank, N.A. as Trust Administrator, in trust for the registered holders
of
MASTR Asset Backed Securities Trust 2007-HE2, Mortgage Pass-Through
Certificates, Series 2007-HE2—Distribution Account.” The Distribution
Account must be an Eligible Account.
“Distribution
Date”: The 25th
day of any month, or if such 25th day is
not a
Business Day, the Business Day immediately following such 25th day, commencing
in
September 2007.
“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
Xxxxx’x or A-1+ by S&P (or comparable ratings if Xxxxx’x and S&P are not
the Rating Agencies) at the time any amounts are held on deposit therein, (ii)
[reserved], (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).
“Xxxxxx
Xxx”: Xxxxxx Xxx, 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.
“Freddie
Mac”: Freddie Mac, formerly known as the Federal Home Loan Mortgage Corporation,
or any successor thereto.
“Group
I
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the Group I Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
the Principal Remittance Amount for such Distribution Date.
“Group
I
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group I Principal Remittance Amount for such Distribution
Date
over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group I Allocation
Percentage.
“Group
I
Certificates”: The Class A-1 Certificates.
“Group
I
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 Group I Mortgage Loans.
“Group
I
Mortgage Loan”: A Mortgage Loan assigned to Loan Group I with a Stated Principal
Balance that conforms to Freddie Mac loan limits.
“Group
I
Principal Distribution Amount”: With respect to any Distribution Date, that
portion of the Available Funds for such Distribution Date equal to the sum
of
(i) the Group I Basic Principal Distribution Amount for such Distribution Date
and (ii)(a) the Extra Principal Distribution Amount for such Distribution Date
multiplied by (b) the Group I Allocation Percentage.
“Group
I
Principal Remittance Amount”: With respect to any Distribution Date, that
portion of the Available Funds for such Distribution Date equal to the sum
of
(i) each scheduled payment of principal collected or advanced on the Group
I
Mortgage Loans by the Servicers that was due during the related Due Period,
(ii)
the principal portion of all partial and full Principal Prepayments of the
Group
I Mortgage Loans applied by the Servicers during the related Prepayment Period,
(iii) the principal portion of all related Net Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received during such Prepayment Period with
respect to the Group I Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group I Mortgage Loan, deposited
in
the Collection Account during such Prepayment Period, (v) the principal portion
of any related Substitution Adjustment Amounts deposited in the Collection
Account during such Prepayment Period with respect to the Group I Mortgage
Loans
and (vi) on the Distribution Date on which the Trust Fund is to be terminated
pursuant to Section 9.01, that portion of the Termination Price, in respect
of
principal on the Group I Mortgage Loans.
“Group
I
Senior Principal Distribution Amount”: The excess of (x) the aggregate
Certificate Principal Balance of the Group I Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 50.10%
and
(ii) the aggregate Stated Principal Balance of the Group I 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 Group I 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 $1,581,709.33.
“Group
II
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the Group II Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
the Principal Remittance Amount for such Distribution Date.
“Group
II
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group II Principal Remittance Amount for such Distribution
Date over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group II Allocation
Percentage.
“Group
II
Certificates”: The Class A-2 Certificates, the Class A-3 Certificates and the
Class A-4 Certificates.
“Group
II
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 Group II Mortgage Loans.
“Group
II
Mortgage Loan”: A Mortgage Loan assigned to Loan Group II with a Stated
Principal Balance that may or may not conform to Freddie Mac loan
limits.
“Group
II
Principal Distribution Amount”: With respect to any Distribution Date, that
portion of the Available Funds for such Distribution Date equal to the sum
of
(i) the Group II Basic Principal Distribution Amount for such Distribution
Date
and (ii)(a) the Extra Principal Distribution Amount for such Distribution Date
multiplied by (b) the Group II Allocation Percentage.
“Group
II
Principal Remittance Amount”: With respect to any Distribution Date, that
portion of the Available Funds for such Distribution Date equal to the sum
of
(i) each scheduled payment of principal collected or advanced on the Group
II
Mortgage Loans by the Servicers that was due during the related Due Period,
(ii)
the principal portion of all partial and full principal prepayments of the
Group
II Mortgage Loans applied by the Servicers during the related Prepayment Period,
(iii) the principal portion of all related Net Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received during such Prepayment Period with
respect to the Group II Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group II Mortgage Loan, deposited
in
the Collection Account during such Prepayment Period, (v) the principal portion
of any related Substitution Adjustment Amounts deposited in the Collection
Account during such Prepayment Period with respect to the Group II Mortgage
Loans and (vi) on the Distribution Date on which the Trust Fund is to be
terminated pursuant to Section 9.01, that portion of the Termination Price,
in
respect of principal on the Group II Mortgage Loans.
“Group
II
Senior Principal Distribution Amount”: The excess of (x) the
aggregate Certificate Principal Balance of the Group II Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
50.10% and (ii) the aggregate Stated Principal Balance of the Group II 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 Group II 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 $645,910.96.
“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 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 and Class M-10 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
and REMIC II Regular Interest II-LTM10 and any Accrual Period therefor, the
second London Business Day preceding the commencement of such Accrual
Period.
“Interest
Rate Swap Agreement”: The interest rate swap agreement, dated as of August 30,
2007, 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”: The sum of the Group I Interest Remittance Amount
and the Group II Interest Remittance Amount.
“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.
“Loan
Group”: Any of Loan Group I or Loan Group II, as the context
requires.
“Loan
Group I”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group I.
“Loan
Group II”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group II.
“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-LTA1, II-LTA2,
II-LTA3, II-LTA4, II-LTM1, II-LTM2, II-LTM3, II-LTM4, II-LTM5, II-LTM6, II-LTM7,
II-LTM8, II-LTM9, II-LTM10 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, Wells 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
Servicing Fee”: With respect to each Mortgage Loan, the amount of the annual fee
paid to the Master Servicer, which shall, for each period of one full month,
be
equal to one-twelfth of the product of (a) the Master 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.
“Master
Servicing Fee Rate”: With respect to each Mortgage Loan, the rate of 0.0100% 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 Group I
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 Group I
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) an amount, expressed as a percentage, equal to a
fraction, the numerator of which is equal to the Net Swap Payment made by the
Swap Provider and the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans, multiplied by 12, minus (a) an amount,
expressed as a percentage, equal to the product of (i) the Net Swap Payment,
if
any, paid by the Trust for such Distribution Date divided by the aggregate
Stated Principal Balance of the Mortgage Loans and (ii) 12 and (b) an amount,
expressed as a percentage, equal to the product of (i) 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
(ii)
12.
For
any
Distribution Date with respect to the Group II 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 Group II 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) an amount,
expressed as a percentage, equal to a fraction, the numerator of which is equal
to the Net Swap Payment made by the Swap Provider and the denominator of which
is equal to the aggregate Stated Principal Balance of the Mortgage Loans,
multiplied by 12, minus (a) an amount, expressed as a percentage, equal to
the
product of (i) the Net Swap Payment, if any, paid by the Trust for such
Distribution Date divided by the aggregate Stated Principal Balance of the
Mortgage Loans and (ii) 12 and (b) an amount, expressed as a percentage, equal
to the product of (i) 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 (ii) 12.
For
any
Distribution Date with respect to the Mezzanine Certificates, a per annum rate
equal to the weighted average (weighted on the basis of the results of
subtracting from the aggregate Stated Principal Balance of the applicable Loan
Group, the current Certificate Principal Balance of the related Class A
Certificates) of the Maximum Cap Rate for the Group I Certificates and the
Maximum Cap Rate for the Group II Certificates.
“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 and REMIC II Regular
Interest II-LTM10 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
or Class M-10 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”:
Xxxxx’x 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 and for each Loan Group 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 Servicing Fee Rate.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: For any Distribution Date with respect to the Group I
Certificates, a per annum rate equal to the product of (x) the weighted average
of the Adjusted Net Mortgage Rates of the Group I 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. With respect to any Distribution Date and the REMIC III
Regular Interests the ownership of which is represented by the Group I
Certificates, the weighted average (adjusted for the actual number of days
elapsed in the related Accrual Period) of the REMIC II Remittance Rate on REMIC
II Regular Interest II-LT1GRP, weighted on the basis of the Uncertificated
Principal Balance of such REMIC II Regular Interest immediately prior to such
Distribution Date.
For
any
Distribution Date with respect to the Group II Certificates, a per annum rate
equal to the product of (x) the weighted average of the Adjusted Net Mortgage
Rates of the Group II 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 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. With
respect to any Distribution Date and the REMIC III Regular Interests the
ownership of which is represented by the Group II Certificates, the weighted
average (adjusted for the actual number of days elapsed in the related Accrual
Period) of the REMIC II Remittance Rate on REMIC II Regular Interest II-LT2GRP,
weighted on the basis of the Uncertificated Principal Balance of such REMIC
II
Regular Interest immediately prior to such Distribution Date.
For
any
Distribution Date with respect to the Mezzanine Certificates, a per annum rate
equal to the weighted average (weighted on the basis of the results of
subtracting from the aggregate Stated Principal Balance of each Loan Group
the
current aggregate Certificate Principal Balance of the related Class A
Certificates) of the Net WAC Rate for the Group I Certificates and the Net
WAC
Rate for the Group II Certificates. With respect to any Distribution
Date and the REMIC III Regular Interests the ownership of which is represented
by the Mezzanine Certificates, a per annum rate equal to the weighted average
(adjusted for the actual number of days elapsed in the related Accrual Period)
of the REMIC II Remittance Rates on (a) REMIC II Regular Interest II-LT1SUB,
subject to a cap and a floor equal to the REMIC II Remittance Rate on REMIC
II
Regular Interest II-LT1GRP and (b) REMIC II Regular Interest II-LT2SUB, subject
to a cap and a floor equal to the REMIC II Remittance Rate on REMIC II Regular
Interest II-LT2GRP, in each case as determined for such Distribution Date,
weighted on the basis of the Uncertificated Principal Balance of each such
REMIC
II Regular Interest immediately prior to such Distribution Date.
“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 and REMIC II Regular
Interest II-LTM10 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
Reuters Screen LIBOR01 Page as of 11:00 a.m. (London time) on such Interest
Determination Date; provided that if such rate does not appear on Reuters Screen
LIBOR01 Page, 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.
“Option
One Mortgage Loans”: The Mortgage Loans serviced by Option One
Mortgage Corporation.
“Original
Mortgage Loan”: Any of the Mortgage Loans included in REMIC I as of the Closing
Date.
“Originator”:
Any of Option One Mortgage Corporation, Fieldstone Mortgage Company, Decision
One Mortgage Company, LLC or EquiFirst Corporation.
“Originator
Master Agreements”: With respect to (i) Option One Mortgage
Corporation, the Second Amended and Restated Master Loan Purchase and Servicing
Agreement, dated as of July 1, 2007, between the Seller and Option One Mortgage
Corporation, as amended, (ii) Fieldstone Mortgage Company, the Master Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as of May 1, 2007,
between the Seller and Fieldstone Mortgage Company, as amended, (iii) Decision
One Mortgage Company, LLC, the Master Seller’s Purchase, Warranties and Interim
Servicing Agreement, dated as of August 1, 2006, between the Seller and Decision
One Mortgage Company, LLC, as amended and (iv) EquiFirst Corporation, the Master
Seller’s Purchase, Warranties and Interim Servicing Agreement, dated as of May
1, 2006, between the Seller and EquiFirst Corporation, as amended.
“Originator
Prepayment Charge Payment Amount”: The amounts payable by the
Originator in respect of any waived Prepayment Charges pursuant to Section
3.01.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the
amount, if any, by which the Overcollateralization Target Amount exceeds the
Overcollateralized Amount on such Distribution Date (after giving effect to
distributions in respect of the Principal Remittance Amount on such Distribution
Date).
“Overcollateralization
Release Amount”:
With respect to any Distribution Date, the lesser of (x) the Principal
Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”:
With respect to any Distribution Date, (i) 6.00% 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) 12.00% 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-LTAA, II-LTA1, II-LTA2, II-LTA3,
II-LTA4, II-LTM1, II-LTM2, II-LTM3, II-LTM4, II-LTM5, II-LTM6, II-LTM7, II-LTM8,
II-LTM9, II-LTM10 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, a 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 Xxxxx’x 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 Xxxxx’x, 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 Xxxxx’x; 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, Xxxxx 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
voluntary 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:
(viii) the
Mortgage Loan identifying number;
(ix) a
code
indicating the type of Prepayment Charge;
(x) the
state
of origination of the related Mortgage Loan;
(xi) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(xii) the
term
of the related Mortgage Loan; and
(xiii) 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, the period commencing on the 16th day of the calendar
month preceding the related Distribution Date (and in the case of the first
Distribution Date, commencing on August 1, 2007) and ending on the 15th day
of
the calendar month in which such Distribution Date occurs and for any
Distribution Date and any Principal Prepayment in part, the calendar month
preceding the calendar month in which such 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
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”: The sum of the Group I Principal Remittance
Amount and the Group II Principal Remittance 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 fixed rate,
as
defined in the derivative confirmation attached hereto as Exhibit
M. 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 US3 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 , 1 , whose maturity date corresponds
to the Termination Date in such derivative confirmation, (b) a factor of 1.3,
and (c) the square root of the number of days from the Significance Percentage
Calculation Date to the first day of the Accrual Period for each related
Distribution Date divided by 360.
“Projected
Zero Factor”:With
respect to
each Distribution Date, a fraction, the numerator of which is 1 and the
denominator of which is the sum of (i) 1 and (ii) the Projected Forward Rate
divided by 12.
“Prospectus
Supplement”: That certain Prospectus Supplement dated August 24, 2007 relating
to the public offering of the Class A Certificates and the Mezzanine
Certificates (other than the Class M-10 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
Servicing 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”: Xxxxx’x 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, Xxxxxxx’x 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
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
Group I Regular Interests”: REMIC I Regular Interest I and REMIC I Regular
Interest I-1-A through REMIC I Regular Interest I-60-B as designated in the
Preliminary Statement hereto.
“REMIC
I
Group II Regular Interests”: REMIC I Regular Interest II and REMIC I
Regular Interest II-1-A through REMIC I Regular Interest II-60-B as designated
in the Preliminary Statement hereto.
“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
of the Adjusted Net Mortgage Rates of the Group I Mortgage Loans. With respect
to each REMIC I Group I Regular Interest ending with the designation “A”, a per
annum rate equal to the weighted average of the Adjusted Net Mortgage Rates
of
the Group I Mortgage Loans multiplied by 2, subject to a maximum rate of
10.900%. With respect to each REMIC I Group 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 of the Adjusted
Net
Mortgage Rate of the Mortgage Loans over (ii) 10.900% and (y)
0.00%.
With
respect to REMIC I Regular Interest II, a per annum rate equal to the weighted
average of the Adjusted Net Mortgage Rates of the Group II Mortgage
Loans. With respect to each REMIC I Group II Regular Interest ending
with the designation “A”, a per annum rate equal to the weighted average of the
Adjusted Net Mortgage Rates of the Group II Mortgage Loans multiplied by 2,
subject to a maximum rate of 10.900%. With respect to each REMIC I Group II
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
of
the Adjusted Net Mortgage Rates of the Group II 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 (i) 50% 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
Marker Allocation Percentage”: 50% of any amount payable or loss attributable
from the Mortgage Loans, which shall be allocated to the REMIC II Regular
Interests.
“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 and REMIC II Regular Interest II-LTM10, 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 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 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-LTP, REMIC
II
Regular Interest II-LTXX, REMIC II Regular Interest I-TLZZ, REMIC II Regular
Interest II-LTIO, REMIC II Regular Interest II-LT1GRP, REMIC II Regular Interest
II-LT1SUB, REMIC II Regular Interest II-LT2GRP and REMIC II Regular Interest
II-LT2SUB. 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-LTZZ, REMIC II Regular Interest
II-LT1SUB, REMIC II Regular Interest II-LT2SUB, REMIC II Regular Interest
II-LTXX 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
I Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
2
|
I-2-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-2-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate REMIC I Remittance
Rate
|
|
|
I-1-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
|
REMIC
I Remittance Rate
|
|
|
3
|
I-3-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-3-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
and I-2-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
and II-2-A
|
REMIC
I Remittance Rate
|
|
|
4
|
I-4-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-4-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-3-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-3-A
|
REMIC
I Remittance Rate
|
|
|
5
|
I-5-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-5-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-4-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-4-A
|
REMIC
I Remittance Rate
|
|
|
6
|
I-6-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-6-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-5-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-5-A
|
REMIC
I Remittance Rate
|
|
|
7
|
I-7-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-7-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-6-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-6-A
|
REMIC
I Remittance Rate
|
|
|
8
|
I-8-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-8-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-7-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-7-A
|
REMIC
I Remittance Rate
|
|
|
9
|
I-9-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-9-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-8-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-8-A
|
REMIC
I Remittance Rate
|
|
|
10
|
I-10-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-10-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-9-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-9-A
|
REMIC
I Remittance Rate
|
|
|
11
|
I-11-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-11-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-10-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-10-A
|
REMIC
I Remittance Rate
|
|
|
12
|
I-12-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-12-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-11-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-11-A
|
REMIC
I Remittance Rate
|
|
|
13
|
I-13-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-13-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-12-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-12-A
|
REMIC
I Remittance Rate
|
|
|
14
|
I-14-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-14-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-13-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-13-A
|
REMIC
I Remittance Rate
|
|
|
15
|
I-15-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-15-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-14-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-14-A
|
REMIC
I Remittance Rate
|
|
|
16
|
I-16-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-16-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-15-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-15-A
|
REMIC
I Remittance Rate
|
|
|
17
|
I-17-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-17-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-16-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-16-A
|
REMIC
I Remittance Rate
|
|
|
18
|
I-18-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-18-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-17-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-17-A
|
REMIC
I Remittance Rate
|
|
|
19
|
I-19-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-19-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-18-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-18-A
|
REMIC
I Remittance Rate
|
|
|
20
|
I-20-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-20-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-19-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-19-A
|
REMIC
I Remittance Rate
|
|
|
21
|
I-21-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-21-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-20-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-20-A
|
REMIC
I Remittance Rate
|
|
|
22
|
I-22-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-22-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-21-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-21-A
|
REMIC
I Remittance Rate
|
|
|
23
|
I-23-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-23-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-22-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-22-A
|
REMIC
I Remittance Rate
|
|
|
24
|
I-24-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-24-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-23-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-23-A
|
REMIC
I Remittance Rate
|
|
|
25
|
I-25-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-25-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-24-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-24-A
|
REMIC
I Remittance Rate
|
|
|
26
|
I-26-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-26-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-25-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-25-A
|
REMIC
I Remittance Rate
|
|
|
27
|
I-27-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-27-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-26-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-26-A
|
REMIC
I Remittance Rate
|
|
|
28
|
I-28-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-28-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-27-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-27-A
|
REMIC
I Remittance Rate
|
|
|
29
|
I-29-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-29-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-28-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-28-A
|
REMIC
I Remittance Rate
|
|
|
30
|
I-30-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-30-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-29-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-29-A
|
REMIC
I Remittance Rate
|
|
|
31
|
I-31-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-31-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-30-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-30-A
|
REMIC
I Remittance Rate
|
|
|
32
|
I-32-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-32-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-31-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-31-A
|
REMIC
I Remittance Rate
|
|
|
33
|
I-33-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-33-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-32-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-32-A
|
REMIC
I Remittance Rate
|
|
|
34
|
I-34-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-34-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-33-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-33-A
|
REMIC
I Remittance Rate
|
|
|
35
|
I-35-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-35-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-34-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-34-A
|
REMIC
I Remittance Rate
|
|
|
36
|
I-36-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-36-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-35-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-35-A
|
REMIC
I Remittance Rate
|
|
|
37
|
I-37-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-37-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-36-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-36-A
|
REMIC
I Remittance Rate
|
|
|
38
|
I-38-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-38-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-37-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-37-A
|
REMIC
I Remittance Rate
|
|
|
39
|
I-39-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-39-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-38-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-38-A
|
REMIC
I Remittance Rate
|
|
|
40
|
I-40-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-40-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-39-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-39-A
|
REMIC
I Remittance Rate
|
|
|
41
|
I-41-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-41-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-40-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-40-A
|
REMIC
I Remittance Rate
|
|
|
42
|
I-42-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-42-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-41-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-41-A
|
REMIC
I Remittance Rate
|
|
|
43
|
I-43-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-43-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-42-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-42-A
|
REMIC
I Remittance Rate
|
|
|
44
|
I-44-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-44-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-43-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-43-A
|
REMIC
I Remittance Rate
|
|
|
45
|
I-45-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-45-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-44-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-44-A
|
REMIC
I Remittance Rate
|
|
|
46
|
I-46-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-46-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-45-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-45-A
|
REMIC
I Remittance Rate
|
|
|
47
|
I-47-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-47-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-46-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-46-A
|
REMIC
I Remittance Rate
|
|
|
48
|
I-48-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-48-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-47-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-47-A
|
REMIC
I Remittance Rate
|
|
|
49
|
I-49-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-49-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-39-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-39-A
|
REMIC
I Remittance Rate
|
|
|
50
|
I-50-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-50-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-49-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-49-A
|
REMIC
I Remittance Rate
|
|
|
51
|
I-51-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-51-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-50-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-50-A
|
REMIC
I Remittance Rate
|
|
|
52
|
I-52-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-52-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-51-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-51-A
|
REMIC
I Remittance Rate
|
|
|
53
|
I-53-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-53-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-52-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-52-A
|
REMIC
I Remittance Rate
|
|
|
54
|
I-54-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-54-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-53-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-53-A
|
REMIC
I Remittance Rate
|
|
|
55
|
I-55-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-55-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-54-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-54-A
|
REMIC
I Remittance Rate
|
|
|
56
|
I-56-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-56-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-55-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-55-A
|
REMIC
I Remittance Rate
|
|
|
57
|
I-57-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-57-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-56-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-56-A
|
REMIC
I Remittance Rate
|
|
|
58
|
I-58-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-57-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-57-A
|
REMIC
I Remittance Rate
|
|
|
59
|
I-59-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-59-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-58-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-58-A
|
REMIC
I Remittance Rate
|
|
|
60
|
I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
I-1-A
through I-59-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-59-A
|
REMIC
I Remittance Rate
|
|
|
thereafter
|
I-1-A
through I-60-A
|
REMIC
I Remittance Rate
|
|
II-1-A
through II-60-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest II-LT1GRP, a per annum rate (but not less
than zero) equal to the weighted average of: (w) with respect to REMIC I Regular
Interest I, the REMIC I Remittance Rate for each such REMIC I Regular Interest
for each such Distribution Date, (x) with respect to REMIC I Group 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 Balances of each such REMIC I Regular Interest for each
such
Distribution Date and (y) with respect to REMIC I Group I Regular Interests
ending with the designation “A”, for each Distribution Date listed below, the
weighted average of the rates listed below for such REMIC I Regular Interests
listed below, weighted on the basis of the Uncertificated Balances of each
such
REMIC I Regular Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
2
|
I-2-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
|
REMIC
I Remittance Rate
|
|
|
3
|
I-3-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
and I-2-A
|
REMIC
I Remittance Rate
|
|
|
4
|
I-4-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-3-A
|
REMIC
I Remittance Rate
|
|
|
5
|
I-5-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-4-A
|
REMIC
I Remittance Rate
|
|
|
6
|
I-6-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-5-A
|
REMIC
I Remittance Rate
|
|
|
7
|
I-7-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-6-A
|
REMIC
I Remittance Rate
|
|
|
8
|
I-8-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-7-A
|
REMIC
I Remittance Rate
|
|
|
9
|
I-9-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-8-A
|
REMIC
I Remittance Rate
|
|
|
10
|
I-10-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-9-A
|
REMIC
I Remittance Rate
|
|
|
11
|
I-11-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-10-A
|
REMIC
I Remittance Rate
|
|
|
12
|
I-12-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-11-A
|
REMIC
I Remittance Rate
|
|
|
13
|
I-13-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-12-A
|
REMIC
I Remittance Rate
|
|
|
14
|
I-14-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-13-A
|
REMIC
I Remittance Rate
|
|
|
15
|
I-15-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-14-A
|
REMIC
I Remittance Rate
|
|
|
16
|
I-16-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-15-A
|
REMIC
I Remittance Rate
|
|
|
17
|
I-17-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-16-A
|
REMIC
I Remittance Rate
|
|
|
18
|
I-18-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-17-A
|
REMIC
I Remittance Rate
|
|
|
19
|
I-19-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-18-A
|
REMIC
I Remittance Rate
|
|
|
20
|
I-20-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-19-A
|
REMIC
I Remittance Rate
|
|
|
21
|
I-21-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-20-A
|
REMIC
I Remittance Rate
|
|
|
22
|
I-22-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-21-A
|
REMIC
I Remittance Rate
|
|
|
23
|
I-23-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-22-A
|
REMIC
I Remittance Rate
|
|
|
24
|
I-24-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-23-A
|
REMIC
I Remittance Rate
|
|
|
25
|
I-25-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-24-A
|
REMIC
I Remittance Rate
|
|
|
26
|
I-26-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-25-A
|
REMIC
I Remittance Rate
|
|
|
27
|
I-27-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-26-A
|
REMIC
I Remittance Rate
|
|
|
28
|
I-28-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-27-A
|
REMIC
I Remittance Rate
|
|
|
29
|
I-29-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-28-A
|
REMIC
I Remittance Rate
|
|
|
30
|
I-30-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-29-A
|
REMIC
I Remittance Rate
|
|
|
31
|
I-31-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-30-A
|
REMIC
I Remittance Rate
|
|
|
32
|
I-32-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-31-A
|
REMIC
I Remittance Rate
|
|
|
33
|
I-33-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-32-A
|
REMIC
I Remittance Rate
|
|
|
34
|
I-34-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-33-A
|
REMIC
I Remittance Rate
|
|
|
35
|
I-35-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-34-A
|
REMIC
I Remittance Rate
|
|
|
36
|
I-36-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-35-A
|
REMIC
I Remittance Rate
|
|
|
37
|
I-37-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-36-A
|
REMIC
I Remittance Rate
|
|
|
38
|
I-38-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-37-A
|
REMIC
I Remittance Rate
|
|
|
39
|
I-39-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-38-A
|
REMIC
I Remittance Rate
|
|
|
40
|
I-40-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-39-A
|
REMIC
I Remittance Rate
|
|
|
41
|
I-41-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-40-A
|
REMIC
I Remittance Rate
|
|
|
42
|
I-42-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-41-A
|
REMIC
I Remittance Rate
|
|
|
43
|
I-43-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-42-A
|
REMIC
I Remittance Rate
|
|
|
44
|
I-44-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-43-A
|
REMIC
I Remittance Rate
|
|
|
45
|
I-45-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-44-A
|
REMIC
I Remittance Rate
|
|
|
46
|
I-46-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-45-A
|
REMIC
I Remittance Rate
|
|
|
47
|
I-47-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-46-A
|
REMIC
I Remittance Rate
|
|
|
48
|
I-48-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-47-A
|
REMIC
I Remittance Rate
|
|
|
49
|
I-49-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-48-A
|
REMIC
I Remittance Rate
|
|
|
50
|
I-50-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-49-A
|
REMIC
I Remittance Rate
|
|
|
51
|
I-51-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-50-A
|
REMIC
I Remittance Rate
|
|
|
52
|
I-52-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-51-A
|
REMIC
I Remittance Rate
|
|
|
53
|
I-53-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-52-A
|
REMIC
I Remittance Rate
|
|
|
54
|
I-54-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-53-A
|
REMIC
I Remittance Rate
|
|
|
55
|
I-55-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-54-A
|
REMIC
I Remittance Rate
|
|
|
56
|
I-56-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-55-A
|
REMIC
I Remittance Rate
|
|
|
57
|
I-57-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-56-A
|
REMIC
I Remittance Rate
|
|
|
58
|
I-58-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-57-A
|
REMIC
I Remittance Rate
|
|
|
59
|
I-59-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-58-A
|
REMIC
I Remittance Rate
|
|
|
60
|
I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-59-A
|
REMIC
I Remittance Rate
|
|
|
thereafter
|
I-1-A
through I-60-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest II-LT2GRP, a per annum rate (but not less
than zero) equal to the weighted average of: (w) with respect to REMIC I Regular
Interest II, the REMIC I Remittance Rate for each such REMIC I Regular Interest
for each such Distribution Date, (x) with respect to REMIC I Group II
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 Balances of each such REMIC I Regular Interest
for
each such Distribution Date and (y) with respect to REMIC I Group II Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for such REMIC I Regular
Interests listed below, weighted on the basis of the Uncertificated Balances
of
each such REMIC I Regular Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1
|
II-1-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
2
|
II-2-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
|
REMIC
I Remittance Rate
|
|
|
3
|
II-3-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
and II-2-A
|
REMIC
I Remittance Rate
|
|
|
4
|
II-4-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-3-A
|
REMIC
I Remittance Rate
|
|
|
5
|
II-5-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-4-A
|
REMIC
I Remittance Rate
|
|
|
6
|
II-6-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-5-A
|
REMIC
I Remittance Rate
|
|
|
7
|
II-7-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-6-A
|
REMIC
I Remittance Rate
|
|
|
8
|
II-8-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-7-A
|
REMIC
I Remittance Rate
|
|
|
9
|
II-9-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-8-A
|
REMIC
I Remittance Rate
|
|
|
10
|
II-10-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-9-A
|
REMIC
I Remittance Rate
|
|
|
11
|
II-11-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-10-A
|
REMIC
I Remittance Rate
|
|
|
12
|
II-12-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-11-A
|
REMIC
I Remittance Rate
|
|
|
13
|
II-13-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-12-A
|
REMIC
I Remittance Rate
|
|
|
14
|
II-14-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-13-A
|
REMIC
I Remittance Rate
|
|
|
15
|
II-15-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-14-A
|
REMIC
I Remittance Rate
|
|
|
16
|
II-16-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-15-A
|
REMIC
I Remittance Rate
|
|
|
17
|
II-17-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-16-A
|
REMIC
I Remittance Rate
|
|
|
18
|
II-18-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-17-A
|
REMIC
I Remittance Rate
|
|
|
19
|
II-19-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-18-A
|
REMIC
I Remittance Rate
|
|
|
20
|
II-20-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-19-A
|
REMIC
I Remittance Rate
|
|
|
21
|
II-21-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-20-A
|
REMIC
I Remittance Rate
|
|
|
22
|
II-22-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-21-A
|
REMIC
I Remittance Rate
|
|
|
23
|
II-23-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-22-A
|
REMIC
I Remittance Rate
|
|
|
24
|
II-24-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-23-A
|
REMIC
I Remittance Rate
|
|
|
25
|
II-25-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-24-A
|
REMIC
I Remittance Rate
|
|
|
26
|
II-26-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-25-A
|
REMIC
I Remittance Rate
|
|
|
27
|
II-27-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-26-A
|
REMIC
I Remittance Rate
|
|
|
28
|
II-28-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-27-A
|
REMIC
I Remittance Rate
|
|
|
29
|
II-29-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-28-A
|
REMIC
I Remittance Rate
|
|
|
30
|
II-30-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-29-A
|
REMIC
I Remittance Rate
|
|
|
31
|
II-31-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-30-A
|
REMIC
I Remittance Rate
|
|
|
32
|
II-32-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-31-A
|
REMIC
I Remittance Rate
|
|
|
33
|
II-33-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-32-A
|
REMIC
I Remittance Rate
|
|
|
34
|
II-34-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-33-A
|
REMIC
I Remittance Rate
|
|
|
35
|
II-35-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-34-A
|
REMIC
I Remittance Rate
|
|
|
36
|
II-36-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-35-A
|
REMIC
I Remittance Rate
|
|
|
37
|
II-37-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-36-A
|
REMIC
I Remittance Rate
|
|
|
38
|
II-38-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-37-A
|
REMIC
I Remittance Rate
|
|
|
39
|
II-39-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-38-A
|
REMIC
I Remittance Rate
|
|
|
40
|
II-40-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-39-A
|
REMIC
I Remittance Rate
|
|
|
41
|
II-41-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-40-A
|
REMIC
I Remittance Rate
|
|
|
42
|
II-42-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-41-A
|
REMIC
I Remittance Rate
|
|
|
43
|
II-43-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-42-A
|
REMIC
I Remittance Rate
|
|
|
44
|
II-44-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-43-A
|
REMIC
I Remittance Rate
|
|
|
45
|
II-45-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-44-A
|
REMIC
I Remittance Rate
|
|
|
46
|
II-46-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-45-A
|
REMIC
I Remittance Rate
|
|
|
47
|
II-47-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-46-A
|
REMIC
I Remittance Rate
|
|
|
48
|
II-48-A
and II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-47-A
|
REMIC
I Remittance Rate
|
|
|
49
|
II-49-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-48-A
|
REMIC
I Remittance Rate
|
|
|
50
|
II-50-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-49-A
|
REMIC
I Remittance Rate
|
|
|
51
|
II-51-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-50-A
|
REMIC
I Remittance Rate
|
|
|
52
|
II-52-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-51-A
|
REMIC
I Remittance Rate
|
|
|
53
|
II-53-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-52-A
|
REMIC
I Remittance Rate
|
|
|
54
|
II-54-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-53-A
|
REMIC
I Remittance Rate
|
|
|
55
|
II-55-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-54-A
|
REMIC
I Remittance Rate
|
|
|
56
|
II-56-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-55-A
|
REMIC
I Remittance Rate
|
|
|
57
|
II-57-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-56-A
|
REMIC
I Remittance Rate
|
|
|
58
|
II-58-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-57-A
|
REMIC
I Remittance Rate
|
|
|
59
|
II-59-A
through II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-58-A
|
REMIC
I Remittance Rate
|
|
|
60
|
II-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-59-A
|
REMIC
I Remittance Rate
|
|
|
thereafter
|
II-1-A
through II-60-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest II-LTIO, and (a) the first Distribution
Date through the 60th Distribution
Date,
the excess of (i) the weighted average of the Uncertificated REMIC I
Pass-Through Rates for REMIC I Regular Interests including the designation
“SWAP”, over (ii) 2 multiplied by Swap LIBOR, and (b) thereafter,
0.00%.
“REMIC
II
Required Overcollateralized Amount”: 0.50% of the Overcollateralization Target
Amount.
“REMIC
II
Subordinated Balance Ratio”: The ratio among the Uncertificated Balance of each
REMIC II Regular Interest ending with the designation “SUB,” equal to the ratio
among, with respect to each such REMIC II Regular Interest, the excess of (x)
the aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan
Group over (y) the current Certificate Principal Balance of the Class A
Certificates in the related Loan Group.
“REMIC
II
Sub WAC Allocation Percentage”: 50% of any amount payable or loss attributable
from the Mortgage Loans, which shall be allocated to REMIC II Regular Interest
II-LT1SUB, REMIC II Regular Interest II-LT1GRP, REMIC II Regular Interest
II-LT2SUB, REMIC II Regular Interest II-LT2GRP and REMIC II Regular Interest
II-LTXX.
“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
XXXXX X.
“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, (ii) payable or reimbursable to the related
Servicer pursuant to Section 3.23(d) for unpaid Servicing 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 or (iii) payable
to
the Master Servicer pursuant to Section 3A.09 for unpaid Master Servicing Fees
in respect of 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 Xxxxxx Xxx 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.
“Reuters
Screen LIBOR01 Page” means the display page currently so designated on the
Reuters Monitor Money Rates Service (or such other page as may replace that
page
on that service for the purpose of displaying comparable rates or
prices).
“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 XxXxxx-Xxxx Companies, Inc., or
its successor in interest.
“Xxxxxxxx-Xxxxx
Act”: The Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of
the Commission promulgated thereunder (including any interpretations thereof
by
the Commission’s staff).
“Xxxxxxxx-Xxxxx
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”: With respect to any Distribution
Date, the sum of (i) the Group I Senior Principal Distribution Amount and (ii)
the Group II Senior Principal Distribution Amount.
“Servicer”:
Xxxxxx XxxXx, with respect to the HomEq Mortgage Loans or Option One Mortgage
Corporation, with respect to the Option One 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 Option One Mortgage Corporation and
any Distribution Date, the Servicer Remittance Date is the later of (i) the 18th
day of each month or, if such
18th
day is not a Business Day, the Business
Day immediately following such 18th
day and (ii) the second Business
Day following the related Determination Date. With respect to HomEq
and
any Distribution Date, the Servicer Remittance Date is the 18th
day of each month or, if such
18th
day is not a Business Day, the Business
Day immediately following such 18th
day.
“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 the Mortgage Loans serviced by HomEq, the
rate of 0.5000% per annum; with respect to the Mortgage Loans serviced by Option
One Mortgage Corporation, the rate of 0.3000%
per
annum for the first 10 Due Periods,
0.4000%
per annum for the 11th
through 30th
Due Periods and 0.6500%
per
annum for all Due Periods
thereafter.
“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 September 2010
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 49.90%.
“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”:
Xxxxx 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”: Xxxxx
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 the 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 Bear Xxxxxxx
Financial Products Inc.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party (as defined in the Interest Rate Swap Agreement).
“Swap
Termination Payment”: The payment due under the Interest Rate Swap Agreement
upon the early termination of the Interest Rate Swap Agreement.
“Tax
Returns”: The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders
of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be
filed
on behalf of the Trust Fund due to the classification of portions thereof as
REMICs under the REMIC Provisions, together with any and all other information
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
“Termination
Price”: As defined in Section 9.01.
“Terminator”:
As defined in Section 9.01.
“Transfer”:
Any direct or indirect transfer, sale, pledge, hypothecation, or other form
of
assignment of any Ownership Interest in a Certificate.
“Transferee”:
Any Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”:
Any Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution
Date on or after the Stepdown Date if:
(a) the
Rolling Three Month Delinquency Percentage exceeds 32.06% of the Credit
Enhancement Percentage; or
(b) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (reduced by the aggregate amount of
Subsequent Recoveries received since the Cut-off Date through the last day
of
the related Due Period) divided by the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date exceeds the applicable percentages set
forth below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
September
2009 through August
2010
|
1.60%
for the first month, plus an
additional 1/12th of 2.00% for each month
thereafter
|
|
September
2010 through August
2011
|
3.60%
for the first month, plus an
additional 1/12th of 2.20% for each month
thereafter
|
|
September
2011 through August
2012
|
5.80%
for the first month, plus an
additional 1/12th of 1.75% for each month
thereafter
|
|
September
2012 through August
2013
|
7.55%
for the first month, plus an
additional 1/12th of 1.00% for each month
thereafter
|
|
September
2013 and
thereafter
|
8.55%
|
“Trust
Administrator”: Wells Fargo, or any successor in interest, or any
successor trust administrator appointed as xxxxxx provided.
“Trust
Fund”: Collectively, all of the assets of REMIC I, REMIC II, XXXXX XXX, 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, XXXXX XXX, 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 I-60-A and II-1-A through II-60-A
|
|
2
|
I-2-A
through I-60-A and II-2-A through II-60-A
|
|
3
|
I-3-A
through I-60-A and II-3-A through II-60-A
|
|
4
|
I-4-A
through I-60-A and II-4-A through II-60-A
|
|
5
|
I-5-A
through I-60-A and II-5-A through II-60-A
|
|
6
|
I-6-A
through I-60-A and II-6-A through II-60-A
|
|
7
|
I-7-A
through I-60-A and II-7-A through II-60-A
|
|
8
|
I-8-A
through I-60-A and II-8-A through II-60-A
|
|
9
|
I-9-A
through I-60-A and II-9-A through II-60-A
|
|
10
|
I-10-A
through I-60-A and II-10-A through II-60-A
|
|
11
|
I-11-A
through I-60-A and II-11-A through II-60-A
|
|
12
|
I-12-A
through I-60-A and II-12-A through II-60-A
|
|
13
|
I-13-A
through I-60-A and II-13-A through II-60-A
|
|
14
|
I-14-A
through I-60-A and II-14-A through II-60-A
|
|
15
|
I-15-A
through I-60-A and II-15-A through II-60-A
|
|
16
|
I-16-A
through I-60-A and II-16-A through II-60-A
|
|
17
|
I-17-A
through I-60-A and II-17-A through II-60-A
|
|
18
|
I-18-A
through I-60-A and II-18-A through II-60-A
|
|
19
|
I-19-A
through I-60-A and II-19-A through II-60-A
|
|
20
|
I-20-A
through I-60-A and II-20-A through II-60-A
|
|
21
|
I-21-A
through I-60-A and II-21-A through II-60-A
|
|
22
|
I-22-A
through I-60-A and II-22-A through II-60-A
|
|
23
|
I-23-A
through I-60-A and II-23-A through II-60-A
|
|
24
|
I-24-A
through I-60-A and II-24-A through II-60-A
|
|
25
|
I-25-A
through I-60-A and II-25-A through II-60-A
|
|
26
|
I-26-A
through I-60-A and II-26-A through II-60-A
|
|
27
|
I-27-A
through I-60-A and II-27-A through II-60-A
|
|
28
|
I-28-A
through I-60-A and II-28-A through II-60-A
|
|
29
|
I-29-A
through I-60-A and II-29-A through II-60-A
|
|
30
|
I-30-A
through I-60-A and II-30-A through II-60-A
|
|
31
|
I-31-A
through I-60-A and II-31-A through II-60-A
|
|
32
|
I-32-A
through I-60-A and II-32-A through II-60-A
|
|
33
|
I-33-A
through I-60-A and II-33-A through II-60-A
|
|
34
|
I-34-A
through I-60-A and II-34-A through II-60-A
|
|
35
|
I-35-A
through I-60-A and II-35-A through II-60-A
|
|
36
|
I-36-A
through I-60-A and II-36-A through II-60-A
|
|
37
|
I-37-A
through I-60-A and II-37-A through II-60-A
|
|
38
|
I-38-A
through I-60-A and II-38-A through II-60-A
|
|
39
|
I-39-A
through I-60-A and II-39-A through II-60-A
|
|
40
|
I-40-A
through I-60-A and II-40-A through II-60-A
|
|
41
|
I-41-A
through I-60-A and II-41-A through II-60-A
|
|
42
|
I-42-A
through I-60-A and II-42-A through II-60-A
|
|
43
|
I-43-A
through I-60-A and II-43-A through II-60-A
|
|
44
|
I-44-A
through I-60-A and II-44-A through II-60-A
|
|
45
|
I-45-A
through I-60-A and II-45-A through II-60-A
|
|
46
|
I-46-A
through I-60-A and II-46-A through II-60-A
|
|
47
|
I-47-A
through I-60-A and II-47-A through II-60-A
|
|
48
|
I-48-A
through I-60-A and II-48-A through II-60-A
|
|
49
|
I-49-A
through I-60-A and II-49-A through II-60-A
|
|
50
|
I-50-A
through I-60-A and II-50-A through II-60-A
|
|
51
|
I-51-A
through I-60-A and II-51-A through II-60-A
|
|
52
|
I-52-A
through I-60-A and II-52-A through II-60-A
|
|
53
|
I-53-A
through I-60-A and II-53-A through II-60-A
|
|
54
|
I-54-A
through I-60-A and II-54-A through II-60-A
|
|
55
|
I-55-A
through I-60-A and II-55-A through II-60-A
|
|
56
|
I-56-A
through I-60-A and II-56-A through II-60-A
|
|
57
|
I-57-A
through I-60-A and II-57-A through II-60-A
|
|
58
|
I-58-A
through I-60-A and II-58-A through II-60-A
|
|
59
|
I-59-A
through I-60-A and II-59-A through II-60-A
|
|
60
|
I-60-A
and II-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 Xxxxxx Xxx and Freddie 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. The Class X Certificates shall have no Voting
Rights.
“Xxxxx
Fargo”: Xxxxx Fargo Bank, N.A.
|
SECTION
1.02.
|
Allocation
of Certain Interest Shortfalls.
|
For
purposes of calculating the amount of the Monthly Interest Distributable Amount
for the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates for any Distribution Date, (1) the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by Compensating
Interest Payments by the Servicer or the Master Servicer) and any Relief Act
Interest Shortfall incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to the Class CE Certificates based
on, and to the extent of, one month’s interest at the then applicable respective
Pass-Through Rate on the respective Notional Amount of each such Certificate
and, thereafter, among the Class A Certificates and the Mezzanine Certificates
on a pro rata basis based on, and to the extent of, one month’s
interest at the then applicable respective Pass-Through Rate on the respective
Certificate Principal Balance of each such Certificate and (2) the aggregate
amount of any Realized Losses and Net WAC Rate Carryover Amounts incurred for
any Distribution Date shall be allocated to the Class CE Certificates based
on,
and to the extent of, one month’s interest at the then applicable respective
Pass-Through Rate on the respective Notional Amount of each such
Certificate.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
I
Group 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 Loan Group I shall be allocated first, to REMIC I Regular
Interest I and to the REMIC I Group 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 Group 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 I Group II 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 Loan Group II
shall be allocated first, to REMIC I Regular Interest II and to the REMIC I
Group II 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 Group II 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:
(A) The
REMIC II Marker Allocation Percentage of the aggregate amount of any Prepayment
Interest Shortfalls (to the extent not covered by payments by the Servicer
pursuant to Section 3.24) and the REMIC II Marker Allocation Percentage of
the
aggregate amount of 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 and REMIC II Regular Interest
II-LTZZ, 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
Uncertificated Balance of each such REMIC II Regular Interest; and
(B) The
REMIC II Sub WAC Allocation Percentage of the aggregate amount of any Prepayment
Interest Shortfalls (to the extent not covered by payments by the Servicer
pursuant to Section 3.24) and the REMIC II Sub WAC Allocation Percentage of
the
aggregate amount of any Relief Act Interest Shortfalls incurred in respect
of
the Mortgage Loans for any Distribution Date shall be allocated to
Uncertificated Interest payable to REMIC II Regular Interest II-LT1SUB, REMIC
II
Regular Interest II-LT1GRP, REMIC II Regular Interest II-LT2SUB, REMIC II
Regular Interest II-LT2GRP and REMIC II Regular Interest II-LTXX, 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
Uncertificated Balance 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 Originator 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
Xxxxxx Xxx 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.
Option
One Mortgage Corporation, 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:
(i) Option
One Mortgage Corporation 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 Option One Mortgage
Corporation or to ensure the enforceability or validity of each Mortgage
Loan;
(ii) Option
One Mortgage Corporation 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. Option One Mortgage Corporation 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 Option One Mortgage Corporation, enforceable against
Option One Mortgage Corporation 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;
(iii) The
execution and delivery of this Agreement by Option One Mortgage Corporation,
the
servicing of the related Mortgage Loans by Option One Mortgage Corporation
hereunder, the consummation by Option One Mortgage Corporation 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 Option One Mortgage
Corporation and will not (A) result in a breach of any term or provision of
the
charter or by-laws of Option One Mortgage Corporation 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 Option One
Mortgage Corporation is a party or by which it may be bound, or any statute,
order or regulation applicable to Option One Mortgage Corporation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over Option One Mortgage Corporation; and Option One Mortgage Corporation 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
Option One Mortgage Corporation 's knowledge, would in the future materially
and
adversely affect, (x) the ability of Option One Mortgage Corporation to perform
its obligations under this Agreement, (y) the business, operations, financial
condition, properties or assets of Option One Mortgage Corporation taken as
a
whole or (z) the legality, validity or enforceability of this
Agreement;
(iv) Option
One Mortgage Corporation is a HUD approved mortgagee pursuant to Section 203
and
Section 211 of the National Housing Act and is an approved seller/servicer
for
Xxxxxx Xxx or Freddie Mac in good standing. No event has occurred, including
but
not limited to a change in insurance coverage, that would make Option One
Mortgage Corporation unable to comply with HUD eligibility requirements or
that
would require notification to HUD;
(v) Option
One Mortgage Corporation 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 Option One Mortgage Corporation that would
materially and adversely affect the execution, delivery or enforceability of
this Agreement or the ability of Option One Mortgage Corporation to service
the
Mortgage Loans serviced by it or 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, Option
One
Mortgage Corporation 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 Option
One
Mortgage Corporation of its obligations under, or the validity or enforceability
of, this Agreement;
(viii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Option One
Mortgage Corporation of, or compliance by Option One Mortgage Corporation 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
(ix) Option
One Mortgage Corporation 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
Xxxxxx Xxx or Freddie 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 Swap
Agreement.
|
(a) [Reserved].
(b) The
Trust
Administrator, not in its individual capacity but solely in its capacity as
Supplemental Interest Trust Trustee, is hereby directed to exercise the rights,
perform the obligations, and make any representations to be exercised,
performed, or made by the Supplemental Interest Trust Trustee as described
herein. The 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 (as defined therein) solely as Supplemental
Interest Trust Trustee 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 Swap Administrator shall also be entitled to exercise
the
rights and 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, (v) the Servicer
has not received information and documentation sufficient to confirm the
existence or amount of such Prepayment Charge or (vi) the mortgage debt has
been
accelerated in connection with a foreclosure or other involuntary
payment. If a Prepayment Charge is waived as permitted by meeting the
standard described in clauses (ii), (iii), (iv), (v) or (vi) 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), (v) or (vi) 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 reasonably 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.
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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 Freddie
Mac or Xxxxxx Xxx 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 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 and acceptance 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 and acceptance 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 and acceptance 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 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).
(c) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. Option One Mortgage
Corporation, 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, 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
4.03:
(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
and any unpaid Servicing Fees 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 maximum insurable
value of the improvements which are a part of such property, (ii) the
outstanding Principal Balance of the related Mortgage Loan at the time it became
an REO Property and (iii) the maximum insurable value of the improvements which
are part of such REO Property. The Servicer will comply in the
performance of this Agreement with all reasonable rules and requirements of
each
insurer under any such hazard policies. Any amounts to be collected
by the Servicer under any such policies (other than amounts to be applied to
the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Servicer would follow in servicing loans held for its own account, subject
to
the terms and conditions of the related Mortgage and Mortgage Note) shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.11, if received in respect of a Mortgage Loan, or in the REO Account, subject
to withdrawal pursuant to Section 3.23, if received in respect of an REO
Property. Any cost incurred by the Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
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
Xxxxxx Xxx or Freddie Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from Xxxxxx Xxx or
Freddie Mac. The Servicer shall also maintain a fidelity bond in the
form and amount that would meet the requirements of Xxxxxx Xxx or Freddie Mac,
unless the Servicer has obtained a waiver of such requirements from Xxxxxx
Xxx
or Freddie 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) (i) 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. With respect to any such Charged-Off Mortgage Loan,
the
Servicer may, with the consent of the Depositor, select a Subcontractor to
service such charged off Mortgage Loan on behalf of the Trust and compensation
to such Subcontractor may be limited to a portion of collections, if any,
received on such charged off Mortgage Loan.
(ii) The
Servicer will not be entitled to any Servicing Fees or reimbursement of expenses
in connection with such Charged-Off Loans except to the extent of funds
available from the aggregate amount of recoveries on such Charged-Off Loan
which
shall be paid to the Servicer as any accrued and unpaid Servicing Fees and
reimbursement of expenses. With respect to any Charged-Off Loan, the
Servicer will only be entitled to accrued Servicing Fees and reimbursement
of
expenses incurred as of the date of charge off and will not be entitled to
receive any future unaccrued Servicing Fees or expenses from collections on
such
Charged-Off Loans. Any recoveries on such Charged-Off Loans (net of accrued
and
unpaid Servicing Fees for the number of full Monthly Payments collected and
out-of-pocket expenses) will be treated as Liquidation Proceeds distributable
by
the Trust Administrator to the Holders of the Class X Certificates pursuant
to
Section 4.01(i).
Upon
the
request of the majority Holder of the Class X Certificates, any Charged-Off
Loan
will be transferred to such Holder, without recourse (a “Released Loan”) and
thereafter (i) such Holder will be entitled to any amounts subsequently received
in respect of any such Charged-Off Loans, (ii) the majority Holder of the Class
X Certificates may designate any servicer to service any such Released Loan
and
(iii) the majority Holder of the Class X Certificates may sell any such
Charged-Off Loan to a third party. With respect to any Released Loan,
the Trustee, upon receipt of a Request for Release, shall release (or cause
the
Custodian to release) to the majority Holder of the Class X Certificates the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as shall be furnished to it and
as
shall be necessary to vest in the majority Holder of the Class X Certificates
any Released Loan and the Trustee shall have no further responsibility with
regard to such Mortgage File (it being understood that the Trustee shall have
no
responsibility for determining the sufficiency of such assignment for its
intended purpose).
Notwithstanding
the foregoing, the procedures described above in this subsection 3.16(a)(ii)
relating to the treatment of Charged-Off Loans may be modified at any time
at
the discretion of the Holders of a majority Percentage Interest of the Class
X
Certificates, with the reasonable consent of the Servicer.
(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.
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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.
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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 2008, 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.
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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 2008, 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 2008, 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.
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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.
To
the
extent the Servicer has serviced the Mortgage Loans during the sixty (60) day
period prior to the Cut-off Date, 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.
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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.
|
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.
Notwithstanding
the foregoing, (a) with respect to any Fixed-Rate Mortgage Loan, Option One
Mortgage Corporation as Servicer may solicit the Mortgagor for the purpose
of
refinancing such Mortgage Loan, beginning sixty (60) days prior to the later
of
(i) the expiration of the related Prepayment Charge term, if applicable, and
(ii) twenty-four (24) months following origination of such Mortgage Loan, and
(b) with respect to any Adjustable-Rate Mortgage Loan, Option One Mortgage
Corporation as Servicer as may solicit the Mortgagor for the purpose of
refinancing such Mortgage Loan, beginning sixty (60) days prior to the later
of
(i) the expiration of the related Prepayment Charge term, if applicable, and
(ii) the expiration of any applicable fixed rate period.
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 Servicing 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 Servicing 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 Servicing 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 Servicing 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:
With
respect to the Group I Mortgage Loans:
(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 the product of (a) any Overcollateralization
Reduction Amounts multiplied by (b) a fraction, the numerator of which is the
aggregate Stated Principal Balance of the Group I Mortgage Loans and the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans, 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-60-B, (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.
With
respect to the Group II Mortgage Loans:
(i) to
Holders of REMIC I Regular Interest II and each of REMIC I Regular Interest
II-1-A through II-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 II and then to REMIC I Regular Interests II-1-A through
II-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 the product of any
Overcollateralization Reduction Amounts multiplied by (b) a fraction, the
numerator of which is the aggregate Stated Principal Balance of the Group II
Mortgage Loans and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans, 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) On
each
Distribution Date, 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 shall be distributed by REMIC
I to
the Holders of REMIC I Regular Interest II-60-B. The payment of the foregoing
amounts to the Holders of REMIC I Regular Interest I-LTP shall not reduce the
Uncertificated Balance thereof.
(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-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 and REMIC II Regular Interest II-LTM10 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
Holders of REMIC II Regular Interest II-LT1SUB, REMIC II Regular Interest
II-LT1GRP, REMIC II Regular Interest II-LT2SUB, REMIC II Regular Interest
II-LT2GRP and REMIC II Regular Interest II-LTXX, 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;
(iv) to
the
Holders of the REMIC II Regular Interests, in an amount equal to the remainder
of the REMIC II Marker Allocation Percentage of 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 and REMIC
II Regular Interest II-LTP, until the Uncertificated Balance of such REMIC
II
Regular Interests are reduced to zero; provided, however, that REMIC II Regular
Interest II-LTP shall not be reduced until the Distribution Date immediately
following the expiration of the latest Prepayment Charge as identified on the
Prepayment Charge Schedule or any Distribution Date thereafter, at which point
such amount shall be distributed to REMIC II Regular Interest II-LTP, until
$100
has been distributed pursuant to this clause;
(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, 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-LTP, in that order and (ii) REMIC II Regular Interest II-LTZZ, respectively;
provided that REMIC II Regular Interest II-LTP shall not be reduced until the
Distribution Date immediately following the expiration of the latest Prepayment
Charge as identified on the Prepayment Charge Schedule or any Distribution
Date
thereafter, at which point such amount shall be distributed to REMIC II Regular
Interest II-LTP, until $100 has been distributed pursuant to this
clause.
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.
(v) to
the
Holders of REMIC II Regular Interests, in an amount equal to the remainder
of
the REMIC II Sub WAC Allocation Percentage of Available Funds for such
Distribution Date after the distributions made pursuant to clause (i) above,
allocated so that distributions of principal shall be deemed to be made to
the
REMIC II Regular Interests first, so as to keep the Uncertificated Balance
of
each REMIC II Regular Interest ending with the designation “GRP” equal to 0.01%
of the aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group; second, to each REMIC II Regular Interest ending with the
designation “SUB,” so that the Uncertificated Balance of each such REMIC II
Regular Interest is equal to 0.01% of the excess of (x) the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group over (y)
the
Certificate Principal Balance of the Class A Certificate in the related Loan
Group (except that if any such excess is a larger number than in the preceding
distribution period, the least amount of principal shall be distributed to
such
REMIC II Regular Interests such that the REMIC II Subordinated Balance Ratio
is
maintained); and third, any remaining principal to REMIC II Regular Interest
II-LTXX.
Notwithstanding
the priorities and amounts of distribution of funds pursuant to Sections 4.01(a)
or 4.01(b), actual distributions of Available Funds shall be made only in
accordance with Sections 4.01(iii),(iv) or (v).
On
each
Distribution Date, 100% of the amounts distributed on REMIC II Regular Interest
II-LTIO shall be deemed distributed by REMIC II to REMIC III in respect of
the
Class Swap-IO Interest. Such amounts shall be deemed distributed by REMIC III
to
REMIC VI Regular Interest SWAP-IO and from REMIC VI Regular Interest SWAP-IO
to
the Swap Administrator for deposit into the Swap Account.
(c) (I) 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 Group I 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 Group I Interest Remittance Amount remaining
for such Distribution Date:
(i) to
the
Holders of the Group I Certificates, the related Monthly Interest Distributable
Amount and the related Unpaid Interest Shortfall Amount, if any, for such
Certificates for such Distribution Date; and
(ii) concurrently,
to the Holders of the Group II Certificates, on a pro rata basis, based
on the entitlement of each such Class, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(c)(II)(i)
for
such Distribution Date over (y) the amount actually distributed pursuant to
such
section from the Group II Interest Remittance Amount.
(II) 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 Group II 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 Group II Interest Remittance Amount
remaining for such Distribution Date:
(i) concurrently,
to the Holders of the Group II Certificates, on a pro rata basis
based on the entitlement of each such Class, the related Monthly Interest
Distributable Amount and the related Unpaid Interest Shortfall Amount, if any,
for such Certificates for such Distribution Date; and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(c)(I)(i)
for
such Distribution Date over (y) the amount actually distributed pursuant to
such
section from the Group I Interest Remittance Amount.
(III) On
each Distribution Date, following the distributions made pursuant to Section
4.01(c)(I) and Section 4.01(c)(II) above, the Trust Administrator shall
distribute, in each case to the extent of the sum of the Group I Interest
Remittance Amount and the Group II Interest Remittance Amount remaining
undistributed for such Distribution Date, sequentially to the Holders of the
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 and Class M-10 Certificates, in that order, in an amount
equal to the Monthly Interest Distributable Amount for each such
Class.
(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
Group I Principal Distribution Amount shall be made in the following amounts
and
order of priority:
(i) first,
to
the Holders of the Group I Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and
(ii) second,
to the Holders of the Group II Certificates (allocated among the Group II
Certificates in the priority described below), after taking into account the
distribution of the Group II Principal Distribution Amount already distributed,
until the Certificate Principal Balances thereof have been reduced to
zero.
(II) 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
Group II Principal Distribution Amount shall be made in the following amounts
and order of priority:
(iii) first,
to
the Holders of the Group II Certificates (allocated among the Group II
Certificates in the priority described below), until the Certificate Principal
Balances thereof have been reduced to zero; and
(iv) second,
to the Holders of the Group I Certificates, after taking into account the
distribution of the Group I Principal Distribution Amount already distributed
until the Certificate Principal Balance thereof has been reduced to
zero.
(III) 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
sum of the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
made sequentially to the Holders of the 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 and Class M-10
Certificates, in that order, in each case, until the Certificate Principal
Balance of each such Class has been reduced to zero.
(IV) 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 Group I Principal Distribution Amount shall be made in the
following amounts and order of priority:
(v) first,
to
the Holders of the Group I Certificates, the Group I Senior Principal
Distribution Amount until the Certificate Principal Balance thereof has been
reduced to zero; and
(vi) second,
to the Holders of the Group II Certificates (allocated among the Group II
Certificates in the priority described below), the remaining undistributed
Group
II Senior Principal Distribution Amount, after taking into account the
distribution of the Group II Principal Distribution Amount, up to an amount
equal to the Group II Senior Principal Distribution Amount remaining
undistributed, until the Certificate Principal Balances thereof have been
reduced to zero.
(V) 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 Group II Principal Distribution Amount shall be made in the
following amounts and order of priority:
(i) first,
to
the Holders of the Group II Certificates (allocated among the Group II
Certificates in the priority described below), the Group II Senior Principal
Distribution Amount until the Certificate Principal Balances thereof have been
reduced to zero; and
(ii) second,
to the Holders of the Group I Certificates, the remaining undistributed Group
I
Senior Principal Distribution Amount, after taking into account the distribution
of the Group I Principal Distribution Amount, up to an amount equal to the
Group
I Senior Principal Distribution Amount remaining undistributed, until the
Certificate Principal Balance thereof has been reduced to zero.
(VI) 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 sum of the Group I Principal Distribution Amount and the Group
II
Principal Distribution Amount remaining undistributed for such Distribution
Date
shall be made in the following amounts and order of priority:
(i) to
the
Holders of the Class M-1 Certificates, the Class M-1 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(ii) to
the
Holders of the Class M-2 Certificates, the Class M-2 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iii) to
the
Holders of the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) 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;
and
(x) 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.
With
respect to the Group II Certificates, all principal distributions will be
distributed sequentially, to the Class A-2 Certificates, Class A-3 Certificates
and Class A-4 Certificates, in that order, until their respective Certificate
Principal Balances have been reduced to zero; provided, however, on any
Distribution Date on which the aggregate Certificate Principal Balance of the
Mezzanine Certificates and the Class CE Certificates has been reduced to zero,
all principal distributions will be distributed concurrently, to the Class
A-2
Certificates, Class A-3 Certificates and 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 Swap Agreement, distributable to such Holders as part of
the
Group I Principal Distribution Amount and/or the Principal Distribution Amount,
as applicable, as described under Section 4.01(d) 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 and Class M-10 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 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 and Class
M-10
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;
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 Group I Interest Remittance Amount
and/or the Group II 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 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 and Class M-10 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
Group I Interest Remittance Amount and/or the Group II 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
Group I Principal Distribution Amount or the Group II Principal Distribution
Amount, remaining undistributed after distribution of the Net Monthly Excess
Cashflow;
(iv) sequentially
to the 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 and Class M-10 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 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; and
(vi) sequentially,
to the 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 and Class M-10 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.
(h) [Reserved].
(i) Distributions
made with respect to each Class of Certificates on each Distribution Date shall
be allocated pro rata among the outstanding Certificates in such Class
based on their respective Percentage Interests. Distributions in
respect of each Class of Certificates on each Distribution Date will be made
to
the Holders of the respective Class of record on the related Record Date (except
as otherwise provided in Section 4.01(d) or Section 9.01 respecting
the final distribution on such Class), based on the aggregate Percentage
Interest represented by their respective Certificates, and shall be made by
wire
transfer of immediately available funds to the account of any such Holder at
a
bank or other entity having appropriate facilities therefor, if such Holder
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Certificates having an initial aggregate Certificate
Principal Balance or Notional Amount that is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the initial Certificate Principal Balance
or
Notional Amount of such Class of Certificates, or otherwise by check mailed
by
first class mail to the address of such Holder appearing in the Certificate
Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender of such Certificate at
the
Corporate Trust Office of the Trust Administrator or such other location
specified in the notice to Certificateholders of such final
distribution.
On
each
Distribution Date, all amounts representing collections in respect of the
Charged-Off Loans serviced by the Servicer pursuant to this Agreement and
received during the related Prepayment Period will be withdrawn from the
Distribution Account and distributed by the Trust Administrator to the Holders
of the Class X Certificates and shall not be available for distribution to
the
Holders of any other Class of Certificates.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. None
of the Trustee, the Trust Administrator, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law.
(j) The
rights of the Certificateholders to receive distributions in respect of the
Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Agreement. None of the Holders of any
Class of Certificates, the Trustee, the Trust Administrator or the Master
Servicer shall in any way be responsible or liable to the Holders of any other
Class of Certificates in respect of amounts properly previously distributed
on
the Certificates.
(k) Except
as
otherwise provided in Section 9.01, whenever the Trust Administrator
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Trust Administrator shall,
no
later than three (3) days before the related Distribution Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect
that:
(i) the
Trust
Administrator expects that the final distribution with respect to such Class
of
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Trust Administrator
therein specified, and
(ii) no
interest shall accrue on such Certificates from and after the end of the related
Accrual Period.
Any
funds
not distributed to any Holder or Holders of Certificates of such Class on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust by the
Trust Administrator and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(k) 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(k). Any such amounts held in trust by the Trust
Administrator shall be held in an Eligible Account and the Trust Administrator
may direct any depository institution maintaining such account to invest the
funds in one or more Permitted Investments. All income and gain
realized from the investment of funds deposited in such accounts held in trust
by the Trust Administrator shall be for the benefit of the Trust Administrator;
provided, however, that the Trust Administrator shall deposit in such account
the amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon the realization
of
such loss.
(l) Notwithstanding
anything to the contrary herein, (i) in no event shall the Certificate Principal
Balance of a Class A Certificate or a Mezzanine Certificate be reduced more
than
once in respect of any particular amount both (a) allocated to such Certificate
in respect of Realized Losses pursuant to Section 4.04 and (b) distributed
to the Holder of such Certificate in reduction of the Certificate Principal
Balance thereof pursuant to this Section 4.01 from Net Monthly Excess
Cashflow and (ii) in no event shall the Uncertificated Balance of a REMIC I
Regular Interest be reduced more than once in respect of any particular amount
both (a) allocated to such REMIC I Regular Interest in respect of Realized
Losses pursuant to Section 4.04 and (b) distributed on such REMIC I Regular
Interest in reduction of the Uncertificated Balance thereof pursuant to this
Section 4.01.
|
SECTION
4.02.
|
Statements
to Certificateholders.
|
On
each
Distribution Date, based (in part), as applicable, on information provided
to
the Trust Administrator by the Master Servicer (which in turn shall be based
(in
part), as applicable, on information provided to the Master Servicer by 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, the Swap Provider 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 a loan level data file with mortgage
data elements as mutually agreed upon by the Trust Administrator and the
recipients (and, at the Trust Administrator’s option, any additional files
containing the same information in an alternative format) available each month
to Certificateholders, the Master Servicer, each Servicer, the Depositor, the
Swap Provider and the Rating Agencies via the Trust Administrator’s internet
website. The Trust Administrator’s internet website shall initially
be located at “xxx.xxxxxxx.xxx”. Assistance in using the website can
be obtained by calling the Trust Administrator’s customer service desk at (000)
000-0000. 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
2007, 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 2007, 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 2007, 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 Option One Mortgage Corporation as Servicer, no later
than
the 2nd Business Day (Pacific Time) following the Determination Date, the
related 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 the Class CE Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; fourth, to the Class M-10
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; fifth, to the Class M-9 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; sixth, to the Class M-8 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero;
seventh, to the Class M-7 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; eighth, to the Class M-6 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; ninth,
to
the Class M-5 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; tenth, to the Class M-4 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eleventh, to
the
Class M-3 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; twelfth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and thirteenth, to the
Class
M-1 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero. All Realized Losses to be allocated to the
Certificate Principal Balances of all Classes on any Distribution Date shall
be
so allocated after the actual distributions to be made on such date as provided
above. All references above to the Certificate Principal Balance of
any Class of Certificates shall be to the Certificate Principal Balance of
such
Class immediately prior to the relevant Distribution Date, before reduction
thereof by any Realized Losses, in each case to be allocated to such Class
of
Certificates, on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof by
the
amount so allocated; any allocation of Realized Losses to a Class CE Certificate
shall be made by reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(a)(5)(iv). No allocations of any
Realized Losses shall be made to the Certificate Principal Balances of the
Class
A Certificates or the Class P Certificates.
As
used
herein, an allocation of a Realized Loss on a “pro rata basis” among
two or more specified Classes of Certificates means an allocation on a pro
rata basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such Distribution
Date. All Realized Losses and all other losses allocated to a Class
of Certificates hereunder will be allocated among the Certificates of such
Class
in proportion to the Percentage Interests evidenced thereby.
(c) All
Realized Losses on the Group I Mortgage Loans shall be allocated by the Trust
Administrator on each Distribution Date first, to REMIC I Regular Interest
I
until the Uncertificated Balance of such REMIC I Regular Interest has been
reduced to zero and second, to REMIC I Regular Interest I-1-A through REMIC
I
Regular Interest I-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. All Realized Losses on the Group II
Mortgage Loans shall be allocated on each Distribution Date first, to REMIC
I
Regular Interest II until the Uncertificated Balance of such REMIC I Regular
Interest has been reduced to zero and second, to REMIC I Regular Interest II-1-A
through REMIC I Regular Interest II-60-B, starting with the lowest numerical
denomination until such REMIC I Regular Interest has been reduced to zero,
provided that, for REMIC I Regular Interests with the same numerical
denomination, such Realized Losses shall be allocated pro rata between
such REMIC I Regular Interests.
The
REMIC
II Marker Percentage of 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-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; fourth, 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; fifth, 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; sixth, 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; seventh, 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; eighth, 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; ninth, 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; tenth, 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; and
eleventh, to the Uncertificated Balances of REMIC II Regular Interest II-LTAA,
REMIC II Regular Interest II-LTM2 and REMIC II Regular Interest II-LTZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Balance of REMIC II Regular
Interest II-LTM2 has been reduced to zero; and fourteenth, to the Uncertificated
Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM1
and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Balance of REMIC II Regular Interest II-LTM1 has been reduced
to
zero.
|
SECTION
4.05.
|
Compliance
with Withholding Requirements.
|
Notwithstanding
any other provision of this Agreement, the Trust Administrator shall comply
with
all federal withholding requirements respecting payments to Certificateholders
of interest or original issue discount that the Trust Administrator reasonably
believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the
event the Trust Administrator does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant
to
federal withholding requirements, the Trust Administrator shall indicate the
amount withheld to such Certificateholders.
|
SECTION
4.06.
|
Exchange
Commission Filings; Additional
Information.
|
(a) (i)
Within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Trust Administrator shall, in accordance with
industry standards, prepare and file with the Commission via the Electronic
Data
Gathering and Retrieval System (“XXXXX”), 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 XXXXX-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 XXXXX-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 2008, 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
Xxxxxxxx-Xxxxx 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 2008, (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 XXXXX-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 Xxxxxxxx-Xxxxx Certification, substantially in the form
set
forth in Exhibit J-1 attached hereto, required to be included therewith pursuant
to the Xxxxxxxx-Xxxxx 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 Xxxxxxxx-Xxxxx
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
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at
000-000-0000. 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 Xxxxxxxx-Xxxxx 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 Interest
Rate 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, “Xxxxx Fargo Bank, N.A. as
Trust Administrator, in trust for the registered holders of MASTR Asset Backed
Securities Trust 2007-HE2, Mortgage Pass-Through Certificates, Series
2007-HE2—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.
For
federal income tax purposes, the Depositor shall provide the Trust Administrator
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
4.08.
|
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, “Xxxxx Fargo Bank, N.A. as Supplemental
Interest Trust Trustee, in trust for the registered holders of MASTR Asset
Backed Securities Trust 2007-HE2, Mortgage Pass-Through Certificates, Series
2007-HE2—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 Xxxxx Fargo Bank, N.A. in its capacity as Supplemental
Interest Trust Trustee, Xxxxx Fargo Bank, N.A. in its capacity as Swap
Administrator, Xxxxx 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.
|
[Reserved].
|
|
SECTION
4.11.
|
Collateral
Accounts.
|
(a) [Reserved].
(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, Xxxxx Fargo Bank, N.A., as
Swap Custodian for Xxxxx Fargo Bank, N.A. as Trust Administrator, in trust
for
the registered Certificateholders of MASTR Asset Backed Securities Trust
2007-HE2, Mortgage Pass-Through Certificates, Series 2007-HE2.”
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 maintained in accordance with the requirements of 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 or Specified Condition (each as defined in
the
Interest Rate Swap Agreement) with respect to the Swap Provider or upon
occurrence or designation of an Early Termination Date (as defined in the
Interest Rate Swap Agreement) as a result of any such Event of Default or
Specified Condition with respect to the Swap Provider, and, in either such
case,
unless the Swap Provider has paid in full any of its Obligations (as defined
in
the Swap Credit Support Annex) that are then due, then any collateral posting
by
the Swap Provider in accordance with the Swap Credit Support Annex shall be
applied to the payment of any Obligations due to Party B (as defined in the
Interest Rate Swap Agreement) in accordance with the Credit Support
Annex. To the extent that the Swap Custodian is required to return
any of the Posted Collateral (as defined in the Interest Rate Swap Agreement)
to
the Swap Provider under the terms of the Swap Credit Support Annex, the Swap
Custodian shall return such collateral in accordance with the terms of the
Swap
Credit Support Annex.
|
SECTION
4.12.
|
Rights
and Obligations Under the Interest Rate Swap
Agreement.
|
(a) [Reserved].
(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 notice 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
the
occurrence or designation of an Early Termination Date (as defined in 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(g).
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(g).
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-19. 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-10 Certificate, the Class CE Certificate, the Class
P
Certificate, the Class X Certificate or any 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 and the Swap 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 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, the appropriate tax certification
form that would be required from the Supplemental Interest Trust, to eliminate
any withholding or deduction for taxes from amounts payable by the Swap
Provider, pursuant to the Interest Rate Swap Agreement, to the Trust
Administrator and the Swap Provider on behalf of the Supplemental Interest
Trust
(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, 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, upon its request, solely to the extent the Swap 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, the Trust
Administrator shall be required to forward any tax certification received by
it
to the Swap 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, nor any action taken or not taken by the Swap 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.
(c) No
transfer of a Class CE Certificate, Class P Certificate, Class X 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
Certificate, Class P Certificate or Residual Certificate by the Depositor to
an
Affiliate of the Depositor, (ii) the transfer of any Class CE Certificate,
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
Certificate, 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, (ii)(A)
such Plan is an accredited investor within the meaning of the Exemption and
(B)
except in the case of a Class M-10 Certificate, such acquisition or holding
is
eligible for the exemptive relief available under Department of Labor Prohibited
Transaction Class Exemption (“PTE”) 84-14, PTE 91-38, PTE 90-1, PTE 95-60 or PTE
96-23 or (iii) in the case of a Class M-10 Certificate such acquisition or
holding is eligible for the exemptive relief under PTE 95-60.
Subsequent
to the termination of the
Supplemental Interest Trust, each beneficial owner of such Mezzanine Certificate
or any interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or interest therein, that either
(i)
it is not a Plan or investing with “Plan Assets,” (ii) other than in the case of
a Class M-10 Certificate,
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, Moody’s, Fitch, Dominion Bond Rating Service Limited (“DBRS Limited”)
or Dominion Bond Rating Service, Inc. (“DBRS, Inc.”; each, an “Exemption Rating
Agency”) 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 corporation under the laws of the jurisdiction of its
incorporation 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
Xxxxxx Xxx or Freddie 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
Xxxxxx Xxx or Freddie 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).
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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.
The
related Servicer may pledge and assign all of its right, title and interest
in,
to and under this Agreement (including the right to receive the Servicing Fee
and ancillary income) to a specified servicing rights pledgee. In the
event that a Servicer Event of Default or a default under the related loan
agreement with such lenders exists or in the event of a Servicer resignation,
the Servicer or its designee may appoint the successor servicer; provided that
at the time of such appointment, such successor meets the requirements of a
successor servicer pursuant to Section 7.02(a) hereof and agrees to be subject
to the terms of this Agreement. If, pursuant to any provision hereof,
the duties of the related 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
Xxxxxx Xxx or Freddie 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.
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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 pursuant to the
Credit Risk Management Agreement to the Credit Risk Manager by the Servicers.
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) and loan level information and data relating
to the servicing of the Mortgage Loans and the Trustee shall not have any
obligation to provide any such information to the Credit Risk Manager and shall
not otherwise have any responsibility under the Credit Risk Management
Agreement. 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;
(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; or
(viii) with
respect to Option One Mortgage Corporation, its primary servicer rating by
Xxxxx’x Investors Service falls below “SQ3”.
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. If a Servicer Event
of Default described in clause (viii) hereof shall occur, then, so long as
such
Servicer Event of Default shall not have been remedied, the Master Servicer
may,
and at the written direction of the Depositor or the Holders of Certificates
entitled to at least 51% of Voting Rights, the Master Servicer shall, by notice
in writing to the related 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. 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 Xxxxxxxx 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 Xxxxxxxxx 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 Xxxxxx Xxx- or
Freddie 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 Swap Provider,
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, the Swap Provider 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, the Swap
Provider 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 Swap Provider, 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 Xxxxx’x, 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 and the Swap
Provider.
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. Xxxxx 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 Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of Xx. Xxxxx, 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 (including unpaid Net Swap Payments) 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)
cure
any mistake, including, without limitation, conforming this Agreement to the
final version of the Prospectus Supplement, (ii) modify or supplement any
provision herein, which may be ambiguous or inconsistent with any other
provision herein (including to give effect to the expectations of
Certificateholders), or (iii) make any other provision with respect to any
matter or question arising under this Agreement which will not be inconsistent
with the provisions of this Agreement. Any such amendment will
require either (a) an Opinion of Counsel delivered to each Servicer, the Master Servicer,
the
Trust Administrator, the Trustee and the NIMS Insurer, if any, concluding
that the amendment will not affect adversely in any material respect the
interests of any Certificateholder, (b) written or electronic notice (or verbal
confirmation from a Rating Agency as evidenced by an Officer’s Certificate of
the Depositor) to the Depositor, each Servicer, the Master Servicer,
the
Trust Administrator and the Trustee from each Rating Agency that such
action will not result in the reduction or withdrawal of the rating of any
outstanding Class of Certificates or (c) solely as to an amendment pursuant
to
(i) above, an Officer’s Certificate of the Depositor identifying the mistake,
stating that the amendment is needed to correct the mistake and describing
the
basis for such conclusion. No amendment effected as provided above
will be deemed to adversely affect in any material respect the interests of
any
Certificateholder. No amendment will be deemed to adversely affect in
any material respect the interests of any Certificateholder who will have
consented thereto, and no Opinion of Counsel or Rating Agency confirmation
will
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, the Swap
Provider 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, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Legal (telecopy number (000) 000-0000), 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, 0000 Xxxx Xxxxxx, Xxxxx Xxxxxxxxx,
Xxxxxxxxxx 00000-0000, Attention: Portfolio Management, Facsimile No. (000)
000-0000 with a copy to HomEq Servicing, 0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx
000,
0xx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Legal Department, Facsimile
No. (000) 000-0000, 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 Option One Mortgage Corporation,
Option One Mortgage Corporation, 0 Xxx, Xxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxx Xxxxxxxx, 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 Option One Mortgage Corporation, (d) in the case of the
Master Servicer, Custodian or the Trust Administrator, Xxxxx Fargo Bank, N.A.,
P.O. Box 98, Columbia, Maryland 21046, Attention: Client Manager-MABS 2007-HE2
(telecopy number (000) 000-0000), with a copy to Xxxxx Fargo Bank, N.A., 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager-MABS
2007-HE2 (telecopy number (000) 000-0000), with a copy to Xxxxx Fargo Bank,
N.A., Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479,
Attention: Client Manager-MABS 2007-HE2, 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, 00 Xxxxxxxxxx Xxxxxx, XX-XX-XX0X, Xx. Xxxx, Xxxxxxxxx 00000,
Attention: Structured Finance/MASTR 2007-HE2 (telecopy number (000) 000-0000),
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, 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000,
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, (g) in the case of the Swap Provider, Bear Xxxxxxx Financial
Products Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, Attention: DPC Manager, or such other address or telecopy number
as may hereafter be furnished to the Depositor, the Servicers, the Trustee
and
the NIMS Insurer and (h) 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 Xxxxx’x Investors Service
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Standard & Poor’s
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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.
|
The
NIMS
Insurer 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.
The
Swap
Provider shall be an express third-party beneficiary of this Agreement to the
extent of its express rights to receive any payments under this Agreement or
any
other express rights of the Swap Provider explicitly stated in this Agreement,
and shall have the right to enforce such rights under this Agreement as if
it
were a party hereto.
|
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/
Xxxxx Xxxxxxxx
|
|
Name: Xxxxx
Xxxxxxxx
|
|
Title: Associate
Director
|
|
By: /s/
Xxxxxx
Xxx
|
|
Name: Xxxxxx
Xxx
|
|
Title: Associate
Director
|
|
XXXXX
FARGO BANK, N.A., as Master Servicer, Trust Administrator and
Custodian
|
|
By: /s/
Xxxxxxx Xxxxx
Xxxxx
|
|
Name: Xxxxxxx
Xxxxx
Xxxxx
|
|
Title: Vice
President
|
|
BARCLAYS
CAPITAL REAL ESTATE INC. D/B/A HOMEQ SERVICING, as
Servicer
|
|
By: /s/
Xxxxxx Xxxx
|
|
Name: Xxxxxx
Xxxx
|
|
Title: EVP
|
|
OPTION
ONE MORTGAGE CORPORATION, as Servicer
|
|
By: /s/
|
|
Name:
|
|
Title:
|
|
U.S.
BANK NATIONAL ASSOCIATION, as Trustee
|
|
By: /s/
Xxxxxxx X.
Xxxxx
|
|
Name: Xxxxxxx
X.
Xxxxx
|
|
Title: Vice
President
|
|
For
purposes of
Sections 6.08, 6.09 and 6.10:
|
|
XXXXXXX
FIXED INCOME SERVICES
INC.
|
|
By: /s/
Xxxxx X. Xxxxxxx
|
|
Name: Xxxxx
X. Xxxxxxx
|
|
Title: President
and General Counsel
|
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
the
___ day of August 2007, 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]
|
)
|
||
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ day of August 2007, before me, a notary public in and for
said State, personally appeared ________________________ known to me
to be a(n) ________________________ of Xxxxx 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 CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF SACRAMENTO
|
)
|
On
the
____ day of August 2007, 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]
|
STATE
OF
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ day of August 2007, before me, a notary public in and for
said State, personally appeared ________________________ known to me
to be a(n) ________________________ of Option One Mortgage Corporation, one of
the corporations that executed the within instrument, and also known to me
to be
the person who executed it on behalf of said corporation, and acknowledged
to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF MINNESOTA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF XXXXXX
|
)
|
On
the
____ day of August 2007, 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:
2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-1 Certificates as of
the
Issue Date: $237,414,000.00
Denomination:
$237,414,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AN3
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section
5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trust Administrator, the Trustee nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
|
|
By:
|
|
|
Authorized
Officer
|
|
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-2 Certificates as of
the
Issue Date: $51,500,000.00
Denomination:
$51,500,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AA1
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section
5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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:
2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-3 Certificates as of
the
Issue Date: $34,150,000.00
Denomination:
$34,150,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AB9
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section
5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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:
2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-4 Certificates as of
the
Issue Date: $11,301,000.00
Denomination:
$11,301,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AC7
|
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 Servicer, 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 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 of 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 Xxxxxx'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 in Section
5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust Administrator , or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trust Administrator, the Trustee nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-1 Certificates as of
the
Issue Date: $16,707,000.00
Denomination:
$16,707,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AD5
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-2 Certificates as of
the
Issue Date: $15,371,000.00
Denomination:
$15,371,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AE3
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-3 Certificates as of
the
Issue Date: $9,356,000.00
Denomination:
$9,356,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AF0
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-4 Certificates as of
the
Issue Date: $8,242,000.00
Denomination:
$8,242,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AG8
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Custodian, the Trust
Administrator or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Trust Administrator, the Trustee nor any such agent
shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-5 Certificates as of
the
Issue Date: $7,797,000.00
Denomination:
$7,797,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AH6
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August ___, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-6 Certificates as of
the
Issue Date: $6,014,000.00
Denomination:
$6,014,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AJ2
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August ___, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-7 Certificates as of
the
Issue Date: $4,456,000.00
Denomination:
$4,456,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AK9
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-8 Certificates as of
the
Issue Date: $6,683,000.00
Denomination:
$6,683,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AL7
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August ___, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-9 Certificates as of
the
Issue Date: $4,009,000.00
Denomination:
$4,009,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AM5
|
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 Servicer, 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 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
of
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 Xxxxxx'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 in Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Custodian, the Trust
Administrator or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Custodian, the Trust Administrator, the Trustee nor
any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August ___, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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.
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: 2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-10 Certificates as of
the
Issue Date: $5,791,000.00
Denomination:
$5,791,000.00
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
CUSIP:
57646L AP8
|
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 Servicer, 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 state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be
made in reliance upon an exemption from the 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 Trust Administrator 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, the Trust
Administrator 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-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 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
of
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 Xxxxxx'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:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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 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
2007-HE2
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class CE Certificates as of
the Issue
Date: $26,732,956.66
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
|
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 Servicer, 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 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
of
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 Xxxxxx's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the Trust
Administrator, the Custodian in their respective capacities as such), together
with copies of the written certification(s) of the Holder of the Certificate
desiring to effect the transfer and/or such Holder's prospective transferee
upon
which such Opinion of Counsel is based. None of the Depositor or the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law
or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor, the Servicer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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 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: 2007-HE2
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
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: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
|
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 Servicer, 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 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
of
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 Xxxxxx's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the Trust
Administrator, the Custodian in their respective capacities as such), together
with copies of the written certification(s) of the Holder of the Certificate
desiring to effect the transfer and/or such Holder's prospective transferee
upon
which such Opinion of Counsel is based. None of the Depositor or the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law
or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor, the Servicer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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 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: 2007-HE2
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Percentage Interest of the Class R Certificates as of the Issue Date:
100.00%
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
|
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 Servicer, 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 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
of
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 Xxxxxx's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the Trust
Administrator, the Custodian in their respective capacities as such), together
with copies of the written certification(s) of the Holder of the Certificate
desiring to effect the transfer and/or such Holder's prospective transferee
upon
which such Opinion of Counsel is based. Neither the Depositor nor the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law
or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor, the Servicer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trust Administrator (i) an affidavit
to
the effect that such transferee is any Person other than a Disqualified
Organization or the agent (including a broker, nominee or middleman) of a
Disqualified Organization, and (ii) a certificate that acknowledges that (A)
the
Class R Certificates have been designated as a residual interest in a REMIC,
(B)
it will include in its income a pro rata share of the net income of the
Trust Fund and that such income may be an “excess inclusion,” as defined in the
Code, that, with certain exceptions, cannot be offset by other losses or
benefits from any tax exemption, and (C) it expects to have the financial means
to satisfy all of its tax obligations including those relating to holding the
Class R Certificates. Notwithstanding the registration in the Certificate
Register of any transfer, sale or other disposition of this Certificate to
a
Disqualified Organization or an agent (including a broker, nominee or middleman)
of a Disqualified Organization, such registration shall be deemed to be of
no
legal force or effect whatsoever and such Person shall not be deemed to be
a
Certificateholder for any purpose, including, but not limited to, the receipt
of
distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to have
consented to the provisions of Section 5.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the Trust Fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the
Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August ___, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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-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: 2007-HE2
Cut-off
Date and date of Pooling and Servicing Agreement: August 1,
2007
First
Distribution Date: September 25, 2007
No.
1
|
Aggregate
Percentage Interest of the Class R-X Certificates as of the Issue
Date:
100.00%
Master
Servicer, Trust Administrator and Custodian: Xxxxx Fargo Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2007
|
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 Servicer, 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 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
of
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 Xxxxxx's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the Trust
Administrator, the Custodian in their respective capacities as such), together
with copies of the written certification(s) of the Holder of the Certificate
desiring to effect the transfer and/or such Holder's prospective transferee
upon
which such Opinion of Counsel is based. Neither the Depositor nor the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law
or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor, the Servicer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trust Administrator (i) an affidavit
to
the effect that such transferee is any Person other than a Disqualified
Organization or the agent (including a broker, nominee or middleman) of a
Disqualified Organization, and (ii) a certificate that acknowledges that (A)
the
Class R-X Certificates have been designated as a residual interest in a REMIC,
(B) it will include in its income a pro rata share of the net income of
the Trust Fund and that such income may be an “excess inclusion,” as defined in
the Code, that, with certain exceptions, cannot be offset by other losses or
benefits from any tax exemption, and (C) it expects to have the financial means
to satisfy all of its tax obligations including those relating to holding the
Class R-X Certificates. Notwithstanding the registration in the Certificate
Register of any transfer, sale or other disposition of this Certificate to
a
Disqualified Organization or an agent (including a broker, nominee or middleman)
of a Disqualified Organization, such registration shall be deemed to be of
no
legal force or effect whatsoever and such Person shall not be deemed to be
a
Certificateholder for any purpose, including, but not limited to, the receipt
of
distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to have
consented to the provisions of Section 5.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the Trust Fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and any
agent of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the
Depositor, the Master Servicer, the Trust Administrator, the Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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 X CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
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.
THIS
CLASS X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
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.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
August
1, 2007
|
|
First
Distribution Date
|
:
|
September
25, 2007
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
X
|
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 Servicer, 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.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office maintained by the Trust Administrator.
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
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trust Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trust Administrator.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator or the Trust Administrator’s agent specified in the notice to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicers and the Trust Administrator and of Holders of the
requisite percentage of the Percentage Interests of each Class of Certificates
affected by such amendment, as specified in the Agreement. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether
or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trust Administrator and the Certificate Registrar duly
executed by the holder hereof or such holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in connection therewith.
The
Depositor, the Servicers and the Trust Administrator and any agent of the
Depositor, the Servicers, or the Trust Administrator may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Trust Administrator, the Servicers, the Trust
Administrator or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in whole, from the Trust the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in August 2037.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
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 state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trust Administrator and the Depositor in writing the facts
surrounding the transfer. In the event that such a transfer is not to be made
pursuant to Rule 144A of the Act, there shall be delivered to the Trust
Administrator and the Depositor of an Opinion of Counsel that such transfer
may
be made pursuant to an exemption from the Act, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Servicers, the Master
Servicer, the Trust Administrator or the Depositor; or there shall be delivered
to the Trust Administrator and the Depositor a transferor certificate by the
transferor and an investment letter shall be executed by the transferee. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trustee, the Trust Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No
transfer of 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.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trustee of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trust Administrator as required pursuant to the Agreement,
(iv) each person holding or acquiring an Ownership Interest in this Certificate
must agree not to transfer an Ownership Interest in this Certificate if it
has
actual knowledge that the proposed transferee is not a Permitted Transferee
and
(v) any attempted or purported transfer of any Ownership Interest in this
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee. Pursuant to the Agreement,
the Trust Administrator will provide the Internal Revenue Service and any
pertinent persons with the information needed to compute the tax imposed under
the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest on a Class X Certificate in violation of the restrictions
mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Trustee.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
August __, 2007
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates
|
||||||
|
By:
|
||||||
|
Authorized
Officer
|
||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
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 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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
EXHIBIT
B
[RESERVED]
EXHIBIT
C-1
FORM
OF
INITIAL CERTIFICATION
[Date]
|
Mortgage
Asset Securitization Transactions, Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Client Manager: MABS 2007-HE2
|
|
U.S.
Bank National Association
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx.
Xxxx, XX 00000
Attn:
Structured Finance/MASTR 2007-HE2
|
Barclays
Capital Real Estate Inc.
d/b/a HomEq Servicing
0000
Xxxx Xxxxxx
Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
|
|
Option
One Mortgage Corporation
0
Xxx
Xxxxxx,
Xxxxxxxxxx 00000
|
[NIMS
Insurer]
|
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1, 2007, among Mortgage
Asset
Securitization Transactions, Inc. as Depositor, Xxxxx Fargo Bank,
N.A. as
Master Servicer, Trust Administrator and Custodian, Option One Mortgage
Corporation as Servicer, Barclays Capital Real
Estate Inc.
d/b/a HomEq Servicing as
Servicer and
U.S. Bank National Association as
Trustee
|
|
|
Mortgage
Pass-Through Certificates, Series
2007-HE2
|
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.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
U.S.
Bank National Association
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx.
Xxxx, XX 00000
Attn:
Structured Finance/MASTR 2007-HE2
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Client Manager: MABS 2007-HE2
|
Barclays
Capital Real Estate Inc.
d/b/a HomEq Servicing
0000
Xxxx Xxxxxx
Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
|
|
Option
One Mortgage Corporation
0
Xxx
Xxxxxx,
Xxxxxxxxxx 00000
|
[NIMS
Insurer]
|
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1, 2007, among Mortgage
Asset
Securitization Transactions, Inc. as Depositor, Xxxxx Fargo Bank,
N.A. as
Master Servicer, Trust Administrator and Custodian, Option One Mortgage
Corporation as Servicer, Barclays Capital Real
Estate Inc.
d/b/a HomEq Servicing as
Servicer and
U.S. Bank National Association as
Trustee
|
|
|
Mortgage
Pass-Through Certificates, Series
2007-HE2
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as [Custodian] [Trustee], hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on 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] [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-3
FORM
OF
RECEIPT OF MORTGAGE NOTES
|
Mortgage
Asset Securitization Transactions, Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
[NIMS
Insurer]
|
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1, 2007, among Mortgage
Asset
Securitization Transactions, Inc. as Depositor, Xxxxx Fargo Bank,
N.A. as
Master Servicer, Trust Administrator and Custodian, Option One Mortgage
Corporation as Servicer, Barclays Capital Real
Estate Inc.
d/b/a HomEq Servicing as
Servicer and
U.S. Bank National Association as
Trustee
|
|
|
Mortgage
Pass-Through Certificates, Series
2007-HE2
|
Ladies
and Gentlemen:
Pursuant
to Section 2.02 of the Pooling and Servicing Agreement, dated as of August
1,
2007, among Mortgage Asset Securitization Transactions, Inc. as Depositor,
Xxxxx
Fargo Bank, N.A. as Master Servicer, Trust Administrator and Custodian (the
“Master Servicer”, the “Trust Administrator” and the “Custodian”), Option One
Mortgage Corporation as Servicer, Barclays Capital Real Estate
Inc. d/b/a
HomEq Servicing as Servicer (together with Option One Mortgage
Corporation, 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]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
D
FORMS
OF
ASSIGNMENT AGREEMENTS
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated August 30, 2007,
(“Agreement”) among UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”) and Option
One 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:
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 Second Amended and Restated Master Loan Purchase and Servicing Agreement
dated as of July 1, 2007, as amended (the “Purchase Agreement”), between
the Assignor, as initial purchaser (the “Purchaser”), and the Company, as
seller and interim servicer, 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 2007-HE2 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of August 1, 2007 (the “Pooling
Agreement”), among the Assignee, Xxxxx 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”), Option One Mortgage Corporation 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 and the Master 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
and the Master 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) 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 12 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 Subsections 7.01 and 7.02 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, except that the representation and warranty set forth in Subsection
7.02(i) shall, for purposes of this Agreement, relate to the Mortgage Loan
Schedule attached hereto.
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 5.6c 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.
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, the Trust
Administrator 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 7.03
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 7.02 (xxxix), (xl),
(xli), (xlv), (l), (li) and (lxiv) 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 for which the
August 1, 2007 monthly payment is not made by September 17, 2007 (each, a
“Delinquent Loan”); provided, however, the Company’s obligation to repurchase
any such Delinquent Loan shall expire ninety (90) days following receipt of
notice by the Assignor of the related default on the Delinquent
Loan. 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, the Trust Administrator, the
Servicers 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.
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
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 Servicers
acting on the Trust’s behalf). Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall, without the requirement for any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
8. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
9. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto) but not
defined in this Agreement shall have the meanings given to such terms in the
Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
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MORTGAGE
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OPTION
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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:
Subsection
7.01. Representations
and Warranties Respecting the Sellers.
Each
Seller represents, warrants and covenants to the Purchaser as of the initial
Closing Date and each subsequent Closing Date or as of such date specifically
provided herein or in the applicable Assignment and Conveyance:
(i) Each
Seller is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization and has all licenses necessary to carry
on its business as now being conducted. It is licensed in, qualified to transact
business in and is in good standing under the laws of the state in which any
Mortgaged Property is located except where the failure to be so licensed and
qualified would not have a material adverse effect on the Seller’s business or
operations or the enforceability of any Loan or the Company’s ability to service
such Loan in accordance with the terms of this Agreement. No licenses or
approvals obtained by Seller 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;
(ii) The
Seller has the full power and authority to hold each related Loan, to sell
each
related Loan, and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Seller 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 Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or reorganization;
(iii) The
execution and delivery of this Agreement by the Sellers and the performance
of
and compliance with the terms of this Agreement do not and will not violate
the
Seller’s articles of incorporation or by-laws or trust agreement, as applicable,
or constitute a default under or result in a breach or acceleration of, any
material contract, agreement or other instrument to which the Seller is a party
or which may be applicable to the Seller or its assets:
(iv) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v) The
Company is an approved seller/servicer for Xxxxxx Xxx and Freddie Mac in good
standing and is a HUD approved mortgagee pursuant to Section 203 of the National
Housing Act. No event has occurred, including but not limited to a change in
insurance coverage, which would make the Company unable to comply with Xxxxxx
Xxx, Freddie Mac or HUD eligibility requirements or which would require
notification to Xxxxxx Xxx, Freddie Mac or HUD;
(vi) The
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this
Agreement;
(vii) The
Note,
the Mortgage, the Assignment of Mortgage and any other documents required to
be
delivered with respect to each Loan pursuant to this Agreement, have been
delivered to the Custodian all in compliance with the specific requirements
of
this Agreement. With respect to each Loan, the Company is in possession of
a
complete Loan File in compliance with Exhibit 5, except for such documents
as
have been delivered to the Custodian;
(viii) Immediately
prior to the payment of the Purchase Price for each Loan, the Company was the
owner of record of the related Mortgage and the indebtedness evidenced by the
related Note and upon the payment of the Purchase Price by the Purchaser, in
the
event that the Company retains record title, the Company shall retain such
record title in trust for the Purchaser as the owner thereof and only for the
purpose of servicing and supervising the servicing of each Loan;
(ix) There
are
no actions or proceedings against, or investigations of, the Seller before
any
court, administrative or other tribunal (A) that might prohibit its entering
into this Agreement, (B) seeking to prevent the sale of the Loans or the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Seller
of its obligations under, or the validity or enforceability of, this
Agreement;
(x) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the 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 related Closing Date;
(xi) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Notes and the Mortgages by the Seller pursuant to this
Agreement are not subject to the bulk transfer or any similar statutory
provisions;
(xii) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished or to be prepared and furnished by the Company pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading;
(xiii) Reserved.
(xiv) The
transfer of the Loans shall be treated as a sale on the books and records of
the
Seller, and the Seller has determined that, and will treat, the disposition
of
the Loans pursuant to this Agreement for tax and accounting purposes as a sale.
The Seller shall maintain a complete set of books and records for each Loan
which shall be clearly marked to reflect the ownership of such Loan by the
Purchaser;
(xv) The
consideration received by the Sellers upon the sale of the Loans constitutes
fair consideration and reasonably equivalent value for such Loan;
(xvi) The
Company is solvent and will not be rendered insolvent by the consummation of
the
transactions contemplated hereby. The Seller is not transferring any Loan with
any intent to hinder; delay or defraud any of its creditors;
(xvii) Reserved;
and
(xviii) If
the
Company is or becomes a member of MERS, the Company is 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 Loans for as long as such Loans are
registered with MERS.
Subsection
7.02. Representations
and Warranties Regarding Individual Loans.
The
Company and the Obligor hereby represent and warrant to the Purchaser that,
as
to each Loan, as of the related Closing Date for such Loan:
(i) As
of the
related Cut-off Date, the information set forth in the related Loan Schedule
is
complete, true and correct;
(ii) The
Loan
is in compliance with all requirements set forth in the related Confirmation,
and the characteristics of the related Loan Package as set forth in the related
Confirmation are true and correct as may be modified or adjusted prior to the
related Closing Date;
(iii) Except
with respect to payments not yet thirty (30) days past due all payments required
to be made up to the close of business on the related Cut-off Date for such
Loan
under the terms of the Note have been made and none have been dishonored; as
of
the related Closing Date, there are no material defaults under the terms of
the
Loan; the Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any amount
required by the Note or Mortgage; and as of the related Closing Date, except
with respect to payments less than thirty (30) days past due, there has been
no
delinquency, exclusive of any period of grace, in any payment by the Borrower
thereunder since the origination of the Loan;
(iv) As
of the
origination date of the Loan, there were no delinquent taxes, ground rents,
water charges, sewer rents, municipal charges, assessments, insurance premiums,
leasehold payments, including assessments payable in future installments or
other outstanding charges affecting the related Mortgaged Property, and as
of
the related Closing Date there are no delinquent taxes, insurance premiums,
or
other outstanding charges jeopardizing the lien position of the Mortgage
Loan;
(v) The
terms
of the Note and the Mortgage have not been impaired, waived, altered or modified
in any respect, except by written instruments, recorded in the applicable public
recording office if necessary to maintain the lien priority of the Mortgage,
and
which have been delivered to the Custodian; the substance of any such waiver,
alteration or modification has been approved by the title insurer, to the extent
required by the related policy, and is reflected on the related Loan Schedule.
No instrument of waiver, alteration or modification has been executed, and
no
Borrower has been released, in whole or in part, except in connection with
an
assumption agreement approved by the title insurer, to the extent required
by
the policy, and which assumption agreement has been delivered to the Custodian
and the terms of which are reflected in the related Loan Schedule;
(vi) The
Note
and the Mortgage are not subject to any right of rescission, set-off,
counterclaim or defense, including the defense of usury, nor will the operation
of any of the terms of the Note and the Mortgage or the exercise of any right
thereunder, render the 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;
(vii) All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by a Qualified Insurer, against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the mortgaged
Property is located, in an amount representing coverage not less than the lesser
of (i) the maximum insurable value of the improvements securing such Loans,
and
(ii) the greater of (a) either (1) the outstanding principal balance of the
Loan
with respect to each Loan which is indicated by the Company to be a First Lien
(as reflected on the Loan Schedule) or (2) with respect to each Second Lien
Loan, the sum of the outstanding principal balance of the first lien on such
Loan and the outstanding principal balance of such Second Lien 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 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;
(viii) Each
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;
(ix) The
Mortgage has not been satisfied, canceled or subordinated (other than the
subordination of any Second Lien 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 Borrower of any action, if
the
Borrower’s failure to perform such action would cause the Loan to be in default,
nor has the Company waived any default resulting from any action or inaction
by
the Borrower;
(x) 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 Loan
Schedule), or (B) second lien and second priority security interest with respect
to each Loan which is indicated by the Company to be a Second Lien Loan (as
reflected on the 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 Note’s original principal
balance. The Mortgage and the 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 (a) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording being
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 Loan, or (B) which do not adversely affect the Appraised Value of the
Mortgaged Property as set forth in such appraisal, (c) 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 (d)
with
respect to each Loan which is indicated by the Seller to be a Second Lien
Mortgage Loan (as reflected on the 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 Loan establishes and
creates a valid, subsisting, enforceable and perfected (A) first lien and first
priority security interest with respect to each Loan which is indicated by
the
Seller to be a First Lien (as reflected on the Loan Schedule), or (B) second
lien and second priority security interest with respect to each Loan which
is
indicated by the Seller to be a Second Lien Mortgage Loan (as reflected on
the
Loan Schedule), in either case, on the property described therein and the Seller
has full right to sell and assign the same to the Purchaser. The
Mortgaged Property was not, as of the date of origination of the Loan, subject
to a mortgage, deed of trust, deed to secure debt or other security instrument
creating a lien subordinate to the lien of the Mortgage;
(xi) The
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;
(xii) All
parties to the Note and the Mortgage had legal capacity to enter into the Loan
and to execute and deliver the Note and the Mortgage, and the Note and the
Mortgage have been duly and properly executed by such parties. The Borrower
is a
natural person;
(xiii) The
proceeds of the Loan have been fully disbursed to or for the account of the
Borrower and there is no obligation for the mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Loan and the recording of the Mortgage have been paid, and the Borrower
is
not entitled to any refund of any amounts paid or due to the mortgagee pursuant
to the Note or Mortgage;
(xiv) As
of the
related Closing Date and immediately prior to the sale of the Loans hereunder,
the applicable Seller is the sole legal, beneficial and equitable owner of
the
Note and the Mortgage and has full right to transfer and sell the Loan to the
Purchaser free and clear of any encumbrance, equity, lien, pledge, charge,
claim
or security interest;
(xv) All
parties which have had any interest in the Loan, whether as mortgagee, assignee
or otherwise, are (or, during the period in which they held and disposed of
such
interest, were) in compliance with any and all applicable “doing business” and
licensing requirements of the laws of the state wherein the Mortgaged
Property is located;
(xvi) Each
Loan
is covered by an ALTA lender’s title insurance policy or with respect to any
Loan for which the related mortgaged Property is located in California a CLTA
lender’s title insurance policy, or other generally acceptable form of policy or
insurance issued by a title insurer acceptable to Xxxxxx Xxx or Freddie Mac
and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring (subject to the exceptions contained in (x)(a), (b), (c)
above
and, with respect to each Loan which is indicated by the Company to be a Second
Lien Loan (as reflected on the Loan Schedule) clause (d)) 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 Loan and, with
respect to each Adjustable Rate 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 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;
(xvii) As
of the
related Closing Date, there is no default, breach, violation or event of
acceleration existing under the Note or the Mortgage 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 no Seller or any prior mortgagee has waived any default,
breach, violation or event permitting acceleration; provided, that a past due
Monthly Payment of less than 30 days shall not be deemed a breach of
this subpart (xvii) . As of the related Closing Date, 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;
(xviii) As
of the
related Closing Date, there are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding
that
under law could give rise to such lien) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien of
the
related Mortgage;
(xix) All
improvements subject to the Mortgage which were considered in determining the
Appraised Value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property, (and wholly
within the project with respect to condominium unit) and no improvements on
adjoining properties encroach upon the Mortgaged Property unless otherwise
disclosed and are affirmatively insured by the title insurance policy referred
to in (xvi) above;
(xx) The
Loan
was originated or acquired by the Company (and if acquired by the Company,
in
connection with such acquisition the Loan was underwritten pursuant to the
Company’s underwriting guidelines) or originated by a savings and loan
association, a savings bank, a commercial bank or similar banking institution
which is supervised and examined by a federal or state authority, or by a
mortgagee approved as such by the Secretary of HUD;
(xxi) Principal
payments on the Loan shall commence (with respect to any newly originated Loans)
or commenced no more than two months after the proceeds of the Loan were
disbursed. The Loan bears interest at the Loan Rate. With
respect to each Loan, the Note is payable on the related Due Date in Monthly
Payments, which, (A) in the case of a Fixed Rate Loan, are sufficient to fully
amortize the original principal balance over the original term thereof (other
than with respect to a Loan identified on the related Loan Schedule as an
interest-only Loan during the interest-only period) and to pay interest at
the
related Loan Rate, (B) in the case of an Adjustable Rate Loan, are changed
on
each Adjustment Date, and in any case, are sufficient to fully amortize the
original principal balance over the original term thereof (other than with
respect to a Loan identified on the related Loan Schedule as an interest-only
Loan during the interest-only period) and to pay interest at the related Loan
Rate and (C) in the case of a Balloon Loan, are based on a fifteen (15) or
thirty (30) year amortization schedule, as applicable, as set forth in the
related Note and related Loan Schedule, and a final monthly payment
substantially greater than the preceding monthly payment which is sufficient
to
amortize the remaining principal balance of the Balloon Loan and to pay interest
at the related Loan Rate. The Note does not permit negative
amortization. No Mortgage Loan provides for the capitalization or forbearance
of
interest. With respect to each Mortgage Loan identified on the Mortgage Loan
Schedule as an interest-only Mortgage Loan, the interest-only period shall
not
exceed ten (10) years (or such other period as 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 and to pay
interest at the related Mortgage Interest Rate. No Mortgage Loan is a
Convertible Mortgage Loan;
(xxii) As
of the
related Closing Date, the Mortgaged Property is free of material damage and
waste by fire, earthquake, windstorm, flood or other casualty, and is in good
repair and at origination there was and there currently is no proceeding
pending, or to the best of Seller’s knowledge threatened, for the total or
partial condemnation thereof;
(xxiii) The
Mortgage and related Note contain customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of
the security provided thereby, including, (a) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (b) otherwise by judicial
foreclosure. The Mortgaged Property has not been subject to any bankruptcy
proceeding or foreclosure proceeding and the Borrower has not filed for
protection under applicable bankruptcy laws. There is no homestead or other
exemption available to the Borrower which would interfere with the right to
sell
the Mortgaged Property at a trustee’s sale or the right to foreclose the
Mortgage. As of the related Closing Date the Borrower has not notified the
Company and the Seller has no knowledge of any relief requested or allowed
to
the Borrower under the Servicemembers Civil Relief Act, as applicable, or any
similar state laws;
(xxiv) The
Loan
was underwritten in accordance with the underwriting standards of the Company
in
effect at the time the Loan was originated a copy of which underwriting
standards are attached as Exhibit 10 hereto. The Note, the Mortgage and all
other documents contained in the Loan Files are on Xxxxxx Xxx or Freddie Mac
uniform instruments or are on forms acceptable to Xxxxxx Xxx or Freddie Mac
or
to prudent mortgage lenders that regularly originate or purchase mortgage loans
comparable to the Loans for sale to prudent investors in the secondary market
that invest in mortgage loans such as the Loans;
(xxv) The
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 (x) or (xi) above;
(xxvi) Except
for Loans originated under the Company’s appraisal waiver program, the Loan
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, (or with
respect to clause (a) and (b) a form otherwise satisfactory to S&P and
Xxxxx’x) 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. The appraisal was made in accordance with
the
relevant provisions 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 acceptable to Xxxxxx Xxx or
Freddie Mac;
(xxvii) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Borrower;
(xxviii) No
Loan
contains provisions pursuant to which Monthly Payments are (a) paid or partially
paid with funds deposited in any separate account established by the Company,
the Borrower, or anyone on behalf of the Borrower, (b) paid by any source other
than the Borrower or (c) except with respect to Buydown Loans, contains any
other similar provisions which may constitute a buydown provision. The Loan
is
not a graduated payment loan and the Loan does not have a shared appreciation
or
other contingent interest feature;
(xxix) The
Borrower has executed a statement to the effect that the Borrower has received
all disclosure materials required by applicable law with respect to the making
of fixed rate loans in the case of Fixed Rate Loans, and adjustable rate loans
in the case of Adjustable Rate Loans and rescission materials with respect
to
Refinanced Loans, and such statement is and will remain in the Loan
File;
(xxx) No
Loan
was made in connection with (a) the construction or rehabilitation of a
Mortgaged Property or (b) facilitating the trade-in or exchange of a Mortgaged
Property;
(xxxi) As
of the
related Closing Date, the Borrower 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 Mortgaged Property, the Borrower, the Borrower’s credit
standing or the Mortgage that can reasonably be expected to cause private
institutional investors who routinely invest in mortgage loans similar to the
Loan to regard the Loan to be an unacceptable investment, cause the Loan to
become delinquent, or adversely affect the value of the Loan;
(xxxii) Unless
otherwise disclosed in the related Loan Schedule, no Loan had an LTV at
origination in excess of 95% and no Loan had a Combined LTV at origination
of
more than 100%;
(xxxiii) The
Mortgaged Property is lawfully occupied under applicable law; 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;
(xxxiv) No
error, omission, misrepresentation, negligence, fraud or similar occurrence
with
respect to a Loan has taken place on the part of the Company, the related
Seller, or to the best of the Company’s knowledge, the Borrower, the appraiser,
any builder, or any developer, or any other party involved in the origination
of
the Loan or in the application of any insurance in related to such
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;
(xxxv) 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;
(xxxvi) Any
principal advances made to the Borrower prior to the Cut-off 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 Loan which is indicated by the Seller to be a First Lien (as
reflected on the Loan Schedule), or (B) second lien priority with respect to
each Loan which is indicated by the Seller to be a Second Lien Mortgage Loan
(as
reflected on the Loan Schedule), 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 Xxxxxx Xxx and Freddie Mac. The consolidated
principal amount does not exceed the original principal amount of the
Loan;
(xxxvii) Except
with respect to each Loan identified as a Balloon Loan on the related Loan
Schedule, no Loan has a balloon payment feature;
(xxxviii) If
the
Residential Dwelling on the Mortgaged Property is a condominium unit or unit
in
a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of Xxxxxx Xxx;
(xxxix) Each
Loan
constitutes a qualified mortgage under Section 860(a)(3)(A) of the Code and
Treasury Regulations Section 1.860G-2(a)(1);
(xl) No
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));
(xli) No
Borrower was required to purchase any credit life, disability, accident,
unemployment, mortgage or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit. No
Borrower obtained a prepaid single premium credit life, disability,
unemployment, mortgage, accident or health insurance policy in connection with
the origination of the Loan; No proceeds from any 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 Loan;
(xlii) Interest
on each Loan is calculated on the basis of a 360-day year consisting of twelve
30-day months;
(xliii) As
of the
related Closing Date, 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 none of the
Sellers nor, to the best of Sellers’ knowledge, the related Borrower, has
received any notice of any violation or potential violation of any such law;
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;
(xliv) None
of
the Loans are Buydown Loans.
(xlv) With
respect to each Loan, the Company has fully and accurately furnished complete
information on the related borrower credit files to Equifax, Experian and Trans
Union Credit Information Company, in accordance with the Fair Credit Reporting
Act and its implementing regulations , on a monthly basis and the Company for
each Loan will 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, on a monthly basis;
(xlvi) Any
Mortgaged Property that is considered manufactured housing shall be legally
classified as real property, is permanently affixed to a foundation and must
assume the characteristics of site-built housing and must otherwise conform
to
the requirements (A) for inclusion in residential mortgage backed securities
transactions rated by S&P and (B) of Xxxxxx Xxx and Freddie Mac, including,
but not limited to, the requirements that (i) the related Note or contract,
as
applicable, be secured by a “single family residence” within the meaning of
Section 25(e)(10) of the Code, (ii) the fair market value of the manufactured
home securing each related Note or contract, as applicable, was at least equal
to 80% of the original principal balance of such Note or contract, as
applicable, and (iii) each related Note or contract, as applicable, is a
“qualified mortgage” under Section 860G(a)(3) of the Code;
(xlvii) With
respect to each 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 Loan is located in a jurisdiction in which the
use
of leasehold estates for residential properties is a widely-accepted practice
and:
(a) Such
Ground Lease is valid, in good standing, and in full force and
effect;
(b) The
lessee is not in default under any provision of the lease;
(c) The
term
of the Ground Lease exceeds the maturity date of the related Loan by at least
ten years;
(d) The
mortgagee under the Loan is given at least 30 days’ notice of any default and an
opportunity to cure any defaults under the Ground Lease or to take over the
Borrower’s rights under the Ground Lease;
(e) 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; and
(f) 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;
(xlviii) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Loan in the event that the Mortgaged
Property is sold or transferred without the prior written consent of the
mortgagee thereunder;
(xlix) The
Loan
complies with all applicable consumer credit statutes and regulations,
including, without limitation, the respective Uniform Consumer Credit Code
laws
in effect in Colorado, Idaho, Indiana, Iowa, Kansas, Maine, Oklahoma, South
Carolina, Utah and Wyoming, has been originated by a properly licensed entity,
and in all other respects, complies with all of the material requirements of
any
such applicable laws; and
(l) Except
as
set forth on the related Mortgage Loan Schedule, none of the Loans are subject
to a Prepayment Penalty. For any 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 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. As of the related Closing Date any such
prepayment penalty is permissible and enforceable in accordance with its terms
upon the Borrower’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; (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;
(li) No
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 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;
(lii) 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 Seller has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection with
the origination of each 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 Xxxxxxxxx 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 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 Borrower 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;
(liii) No
predatory or deceptive lending practices, including but not limited to, the
extension of credit to the applicable Borrower without regard for said
Xxxxxxxx’s ability to repay the Loan and the extension of credit to said
Borrower which has no apparent benefit to said Borrower, were employed by the
originator of the Loan in connection with the origination of the
Loan;
(liv) With
respect to each Loan which is indicated by the Company to be a Second Lien
Mortgage Loan (as reflected on the 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 Seller’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;
(lv) With
respect to each 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 Loan
is required by the holder of the first lien or such consent has been obtained
and is contained in the Loan File;
(lvi) As
of the
related Closing Date, each Loan shall not, solely as a result of the application
of predatory lending laws and regulations, be ineligible for sale in the
secondary market or for securitization without unreasonable credit enhancement;
provided, however, that no representation is made as to the effect of any rating
agency requirement that is imposed after the Closing Date with retroactive
effect;
(lvii) No
Loan
is a “manufactured housing loan” or “home improvement home loan” pursuant to the
New Jersey Home Ownership Security Act of 2002 (the “NJ Act”). No Loan is a
“High-Cost Home Loan” under the NJ Act; and each 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 Loans which were originated between
November 26, 2003 and July 7, 2004), or (3) a rate/term refinance Home
Loan;
(lviii) All
fees
and charges (including finance charges) and whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
the Loan have been disclosed in writing to the Borrower in accordance with
applicable state and federal law and regulation;
(lix) Each
Mortgage Loan (other than with respect to the points and fees threshold in
connection with Loans that are not Point and Fees Eligible Loans) is in
compliance with the anti-predatory lending eligibility for purchase requirements
of Fannie Mae’s Selling Guide
(lx) No
Borrower was encouraged or required to select a mortgage loan product offered
by
the 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 Borrower’s credit history, income,
assets and liabilities. Any Borrower who sought financing through the Loan
originator’s higher priced sup prime lending channel was directed towards or
offered the 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 Borrower may have qualified for a lower cost credit product
then offered by any mortgage lending affiliate of the Loan’s originator, the
Loan’s originator referred the Borrower’s application to such affiliate for
underwriting consideration;
(lxi) The
methodology used in underwriting the extension of credit for each 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
Borrower’s income, assets and liabilities, to the proposed mortgage payment and,
based on such methodology, the Loan’s originator made a reasonable determination
that at the time of origination the Borrower had the ability to make timely
payments on the Loan;
(lxii) 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. 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. With respect to each Points and Fees Eligible Mortgage
Loan, 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 Xxxxxx Mae’s
requirements as set forth in the Xxxxxx Xxx Selling Guide) or (2)
$1,000;
(lxiii) The
Company will transmit full-file credit reporting data for each Loan pursuant
to
Xxxxxx Xxx Guide Announcement 95-19 and for each 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;
(lxiv) No
Borrower agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the Loan transaction;
(lxv) The
Seller has not paid or caused to be made any payment in the nature of an
“overage” or ‘yield spread premium’ directly to a mortgage broker in connection
with the origination of any Loan, except for any yield spread premium that
has
been fully disclosed to the Borrower in accordance with applicable
law;
(lxvi) 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 either (1) (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
or
(2) such Mortgage Loan is in the "borrower's interest," as documented by a
"borrower's interest worksheet" maintained in the related Servicing File for
the
particular Mortgage Loan, which worksheet incorporates the factors set forth
in
Massachusetts House Bill 4880 (2004) and the regulations promulgated thereunder
for determining "borrower's interest," and otherwise complies in all material
respects with the laws of the Commonwealth of Massachusetts;
(lxvii) [Reserved]
(lxviii) The
servicing and collection practices used by the Company (and by any prior
originator or servicer) with respect to each Note and Mortgage have been in
accordance with Accepted Servicing Practices. The Loan has been serviced by
the
Company and any predecessor servicer in accordance with the terms of the Note.
With respect to escrow deposits and Escrow Payments, if any, all such payments
are in the possession of, or under the control of, the Company and there exist
no deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or Escrow Payments
or
other charges or payments due the Company have been capitalized under any
Mortgage or the related Note and no such escrow deposits or Escrow Payments
are
being held by the Company for any work (other than repairs) on a Mortgaged
Property which has not been completed;
(lxix) With
respect to each Points and Fees Eligible Loan, 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;
(lxx) With
respect to each Mortgage Loan, the related residential dwelling is not a
manufactured housing unit;
(lxxi) [Reserved]
(lxxii) 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;
(lxxiii) 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;
(lxxiv) 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 Closing Date, no portion of the Mortgaged
Property was used for commercial purposes (provided that a Residential Dwelling
which contains a home office which satisfies Xxxxxx Xxx, shall not be considered
as being commercial property);
(lxxv) No
Mortgage Loan is subject to a lender-paid mortgage insurance
policy;
(lxxvi) reserved;
(lxxvii) 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;
(lxxviii) reserved;
(lxxix) reserved.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated August 30, 2007,
(“Agreement”) among UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”) and
Fieldstone Mortgage Company (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, 2007, 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. Capitalized terms not otherwise defined
herein shall have the meaning set forth in 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 2007-HE2 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of August 1, 2007 (the “Pooling
Agreement”), among the Assignee, Xxxxx 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”), Option One Mortgage Corporation 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
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 Servicers 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 Servicers 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:
The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
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;
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
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 8.01 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 of this Agreement 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:
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;
None
of
the Mortgage Loans are High Cost as defined by any applicable predatory and
abusive lending laws;
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);
No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act; and
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 (other than any representation or warranty set forth
in
Section 3.02(c), the last clause of Section 3.02(f), Section 3.02(h), the fourth
sentence of Section 3.02(k), Section 3.02(u), Section 3.02(z), the last sentence
of Section 3.02(aa), Section 3.02(ee), Section 3.02(hh), Section 3.02(tt),
Section 3.02(uu), Section 3.02(vv), Section 3.02(fff), Section 3.02(ggg),
Section 3.02(hhh), Section 3.02(iii), Section 3.02(jjj), Section 3.02(lll),
Section 3.02(nnn), Section 3.02(ooo) and Section 3.02(qqq)), 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 by the Originator as 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 Servicers
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 Section 3.03 of the Purchase Agreement as if they
were
set forth herein (including without limitation the repurchase and indemnity
obligations set forth therein). With respect to the representations
and warranties which are made to the best of the Company’s knowledge, if it is
discovered by the Company or the Assignor that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan or the interests of
the
Assignor or certificateholders therein, notwithstanding the Company’s lack of
knowledge with respect to the substance of such representation or warranty,
such
inaccuracy shall be deemed a breach of the applicable representation or
warranty. In addition, the Company hereby acknowledges and agrees
that any breach of the representations set forth in Section 3.02 (h), (n),
(dd),
(ee), (gg), (uu), (vv), (bbb), (ccc), (ggg), (hhh), (iii), (ooo) or (qqq) 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 for which (a)
the first monthly payment due to the Assignor following the related Closing
Date
(as such term is defined in the Purchase Agreement) or (b) the first scheduled
monthly payment due following the related Closing Date, in either case, becomes
30 days past due (each, a “Delinquent Loan”), provided however, that Assignor
shall provide the Company with written notice of such default within ninety
(90)
days after the applicable Closing Date; provided further, however that (i)
in
the case of a related “payment reversal” or (ii) in the event that the Company
or interim servicer fails to report or mischaracterizes the related delinquency,
the Assignor shall have: (x) until ninety (90) days after the Assignor’s
discovery of such default as a result of the related “payment reversal” and (y)
until ninety (90) days after the date in which the Assignor is provided with
correct information regarding a mischaracterized delinquency, to provide notice
of any Delinquent Loan to the Company. In the event the Assignor
fails to provide such notice within the applicable time periods set forth above
the Company shall not be required to repurchase such Delinquent
Loan. The Company agrees to provide the Assignor with copies of all
cancelled checks regarding all payments made on the Mortgage Loans during the
early payment default period. In the event that the Company fails to
provide such cancelled checks regarding any Mortgage Loan to the Assignor within
thirty (30) days following the expiration of the early payment default period,
then any such Mortgage Loan shall be immediately repurchased by the Company
at
the Repurchase Price plus the related Premium. In lieu of repurchase
of a Delinquent Loan by the Company at the Assignor’s request, the Assignor and
the Companymay mutually agree upon terms with regard to the indemnification
of
the Assignor by the Company for any and all costs, expenses and losses relating
to a Delinquent Loan, or 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 a repurchase price
equal to the unpaid principal balance of such Mortgage Loan plus accrued
interest through the end of the month of repurchase. In addition to
the foregoing, with respect to any Delinquent Loan that is repurchased by the
Company, the Company shall remit to the Assignor an amount equal to the Premium
for such Mortgage Loan as of the date of repurchase.
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.
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 (other than Section 5-1401
of the New York General Obligations Law), 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 Servicers
acting on the Trust’s behalf). Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall, without the requirement for any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
8. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
9. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto) but not
defined in this Agreement shall have the meanings given to such terms in the
Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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FIELDSTONE
MORTAGE COMPANY
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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:
The
Company is a corporation duly organized and validly existing under the laws
of
Maryland. 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.
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;
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;
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;
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;
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;
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;
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;
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;
The
Company is an approved seller/servicer of residential mortgage loans for Xxxxxx
Xxx or Freddie 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 Xxxxxx Xxx or Freddie
Mac and no event has occurred which would make the Company unable to comply
with
eligibility requirements or which would require notification to either Xxxxxx
Xxx or Freddie Mac;
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;
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;
The
consideration received by the Company upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such Mortgage
Loans;
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;
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
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 as of the Cut-Off Date or such other
date as identified thereon;
(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) There
are no delinquent taxes, ground rents, water charges, sewer rents,assessments,
insurance premiums, municipal charges, or leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(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, reformation, set-off, counterclaim or defense, including the defense
of usury, and no such right of rescission, reformation, set-off, counterclaim
or
defense has been asserted with respect thereto, and there is no basis for the
Mortgage Loan to be modified or reformed without the consent of the Mortgagor
under applicable law; 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 Xxxxxx Xxx Guides, against loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Xxx Guides or by the Freddie 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
Xxxxxx Xxx and Freddie 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 Xxxxxx
Xxx or Freddie 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 Xxxxxx Xxx. 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 Xxxxxx Xxx or Freddie 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 material 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 acceptable to Xxxxxx Xxx or Freddie 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 subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption in jurisdictions where such right of redemption cannot
be
legally waived by the related Mortgagor;
(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 Xxxxxx Xxx or Freddie
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 Xxxxxx Xxx or Freddie 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 the Mortgage Loan to become
delinquent, or materially adversely affect the value or marketability of the
Mortgage Loan;
(aa) Other
than with respect to any 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. 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 period greater than
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;
(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, to the best of the
Company’s knowledge, 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 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) As
of the
date of origination and thereafter 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 Xxxxxx Xxx and Freddie
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 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:
(i) The
Mortgagor is the owner of a valid and subsisting interest as tenant under the
ground lease;
(ii) The
ground lease is in full force and effect, unmodified and not supplemented by
any
writing or otherwise;
(iii) 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;
(iv) 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;
(v) The
term
of the ground lease exceeds the maturity date of the related Mortgage Loan
by at
least ten years;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) 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;
(x) The
Mortgagor has not commenced any action or given or received any notice for
the
purpose of terminating the ground lease;
(xi) No
lessor, as debtor in possession or by a trustee for such lessor has give any
notice of, and the Mortgagor has not consented to, any attempt to transfer
the
related Mortgaged Property free and clear of such ground lease under section
363(f) of the Bankruptcy Code; and
(xii) No
lessor
is subject to any voluntary or involuntary bankruptcy, reorganization or
insolvency proceeding and no Mortgaged Property is an asset in any voluntary
or
involuntary bankruptcy, reorganization or insolvency proceeding.”
(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 in all material respects 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
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 Xxxxxx Xxx and Freddie 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 Xxxxxx Xxx and Freddie 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 Xxxxxxxxx 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
Xxxxxxxxx’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Xxxxxxxxx, 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 Fannie 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) [reserved]
(lll) The
Company will transmit full-file
credit reporting data for each Mortgage Loan pursuant to Xxxxxx Xxx 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) 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 maximum amount allowable under
applicable state and federal law and regulation;
(rrr) With
respect to each Mortgage Loan, the related residential dwelling is not a
manufactured housing unit; and
(sss) No
Mortgage Loan secured by a Mortgaged Property in the State of Ohio which closed
on or after January 1, 2007 was originated pursuant to a no income/no asset
documentation program or any other program pursuant to which the related
Mortgagor was not required to disclose income. Each Mortgage Loan secured by
a
Mortgaged Property in the State of Ohio which closed on or after January 1,
2007, was originated in compliance with the Ohio Consumer Sales Practices Act
(Oh. Rev. Stat. 1345.01 et seq.) and the regulations promulgated thereunder
and
was made only after reasonable and appropriate methods were used to determine
the borrower's repayment ability, including without limitation, employment
verification for stated income loans, which have been properly documented and
verified.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated August 30, 2007,
(“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 2007-HE2 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of August 1, 2007 (the “Pooling
Agreement”), among the Assignee, Xxxxx 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”), Option One Mortgage Corporation 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 Servicers 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 Servicers
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 Schedule 1 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 (a)
the first monthly payment due to the Assignor following the related Closing
Date
or (b) the first scheduled monthly payment due following the related Closing
Date, in either case, becomes 30 days past due (each, a “Delinquent
Loan”). 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).
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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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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Name:
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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 Xxxxxx Xxx 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 Xxxxxx Xxx and Freddie 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 Xxxxxx
Xxx or Freddie 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 Xxxxxx Xxx. 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 Xxxxxx Xxx or Freddie 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 Xxxxxx Xxx or Freddie Mac. The
Company is currently selling loans to Xxxxxx Xxx and/or Freddie 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 Xxxxxx Xxx or Freddie
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 Xxxxxx Xxx or Freddie 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 Xxxxxx Xxx and Freddie
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 Xxxxxx Xxx and Freddie 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 Xxxxxx Xxx and Freddie 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 Xxxxxxxxx
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
Xxxxxxxxx’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Xxxxxxxxx, 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 Fannie 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 Fannie Mae’s requirements as set forth in the Xxxxxx Xxx Selling Guide) or
(2) $1,000;
(lll) The
Company will transmit full-file
credit reporting data for each Mortgage Loan pursuant to Xxxxxx Xxx 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 August 30, 2007,
(“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, and any related Confirmations (as defined in the Purchase Agreement)
solely insofar as the Purchase Agreement and related Confirmations relate 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. The Assignor also maintains its
rights to enforce any obligations of the Company pursuant to the Purchase
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 2007-HE2 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of August 1, 2007 (the “Pooling
Agreement”), among the Assignee, Xxxxx 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”), Option One Mortgage Corporation 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
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 Servicers 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 Servicers 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 Schedule 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 of the Purchase Agreement, nothing has
occurred in the period of time from the Servicing Transfer Date (as defined
in
the Purchase Agreement) to the date hereof which would cause such representation
and warranties to be untrue in any material respect as of the date
hereof.
Remedies
for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicers
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
Section 3.02 (h), (n), (ee), (pp), (uu), (vv), (ggg), (hhh), (iii), (jjj) 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.
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 Servicers
acting on the Trust’s behalf). Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall, without the requirement for any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
8. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
9. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto) but not
defined in this Agreement shall have the meanings given to such terms in the
Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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Title:
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EQUIFIRST
CORPORATION
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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 Xxxxxx Xxx or Freddie 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 Xxxxxx Xxx or Freddie 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 Xxxxxx Xxx and Freddie 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 Xxxxxxxxx
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
Xxxxxxxxx’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Xxxxxxxxx, 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.
EXHIBIT
E
REQUEST
FOR RELEASE
To: Xxxxx
Fargo Bank, N.A.
Attn:
Inventory Control
0000
00xx
Xxxxxx XX
Minneapolis,
MN 55414
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1, 2007, among Mortgage
Asset
Securitization Transactions, Inc., Xxxxx Fargo Bank, N.A. as Master
Servicer, Custodian and Trust Administrator, Option One Mortgage
Corporation as Servicer, Barclays Capital Real
Estate Inc.
d/b/a HomEq Servicing
as Servicer and
U.S. Bank National Association, Mortgage Pass-Through Certificates,
Series 2007-HE2
|
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]
[Xxxxx
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]
Xxxxx
Fargo Bank, N.A.
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
Attention:
Corporate Trust Services-MABS 2007-HE2
|
|
Re:
|
MASTR
Asset Backed Securities Trust 2007-HE2, 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 August 1, 2007,
among Mortgage Asset Securitization Transactions, Inc. as Depositor, Barclays Capital Real Estate
Inc. d/b/a
HomEq Servicing as Servicer, Option One Mortgage Corporation as Servicer,
Xxxxx 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]
Xxxxx
Fargo Bank, N.A.
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
Attention:
Corporate Trust Services-MABS 2007-HE2
Bear
Xxxxxxx Financial Products Inc.
000
Xxxxxxx Xxxxxx, 36th Floor
New
York,
New York 10179
Attention:
DPC Manager
|
|
Re:
|
MASTR
Asset Backed Securities Trust 2007-HE2, Mortgage Pass-Through
Certificates, Series 2007-HE2, 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 and the Swap 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 W-8BEN, W-8IMY, W-8EXP 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 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, the appropriate tax
certification form that would be required from the Supplemental Interest Trust
to eliminate any withholding or deduction for taxes from amounts payable by
the
Swap Provider, pursuant to the Interest Rate Swap Agreement, to the Trust
Administrator and the Swap Provider on behalf of the Supplemental Interest
Trust
(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, upon its request, solely to the extent
the Swap 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, the Trust
Administrator shall be required to forward any tax certification received by
it
to the Swap 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, nor any action taken
or
not taken by the Swap 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.
All
capitalized terms used but not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement, dated as
of
August 1, 2007, among Mortgage Asset Securitization Transactions, Inc. as
Depositor, Barclays Capital Real
Estate Inc. d/b/a HomEq Servicing, as Servicer, Option One Mortgage
Corporation as Servicer, Xxxxx 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 Xxxxx 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 Xxxxx 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 August 1, 2007 (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, Option One Mortgage Corporation, as servicer (together with HomEq
Servicing, the “Servicers”), Xxxxx 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:
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;
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|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
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(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
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For
purposes of this calculation, (i) the Transferee is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to
the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by
the
Transferee.
The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
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|
(i)
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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;
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(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;
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(iii)
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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
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(iv)
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the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including, but
not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
None
of the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of __________,
20__.
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[OWNER]
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By:
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Name:
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Title:
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[Vice]
President
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ATTEST:
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By:
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Name:
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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___.
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Notary
Public
|
|
|
County
of __________________
State
of ___________________
My
Commission expires:
|
FORM
OF TRANSFEROR AFFIDAVIT
|
STATE
OF NEW YORK
|
)
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)
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ss.:
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COUNTY
OF NEW YORK
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)
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__________________________,
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__.
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[OWNER]
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By:
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|
|
Name:
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Title:
|
[Vice]
President
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|
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
_____________,
[2007]
Mortgage
Asset Securitization Transactions, Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
New
York,
New York 10019
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Columbia,
Maryland 21045
Attn:
Client Manager – MABS 2007-HE2
U.S.
Bank
National Association
00
Xxxxxxxxxx Xxxxxx
EP-MN-WS3D
St.
Xxxx,
MN 55107
Attn:
Structured Finance/ MASTR 2007-HE2
|
|
Re:
|
MASTR
Asset Backed Securities Trust 2007-HE2, 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 2007-HE2, Mortgage Pass-Through Certificates, Series
2007-HE2, Class [CE] [P] [R](the “Certificates”), issued pursuant to a Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”) dated as of
August 1, 2007, among Mortgage Asset Securitization Transactions, Inc. as
depositor (the “Depositor”), Xxxxx Fargo Bank, N.A. as master servicer, trust
administrator and custodian (the “Master Servicer”, the “Trust Administrator”
and the “Custodian”), Option One Mortgage Corporation as a servicer, Barclays Capital Real Estate
Inc. d/b/a
HomEq Servicing as a servicer (together with Option One Mortgage
Corporation, 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,
Xxxxx 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.
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Very
truly yours,
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By:
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Name:
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Title:
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|
EXHIBIT
H
[Reserved]
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: _____________________
_____________________
_____________________
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2.
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The
Seller previously delivered to the Purchaser a signed Initial
Certification with respect to such Mortgage and/or Assignment of
Mortgage;
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|
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 __________ __, _____;
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|
4.
|
Such
Mortgage Note and/or Assignment of Mortgage is not outstanding pursuant
to
a request for release of Documents;
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5.
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Aforesaid
Mortgage Note and/or Assignment of Mortgage (the “Original”) has been
lost;
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6.
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Deponent
has made or caused to be made a diligent search for the Original
and has
been unable to find or recover
same;
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7.
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The
Seller was the Seller of the Original at the time of the loss;
and
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8.
|
Xxxxxxxx
agrees that, if said Original should ever come into Xxxxxx's possession,
custody or power, Xxxxxx will immediately and without consideration
surrender the Original to the
Purchaser.
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|
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
OF
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: [_________________].
|
XXXXX
FARGO BANK, N.A.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Date:
|
|
EXHIBIT
J-2
FORM
OF
CERTIFICATION TO BE PROVIDED TO MASTER SERVICER BY THE SERVICERS
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Columbia,
Maryland 21045
Attn:
Client Manager – MABS 2007-HE2
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1, 2007, among Mortgage
Asset
Securitization Transactions, Inc. as Depositor, Xxxxx Fargo Bank,
N.A. as
Master Servicer, Custodian and Trust Administrator, Option One Mortgage
Corporation as Servicer, Barclays Capital Real
Estate Inc.
d/b/a HomEq Servicing
as Servicer and
U.S. Bank National Association as Trustee(the
“Agreement”)
|
[Option
One Mortgage
Corporation] [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
[Reserved]
EXHIBIT
L
ANNUAL
STATEMENT OF COMPLIANCE PURSUANT TO SECTION 3.20
MASTR
ASSET BACKED SECURITIES TRUST 2007-HE2,
MORTGAGE
PASS-THROUGH CERTIFICATES
I,
_____________________, hereby certify that I am a duly appointed
__________________________ of [_________________] (the “Servicer”), and further
certify as follows:
1. This
certification is being made pursuant to the terms of the Pooling and Servicing
Agreement, dated as of August 1, 2007 (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc., as depositor, Xxxxx Fargo Bank, N.A. as
the
master servicer, the trust administrator and custodian, Option One Mortgage
Corporation, as servicer, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing, as servicer and U.S. Bank
National Association, as trustee.
2. The
undersigned officer of the Servicer hereby certifies that (i) a review of the
activities of the Servicer during the preceding calendar year and of performance
under the Agreement has been made under such officers’ supervision and (ii) to
the best of such officers’ knowledge, based on such review, the Servicer has
fulfilled all of its obligations under the Agreement in all material respects
throughout such year.
Capitalized
terms not otherwise defined herein have the meanings set forth in the
Agreements.
Dated:
_____________, 2007
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
_____________.
|
By:
|
|
|
Name:
|
|
|
Title:
|
I,
_________________________, a (an) __________________ of the Servicer, hereby
certify that _________________ is a duly elected, qualified, and acting
_______________________ of the Servicer and that the signature appearing above
is his/her genuine signature.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________.
|
By:
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
M
FORM
OF
INTEREST RATE SWAP AGREEMENT
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
000
XXXXXXX XXXXXX
NEW
YORK, NEW YORK 10179
000-000-0000
|
DATE:
|
August
30, 2007
|
|
TO:
|
Xxxxx
Fargo Bank, N.A., not individually, but solely as Supplemental Interest
Trust Trustee on behalf of the Supplemental Interest Trust with respect
to
the MASTR Asset Backed Securities Trust 2007-HE2, Mortgage Pass-Through
Certificates, Series 2007-HE2
|
|
ATTENTION:
|
Client
Manager - MABS 2007-HE2
|
|
TELEPHONE:
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
FROM:
|
Derivatives
Documentation
|
|
TELEPHONE:
|
000-000-0000
|
|
FACSIMILE:
|
000-000-0000
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation and Agreement
|
|
REFERENCE
NUMBER:
|
FXNSC9932
|
The
purpose of this long-form confirmation (“Long-form Confirmation”) is to confirm
the terms and conditions of the current Transaction entered into on the Trade
Date specified below (the “Transaction”) between Bear Xxxxxxx Financial Products
Inc. (“Party A”) and Xxxxx Fargo Bank, N.A., not individually, but solely as
Supplemental Interest Trust Trustee on behalf of the Supplemental Interest
Trust
with respect to the MASTR Asset Backed Securities Trust 2007-HE2, Mortgage
Pass-Through Certificates, Series 2007-HE2
(“Party B”) created under the Pooling and Servicing Agreement,
dated as of August 1, 2007, among Mortgage Asset Securitization Transactions,
Inc. (as Depositer), Option One Mortgage Corporation (as Servicer), Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing (Servicer), Xxxxx Fargo Bank,
N.A. (as Master Servicer, Trust Administrator and Custodian), and U.S. Bank
National Association (as Trustee) (the “Pooling
and Servicing Agreement”). This Long-form 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. Item 2 of this
Long-form Confirmation constitutes a “Confirmation” as referred
to in the ISDA Master Agreement (defined below); Item 3 of this Long-form
Confirmation constitutes a “Schedule” as referred to in the
ISDA Master Agreement; and Annex A hereto constitutes Paragraph 13 of a Credit
Support Annex to the Schedule.
|
Item
1.
|
The
Confirmation set forth at Item 2 hereof 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 Long-form 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.
|
|
Item
2.
|
The
terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
|
Type
of Transaction:
|
Interest
Rate Swap
|
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for
such Calculation Period on Schedule I attached hereto.
|
|
|
Trade
Date:
|
August
27, 2007
|
|
|
Effective
Date:
|
August
30, 2007
|
|
|
Termination
Date:
|
August
25, 2012, 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
Amounts:
|
||
|
Fixed
Rate Payer:
|
Party
B
|
|
|
Fixed
Rate Payer
|
||
|
Period
End Dates:
|
The
25th
calendar day of each month during the Term of this Transaction, commencing
September 25, 2007, and ending on the Termination Date, with No
Adjustment.
|
|
|
Fixed
Rate Payer
|
||
|
Payment
Dates:
|
Early
Payment shall be applicable. One Business Day prior to each
Fixed Rate Payer Period End Date.
|
|
|
Fixed
Rate:
|
5.40000%
|
|
|
Fixed
Amount:
|
To
be determined in accordance with the following formula:
|
|
|
Scale
Factor*Fixed Rate*Notional Amount*Fixed Rate Day Count
Fraction
|
||
|
Fixed
Rate Day
|
||
|
Count
Fraction:
|
30/360
|
|
|
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
September 25, 2007, and ending on the Termination Date, subject to
adjustment in accordance with the Business Day
Convention.
|
|
|
Floating
Rate Payer
|
||
|
Payment
Dates:
|
Early
Payment shall be applicable. One Business Day prior to each
Floating Rate Payer Period End Date.
|
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
|
|
|
Scale
Factor*Floating Rate Option*Notional Amount*Floating Rate Day Count
Fraction
|
||
|
Designated
Maturity:
|
One
month
|
|
|
Floating
Rate Day
|
||
|
Count
Fraction:
|
Actual/360
|
|
|
Scale
Factor
|
250
|
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
|
Compounding:
|
Inapplicable
|
|
|
Business
Days:
|
New
York
|
|
|
Business
Day Convention:
|
Following
|
|
|
Additional
Amount:
|
In
connection with entering into this Transaction USD 3,580,000 is payable
by
Party A to Party B on August 30, 2007.
|
|
|
Item
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
notwithstanding anything to the contrary in Section 5(a)(i) or in
Paragraph 7 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 Moody’s Second Trigger Downgrade Event has
occurred and is continuing and at least 30 Local Business Days have
elapsed since such Moody’s Second Trigger Downgrade Event first
occurred.
|
|
(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); 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 Moody’s Second Trigger
Downgrade Event has occurred and is continuing and at least 30 Local
Business Days have elapsed since such Moody’s Second Trigger Downgrade
Event first occurred.
|
|
(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.
“Threshold
Amount” means USD 100,000,000.
|
(vii)
|
The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B; provided, however, that, for
purposes of applying Section 5(a)(vii) to Party B: (A) Section
5(a)(vii)(2) shall not apply, (B) Section 5(a)(vii)(3) shall not
apply to
any assignment, arrangement or composition that is effected by or
pursuant
to the Pooling and Servicing Agreement, (C) Section 5(a)(vii)(4)
shall not
apply to a proceeding instituted, or a petition presented, by Party
A or
any of its Affiliates (for purposes of Section 5(a)(vii)(4), Affiliate
shall have the meaning set forth in Section 14, notwithstanding anything
to the contrary in this Agreement), (D) Section 5(a)(vii)(6) shall
not
apply to any appointment that is effected by or pursuant to the Pooling
and Servicing Agreement, or any appointment to which Party B has
not yet
become subject; (E) Section 5(a)(vii) (7) shall not apply; (F) Section
5(a)(vii)(8) shall apply only to the extent of any event which has
an
effect analogous to any of the events specified in clauses (1), (3),
(4),
(5) or (6) of Section 5(a)(vii), in each case as modified in this
Part
1(c)(vii), and (G) Section 5(a)(vii)(9) shall not
apply.
|
|
(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 and 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 and the Second Method will apply, provided, however, that,
notwithstanding anything to the contrary in this Agreement, if an
Early
Termination Date has been designated as a result of a Derivative
Provider
Trigger Event, the following provisions will
apply:
|
|
|
(A)
|
Section
6(e) is hereby amended by inserting on the first line thereof the
words
“or is effectively designated” after “If an Early Termination Date
occurs”;
|
|
|
(B)
|
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, and a party making the determination, an amount determined on
the
basis of one or more Firm Offers from Reference Market-makers that are Eligible
Replacements. Each Firm Offer will be (1) 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 (2) 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 are to be included. The party making the
determination (or its agent) will request each Reference Market-maker that
is an
Eligible Replacement to provide its Firm Offer to the extent reasonably
practicable as of the same day and time (without regard to different time zones)
on or as soon as reasonably practicable after the designation or occurrence
of
the relevant Early Termination Date. The day and time as of which those Firm
Offers are to be provided (the “bid time”) will be selected in good faith by the
party obliged to make a determination under Section 6(e), and, if each party
is
so obliged, after consultation with the other. If at least one Firm
Offer from an Approved Replacement (which, if accepted, would determine the
Market Quotation) is provided at the bid time, the Market Quotation will be
the
Firm Offer (among such Firm Offers as specified in clause (C) below) actually
accepted by Party B no later than the Business Day immediately preceding the
Early Termination Date. If no Firm Offer from an Approved Replacement
(which, if accepted, would determine the Market Quotation) is provided at the
bid time, it will be deemed that the Market Quotation in respect of such
Terminated Transaction or group of Transactions cannot be
determined.
|
|
(C)
|
If
more than one Firm Offer from an Approved Replacement (which, if
accepted,
would determine the Market Quotation) is provided at the bid time,
Party B
shall accept the Firm Offer (among such Firm Offers) which would
require
either (x) the lowest payment by Party B to the Reference Market-maker,
to
the extent Party B would be required to make a payment to the Reference
Market-maker or (y) the highest payment from the Reference Market-maker
to
Party B, to the extent the Reference Market-maker would be required
to
make a payment to Party B. If only one Firm Offer from an
Approved Replacement (which, if accepted, would determine the Market
Quotation) is provided at the bid time, Party B shall accept such
Firm
Offer.
|
|
|
(D)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do
so.
|
|
|
(E)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3) shall
be
deleted in its entirety and replaced with the
following:
|
“(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 against any amount payable by Party B under
the
immediately preceding clause (I).”
|
|
(F)
|
In
determining whether or not a Firm Offer satisfies clause (B)(y) of
the
definition of Replacement Transaction and whether or not a proposed
transfer satisfies clause (e)(B)(y) of the definition of Permitted
Transfer, Party B shall act in a commercially reasonable
manner.
|
(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:
|
|
(i)
|
the
accuracy of any representations made by the other party pursuant
to
Section 3(f) of this Agreement;
|
|
|
(ii)
|
the
satisfaction of the agreement contained in 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
is a corporation organized under the laws of the State of Delaware and its
U.S.
taxpayer identification number is 00-0000000.
(B) Party
B makes the following representation(s):
None.
|
(b)
|
Tax
Provisions.
|
|
|
(i)
|
Gross
Up. Section 2(d)(i)(4) shall not apply to Party B as
X, such that Party B shall not be required to pay any additional
amounts
referred to therein.
|
|
(ii)
|
Indemnifiable
Tax. Notwithstanding the definition of “Indemnifiable Tax” in
Section 14 of this Agreement, all Taxes in relation to payments by
Party A
shall be Indemnifiable Taxes (including any Tax imposed in relation
to a
Credit Support Document or in relation to any payment thereunder)
unless
such Taxes (i) are assessed directly against Party B and not by deduction
or withholding by Party A or (ii) arise as a result of a Change in
Tax Law
(in which case such Tax shall be an Indemnifiable Tax only if such
Tax
satisfies the definition of Indemnifiable Tax provided in Section
14). In relation to payments by Party B, no Tax shall be an
Indemnifiable Tax.
|
Part
3. Agreement to Deliver Documents.
(a) For
the purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
Party
A
|
An
original properly completed and executed United States Internal Revenue
Service Form W-9 (or any successor thereto) with respect to any payments
received or to be received by Party A that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A under
this
Agreement.
|
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party B, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered form
becoming inaccurate or incorrect.
|
|
Party
B
|
(i)
Upon the execution and delivery of this Agreement, provided, however,
that
Party B shall (a) apply for the employer identification number of
the
Trust promptly upon entering into this Agreement and deliver the
related
correct, complete and duly executed IRS Form W-9 promptly upon receipt;
and, in any event, no later than the first Payment Date of this
transaction; (b) in the case of a W-8ECI, W-8IMY and W-8BEN that
does not
include a U.S. taxpayer identification number in line 6, deliver
before
December 31 of each third succeeding calendar year; (c) deliver promptly
upon reasonable demand by Party A; and, (d) deliver promptly upon
learning
that any such Form previously provided by Party B has become obsolete
or
incorrect.
|
(i)
Before the first scheduled
payment; (ii) promptly upon reasonable demand by Party A; and (iii)
promptly upon
learning that any Form W-9 or other applicable form (or any successor
thereto) previously provided by Party B has become
obsolete or
incorrect.
|
(b) For
the purpose of Section 4(a)(ii), other documents to be delivered
are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver the Agreement, each Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under the Agreement, each Confirmation and any Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, each Confirmation, and any relevant Credit Support
Document, as the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized
|
Upon
request by Party B
|
Yes
|
|
Party
A
|
Quarterly
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s fiscal quarter prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized
|
Upon
request by Party B
|
Yes
|
|
Party
A and
Party
B
|
An
opinion of counsel of such party regarding the enforceability of
this
Agreement in a form reasonably satisfactory to the other
party.
|
Upon
the execution and delivery of this Agreement
|
No
|
|
Party
B
|
An
executed copy of the Pooling and Servicing Agreement
|
Promptly
upon filing of such agreement with the U.S. Securities and Exchange
Commission
|
No
|
Part
4. Miscellaneous.
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of
this Agreement:
|
Address
for notices or communications
to Party A:
Address: 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC
Manager
Facsimile: (000)
000-0000
with
a
copy to:
Address: One
Metrotech Center North, Brooklyn, New York 11201
Attention: Derivative
Operations 7th Floor
Facsimile: (000)
000-0000
(For
all
purposes)
Address
for notices or communications
to Party B:
|
|
Address:
|
Xxxxx
Fargo Bank, N.A.
|
|
|
0000
Xxx Xxxxxxxxx Xxxx
|
|
|
Columbia,
Maryland 21045-1951
|
|
|
Attention:
Client Manager - MABS 2007-HE2
|
|
|
Facsimile:
|
000-000-0000
|
|
|
Phone:
|
000-000-0000
|
(For
all
purposes)
(b) Process
Agent. For the purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
|
(c)
|
Offices. The
provisions of Section 10(a) will apply to this Agreement; neither
Party A
nor Party B has any Offices other than as set forth in the Notices
Section.
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
|
Party
A is not a Multibranch
Party.
|
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent. The Calculation Agent is Party
A.
|
(f) Credit
Support Document.
|
|
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
|
|
Party
B:
|
The
Credit Support Annex.
|
|
(g)
|
Credit
Support Provider.
|
|
|
Party
A:
|
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
|
|
|
Party
B:
|
None.
|
|
(h)
|
Governing
Law. The parties to this Agreement hereby agree that
the law of the State of New York shall govern their rights and duties
in
whole (including any claim or controversy arising out of or relating
to
this Agreement), without regard to the conflict of law provisions
thereof
other than New York General Obligations Law Sections 5-1401 and
5-1402.
|
|
(i)
|
Netting
of Payments. Subparagraph (ii) of Section 2(c) will
apply to each Transaction
hereunder.
|
|
(j)
|
Xxxxxxxxx.Xxxxx
A and Party B shall be deemed to have no Affiliates for purposes
of this
Agreement.
|
|
Part
5.
|
Other
Provisions.
|
|
(a)
|
Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”), and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement, and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
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 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.
(b) Amendments
to ISDA Master Agreement.
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(i)
|
Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
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(ii)
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[Reserved.]
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(iii)
|
[Reserved.]
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(iv)
|
Representations. Section
3 is hereby amended by adding at the end thereof the following subsection
(g):
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“(g)
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Relationship
Between Parties.
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(1)
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Nonreliance. (i)
It is not relying on any statement or representation of the other
party
(whether written or oral) regarding any Transaction hereunder, other
than
the representations expressly made in this Agreement or the Confirmation
in respect of that Transaction, (ii) it has consulted with its own
legal,
regulatory, tax, business, investment, financial and accounting advisors
to the extent it has deemed necessary, and it has made its own investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party, (iii) it is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into this Transaction; it being understood
that
information and explanations related to the terms and conditions
of this
Transaction shall not be considered investment advice or a recommendation
to enter into this Transaction, and (iv) it has not received from
the
other party any assurance or guaranty as to the expected results
of this
Transaction.
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(2)
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Evaluation
and Understanding. (i) It has the capacity to evaluate
(internally or through independent professional advice) each Transaction
and has made its own decision to enter into the Transaction and (ii)
it
understands the terms, conditions and risks of the Transaction and
is
willing and able to accept those terms and conditions and to assume
those
risks, financially and otherwise.
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(3)
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Purpose. It
is entering into the Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
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(4)
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Status
of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of the
Transaction.
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(5)
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Eligible
Contract Participant. It is an “eligible swap participant” as
such term is defined in, Section 35.1(b)(2) of the regulations (17
C.F.R.
35) promulgated under, and an “eligible contract participant” as defined
in Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
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(v)
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Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended (i) by deleting in the first paragraph the words “or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected Party,”
and in the third paragraph the words “, which consent will not
be withheld if such other party’s policies in effect at such time would
permit it to enter into transactions with the transferee on the terms
proposed”, (ii) by deleting the words “to transfer” and inserting the
words “to effect a Permitted Transfer” in lieu thereof, and (iii) adding
at the end of the third paragraph “; provided that the other party’s
consent shall not be required if such transfer is a Permitted
Transfer.”
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(vi)
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Jurisdiction.
Section 13(b) is hereby amended by: (i) deleting in the
second
line of subparagraph (i) thereof the word “non-”, (ii) deleting “; and”
from the end of subparagraph (i) and inserting “.” in lieu thereof, and
(iii) deleting the final paragraph
thereof.
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(vii)
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Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
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(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
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(i)
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Failure
to Post Collateral.If Party A has failed to comply with or
perform any obligation to be complied with or performed by Party
A in
accordance with the Credit Support Annex and such failure has not
given
rise to an Event of Default under Section 5(a)(i) or Section 5(a)(iii),
then an Additional Termination Event shall have occurred with respect
to
Party A and Party A shall be the sole Affected Party with respect
to such
Additional Termination Event.
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(ii)
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Second
Rating Trigger Replacement. The occurrence of any
event described in this Part 5(c)(ii) shall constitute an Additional
Termination Event with respect to Party A and Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
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(A)
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A
Moody’s Second Trigger Downgrade Event has occurred and is continuing and
at least 30 Local Business Days have elapsed since such Moody’s Second
Trigger Downgrade Event first occurred, and at least one Eligible
Replacement has made a Firm Offer that would, assuming the occurrence
of
an Early Termination Date, qualify as a Market Quotation (on the
basis
that Part 1(f)(i)(A) applies) and which remains capable of becoming
legally binding upon acceptance.
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(B)
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An
S&P Required Ratings Downgrade Event has occurred and is continuing
and at least 60 calendar days have elapsed since such S&P Required
Ratings Downgrade Event first
occurred.
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(iii)
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Amendment
of the Pooling and Servicing Agreement. If, without
the prior written consent of Party A where such consent is required
under
the Pooling and Servicing Agreement (such consent not to be unreasonably
withheld), an amendment is made to the Pooling and Servicing Agreement
which amendment could reasonably be expected to have a material adverse
effect on the interests of Party A under this Agreement, an Additional
Termination Event shall have occurred with respect to Party B, Party
B
shall be the sole Affected Party with respect to such Additional
Termination Event and all Transactions hereunder shall be Affected
Transactions.
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(iv) Failure
to Comply
with Regulation AB Requirements. If, upon the occurrence of a
Swap Disclosure Event (as defined in Part 5(e) below) Party A has not complied
with any of the provisions set forth in Part 5(e)(iii) below within the time
period specified therein, then an Additional Termination Event shall have
occurred with respect to Party A and Party A shall be the sole Affected Party
with respect to such Additional Termination Event.
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(v)
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[Reserved.]
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(vi)
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Optional
Termination of Securitization. An Additional
Termination Event shall occur upon the notice to Certificateholders
of an
Optional Termination becoming unrescindable in accordance with Article
1X
of the Pooling and Servicing Agreement (such notice, the “Optional
Termination Notice”). With respect to such Additional
Termination Event: (A) Party B shall be the sole Affected Party;
(B)
notwithstanding anything to the contrary in Section 6(b)(iv) or Section
6(c)(i), the final Distribution Date specified in the Optional Termination
Notice is hereby designated as the Early Termination Date for this
Additional Termination Event in respect of all Affected Transactions;
(C)
Section 2(a)(iii)(2) shall not be applicable to any Affected
Transaction in
connection with the Early Termination Date resulting from this Additional
Termination Event; notwithstanding anything to the contrary in Section
6(c)(ii), payments and deliveries under Section 2(a)(i) or Section
2(e) in
respect of the Terminated Transactions resulting from this Additional
Termination Event will be required to be made through and including
the
Early Termination Date designated
as a result of this Additional Termination Event; provided, for the
avoidance of doubt, that any such payments or deliveries that are
made on
or prior to such Early Termination Date will not be treated as Unpaid
Amounts in determining the amount payable in respect of such Early
Termination Date; (D) notwithstanding anything to the contrary in
Section
6(d)(i), (I) if, no later than 4:00 pm New York City time on the
day that
is four Business Days prior to the final Distribution Date specified
in
the Optional Termination Notice, the Trust Administrator requests
the
amount of the Estimated Swap Termination Payment, Party A shall provide
to
the Trust Administrator in writing (which may be done in electronic
format) the amount of the Estimated Swap Termination Payment no later
than
2:00 pm New York City time on the following Business Day and (II)
if the
Trust Administrator provides written notice (which may be done in
electronic format) to Party A no later than two Business Days prior
to the
final Distribution Date specified in the Optional Termination Notice
that
all requirements of the Optional Termination have been met, then
Party A
shall, no later than one Business Day prior to the final Distribution
Date
specified in the Optional Termination Notice, make the calculations
contemplated by Section 6(e) (as amended herein) and provide to the
Trust
Administrator in writing (which may be done in electronic format)
the
amount payable by either Party B or Party A in respect of the related
Early Termination Date in
connection with this Additional Termination Event; provided, however,
that
the amount payable by Party B, if any, in respect of the related
Early
Termination Date shall be the lesser of (x) the amount calculated
to be
due by Party B pursuant to Section 6(e) and (y) the Estimated Swap
Termination Payment; and (E) notwithstanding anything to the contrary
in
this Agreement, any amount due from Party B to Party A in respect
of this
Additional Termination Event will be payable on the final Distribution
Date specified in the Optional Termination Notice and any
amount due from Party A to Party B in respect of this Additional
Termination Event will be payable one Business Day prior to the final
Distribution Date specified in the Optional Termination
Notice.
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The
Trust
Administrator shall be an express third party beneficiary of this Agreement
as
if a party hereto to the extent of the Trust Administrator’s rights specified
herein.
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(vii)
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Failure
to Pay Class A Certificates. If the Trust
Administrator on behalf of the Trust is unable to pay, or fails or
admits
in writing its inability to pay (1) on any Distribution Date, any
Monthly
Interest Distributable Amount with respect to the Class A Certificates
or
(2) by the Distribution Date immediately following the maturity date
for
the Mortgage Loan with the latest maturity date, the ultimate payment
of
principal with respect to the Class A Certificates, in either case
to the
extent required pursuant to the terms of the Pooling and Servicing
Agreement to be paid to the Class A Certificates, then an Additional
Termination Event shall have occurred with respect to Party B, Party
B
shall be the sole Affected Party and all Transactions hereunder shall
be
Affected Transactions.
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(d)
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Required
Ratings Downgrade Event. If a Required Ratings
Downgrade Event has occurred and is continuing, then Party A shall,
at its
own expense, use commercially reasonable efforts to, as soon as reasonably
practicable, either (A) effect a Permitted Transfer or (B) procure
an
Eligible Guarantee by a guarantor with credit ratings at least equal
to
the S&P Required Ratings Threshold and the Xxxxx’x Second Trigger
Threshold.
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(e)
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Compliance
with Regulation AB.
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(i)
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Party
A agrees and acknowledges that Mortgage Asset Securitization Transactions,
Inc. (the “Depositor”) on behalf of the MASTR Asset Backed Securities
Trust 2007-HE2 is required under Regulation AB under the Securities
Act of
1933, as amended, and the Securities Exchange Act of 1934, as amended
(the
“Exchange Act”) (“Regulation AB”), to disclose certain financial
information regarding Party A or its group of affiliated entities,
if
applicable, depending on the aggregate “significance percentage” of this
Agreement and any other derivative contracts between Party A or its
group
of affiliated entities, if applicable, and Party B, as calculated
from
time to time in accordance with Item 1115 of Regulation AB. In addition,
for so long as the Depositor is required to file a Form 10-K in respect
of
the related transaction (which the parties hereto may assume shall
be for
the period covering the calendar year following the Closing Date,
unless
otherwise notified in writing by the Depositor), Party A, at its
own
expense, shall no later than the 25th calendar day of each month,
notify
the Depositor in writing of any known material affiliations or
relationships that develop following the Closing Date between Party
A and
any of the (x) the Sponsor, the Depositor or the Issuing Entity,
if this
Agreement is transferred by Party A to another entity and (y) any
originator, servicer, trustee or bond administrator or other transaction
party, each as identified by the Depositor to Party A in writing,
and
provide to the Depositor a description of such affiliations or
relations.
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(ii)
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It
shall be a swap disclosure event (“Swap Disclosure Event”) if, on any
Local Business Day after the date hereof for so long as the Issuing
Entity
is required to file periodic reports under the Exchange Act, the
Depositor
requests from Party A the certain financial information described
in Item
1115 of Regulation AB, including, but not limited to Party A’s financial
data as described in Item 1115(b)(1) of Regulation AB and financial
statements as described in Item 1115(b)(2) of Regulation AB (the
“Swap
Financial Disclosure”).
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(iii)
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Upon
the occurrence of a Swap Disclosure Event, Party A, within ten (10)
calendar days and at its own expense, shall (1)(a) either (i) provide
to
the Depositor the current Swap Financial Disclosure in an XXXXX-compatible
format (for example, such information may be provided in Microsoft
Word®
format, Microsoft Excel® format or any other format suitable for
conversion to the XXXXX format, but not in .pdf format) or (ii) if
permitted by Regulation AB, provide written consent to the Depositor
to
incorporate by reference such current Swap Financial Disclosure that
are
filed with the Securities and Exchange Commission in the Exchange
Act
Reports of the Issuing Entity, and (b) if the Swap Financial Disclosure
has been audited, cause its outside accounting firm to provide its
consent
to filing or incorporation by reference in the Exchange Act Reports
of the
Issuing Entity of such accounting firm’s report relating to their audits
of such current Swap Financial Disclosure; (2) secure another entity
to
replace Party A by way of a Permitted Transfer, either as party to
this
Agreement or by entering into a replacement derivative agreement,
on terms
substantially in the form of this Agreement, subject to prior notification
to the Rating Agencies, which entity (or a guarantor therefor) satisfies
the Rating Agency Condition with respect to S&P and which entity is
able to comply with the requirements of Item 1115 of Regulation AB;
(3)
only if sufficient to satisfy the requirements of Item 1115 of Regulation
AB that are applicable to the Derivative Provider, as evidenced by
an
opinion of counsel at the expense of Party A and that is reasonably
acceptable to the Depositor or as determined by the Depositor in
its sole
discretion if this Agreement is transferred by Party A to another
entity,
subject to the Rating Agency Condition with respect to S&P, obtain a
guaranty of Party A’s obligations under this Agreement from an affiliate
of Party A that is able to comply with the financial information
disclosure requirements of Item 1115 of Regulation AB and this Agreement,
such that disclosure provided in respect of the affiliate will satisfy
any
disclosure requirements applicable to the Swap Provider, and cause
such
affiliate to provide Swap Financial Disclosure; or (4) only if sufficient
to satisfy the requirements of Item 1115 of Regulation AB that are
applicable to the Derivative Provider, as evidenced by an opinion
of
counsel at the expense of Party A and that is reasonably acceptable
to the
Depositor or as determined by the Depositor in its sole discretion
if this
Agreement is transferred by Party A to another entity, post collateral
in
an amount sufficient to reduce the “significance percentage” for purposes
of Item 1115 of Regulation AB with respect to any Derivative Agreement
relating to such Securitization, calculated separately or in the
aggregate
with other Derivative Agreements for such Securitization (a) to 10%
if the
Depositor has notified the Derivative Provider that the “significance
percentage” is 10% or more (but less than 20%) or (b) to 20% if the
Depositor has notified the Derivative Provider that the “significance
percentage” is 20% or more. If permitted by Regulation AB, any
required Swap Financial Disclosure may be provided by incorporation
by
reference from reports filed pursuant to the Exchange
Act.
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(iv)
|
If
Party A provides Swap Financial Disclosure to the Depositor pursuant
to
Part 5(e)(iii)(1) or causes its affiliate to provide Swap Financial
Disclosure to the Depositor pursuant to Part 5(e)(iii)(3), then for
so
long as (x) the Depositor is required to file Exchange Act reports
in
respect of the Issuing Entity and (y) on the Distribution Date immediately
preceding the date of any release of updated Swap Financial Disclosure by
Party A, the Depositor has provided notice to Party A that the
“significance percentage” determined under Item 1115 of Regulation AB is
equal to or greater than 10% with respect to such Distribution Date,
Party
A, at its own expense, shall provide or cause to be provided to the
Depositor any updated Swap Financial Disclosure with respect to Party
A or
any entity that consolidates Party A within five (5) Local Business
Days
of the release of any such updated Swap Financial
Disclosure.
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(v)
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Party
A agrees that, in the event that Party A provides Swap Financial
Disclosure to the Depositor in accordance with Part 5(e)(iii)(1),
or Party
A causes its affiliate to provide Swap Financial Disclosure to the
Depositor in accordance with Part 5(e)(iii)(3), or Party A provides
or
causes to be provided updated Swap Financial Disclosure in accordance
with
Part 5(e)(iv), Party A will indemnify and hold harmless the Depositor,
its
respective directors or officers and any person controlling the Depositor,
from and against any and all losses, claims, damages and liabilities
caused by any untrue statement or alleged untrue statement of a material
fact contained in such Swap Financial Disclosure or caused by any
omission
or alleged omission to state in such Swap Financial Disclosure a
material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not
misleading.
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(vi)
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The
Depositor shall be an express third party beneficiary of this Agreement
as
if it were a party hereto to the extent of the Depositor’s rights
explicitly specified in this Part
5(e).
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(f)
|
Transfers.
|
(i) Section
7 is hereby amended to read in its entirety as follows:
“Neither
this Agreement nor any interest or obligation in or under this Agreement may
be
transferred (whether by way of security or otherwise) by either party unless
(a)
the prior written consent of the other party is obtained and (b) the Rating
Agency Condition has been satisfied with respect to S&P, except
that:
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(a)
|
Party
A may make a Permitted Transfer (1) pursuant to Section 6(b)(ii)
(as
amended herein) or Part 5(e), (2) pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of all or
substantially all its assets to, another entity (but without prejudice
to
any other right or remedy under this Agreement), or (3) at any time
at
which no Relevant Entity has credit ratings at least equal to the
Approved
Ratings Threshold;
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(b)
|
Party
B may transfer its rights and obligations hereunder (1) in
connection with a transfer pursuant to Section 8.09 Merger or
Consolidation of Trustee or Trust Administrator of the Pooling
and Servicing Agreement; and
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(c)
|
a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section
6(e).
|
Any
purported transfer that is not in compliance with this Section will be
void.
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(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains an offer
that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at Party
A’s
written request and at Party A’s expense, take any reasonable steps
required to be taken by Party B to effect such
transfer.
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(g)
|
Limited
Recourse;Non-Recourse. Party A
acknowledges and agrees that, notwithstanding any provision in this
Agreement to the contrary, the obligations of Party B hereunder are
limited recourse obligations of Party B, payable solely from the
Supplement Interest Trust and the proceeds thereof, in accordance
with the
priority of payments and other terms of the Pooling and Servicing
Agreement and that Party A will not have any recourse to any of the
directors, officers, agents, employees, shareholders or affiliates
of
Party B with respect to any claims, losses, damages, liabilities,
indemnities or other obligations in connection with any transactions
contemplated hereby. In the event that the Supplement Interest Trust and the proceeds
thereof, should be insufficient to satisfy all claims outstanding
and
following the realization of Supplement Interest Trust and the proceeds
thereof, any claims against or obligations of Party B under this
Agreement
or any other confirmation thereunder still outstanding shall be
extinguished and thereafter not revive. The Supplement Interest
Trust Trustee shall
not have liability for any failure or delay in making a payment hereunder
to Party A due to any failure or delay in receiving amounts in the
Supplement Interest Trust from the Trust
created pursuant to the Pooling and Servicing Agreement. This provision
will survive the termination of this
Agreement.
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(h)
|
Timing
ofPayments by Party B upon Early
Termination. Notwithstanding anything to the contrary
in Section 6(d)(ii), to the extent that all or a portion (in either
case,
the “Unfunded Amount”) of any amount that is calculated as being due in
respect of any Early Termination Date under Section 6(e) from Party
B to
Party A will be paid by Party B from amounts other than any upfront
payment paid to Party B by an Eligible Replacement that has entered
into a
Replacement Transaction with Party B, then such Unfunded Amount shall
be
due on the next subsequent Distribution Date following the date on
which
the payment would have been payable as determined in accordance with
Section 6(d)(ii), and on any subsequent Distribution Dates until
paid in
full (or if such Early Termination Date is the final Distribution
Date, on
such final Distribution Date); provided, however, that if the date
on
which the payment would have been payable as determined in accordance
with
Section 6(d)(ii) is a Distribution Date, such payment will be payable
on
such Distribution Date.
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(i)
|
Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of any
rights
or obligations under this Agreement shall be made by either party
unless
each Rating
Agency has been provided prior written notice of such designation
or
transfer.
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(j)
|
No
Set-off. Except as expressly provided for in Section
2(c), Section 6 or Part 1(f)(i)(D) hereof, and notwithstanding any
other
provision of this Agreement or any other existing or future agreement,
each party irrevocably waives any and all rights it may have to set
off,
net, recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any other
agreements. Section 6(e) shall be amended by deleting the
following sentence: “The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject
to any Set-off.”.
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(k)
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Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be permitted
by either party unless each of the Rating Agencies has been provided
prior
written notice of the same and the Rating Agency Condition is satisfied
with respect to S&P.
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(l)
|
Notice
of Certain Events or Circumstances. Each Party agrees,
upon learning of the occurrence or existence of any event or condition
that constitutes (or that with the giving of notice or passage of
time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other Party and to each
Rating
Agency notice of such event or condition; provided that failure to
provide
notice of such event or condition pursuant to this Part 5(l) shall
not
constitute an Event of Default or a Termination
Event.
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(m)
|
Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Supplement Interest Trust, or the trust formed pursuant to
the
Pooling and Servicing Agreement, in any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings
under any federal or state bankruptcy or similar law for a period
of one
year (or, if longer, the applicable preference period) and one day
following payment in full of the Certificates and any
Notes. This provision will survive the termination of this
Agreement.
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(n)
|
Supplement
Interest Trust Trustee Liability Limitations. It is
expressly understood and agreed by the parties hereto that (a) this
Agreement is executed by Xxxxx Fargo Bank, N.A. (“Xxxxx”) not in its
individual capacity, but solely as Supplement Interest Trust Trustee
under
the Pooling and Servicing Agreement in the exercise of the powers
and
authority conferred and invested in it thereunder; (b) Xxxxx xas
been
directed pursuant to the Pooling and Servicing Agreement to enter
into
this Agreement and to perform its obligations hereunder; (c) each
of the
representations, undertakings and agreements herein made on behalf
of
the Supplement Interest Trust is made and intended not as
personal representations of Xxxxx but is made and intended for
the purpose of binding only the Supplement Interest Trust; and (d)
under
no circumstances shall Xxxxx in its individual
capacity be personally liable for any payments hereunder or for the
breach
or failure of any obligation, representation, warranty or covenant
made or
undertaken under this Agreement.
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|
(o)
|
Severability. If
any term, provision, covenant, or condition of this Agreement, or
the
application thereof to any party or circumstance, shall be held to
be
invalid or unenforceable (in whole or in part) in any respect, the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used
in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Agent
for Party B. Party A acknowledges that the Depositor
has appointed the Supplement Interest Trust Trustee and the Swap
Administrator as agents under the Pooling and Servicing Agreement
and the
Swap Administration Agreement to carry out certain functions on behalf
of
Party B, and that the Supplement Interest Trust Trustee and the Swap
Administrator shall be entitled to give notices and to perform and
satisfy
the obligations of Party B hereunder on behalf of Party
B.
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|
(q)
|
[Reserved.]
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(r)
|
Consent
to Recording. Each party hereto consents to the
monitoring or recording, at any time and from time to time, by the
other
party of any and all communications between trading, marketing, and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording, and agrees to notify
such
personnel of such monitoring or
recording.
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|
(s)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any suit, action or proceeding relating
to this Agreement or any Credit Support
Document.
|
|
(t)
|
Form
of ISDA Master Agreement. Party A and Party B hereby
agree that the text of the body of the ISDA Master Agreement is intended
to be the printed form of the ISDA Master Agreement (Multicurrency
–
Crossborder) as published and copyrighted in 1992 by the International
Swaps and Derivatives Association,
Inc.
|
|
(u)
|
[Reserved.]
|
|
(v)
|
Capacity. Party
A represents to Party B on the date on which Party A enters into
this
Agreement that it is entering into the Agreement and the Transaction
as
principal and not as agent of any person. The
Supplement Interest Trust Trustee represents to Party A on the date
on which Party
B enters into this Agreement that the
Supplemental Interest Trust Trustee is executing the Agreement not
in its individual capacity, but solely as Supplement
Interest Trust Trustee on behalf of the Supplement Interest
Trust .
|
|
(w)
|
[Reserved.]
|
|
(x)
|
[Reserved.]
|
|
(y)
|
[Reserved.]
|
(z) Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold” means each of the S&P Approved Ratings
Threshold and the Moody’s First Trigger Ratings Threshold.
“Approved
Replacement” means, with respect to a Market Quotation, an entity
making such Market Quotation, which entity would satisfy conditions (a), (b),
(c) and (d) of the definition of Permitted Transfer (as determined by Party
B in
its sole discretion, acting in a commercially reasonable manner) if such entity
were a Transferee, as defined in the definition of Permitted
Transfer.
“Derivative
Provider Trigger Event” means (i) an Event of Default with respect
to which Party A is a Defaulting Party, (ii) a Termination Event with respect
to
which Party A is the sole Affected Party or (iii) an Additional Termination
Event with respect to which Party A is the sole Affected Party.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future payment obligations and obligations to post collateral of
Party A under this Agreement (or, solely for purposes of the definition of
Eligible Replacement, all present and future payment obligations and obligations
to post collateral of such Eligible Replacement under this Agreement or its
replacement, as applicable) which is provided by a guarantor as principal debtor
rather than surety and which is directly enforceable by Party B, the form and
substance of which guarantee are subject to the Rating Agency Condition with
respect to S&P.
“Eligible
Replacement” means an entity (A) that lawfully could perform the
obligations owing to Party B under this Agreement (or its replacement, as
applicable), and (B) (I) (x) which has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold or (y) all
present and future obligations of which entity owing to Party B under this
Agreement (or its replacement, as applicable) are guaranteed pursuant to an
Eligible Guarantee provided by a guarantor with credit ratings from S&P at
least equal to the S&P Required Ratings Threshold, in either case if S&P
is a Rating Agency, (II) (x) which has credit ratings from Xxxxx’x at least
equal to the Xxxxx’x Second Trigger Ratings Threshold or (y) all present and
future obligations of which entity owing to Party B under this Agreement (or
its
replacement, as applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold, in either case if Xxxxx’x is a Rating
Agency,.
“Estimated
Swap Termination Payment” means, with respect to an Early
Termination Date, an amount determined by Party A in good faith and in a
commercially reasonable manner as the maximum payment that could be owed by
Party B to Party A in respect of such Early Termination Date pursuant to Section
6(e), taking into account then current market conditions.
“Financial
Institution” means a bank, broker/dealer, insurance company,
structured investment company or derivative product company.
“Firm
Offer” means a quotation from an Eligible Replacement (i) in an
amount equal to the actual amount payable by or to Party B in consideration
of
an agreement between Party B and such Eligible Replacement to replace Party
A as
the counterparty to this Agreement by way of novation or, if such novation
is
not possible, an agreement between Party B and such Eligible Replacement to
enter into a Replacement Transaction (assuming that all Transactions hereunder
become Terminated Transactions), and (ii) that constitutes an offer by such
Eligible Replacement to replace Party A as the counterparty to this Agreement
or
enter a Replacement Transaction that will become legally binding upon such
Eligible Replacement upon acceptance by Party B.
“Moody’s”
means Xxxxx’x Investors Service,
Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A2” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-1”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating or counterparty rating
from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A1”.
“Moody’s
Second Trigger Downgrade
Event”means
that
no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x Second Trigger Ratings Threshold.
“Xxxxx’x
Second Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Xxxxx’x, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Xxxxx’x of “A3” and a
short-term unsecured and unsubordinated debt rating from Xxxxx’x of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Xxxxx’x, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Xxxxx’x of “A3”.
“Permitted
Transfer” means a transfer by novation by Party A, in the
circumstances specified in this Agreement (including agreements incorporated
by
reference herein) as a Permitted Transfer, to a transferee (the
“Transferee”) of Party A’s rights, liabilities, duties and
obligations under this Agreement, with respect to which transfer each of the
following conditions is satisfied: (a) the Transferee is an Eligible
Replacement; (b) Party A and the Transferee are both “dealers in notional
principal contracts” within the meaning of Treasury regulations section 1.1001-4
(in each case as certified by such entity);(c) as of the date of such transfer
the Transferee would not be required to withhold or deduct on account of Tax
from any payments under this Agreement or would be required to gross up for
such
Tax under Section 2(d)(i)(4); (d) an Event of Default or Termination Event
would
not occur as a result of such transfer; (e) the Transferee contracts with Party
B pursuant to a written instrument (the “Transfer Agreement”)
(A) (i) on terms which are
effective to transfer to the Transferee all, but not less than all, of Party
A’s
rights, liabilities, duties and obligations under the Agreement and all relevant
Transactions, which terms are identical to the terms of this Agreement, other
than party names, dates relevant to the effective date of such transfer, tax
representations (provided that the representations in Part 2(a)(i) are not
modified) and any other representations regarding the status of the substitute
counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2) or Part
5(v)(ii), notice information and account details, and (ii) each Rating Agency
has been given prior written notice of such transfer,
or (B) (i) on terms that (x) have the effect of preserving for Party B the
economic equivalent of all payment and delivery obligations (whether absolute
or
contingent and assuming the satisfaction of each applicable condition precedent)
under this Agreement immediately before such transfer and (y) are, in all
material respects, no less beneficial for Party B than the terms of this
Agreement immediately before such transfer, as determined by Party B, and (ii)
Xxxxx’x has been given prior written notice of such transfer and the Rating
Agency Condition is satisfied with respect to S&P; (f) Party A will be
responsible for any costs or expenses incurred in connection with such transfer
(including any replacement cost of entering into a replacement transaction);
and
(g) such transfer otherwise complies with the terms of the Pooling and Servicing
Agreement.
“Rating
Agency Condition” means, with respect to any particular proposed
act or omission to act hereunder and each Rating Agency specified in connection
with such proposed act or omission, that each such Rating Agency provides prior
written confirmation that the proposed action or inaction would not cause a
downgrade or withdrawal of the then-current rating of any Certificates or
Notes.
“Rating
Agencies” mean, with respect to any date of determination, each of
S&P and Xxxxx’x, to the extent that each such rating agency is then
providing a rating for any of the MASTR Asset Backed Securities Trust 2007-HE2,
Mortgage Pass-Through Certificates, Series 2007-HE2 (the “Certificates”) or any
notes backed by any of the Certificates (the “Notes”).
“Relevant
Entities” mean Party A and, to the extent applicable, a guarantor
under an Eligible Guarantee.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions that
(A) has terms which would be effective to transfer to a transferee all, but
not
less than all, of Party A’s rights, liabilities, duties and obligations under
this Agreement and all relevant Transactions, which terms are identical to
the
terms of this Agreement, other than party names, dates relevant to the effective
date of such transfer, tax representations (provided that the representations
in
Part 2(a)(i) are not modified) and any other representations regarding the
status of the substitute counterparty of the type included in Part 5(b)(iv),
Part 5(v)(i)(2) or Part 5(v)(ii), notice information and account details, save
for the exclusion of provisions relating to Transactions that are not Terminated
Transactions, or (B) (x) would have the effect of preserving for Party B the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) under this Agreement in respect of such
Terminated Transaction or group of Terminated Transactions that would, but
for
the occurrence of the relevant Early Termination Date, have been required after
that date, and (y) has terms which are, in all material respects, no less
beneficial for Party B than those of this Agreement (save for the exclusion
of
provisions relating to Transactions that are not Terminated Transactions),
as
determined by Party B.
“Required
Ratings Downgrade Event” means that no Relevant Entity has credit
ratings at least equal to the Required Ratings Threshold. For purposes of
determining whether a Required Ratings Downgrade Event has occurred, each
Relevant Entity shall provide its credit ratings to Party B in writing, upon
request of Party B.
“Required
Ratings Threshold” means each of the S&P Required Ratings
Threshold and the Xxxxx’x Second Trigger Ratings Threshold.
“S&P”
means Standard & Poor’s Rating Services, a division
of
The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a short-term
unsecured and unsubordinated debt rating of “A-1” from S&P, or, if such
entity does not have a short-term unsecured and unsubordinated debt rating
from
S&P, a long-term unsecured and unsubordinated debt rating or counterparty
rating of “A+” from S&P.
“S&P
Required Ratings Downgrade Event” means that
no Relevant Entity has credit ratings from S&P at least equal to the S&P
Required Ratings Threshold.
“S&P
Required Ratings Threshold”
means, with
respect to Party A, the guarantor under an Eligible Guarantee, or an Eligible
Replacement, (I) if such entity is a Financial Institution, a short-term
unsecured and unsubordinated debt rating of “A-2” from S&P, or, if such
entity does not have a short-term unsecured and unsubordinated debt
rating
from S&P, a long-term unsecured and unsubordinated debt rating or
counterparty rating of “BBB+” from S&P, or (II) if such entity is not a
Financial Institution, a short-term unsecured and unsubordinated debt rating
of
“A-1” from S&P, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of “A+” from
S&P.
[Remainder
of this page intentionally left blank.]
Item
4. Account Details and Settlement
Information:
Payments
to Party A:
Citibank,
N.A., New York
ABA Number: 000-0000-00, for the account of Bear, Xxxxxxx
Securities Corp.
Account
Number: 0925-3186, for further credit to Bear Xxxxxxx Financial Products
Inc.
Sub-account Number:
102-04654-1-3
Attention:
Derivatives Department
Payments
to Party B:
Xxxxx
Fargo Bank, NA
ABA #: 000-000-000
Acct #: 3970771416
Acct Name: SAS Clearing
For Further Credit: Account # 00000000, MABS 2007-HE2 Swap Account
NEITHER
THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE BEAR
XXXXXXX COMPANIES INC. OTHER THAN PARTY A IS AN OBLIGOR OR A CREDIT SUPPORT
PROVIDER ON THIS AGREEMENT.
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument.
Party
B
hereby agrees to check this Confirmation and to confirm that the foregoing
correctly sets forth the terms of the Transaction by signing in the space
provided below and returning to Party A a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions, please
contact Derivatives Documentation by telephone at 000-000-0000. For
all other inquiries please contact Derivatives Documentation by telephone at
000-0-000-0000. Originals will be provided for your execution upon your
request.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
By: _______________________________
Name:
Title:
Party
B,
acting through its duly authorized signatory, xxxxxx agrees to, accepts and
confirms the terms of the foregoing as of the date hereof.
XXXXX
FARGO BANK, N.A., NOT INDIVIDUALLY, BUT SOLELY AS SUPPLEMENTAL INTEREST TRUST
TRUSTEE ON BEHALF OF THE SUPPLEMENTAL INTEREST TRUST WITH RESPECT TO THE MASTR
ASSET BACKED SECURITIES TRUST 2007-HE2, MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HE2
By: _______________________________
Name:
Title:
SCHEDULE
I
(where
for the purposes of (i) determining Floating Amounts, all such dates subject
to
adjustment in accordance with the Following Business Day Convention and (ii)
determining Fixed Amounts, all such dates subject to No
Adjustment.)
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
|
Effective
Date
|
9/25/2007
|
1,782,096.00
|
|
9/25/2007
|
10/25/2007
|
1,763,052.00
|
|
10/25/2007
|
11/25/2007
|
1,738,512.00
|
|
11/25/2007
|
12/25/2007
|
1,708,484.00
|
|
12/25/2007
|
1/25/2008
|
1,673,016.00
|
|
1/25/2008
|
2/25/2008
|
1,632,208.00
|
|
2/25/2008
|
3/25/2008
|
1,586,216.00
|
|
3/25/2008
|
4/25/2008
|
1,535,252.00
|
|
4/25/2008
|
5/25/2008
|
1,479,632.00
|
|
5/25/2008
|
6/25/2008
|
1,419,856.00
|
|
6/25/2008
|
7/25/2008
|
1,358,192.00
|
|
7/25/2008
|
8/25/2008
|
1,297,716.00
|
|
8/25/2008
|
9/25/2008
|
1,239,980.00
|
|
9/25/2008
|
10/25/2008
|
1,184,868.00
|
|
10/25/2008
|
11/25/2008
|
1,132,248.00
|
|
11/25/2008
|
12/25/2008
|
1,082,016.00
|
|
12/25/2008
|
1/25/2009
|
1,034,032.00
|
|
1/25/2009
|
2/25/2009
|
988,168.00
|
|
2/25/2009
|
3/25/2009
|
944,108.00
|
|
3/25/2009
|
4/25/2009
|
901,736.00
|
|
4/25/2009
|
5/25/2009
|
853,436.00
|
|
5/25/2009
|
6/25/2009
|
796,624.00
|
|
6/25/2009
|
7/25/2009
|
736,560.00
|
|
7/25/2009
|
8/25/2009
|
682,180.00
|
|
8/25/2009
|
9/25/2009
|
632,908.00
|
|
9/25/2009
|
10/25/2009
|
591,612.00
|
|
10/25/2009
|
11/25/2009
|
558,972.00
|
|
11/25/2009
|
12/25/2009
|
532,124.00
|
|
12/25/2009
|
1/25/2010
|
506,636.00
|
|
1/25/2010
|
2/25/2010
|
482,452.00
|
|
2/25/2010
|
3/25/2010
|
459,464.00
|
|
3/25/2010
|
4/25/2010
|
437,236.00
|
|
4/25/2010
|
5/25/2010
|
415,024.00
|
|
5/25/2010
|
6/25/2010
|
393,236.00
|
|
6/25/2010
|
7/25/2010
|
372,176.00
|
|
7/25/2010
|
8/25/2010
|
352,472.00
|
|
8/25/2010
|
9/25/2010
|
334,180.00
|
|
9/25/2010
|
10/25/2010
|
317,520.00
|
|
10/25/2010
|
11/25/2010
|
302,188.00
|
|
11/25/2010
|
12/25/2010
|
287,940.00
|
|
12/25/2010
|
1/25/2011
|
274,416.00
|
|
1/25/2011
|
2/25/2011
|
261,568.00
|
|
2/25/2011
|
3/25/2011
|
249,368.00
|
|
3/25/2011
|
4/25/2011
|
237,776.00
|
|
4/25/2011
|
5/25/2011
|
226,760.00
|
|
5/25/2011
|
6/25/2011
|
216,288.00
|
|
6/25/2011
|
7/25/2011
|
206,336.00
|
|
7/25/2011
|
8/25/2011
|
196,872.00
|
|
8/25/2011
|
9/25/2011
|
187,876.00
|
|
9/25/2011
|
10/25/2011
|
179,316.00
|
|
10/25/2011
|
11/25/2011
|
171,176.00
|
|
11/25/2011
|
12/25/2011
|
163,432.00
|
|
12/25/2011
|
1/25/2012
|
156,060.00
|
|
1/25/2012
|
2/25/2012
|
149,048.00
|
|
2/25/2012
|
3/25/2012
|
142,372.00
|
|
3/25/2012
|
4/25/2012
|
136,012.00
|
|
4/25/2012
|
5/25/2012
|
129,960.00
|
|
5/25/2012
|
6/25/2012
|
124,196.00
|
|
6/25/2012
|
7/25/2012
|
118,704.00
|
|
7/25/2012
|
Termination
Date
|
113,472.00
|
Annex
A
Paragraph
13 of the Credit Support Annex
ANNEX
A
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of August 30, 2007 between
Bear
Xxxxxxx Financial Products Inc. (hereinafter referred to as “Party
A” or “Pledgor”)
and
Xxxxx
Fargo Bank, N.A.,, not individually, but solely as Supplemental Interest Trust
Trustee on behalf of the Supplemental Interest Trust with respect to the MASTR
Asset Backed Securities Trust 2007-HE2, Mortgage Pass-Through Certificates,
Series 2007-HE2 (hereinafter referred to as “Party B”
or “Secured Party”)
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may be
contained in the Agreement, this Credit Support Annex shall relate solely to
the
Transaction documented in the Confirmation dated August 30, 2007, between Party
A and Party B, Reference Number FXNSC9932.
Paragraph
13. Elections and Variables.
|
(a)
|
Security
Interest for “Obligations”. The term
“Obligations” as used in this
Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
|
(b)
|
Credit
Support Obligations.
|
|
(i)
|
Delivery
Amount, Return Amount and Credit Support
Amount.
|
|
(A)
|
“Delivery
Amount” has the meaning specified in
Paragraph 3(a), except that:
|
|
|
(I)
|
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” shall be deleted and replaced with the words “not later
than the close of business on each Valuation
Date”,
|
|
|
(II)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Value as of that Valuation Date of all Posted Credit Support
held by the Secured Party.” shall be deleted in its entirety and replaced
with the following:
|
“The
“Delivery Amount” applicable to the
Pledgor for any Valuation Date will equal the greater of
|
|
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party,
and
|
|
|
(2)
|
the
amount by which (a) the Xxxxx’x Credit Support Amount for such Valuation
Date exceeds (b) the Xxxxx’x Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party.”,
and
|
|
|
(III)
|
if,
on any Valuation Date, the Delivery Amount equals or exceeds the
Pledgor’s
Minimum Transfer Amount, the Pledgor will Transfer to the Secured
Party
sufficient Eligible Credit Support to ensure that, immediately following
such transfer, the Delivery Amount shall be
zero.
|
|
(B)
|
“Return
Amount” has the meaning specified in Paragraph 3(b), except
that:
|
|
|
(I)
|
the
sentence beginning “Unless otherwise specified in Paragraph 13” and ending
“(ii) the Credit Support Amount.” shall be deleted in its entirety and
replaced with the following:
|
“The
“Return Amount” applicable to the Secured Party for
any Valuation Date will equal the lesser of
|
|
(1)
|
the
amount by which (a) the S&P Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the S&P
Credit Support Amount for such Valuation Date,
and
|
|
|
(2)
|
the
amount by which (a) the Xxxxx’x Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party exceeds (b) the Xxxxx’x
Credit Support Amount for such Valuation Date.”,
and
|
|
|
(II)
|
in
no event shall the Secured Party be required to Transfer any Posted
Credit
Support under Paragraph 3(b) if, immediately following such transfer,
the
Delivery Amount would be greater than
zero.
|
|
(C)
|
“Credit
Support Amount” shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any Valuation
Date,
reference shall be made to the S&P Credit Support Amount, the Xxxxx’x
Credit Support Amount for such Valuation Date, as provided in Paragraphs
13(b)(i)(A) and 13(b)(i)(B), above.
|
|
(ii)
|
Eligible
Collateral.
|
The
items
set forth on the schedule of Eligible Collateral attached as Schedule A hereto
will qualify as “Eligible Collateral” (for the
avoidance of doubt, all Eligible Collateral to be denominated in
USD).
|
(iii)
|
Other
Eligible Support.
|
The
following items will qualify as “Other Eligible
Support” for the party specified:
Not
applicable.
|
(iv)
|
Threshold.
|
|
(A)
|
“Independent
Amount” means zero with respect to Party A and Party
B.
|
|
(B)
|
“Xxxxx’x
Threshold” means, with respect to Party A and any Valuation
Date, if a Xxxxx’x First Trigger Downgrade Event has occurred and is
continuing and such Xxxxx’x First Trigger Downgrade Event has been
continuing (i) for at least 30 Local Business Days or (ii) since
this
Annex was executed, zero; otherwise,
infinity.
|
“S&P
Threshold” means, with respect to Party A and any Valuation Date,
if an S&P Approved Ratings Downgrade Event has occurred and is
continuing and such S&P Approved Ratings Downgrade Event has been continuing
(i) for at least 10 Local Business Days or (ii) since this Annex was executed,
zero; otherwise, infinity.
|
“Threshold”
means, with respect to Party B and any Valuation Date,
infinity.
|
|
(C)
|
“Minimum
Transfer Amount” means USD 100,000 with respect to Party A
and Party B; provided, however, that if the aggregate Certificate
Principal Balance of any Certificates and the aggregate principal
balance
of any Notes rated by S&P is at the time of any transfer less than USD
50,000,000, the “Minimum Transfer Amount” shall
be USD 50,000.
|
|
(D)
|
Rounding:
The Delivery Amount will be rounded up to the nearest integral multiple
of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 10,000.
|
|
(c)
|
Valuation
and Timing.
|
|
(i)
|
“Valuation
Agent” means Party A.
|
|
(ii)
|
“Valuation
Date” means each Local Business Day on which any of the
S&P Threshold or the Xxxxx’x Threshold is
zero.
|
|
(iii)
|
“Valuation
Time” means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date. The Valuation
Agent will notify each party (or the other party, if the Valuation
Agent
is a party) of its calculations not later than the Notification Time
on
the applicable Valuation Date (or in the case of Paragraph 6(d),
the Local
Business Day following the day on which such relevant calculations
are
performed).”
|
|
(iv)
|
“Notification
Time” means 11:00 a.m., New York time, on a Local Business
Day.
|
|
(d)
|
Conditions
Precedent and Secured Party’s Rights and
Remedies. The following Termination Events will
be a “Specified Condition” for the party
specified (that party being the Affected Party if the Termination
Event
occurs with respect to that party): With respect to Party A and
Party B: None.
|
|
(e)
|
Substitution.
|
|
(i)
|
“Substitution
Date” has the meaning specified in Paragraph
4(d)(ii).
|
|
(ii)
|
Consent. If
specified here as applicable, then the Pledgor must obtain the Secured
Party’s consent for any substitution pursuant to Paragraph
4(d): Inapplicable.
|
|
(f)
|
Dispute
Resolution.
|
|
(i)
|
“Resolution
Time” means 1:00 p.m. New York time on the Local Business
Day following the date on which the notice of the dispute is given
under
Paragraph 5.
|
|
(ii)
|
Value. Notwithstanding
anything to the contrary in Paragraph 12, for the purpose of Paragraphs
5(i)(C) and 5(ii), the S&P Value and Xxxxx’x Value, on any date, of
Eligible Collateral other than Cash will be calculated as
follows:
|
For
Eligible Collateral other than Cash in the form of securities listed in Schedule
A: the sum of (A) the product of (1)(x) the bid-side quotation at the Valuation
Time for such securities on the principal national securities exchange on which
such securities are listed, or (y) if such securities are not listed on a
national securities exchange, the arithmetic mean of the bid-side quotations
for
such securities quoted at the Valuation Time by any three principal market
makers for such securities selected by the Valuation Agent, provided that if
only two bid-side quotations are obtained, then the arithmetic mean of such
two
bid-side quotations will be used, and if only one bid-side quotation is
obtained, such quotation shall be used, or (z) if no such bid price is listed
or
quoted for such date, the bid price listed or quoted (as the case may be) at
the
Valuation Time for the day next preceding such date on which such prices were
available and (2) the applicable Valuation Percentage for such Eligible
Collateral, and (B) the accrued interest on such securities (except to the
extent Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or included
in
the applicable price referred to in the immediately preceding clause (A)) as
of
such date.
For
Cash,
the amount thereof multiplied, in the case of the S&P Value, by the
applicable S&P Valuation Percentage.
(iii)
Alternative. The provisions of Paragraph 5
will apply.
|
(g)
|
Holding
and Using Posted
Collateral.
|
|
(i)
|
Eligibility
to Hold Posted Collateral; Custodians. Party B (or its
Custodian) will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b), provided that the following conditions applicable
to it
are satisfied:
|
|
|
(1)
|
it
is not a Defaulting Party.
|
|
|
(2)
|
Posted
Collateral consisting of Cash or certificated securities that cannot
be
paid or delivered by book-entry may be held only in any state of
the
United States which has adopted the Uniform Commercial Code,
and
|
|
|
(3)
|
in
the case of any Custodian for Party B, such Custodian (or, to the
extent
applicable, its parent company or credit support provider) shall
then have
credit ratings from S&P at least equal to the Custodian Required
Rating Threshold. If at any time the Custodian does not have credit
ratings from S&P at least equal to the Custodian Required Rating
Threshold, the Trustee must within 60 days obtain a replacement Custodian
with credit ratings from S&P at least equal to the Custodian Required
Rating Threshold.
|
Initially,
the Custodian for Party B is: Xxxxx Fargo Bank,
N.A.
|
(ii)
|
Use
of Posted Collateral. The provisions of Paragraph 6(c) will
not apply to Party B or its Custodian; provided, however, that if
Party A
delivers Posted Collateral in book-entry form, then Paragraph 6(c)(ii)
will apply to Party B and its Custodian, and Party B and its Custodian
shall have the rights specified in Paragraph
6(c)(ii).
|
|
(h)
|
Distributions
and Interest Amount.
|
|
(i)
|
Interest
Rate. The “Interest
Rate” will be the actual interest rate earned on Posted
Collateral in the form of Cash that is held by Party B or its Custodian.
Posted Collateral in the form of Cash shall be invested in such overnight
(or redeemable within two Local Business Days of demand) Permitted
Investments rated at least (x) AAAm or AAAm-G by S&P and (y) Prime-1
by Xxxxx’x or Aaa by Xxxxx’x, as directed by Party A. In the
absence of such direction, such Posted Collateral shall remain uninvested.
Gains and losses incurred in respect of any investment of Posted
Collateral in the form of Cash in Permitted Investments as directed
by
Party A shall be for the account of Party
A.
|
|
(ii)
|
Amendment
of Paragraph 6(d)(i) – Distributions. Paragraph
6(d)(i) shall be deleted in its entirety and replaced with the
following:
|
“Distributions. Subject
to Paragraph 4(a), if Party B receives Distributions on a Local Business Day,
it
will Transfer to Party A not later than the following Local Business Day any
Distributions it receives to the extent that a Delivery Amount would not be
created or increased by that Transfer, as calculated by the Valuation Agent
(and
the date of calculation will be deemed to be a Valuation Date for this purpose).
”
|
(iii)
|
Amendment
of Paragraph 6(d)(ii) – Interest Amount. Clause
(d)(ii) of Paragraph 6 shall be amended and restated to read in its
entirety as follows:
|
|
|
“(ii)
Interest Amount. In lieu of any interest,
dividends or other amounts paid with respect to Posted Collateral
in the
form of Cash (all of which may be retained by the Secured Party),
the
Secured Party will Transfer to the Pledgor on the 20th day of each
calendar month (or if such day is not a Local Business Day, the next
Local
Business Day) the Interest Amount. Any Interest Amount or
portion thereof actually received by Party B, but not Transferred
pursuant
to this Paragraph will constitute Posted Collateral in the form of
Cash
and will be subject to the security interest granted under Paragraph
2. For purposes of calculating the Interest Amount the amount
of interest calculated for each day of the interest period shall
be
compounded monthly.” Secured Party shall not be obligated to
transfer any Interest Amount unless and until it has received such
amount.
|
|
(i)
|
Additional
Representation(s). There are no additional
representations by either party.
|
|
(j)
|
Other
Eligible Support and Other Posted
Support.
|
|
(i)
|
“Value”
with respect to Other Eligible Support and Other Posted Support means:
not
applicable.
|
|
(ii)
|
“Transfer”
with respect to Other Eligible Support and Other Posted Support means:
not
applicable.
|
|
(k)
|
Demands
and Notices.All demands, specifications and notices under
this Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to
or made
at the following addresses, or at such other address as the relevant
party
may from time to time designate by giving notice (in accordance with
the
terms of this paragraph) to the other
party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: at the address designated in writing from time
to time.
|
(l)
|
Address
for Transfers. Each Transfer hereunder shall be
made to the address specified below or to an address specified in
writing
from time to time by the party to which such Transfer will be
made.
|
Party
A
account details for holding collateral:
Citibank,
N.A., New York
ABA
Number: 000-0000-00, for the account of Bear, Xxxxxxx Securities
Corp.
Account
Number: 0925-3186, for further credit to Bear Xxxxxxx Financial Products
Inc.
Sub-account Number:
102-04654-1-3
Attention:
Derivatives Department
Party
B’s
Custodian account details for holding collateral:
Xxxxx
Fargo Bank, N.A.
ABA
Number: 000-000-000
Account
Name: SAS Clearing
Account
Number: 3970771416
For
further credit to: 53173403, MABS 2007 HE2 Swap Collateral
Account
|
(m)
|
Other
Provisions.
|
|
(i)
|
Posted
Collateral Account. Party B shall open and
maintain a segregated account, and hold, record and identify all
Posted
Collateral in such segregated
account.
|
|
(ii)
|
Agreement
as to Single Secured Party and Single Pledgor. Party A and
Party B hereby agree that, notwithstanding anything to the contrary
in
this Annex, (a) the term “Secured Party” as used in this Annex means only
Party B, (b) the term “Pledgor” as used in this Annex means only Party A,
(c) only Party A makes the pledge and grant in Paragraph 2, the
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9.
|
|
(iii)
|
Calculation
of Value. Paragraph 4(c) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
Xxxxx’x Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Xxxxx’x Value” and (B) deleting the words “the Value” and inserting
in lieu thereof “S&P Value, Xxxxx’x Value”. Paragraph 5
(flush language) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Xxxxx’x
Value”. Paragraph 5(i) (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
Xxxxx’x Value”. Paragraph 5(i)(C) is hereby amended by deleting
the word “the Value, if” and inserting in lieu thereof “any one or more of
the S&P Value, Xxxxx’x Value, as may be”. Paragraph 5(ii)
is hereby amended by (1) deleting the first instance of the words
“the
Value” and inserting in lieu thereof “any one or more of the S&P
Value, Xxxxx’x Value” and (2) deleting the second instance of the words
“the Value” and inserting in lieu thereof “such disputed S&P Value,
Xxxxx’x Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph
11(a) is hereby amended by deleting the word “Value” and inserting in lieu
thereof “least of the S&P Value, Xxxxx’x
Value”.
|
|
(iv)
|
Form
of Annex. Party A and Party B hereby
agree that the text of Paragraphs 1 through 12, inclusive, of this
Annex
is intended to be the printed form of 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.
|
|
(v)
|
Events
of Default. Clause (iii) of Paragraph 7 shall not
apply to Party B.
|
|
(vi)
|
Expenses. Notwithstanding
anything to the contrary in Paragraph 10, the Pledgor will be responsible
for, and will reimburse the Secured Party for, all transfer and other
taxes and other costs involved in maintenance and any Transfer of
Eligible
Collateral.
|
|
(vii)
|
Withholding. Paragraph
6(d)(ii) is
hereby amended by inserting immediately after “the Interest Amount” in the
fourth line thereof the words “less any applicable withholding
taxes.”
|
(ix) Additional
Definitions. As used in this Annex:
“Custodian
Required Rating Threshold” means, with respect to an entity, a
short-term unsecured and unsubordinated debt rating from S&P of “A-1,” or,
if such entity does not have a short-term unsecured and unsubordinated debt
rating from S&P, a long-term unsecured and unsubordinated debt rating or
counterparty rating from S&P of “A+”.
“DV01”
means, with respect to a Transaction and any date of determination, the
estimated change in the Secured Party’s Transaction Exposure with respect to
such Transaction that would result from a one basis point change in the relevant
swap curve on such date, as determined by the Valuation Agent in good faith
and
in a commercially reasonable manner in accordance with the relevant methodology
customarily used by the Valuation Agent. The Valuation Agent shall,
upon request of Party B, provide to Party B a statement showing in reasonable
detail such calculation.
“Exposure”
has the meaning specified in Paragraph
12, except that (1)
after the word “Agreement” the words “(assuming, for this purpose only, that
Part 1(f)(i)(A-E) of the Schedule is deleted)” shall be inserted and (2) at the
end of the definition of Exposure, the words "without assuming that the
terms of such Replacement Transactions are materially less beneficial for Party
B than the terms of this Agreement" shall be added.
“Local
Business Day” means, for purposes of this Annex: any day on which
(A) commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in New York and the location of Party
A,
Party B and any Custodian, and (B) in relation to a Transfer of Eligible
Collateral, any day on which the clearance system agreed between the parties
for
the delivery of Eligible Collateral is open for acceptance and execution of
settlement instructions (or in the case of a Transfer of Cash or other Eligible
Collateral for which delivery is contemplated by other means a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign deposits) in New York and the location of Party A, Party B and
any
Custodian.
“Xxxxx’x
Credit Support Amount” means, for any
Valuation Date:
|
|
(A)
|
if
the Xxxxx’x Threshold for such Valuation Date is zero and (i) it is not
the case that a Xxxxx’x Second Trigger Downgrade Event has occurred and is
continuing or (ii) a Xxxxx’x Second Trigger Downgrade Event has occurred
and is continuing and less than 30 Local Business Days have elapsed
since
such Xxxxx’x Second Trigger Downgrade Event first occurred, an amount
equal to the greater of (x) zero and (y) the sum of the Secured Party’s
Exposure and the aggregate of Xxxxx’x First Trigger Additional Amounts for
all Transactions and such Valuation
Date;
|
|
|
(B)
|
if
the Xxxxx’x Threshold for such Valuation Date is zero and if a Xxxxx’x
Second Trigger Downgrade Event has occurred and is continuing and
at least
30 Local Business Days have elapsed since such Xxxxx’x Second Trigger
Downgrade Event first occurred, an amount equal to the greatest
of (x) zero, (y) the aggregate amount of the Next Payments for all
Next
Payment Dates, and (z) the sum of the Secured Party’s Exposure and the
aggregate of Xxxxx’x Second Trigger Additional Amounts for all
Transactions and such Valuation Date;
or
|
|
|
(C)
|
if
the Xxxxx’x Threshold for such Valuation Date is infinity,
zero.
|
“Xxxxx’x
First Trigger Additional Amount” means, for any
Valuation Date and any Transaction, the lesser of (x) the product of the Xxxxx’x
First Trigger DV01 Multiplier and DV01 for such Transaction and such Valuation
Date and (y) the product of (i) the Xxxxx’x First Trigger Notional Amount
Multiplier, (ii) the Scale Factor, if any, for such Transaction, or, if no
Scale
Factor is applicable for such Transaction, one and (iii) the Notional Amount
for
such Transaction for the Calculation Period for such Transaction (each as
defined in the related Confirmation) which includes such Valuation
Date.
“Xxxxx’x
First Trigger Downgrade Event” means that no Relevant Entity has
credit ratings from Xxxxx’x at least equal to the Xxxxx’x First Trigger Ratings
Threshold.
“Xxxxx’x
First Trigger DV01 Multiplier” means 15.
“Xxxxx’x
First Trigger Notional Amount Multiplier” means 2%.
“Xxxxx’x
First Trigger Value” means, on any date and with respect to any
Eligible Collateral other than Cash, the bid price obtained by the Valuation
Agent multiplied by the Xxxxx’x First Trigger Valuation Percentage for such
Eligible Collateral set forth in Schedule A.
“Xxxxx’x
Second Trigger Additional Amount” means, for any Valuation Date
and any Transaction,
|
|
(A)
|
if
such Transaction is not a Transaction-Specific Hedge, the lesser
of (i)
the product of the Xxxxx’x Second Trigger DV01 Multiplier and DV01 for
such Transaction and such Valuation Date and (ii) the product of
(1) the
Xxxxx’x Second Trigger Notional Amount Multiplier, (2) the Scale Factor,
if any, for such Transaction, or, if no Scale Factor is specified
in such
Transaction, one and (3) the Notional Amount for such Transaction
for the
Calculation Period for such Transaction (each as defined in the related
Confirmation) which includes such Valuation Date;
or
|
|
|
(B)
|
if
such Transaction is a Transaction-Specific Hedge, the lesser of (i)
the
product of the Xxxxx’x Second Trigger Transaction-Specific Hedge DV01
Multiplier and DV01 for such Transaction and such Valuation Date
and (ii)
the product of (x) the Xxxxx’x Second Trigger Transaction-Specific Hedge
Notional Amount Multiplier, (y) the Scale Factor, if any, for such
Transaction, or, if no Scale Factor is applicable for such Transaction,
one, and (z) the Notional Amount for such Transaction for the Calculation
Period for such Transaction (each as defined in the related Confirmation)
which includes such Valuation Date.
|
“Xxxxx’x
Second Trigger DV01 Multiplier” means 50.
“Xxxxx’x
Second Trigger Notional Amount Multiplier” means 8%.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge DV01 Multiplier” means
65.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier” means 10%.
“Xxxxx’x
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral,
|
|
(A)
|
if
the Xxxxx’x Threshold for such Valuation Date is zero and (i) it is not
the case that a Xxxxx’x Second Trigger Downgrade Event has occurred and is
continuing or (ii) a Xxxxx’x Second Trigger Downgrade Event has occurred
and is continuing and less than 30 Local Business Days have elapsed
since
such Xxxxx’x Second Trigger Downgrade Event first occurred, the
corresponding percentage for such Eligible Collateral in the column
headed
“Xxxxx’x First Trigger Valuation Percentage”,
or
|
|
|
(B)
|
if
a Xxxxx’x Second Trigger Downgrade Event has occurred and is continuing
and at least 30 Local Business Days have elapsed since such Xxxxx’x Second
Trigger Downgrade Event first occurred, the corresponding percentage
for
such Eligible Collateral in the column headed “Xxxxx’x Second Trigger
Valuation Percentage.
|
“Xxxxx’x
Value” means, on any date and with respect to any Eligible
Collateral the product of (x) the bid price obtained by the Valuation Agent
and
(y) the applicable Xxxxx’x Valuation Percentage for such Eligible Collateral set
forth in Schedule A.
“Next
Payment” means, in respect of each Next Payment Date, the greater
of (i) the aggregate amount of any payments due to be made by Party A under
Section 2(a) on such Next Payment Date less the aggregate amount of any payments
due to be made by Party B under Section 2(a) on such Next Payment Date (any
such
payments determined based on rates prevailing the date of determination) and
(ii) zero.
“Next
Payment Date” means each date on which the next scheduled payment
under any Transaction is due to be paid.
“Replacement
Transaction” for the purposes of this
Annex, means, with respect to any Terminated Transaction or group
of Terminated Transactions, a transaction or group of transactions that would
have the effect of preserving for the Secured Party the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date, without
assuming that the terms of such transaction or group of transactions are
materially less beneficial for Party B than the terms of the Terminated
Transaction or group of Terminated Transactions.
“S&P
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings from S&P at least equal to the S&P Approved Ratings
Threshold.
“S&P
Credit Support Amount” means, for any Valuation Date:
|
|
(A)
|
if
the S&P Threshold for such Valuation Date is zero and it is not the
case that an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, an amount equal
to
the greater of (x) zero and (y) than Secured Party’s Exposure on such
Valuation Date;
|
|
|
(B)
|
if
the S&P Threshold for such Valuation Date is zero and it is the case
that an S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, an amount equal to
the
greater of (x) zero and (y) 125% of the Secured Party’s Exposure on such
Valuation Date; or
|
|
|
(C)
|
if
the S&P Threshold for such Valuation Date is infinity,
zero.
|
“S&P
Valuation Percentage” means, with respect to a Valuation Date and
each item of Eligible Collateral,
|
|
(A)
|
if
the S&P Threshold for such Valuation Date is zero and it is not the
case that an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed “S&P
Approved Ratings Valuation Percentage;”
or
|
|
|
(B)
|
if
an S&P Required Ratings Downgrade Event has occurred and been
continuing for at least 10 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed “S&P
Required Ratings Valuation
Percentage”.
|
“S&P
Value” means, on any date and with respect to any Eligible
Collateral, (A) in the case of Eligible Collateral other than Cash, the product
of (x) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (y) the applicable S&P Valuation Percentage for such Eligible
Collateral set forth in Schedule A and (B) in the case of Cash, the amount
thereof multiplied by the applicable S&P Valuation Percentage.
“Transaction
Exposure” means, for any Transaction, Exposure determined as if
such Transaction were the only Transaction between the Secured Party and the
Pledgor.
“Transaction-Specific
Hedge” means any Transaction that is (i) an interest rate swap in
respect of which (x) the notional amount of the interest rate swap is “balance
guaranteed” or (y) the notional amount of the interest rate swap for any
Calculation Period (as defined in the related Confirmation) otherwise is not
a
specific dollar amount that is fixed at the inception of the Transaction, (ii)
an interest rate cap, (iii) an interest rate floor or (iv) an interest rate
swaption.
“Valuation
Percentage” shall mean, for purposes of determining the S&P
Value or Xxxxx’x Value with respect to any Eligible Collateral or Posted
Collateral, the applicable S&P Valuation Percentage or Xxxxx’x Valuation
Percentage for such Eligible Collateral or Posted Collateral, respectively,
in
each case as set forth in Schedule A.
“Value”
shall mean, in respect of any date, the related S&P Value and the related
Xxxxx’x Value.
[Remainder
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties have
executed this Annex by their duly authorized representatives as of the date
of
the Agreement.
|
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
|
XXXXX
FARGO BANK, N.A., NOT INDIVIDUALLY, BUT SOLELY AS SUPPLEMENTAL INTEREST
TRUST TRUSTEE ON BEHALF OF THE SUPPLEMENTAL INTEREST TRUST WITH RESPECT
TO
THE MASTR ASSET BACKED SECURITIES TRUST 2007-HE2, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-HE2
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Date:
|
Date:
|
|||
SCHEDULE
A
Eligible
Collateral
|
ISDA
Collateral Asset Definition (ICAD) Code
|
Remaining
Maturity in Years
|
S&P
Valuation
Approved Ratings
Percentage
|
S&P
Required Ratings Valuation Percentage
|
Xxxxx’x
First
Trigger Valuation Percentage
|
Xxxxx’x
Second
Trigger
Valuation
Percentage
|
|
(A) US-CASH
|
N/A
|
100%
|
80%
|
100%
|
100%
|
|
(B) US-TBILL
US-TNOTE
US-TBOND
|
|||||
|
1
or less
|
98.9%
|
79.1%
|
100%
|
100%
|
|
|
More
than 1 but not more than 2
|
98%
|
78.4%
|
100%
|
99%
|
|
|
More
than 2 but not more than 3
|
98%
|
78.4%
|
100%
|
98%
|
|
|
More
than 3 but not more than 5
|
98%
|
78.4%
|
100%
|
97%
|
|
|
More
than 5 but not more than 7
|
93.7%
|
75%
|
100%
|
96%
|
|
|
More
than 7 but not more than 10
|
92.6%
|
74.1%
|
100%
|
94%
|
|
|
More
than 10 but not more than 20
|
91.1%
|
72.9%
|
100%
|
90%
|
|
|
More
than 20
|
88.6%
|
70.9%
|
100%
|
88%
|
|
|
(C) US-GNMA
US-FNMA
US-FHLMC
|
|||||
|
1
or less
|
98.5%
|
78.8%
|
100%
|
99%
|
|
|
More
than 1 but not more than 2
|
98%
|
78.4%
|
100%
|
99%
|
|
|
More
than 2 but not more than 3
|
98%
|
78.4%
|
100%
|
98%
|
|
|
More
than 3 but not more than 5
|
98%
|
78.4%
|
100%
|
96%
|
|
|
More
than 5 but not more than 7
|
92.6%
|
74.1%
|
100%
|
93%
|
|
|
More
than 7 but not more than 10
|
92.6%
|
74.1%
|
100%
|
93%
|
|
|
More
than 10 but not more than 20
|
87.7%
|
70.2%
|
100%
|
89%
|
|
|
More
than 20
|
84.4%
|
67.5%
|
100%
|
87%
|
The
ISDA
Collateral Asset Definition (ICAD) Codes used in this Schedule A are taken
from
the Collateral Asset Definitions (First Edition – June 2003) as published and
copyrighted in 2003 by the International Swaps and Derivatives Association,
Inc.
EXHIBIT
N
FORM
OF
SWAP ADMINISTRATION AGREEMENT
SWAP
ADMINISTRATION AGREEMENT
This
Swap
Administration Agreement, dated as of August 30, 2007 (this “Agreement”), among
Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), as swap administrator (the “Swap
Administrator”), Xxxxx Fargo as trust administrator and supplemental interest
trust trustee (in such capacities, the “Trust Administrator” and the
“Supplemental Interest Trust Trustee”) under the Pooling and Servicing
Agreement, as hereinafter defined, and UBS Real Estate Securities Inc.
(“UBSRES”).
WHEREAS,
the Trust Administrator, on behalf of the holders of the MASTR Asset-Backed
Securities Trust 2007-HE2, Mortgage Pass-Through Certificates, is counterparty
to an Interest Rate Swap Agreement (the “Swap Agreement”), a copy of which is
attached hereto as Exhibit A, between the Supplemental Interest Trust Trustee
and Bear Xxxxxxx Financial
Products Inc.; and
WHEREAS,
it is desirable to irrevocably appoint the Swap Administrator, and the Swap
Administrator desires to accept such appointment, to receive and distribute
funds payable by Bear Xxxxxxx
Financial Products Inc. under the Swap Agreement as provided
herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized
terms used but not otherwise defined herein shall have the respective meanings
assigned thereto in the Pooling and Servicing Agreement, dated as of August
1,
2007 (the “Pooling and Servicing Agreement”), among Mortgage Asset
Securitization Transactions, Inc., as depositor, Xxxxx Fargo Bank, N.A. as
master servicer, trust administrator and custodian, Option One Mortgage
Corporation and Barclays Capital Real Estate Inc. d/b/a HomEq Servicing as
servicers and U.S. Bank National Association, as trustee (“the Trustee”),
relating to the MASTR Asset-Backed Securities Trust 2007-HE2, Mortgage
Pass-Through Certificates (the “Certificates”), or in the related Indenture, as
the case may be, as in effect on the date hereof.
|
2.
|
Swap Administrator.
|
(a) The
Swap
Administrator is hereby irrevocably appointed to receive all funds paid to
the
Supplemental Interest Trust Trustee by Bear Xxxxxxx Financial Products
Inc., or its successors in interest (the “Swap Provider”) under the Swap
Agreement (including any Swap Termination Payment) and the Swap Administrator
hereby accepts such appointment and hereby agrees to receive such amounts from
the Supplemental Interest Trust Trustee and to distribute on each Distribution
Date such amounts in the following order of priority:
(i) first,
to
the Trust Administrator for deposit into the Swap Account, an amount equal
to
the sum of the following amounts remaining outstanding after distribution of
the
Net Monthly Excess Cashflow: (A) Unpaid Interest Shortfall Amounts, (B) Net
WAC
Rate Carryover Amounts; (C) an
amount necessary to maintain or restore the Overcollateralization Target Amount;
and (D) any Allocated Realized Loss Amounts;
(ii) second,
to UBSRES, any amounts remaining after payment of (i) above, provided,
however, upon the issuance of notes by an issuer (the “Trust”), secured by
all or a portion of the Class CE Certificates and the Class P Certificates
(the
“NIM Notes”), UBSRES hereby instructs the Swap Administrator to make any
payments under this clause 2(a)(ii) in the following order of
priority:
(A) to
the
Indenture Trustee for the Trust, for deposit into the Note Account (each as
to
defined in the related Indenture), and until satisfaction and discharge of
the
Indenture, the Floating Amount (as defined in Annex I); and
(B) concurrently,
to the Holders of the Class CE Certificates, pro rata based on the
outstanding Notional Amount of each such Certificate; provided, however, that
any Swap Termination Payment received by the Swap Administrator shall not be
payable to the Holders of the Class CE Certificates pursuant to this clause
(ii)(B) without the prior written consent of the NIMS Insurer, if any, and
the
Rating Agencies.
(b) The
Swap
Administrator agrees to hold any amounts received from the Supplemental Interest
Trust Trustee in trust upon the terms and conditions and for the exclusive
use
and benefit of the Supplemental Interest Trust Trustee, the Trust Administrator
and the Indenture Trustee, as applicable (in turn for the benefit of the
Certificateholders, the Noteholders and the NIMS Insurer, if any) as set forth
herein. The rights, duties and liabilities of the Swap Administrator
in respect of this Agreement shall be as follows:
(i) The
Swap Administrator shall have the full power and authority to do all things
not
inconsistent with the provisions of this Agreement that it may deem advisable
in
order to enforce the provisions hereof. The Swap Administrator shall
not be answerable or accountable except for its own bad faith, willful
misconduct or negligence. The Swap Administrator shall not be required to take
any action to exercise or enforce any of its rights or powers hereunder which,
in the opinion of the Swap Administrator, shall be likely to involve expense
or
liability to the Swap Administrator, unless the Swap Administrator shall have
received an agreement satisfactory to it in its sole discretion to indemnify
it
against such liability and expense.
(ii) The
Swap Administrator shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
any
party hereto or the NIMS Insurer, if any, or otherwise as provided herein,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Swap Administrator or exercising any right or power
conferred upon the Swap Administrator under this Agreement.
(iii) The
Swap Administrator may perform any duties hereunder either directly or by or
through agents or attorneys of the Swap Administrator. The Swap
Administrator shall not be liable for the acts or omissions of its agents or
attorneys so long as the Swap Administrator chose such Persons with due
care.
3. Swap
Administration Account. The Swap Administrator shall segregate
and hold all funds received from the Supplemental Interest Trust Trustee
(including any Swap Termination Payment) separate and apart from any of its
own
funds and general assets and shall establish and maintain in the name of the
Swap Administrator one or more segregated accounts (such account or accounts,
the “Swap Account”), held in trust for the benefit of the Supplemental Interest
Trust Trustee, the Trust Administrator, the Indenture Trustee and the parties
to
this Agreement. All amounts on deposit in the Swap Account shall
remain uninvested unless the Swap Administrator receives instructions to the
contrary from any party hereto, with the consent of the NIMS Insurer, if
any. The Swap Administrator hereby agrees that it holds and shall
hold the Swap Account and all amounts deposited therein in trust for the
exclusive use and benefit of the Supplemental Interest Trust Trustee, the Trust
Administrator and the Indenture Trustee as their interests may
appear.
|
4.
|
[Reserved].
|
5. Representations
and Warranties of Xxxxx Fargo. Xxxxx Fargo represents and warrants as
follows:
(a) Xxxxx
Fargo is duly organized and validly existing as a national banking association
under the laws of the United States and has all requisite power and authority
to
execute and deliver this Agreement, to perform its obligations as Swap
Administrator hereunder.
(b) The
execution, delivery and performance of this Agreement by Xxxxx Fargo as Trust
Administrator have been duly authorized in the Pooling and Servicing
Agreement.
(c) This
Agreement has been duly executed and delivered by Xxxxx Fargo as Swap
Administrator, Trust Administrator and Supplemental Interest Trust Trustee
and
is enforceable against Xxxxx Fargo in such capacities in accordance with its
terms, except as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law).
|
6.
|
Replacement
of Swap Administrator.
|
Any
corporation, bank, trust company or association into which the Swap
Administrator may be merged or converted or with which it may be consolidated,
or any corporation, bank, trust company or association resulting from any
merger, conversion or consolidation to which the Swap Administrator shall be
a
party, or any corporation, bank, trust company or association succeeding to
all
or substantially all the corporate trust business of the Swap Administrator,
shall be the successor of the Swap Administrator hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, except to the extent that assumption of its duties and
obligations, as such, is not effected by operation of law.
No
resignation or removal of the Swap Administrator and no appointment of a
successor Swap Administrator shall become effective until the appointment by
UBSRES of a successor swap administrator acceptable to the NIMS Insurer, if
any. Any successor swap administrator shall execute such documents or
instruments necessary or appropriate to vest in and confirm to such successor
swap administrator all such rights and powers conferred by this
Agreement.
The
Swap
Administrator may resign at any time by giving written notice thereof to the
other parties hereto with a copy to the NIMS Insurer, if any. If a
successor swap administrator shall not have accepted the appointment hereunder
within 30 days after the giving by the resigning Swap Administrator of such
notice of resignation, the resigning Swap Administrator may petition any court
of competent jurisdiction for the appointment of a successor swap administrator
acceptable to the NIMS Insurer, if any.
In
the
event of a resignation or removal of the Swap Administrator, UBSRES shall
promptly appoint a successor Swap Administrator acceptable to the NIMS Insurer,
if any. If no such appointment has been made within 10 days of the
resignation or removal, the NIMS Insurer, if any, may appoint a successor Swap
Administrator.
|
7.
|
Supplemental
Interest Trust Trustee
Obligations.
|
Whenever
the Supplemental Interest Trust Trustee, as a party to the Swap Agreement,
has
the option or is requested in such capacity, whether such request is by the
counterparty to such agreement, to take any action or to give any consent,
approval or waiver that it is entitled to take or give in such capacity,
including, without limitation, in connection with an amendment of such agreement
or the occurrence of a default or termination event thereunder, the Supplemental
Interest Trust Trustee shall promptly notify the parties hereto and the NIMS
Insurer, if any, of such request in such detail as is available to it and,
shall, on behalf of the parties hereto and the NIMS Insurer, if any, take such
action in connection with the exercise and/or enforcement of any rights and/or
remedies available to it in such capacity with respect to such request as the
NIMS Insurer, if any, shall direct in writing; provided that if no such
direction is received prior to the date that is established for taking such
action or giving such consent, approval or waiver (notice of which date shall
be
given by the Supplemental Interest Trust Trustee to the parties hereto and
the
NIMS Insurer, if any), the Supplemental Interest Trust Trustee may abstain
from
taking such action or giving such consent, approval or waiver.
The Supplemental
Interest Trust Trustee shall forward to the parties hereto and the NIMS Insurer,
if any, on the Payment Date following its receipt thereof copies of any and
all
notices, statements, reports and/or other material communications and
information (collectively, the “Swap Reports”) that it receives in connection
with the Swap Agreement or from the counterparty thereto.
|
8.
|
Miscellaneous.
|
(a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
(b) Any
action or proceeding against any of the parties hereto relating in any way
to
this Agreement may be brought and enforced in the courts of the State of New
York sitting in the borough of Manhattan or of the United States District Court
for the Southern District of New York and the Swap Administrator irrevocably
submits to the jurisdiction of each such court in respect of any such action
or
proceeding. The Swap Administrator waives, to the fullest extent
permitted by law, any right to remove any such action or proceeding by reason
of
improper venue or inconvenient forum.
(c) This
Agreement may be amended, supplemented or modified in writing by the parties
hereto, but only with the consent of the NIMS Insurer, if any.
(d) This
Agreement may not be assigned or transferred without the prior written consent
of the NIMS Insurer, if any; provided, however, the parties hereto acknowledge
and agree to the assignment of the rights of UBSRES as provided under this
Agreement pursuant to the Sale Agreement, the Trust Agreement and the
Indenture.
(e) This
Agreement may be executed by one or more of the parties to this Agreement on
any
number of separate counterparts (including by facsimile transmission), and
all
such counterparts taken together shall be deemed to constitute one and the
same
instrument.
(f) Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
(g) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or
omission on the part of any party hereto shall constitute a waiver of any such
representation or warranty.
(h) The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
(i) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or
omission on the part of any party hereto shall constitute a waiver of any such
representation or warranty.
9. Third-Party
Beneficiary. Each of the Note Insurer, the Backup Note Insurer
and the Indenture Trustee, if any, shall be deemed a third-party beneficiary
of
this Agreement to the same extent as if it were a party hereto, and shall have
the right to enforce the provisions of this Agreement.
10. Swap
Administrator and Trust Administrator Rights. The Swap
Administrator shall be entitled to the same rights, protections and indemnities
afforded to the Trust Administrator under the Pooling and Servicing Agreement
and the Indenture Trustee under the Indenture, in each case, as if specifically
set forth herein with respect to the Swap Administrator.
The
Trust
Administrator and the Supplemental Interest Trust Trustee shall be entitled
to
the same rights, protections and indemnities afforded to the Trust Administrator
under the Pooling and Servicing Agreement as if specifically set forth herein
with respect to the Trust Administrator.
11. Limited
Recourse. It is expressly understood and agreed by the parties
hereto that this Agreement is executed and delivered by the Trust Administrator,
not in its individual capacity but solely as trust administrator under the
Pooling and Servicing Agreement. Notwithstanding any other provisions
of this Agreement, the obligations of the Trust Administrator under this
Agreement are non-recourse to the Trust Administrator, its assets and its
property, and shall be payable solely from the assets of the Trust Fund, and
following realization of such assets, any claims of any party hereto shall
be
extinguished and shall not thereafter be reinstated. No recourse
shall be had against any principal, director, officer, employee, beneficiary,
shareholder, partner, member, trustee, agent or affiliate of the Trust
Administrator or any person owning, directly or indirectly, any legal or
beneficial interest in the Trust Administrator, or any successors or assigns
of
any of the foregoing (the “Exculpated Parties”) for the payment of any amount
payable under this Agreement. The parties hereto shall not enforce
the liability and obligations of the Trust Administrator to perform and observe
the obligations contained in this Agreement by any action or proceeding wherein
a money judgment establishing any personal liability shall be sought against
the
Trust Administrator, subject to the following sentence, or the Exculpated
Parties. The agreements in this paragraph shall survive termination
of this Agreement and the performance of all obligations hereunder.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
|
XXXXX
FARGO BANK, N.A.
as
Swap Administrator
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity but solely as Trust Administrator and
Supplemental Interest Trust Trustee under the Pooling and Servicing
Agreement
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
UBS
REAL ESTATE SECURITIES INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
A
SWAP
AGREEMENT
SEE
TAB
[__]
ANNEX
I
The
amounts paid under clause 2(a)(ii) of the Swap Administration Agreement shall
be
calculated as follows:
|
Floating
Amount:
|
|
|
Floating
Rate Payer:
|
Swap
Administrator
|
|
Cap
Rate:
|
15.00%
|
|
Floating
Amount
|
To
be determined in accordance with the following formula:
The
product of: (i) 250; (ii) the Cap Rate, (iii) the Notional Amount;
and
(iv) the Floating Rate Day Count Fraction;
provided,
however, the Swap Administrator will only be obligated to pay the
Floating Amount up to the amount remaining after payments are made
under
clause 2(a)(i) of the Swap Administration Agreement.
The
Floating Amount shall be paid to the Indenture Trustee for payment
in
accordance with Section 2.09(e) of the Indenture.
|
|
Floating
Rate Day Count Fraction:
|
Actual/360.
|
|
Notional
Amount:
|
The
amount set forth for such period in the Amortization Schedule
A.
|
SCHEDULE
A TO ANNEX I
INTEREST
RATE SWAP SCHEDULE
|
Distribution
Date
|
Base
Calculation Amount ($)
|
|
September
25, 2007
|
1,782,096
|
|
October
25, 2007
|
1,763,052
|
|
November
25, 2007
|
1,738,512
|
|
December
25, 2007
|
1,708,484
|
|
January
25, 2008
|
1,673,016
|
|
February
25, 2008
|
1,632,208
|
|
March
25, 2008
|
1,586,216
|
|
April
25, 2008
|
1,535,252
|
|
May
25, 2008
|
1,479,632
|
|
June
25, 2008
|
1,419,856
|
|
July
25, 2008
|
1,358,192
|
|
August
25, 2008
|
1,297,716
|
|
September
25, 2008
|
1,239,980
|
|
October
25, 2008
|
1,184,868
|
|
November
25, 2008
|
1,132,248
|
|
December
25, 2008
|
1,082,016
|
|
January
25, 2009
|
1,034,032
|
|
February
25, 2009
|
988,168
|
|
March
25, 2009
|
944,108
|
|
April
25, 2009
|
901,736
|
|
May
25, 2009
|
853,436
|
|
June
25, 2009
|
796,624
|
|
July
25, 2009
|
736,560
|
|
August
25, 2009
|
682,180
|
|
September
25, 2009
|
632,908
|
|
October
25, 2009
|
591,612
|
|
November
25, 2009
|
558,972
|
|
December
25, 2009
|
532,124
|
|
January
25, 2010
|
506,636
|
|
February
25, 2010
|
482,452
|
|
March
25, 2010
|
459,464
|
|
April
25, 2010
|
437,236
|
|
May
25, 2010
|
415,024
|
|
June
25, 2010
|
393,236
|
|
July
25, 2010
|
372,176
|
|
August
25, 2010
|
352,472
|
|
September
25, 2010
|
334,180
|
|
October
25, 2010
|
317,520
|
|
November
25, 2010
|
302,188
|
|
December
25, 2010
|
287,940
|
|
January
25, 2011
|
274,416
|
|
February
25, 2011
|
261,568
|
|
March
25, 2011
|
249,368
|
|
April
25, 2011
|
237,776
|
|
May
25, 2011
|
226,760
|
|
June
25, 2011
|
216,288
|
|
July
25, 2011
|
206,336
|
|
August
25, 2011
|
196,872
|
|
September
25, 2011
|
187,876
|
|
October
25, 2011
|
179,316
|
|
November
25, 2011
|
171,176
|
|
December
25, 2011
|
163,432
|
|
January
25, 2012
|
156,060
|
|
February
25, 2012
|
149,048
|
|
March
25, 2012
|
142,372
|
|
April
25, 2012
|
136,012
|
|
May
25, 2012
|
129,960
|
|
June
25, 2012
|
124,196
|
|
July
25, 2012
|
118,704
|
|
August
25, 2012
|
113,472
|
EXHIBIT
O
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer – transaction party having borrower contact
|
|
Master
Servicer – aggregator of pool
assets
|
Trust
Administrator – waterfall calculator (may be the Trustee, or may be the Master
Servicer)
Back-up
Servicer – named in the transaction (in the event a Back up Servicer becomes the
Primary Servicer, follow Primary Servicer obligations)
Custodian
– safe keeper of pool assets
Paying
Agent – distributor of funds to ultimate investor
Trustee
–
fiduciary of the transaction
Note: The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular
transaction, the trustee may perform the “paying agent” and “securities
administrator” functions, while in another transaction, the securities
administrator may perform these functions.
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key: X
– obligation
[X]
–
under
consideration for
obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicers
|
Xxxxx
Fargo
|
Custodian
|
|
General
Servicing Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
|
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(v) |
