MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. Depositor BARCLAYS CAPITAL REAL ESTATE INC. D/B/A HOMEQ SERVICING SERVICER WELLS FARGO BANK, N.A. MASTER SERVICER AND TRUST ADMINISTRATOR AND Trustee POOLING AND SERVICING AGREEMENT DATED AS OF DECEMBER...
Exhibit
4.1
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
Depositor
BARCLAYS
CAPITAL REAL ESTATE INC.
D/B/A
HOMEQ SERVICING
SERVICER
XXXXX
FARGO BANK, N.A.
MASTER
SERVICER AND TRUST ADMINISTRATOR
AND
U.S.
BANK
NATIONAL ASSOCIATION
Trustee
POOLING
AND SERVICING AGREEMENT
DATED
AS
OF DECEMBER 1, 2006
Mortgage
Pass-Through Certificates
Series
2006-HE5
TABLE
OF
CONTENTS
|
ARTICLE
I DEFINITIONS
|
|
|
SECTION
1.01.
|
Defined
Terms.
|
|
SECTION
1.02.
|
Allocation
of Certain Interest Shortfalls.
|
|
SECTION
1.03.
|
Rights
of the NIMS Insurer.
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
|
|
SECTION
2.01.
|
Conveyance
of the Mortgage Loans.
|
|
SECTION
2.02.
|
Acceptance
of REMIC I by Trustee.
|
|
SECTION
2.03.
|
Repurchase
or Substitution of Mortgage Loans by an Originator or the
Seller.
|
|
SECTION
2.04.
|
Reserved.
|
|
SECTION
2.05.
|
Representations,
Warranties and Covenants of the Servicer and the Master
Servicer.
|
|
SECTION
2.06.
|
Conveyance
of REMIC Regular Interests and Acceptance of REMIC I, REMIC II, REMIC
III, REMIC IV, REMIC V and REMIC VI by the Trustee; Issuance of
Certificates.
|
|
SECTION
2.07.
|
Issuance
of Class R Certificates and Class R-X Certificates.
|
|
SECTION
2.08.
|
Authorization
to Enter into Interest Rate Cap Agreements and Interest Rate Swap
Agreement.
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
|
|
|
SECTION
3.01.
|
Servicer
to Act as Servicer.
|
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers.
|
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
|
SECTION
3.04.
|
Liability
of the Servicer.
|
|
SECTION
3.05.
|
No
Contractual Relationship Between Sub-Servicers and the Trustee,
the Trust
Administrator, the Master Servicer, the NIMS Insurer or
Certificateholders.
|
|
SECTION
3.06.
|
Assumption
or Termination of Sub-Servicing Agreements by Master
Servicer.
|
|
SECTION
3.07.
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.08.
|
Sub-Servicing
Accounts.
|
|
SECTION
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.10.
|
Collection
Account.
|
|
SECTION
3.11.
|
Withdrawals
from the Collection Account
|
|
SECTION
3.12.
|
Investment
of Funds in the Collection Account.
|
|
SECTION
3.13.
|
[Reserved].
|
|
SECTION
3.14.
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
|
SECTION
3.15.
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.16.
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.17.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.18.
|
Servicing
Compensation.
|
|
SECTION
3.19.
|
Reports
to the Trust Administrator; Collection Account
Statements.
|
|
SECTION
3.20.
|
Statement
as to Compliance.
|
|
SECTION
3.21.
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.22.
|
Access
to Certain Documentation.
|
|
SECTION
3.23.
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.24.
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3.25.
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
|
SECTION
3.26.
|
Advance
Facility
|
|
SECTION
3.27.
|
Solicitations.
|
|
ARTICLE
IIIA ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
|
|
|
SECTION
3A.01.
|
Master
Servicer to Act as Master Servicer
|
|
SECTION
3A.02.
|
[Reserved].
|
|
SECTION
3A.03.
|
Monitoring
of Servicer.
|
|
SECTION
3A.04.
|
Fidelity
Bond.
|
|
SECTION
3A.05.
|
Power
to Act; Procedures.
|
|
SECTION
3A.06.
|
Due
on Sale Clauses; Assumption Agreements.
|
|
SECTION
3A.07.
|
[Reserved].
|
|
SECTION
3A.08.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
|
SECTION
3A.09.
|
Compensation
for the Master Servicer.
|
|
SECTION
3A.10.
|
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3A.11.
|
Distribution
Account.
|
|
SECTION
3A.12.
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
|
SECTION
3A.13.
|
Late
Remittance.
|
|
ARTICLE
IV PAYMENTS TO CERTIFICATEHOLDERS
|
|
|
SECTION
4.01.
|
Distributions.
|
|
SECTION
4.02.
|
Statements
to Certificateholders.
|
|
SECTION
4.03.
|
Remittance
Reports, Advances.
|
|
SECTION
4.04.
|
Allocation
of Realized Losses.
|
|
SECTION
4.05.
|
Compliance
with Withholding Requirements.
|
|
SECTION
4.06.
|
Exchange
Commission Filings; Additional Information.
|
|
SECTION
4.07.
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
4.08.
|
Swap
Account.
|
|
SECTION
4.09.
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
SECTION
4.10.
|
Cap
Account.
|
|
SECTION
4.11.
|
Collateral
Accounts.
|
|
SECTION
4.12.
|
Rights
and Obligations Under the Interest Rate Cap Agreements and the
Interest
Rate Swap Agreement.
|
|
ARTICLE
V THE CERTIFICATES
|
|
|
SECTION
5.01.
|
The
Certificates.
|
|
SECTION
5.02.
|
Registration
of Transfer and Exchange of Certificates.
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
|
SECTION
5.05.
|
Certain
Available Information.
|
|
ARTICLE
VI THE DEPOSITOR, THE SERVICER AND THE MASTER SERVICER
|
|
|
SECTION
6.01.
|
Liability
of the Depositor, the Servicer and the Master Servicer.
|
|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor, the Servicer or the Master
Servicer.
|
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Servicer, the Master Servicer
and
Others.
|
|
SECTION
6.04.
|
Limitation
on Resignation of the Servicer; Assignment of Master
Servicing.
|
|
SECTION
6.05.
|
Successor
Master Servicer.
|
|
SECTION
6.06.
|
Rights
of the Depositor in Respect of the Servicer.
|
|
SECTION
6.07.
|
[Reserved].
|
|
SECTION
6.08.
|
Duties
of the Credit Risk Manager.
|
|
SECTION
6.09.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
6.10.
|
Removal
of the Credit Risk Manager.
|
|
ARTICLE
VII DEFAULT
|
|
|
SECTION
7.01.
|
Servicer
Events of Default and Master Servicer Events of
Termination.
|
|
SECTION
7.02.
|
Master
Servicer or Trustee to Act; Appointment of Successor
Servicer.
|
|
SECTION
7.03.
|
Trustee
to Act; Appointment of Successor Master Servicer.
|
|
SECTION
7.04.
|
Notification
to Certificateholders.
|
|
SECTION
7.05.
|
Waiver
of Servicer Events of Default and Master Servicer Events of
Termination.
|
|
SECTION
7.06.
|
Survivability
of Servicer and Master Servicer Liabilities.
|
|
ARTICLE
VIII CONCERNING THE TRUSTEE AND THE TRUST ADMINISTRATOR
|
|
|
SECTION
8.01.
|
Duties
of Trustee and Trust Administrator.
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee and the Trust
Administrator.
|
|
SECTION
8.03.
|
Neither
Trustee nor Trust Administrator Liable for Certificates or Mortgage
Loans.
|
|
SECTION
8.04.
|
Trustee
and Trust Administrator May Own Certificates.
|
|
SECTION
8.05.
|
Trust
Administrator’s and Trustee’s Fees and Expenses.
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee and Trust Administrator.
|
|
SECTION
8.07.
|
Resignation
and Removal of the Trustee or Trust Administrator.
|
|
SECTION
8.08.
|
Successor
Trustee or Trust Administrator.
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee or Trust Administrator.
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11.
|
Appointment
of Office or Agency; Appointment of Custodian.
|
|
SECTION
8.12.
|
Representations
and Warranties.
|
|
ARTICLE
IX TERMINATION
|
|
|
SECTION
9.01.
|
Termination
Upon Repurchase or Liquidation of All Mortgage Loans.
|
|
SECTION
9.02.
|
Additional
Termination Requirements.
|
|
ARTICLE
X REMIC PROVISIONS
|
|
|
SECTION
10.01.
|
REMIC
Administration.
|
|
SECTION
10.02.
|
Prohibited
Transactions and Activities.
|
|
SECTION
10.03.
|
Servicer,
Master Servicer and Trustee Indemnification.
|
|
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
|
|
SECTION
11.01.
|
Amendment.
|
|
SECTION
11.02.
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
11.03.
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
11.04.
|
Governing
Law.
|
|
SECTION
11.05.
|
Notices.
|
|
SECTION
11.06.
|
Severability
of Provisions.
|
|
SECTION
11.07.
|
Notice
to Rating Agencies and the NIMS Insurer.
|
|
SECTION
11.08.
|
Article
and Section References.
|
|
SECTION
11.09.
|
Grant
of Security Interest.
|
|
SECTION
11.10.
|
Third
Party Rights.
|
|
SECTION
11.11.
|
Intention
of the Parties and
Interpretation.
|
Exhibits
|
Exhibit
A-1
|
Form
of Class A-1 Certificate
|
|
Exhibit
A-2
|
Form
of Class A-2 Certificate
|
|
Exhibit
A-3
|
Form
of Class A-3 Certificate
|
|
Exhibit
A-4
|
Form
of Class A-4 Certificate
|
|
Exhibit
A-5
|
Form
of Class M-1 Certificate
|
|
Exhibit
A-6
|
Form
of Class M-2 Certificate
|
|
Exhibit
A-7
|
Form
of Class M-3 Certificate
|
|
Exhibit
A-8
|
Form
of Class M-4 Certificate
|
|
Exhibit
A-9
|
Form
of Class M-5 Certificate
|
|
Exhibit
A-10
|
Form
of Class M-6 Certificate
|
|
Exhibit
A-11
|
Form
of Class M-7 Certificate
|
|
Exhibit
A-12
|
Form
of Class M-8 Certificate
|
|
Exhibit
A-13
|
Form
of Class M-9 Certificate
|
|
Exhibit
A-14
|
Form
of Class M-10 Certificate
|
|
Exhibit
A-15
|
Form
of Class M-11 Certificate
|
|
Exhibit
A-16
|
Form
of Class CE Certificate
|
|
Exhibit
A-17
|
Form
of Class P Certificate
|
|
Exhibit
A-18
|
Form
of Class R Certificate
|
|
Exhibit
A-19
|
Form
of Class R-X Certificate
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C-1
|
Form
of Initial Certification
|
|
Exhibit
C-2
|
Form
of Final Certification
|
|
Exhibit
C-3
|
Form
of Receipt of Mortgage Notes
|
|
Exhibit
D
|
Forms
of Assignment Agreements
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Transferor Representation Letter and Form of Transferee
Representation
|
|
|
Letter
in Connection with Transfer of the Private Certificates Pursuant
to Rule
144A Under the 1933 Act
|
|
Exhibit
F-2
|
Form
of Transfer Affidavit and Agreement and Form of Transferor Affidavit
in
Connection with Transfer of Residual Certificates
|
|
Exhibit
G
|
Form
of Certification with respect to ERISA and the Code
|
|
Exhibit
H
|
[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
|
Forms
of Interest Rate Cap Agreements
|
|
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
|
|
Exhibit
S-1
|
Form
of Watchlist Report
|
|
Exhibit
S-2
|
Form
of Loss Severity Report
|
|
Exhibit
S-3
|
Form
of Prepayment Premiums Report
|
|
Exhibit
S-4
|
Form
of Analytics Report
|
|
Schedule
1
|
Mortgage
Loan Schedule
|
|
Schedule
2
|
Prepayment
Charge Schedule
|
This
Pooling and Servicing Agreement, is dated and effective as of December 1, 2006
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. as Depositor, BARCLAYS
CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING, as Servicer, XXXXX FARGO BANK,
N.A. as Master Servicer and Trust Administrator and U.S. BANK NATIONAL
ASSOCIATION as Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest in each REMIC (as defined herein) created hereunder. The
Trust Fund will consist of a segregated pool of assets comprised of the Mortgage
Loans and certain other related assets subject to this Agreement.
REMIC
I
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets (other than
the Net WAC Rate Carryover Reserve Account, the Swap Account, the Supplemental
Interest Trust, the Interest Rate Swap Agreement, the Cap Account, the Interest
Rate Cap Agreements, any Originator Prepayment Charge Payment Amounts and any
Servicer Prepayment Charge Payment Amounts) subject to this Agreement as a
REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC I.” The Class R-I Interest will be the sole class of
“residual interests” in REMIC I for purposes of the REMIC Provisions (as defined
herein). The following table irrevocably sets forth the designation, the REMIC
I
Remittance Rate, the initial Uncertificated Balance and, for purposes of
satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for each of the REMIC I Regular Interests (as defined herein).
None of the REMIC I Regular Interests will be certificated.
|
Designation
|
REMIC
1
Remittance
Rate(2)
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
I
|
Variable
|
$591.09
|
November
25, 2036
|
|
I-1-A
|
Variable
|
$6,394,500.00
|
November
25, 2036
|
|
I-1-B
|
Variable
|
$6,394,500.00
|
November
25, 2036
|
|
I-2-A
|
Variable
|
$7,845,000.00
|
November
25, 2036
|
|
I-2-B
|
Variable
|
$7,845,000.00
|
November
25, 2036
|
|
I-3-A
|
Variable
|
$9,287,000.00
|
November
25, 2036
|
|
I-3-B
|
Variable
|
$9,287,000.00
|
November
25, 2036
|
|
I-4-A
|
Variable
|
$10,700,000.00
|
November
25, 2036
|
|
I-4-B
|
Variable
|
$10,700,000.00
|
November
25, 2036
|
|
I-5-A
|
Variable
|
$12,076,500.00
|
November
25, 2036
|
|
I-5-B
|
Variable
|
$12,076,500.00
|
November
25, 2036
|
|
I-6-A
|
Variable
|
$13,395,000.00
|
November
25, 2036
|
|
I-6-B
|
Variable
|
$13,395,000.00
|
November
25, 2036
|
|
I-7-A
|
Variable
|
$14,648,500.00
|
November
25, 2036
|
|
I-7-B
|
Variable
|
$14,648,500.00
|
November
25, 2036
|
|
I-8-A
|
Variable
|
$15,812,000.00
|
November
25, 2036
|
|
I-8-B
|
Variable
|
$15,812,000.00
|
November
25, 2036
|
|
I-9-A
|
Variable
|
$16,470,500.00
|
November
25, 2036
|
|
I-9-B
|
Variable
|
$16,470,500.00
|
November
25, 2036
|
|
I-10-A
|
Variable
|
$15,709,000.00
|
November
25, 2036
|
|
I-10-B
|
Variable
|
$15,709,000.00
|
November
25, 2036
|
|
I-11-A
|
Variable
|
$14,983,000.00
|
November
25, 2036
|
|
I-11-B
|
Variable
|
$14,983,000.00
|
November
25, 2036
|
|
I-12-A
|
Variable
|
$14,291,000.00
|
November
25, 2036
|
|
I-12-B
|
Variable
|
$14,291,000.00
|
November
25, 2036
|
|
I-13-A
|
Variable
|
$13,631,500.00
|
November
25, 2036
|
|
I-13-B
|
Variable
|
$13,631,500.00
|
November
25, 2036
|
|
I-14-A
|
Variable
|
$13,002,500.00
|
November
25, 2036
|
|
I-14-B
|
Variable
|
$13,002,500.00
|
November
25, 2036
|
|
I-15-A
|
Variable
|
$12,403,500.00
|
November
25, 2036
|
|
I-15-B
|
Variable
|
$12,403,500.00
|
November
25, 2036
|
|
I-16-A
|
Variable
|
$11,831,500.00
|
November
25, 2036
|
|
I-16-B
|
Variable
|
$11,831,500.00
|
November
25, 2036
|
|
I-17-A
|
Variable
|
$11,287,000.00
|
November
25, 2036
|
|
I-17-B
|
Variable
|
$11,287,000.00
|
November
25, 2036
|
|
I-18-A
|
Variable
|
$10,768,000.00
|
November
25, 2036
|
|
I-18-B
|
Variable
|
$10,768,000.00
|
November
25, 2036
|
|
I-19-A
|
Variable
|
$11,035,000.00
|
November
25, 2036
|
|
I-19-B
|
Variable
|
$11,035,000.00
|
November
25, 2036
|
|
I-20-A
|
Variable
|
$17,275,000.00
|
November
25, 2036
|
|
I-20-B
|
Variable
|
$17,275,000.00
|
November
25, 2036
|
|
I-21-A
|
Variable
|
$15,636,000.00
|
November
25, 2036
|
|
I-21-B
|
Variable
|
$15,636,000.00
|
November
25, 2036
|
|
I-22-A
|
Variable
|
$14,150,500.00
|
November
25, 2036
|
|
I-22-B
|
Variable
|
$14,150,500.00
|
November
25, 2036
|
|
I-23-A
|
Variable
|
$12,835,500.00
|
November
25, 2036
|
|
I-23-B
|
Variable
|
$12,835,500.00
|
November
25, 2036
|
|
I-24-A
|
Variable
|
$11,309,000.00
|
November
25, 2036
|
|
I-24-B
|
Variable
|
$11,309,000.00
|
November
25, 2036
|
|
I-25-A
|
Variable
|
$7,210,000.00
|
November
25, 2036
|
|
I-25-B
|
Variable
|
$7,210,000.00
|
November
25, 2036
|
|
I-26-A
|
Variable
|
$6,833,000.00
|
November
25, 2036
|
|
I-26-B
|
Variable
|
$6,833,000.00
|
November
25, 2036
|
|
I-27-A
|
Variable
|
$6,477,500.00
|
November
25, 2036
|
|
I-27-B
|
Variable
|
$6,477,500.00
|
November
25, 2036
|
|
I-28-A
|
Variable
|
$6,137,500.00
|
November
25, 2036
|
|
I-28-B
|
Variable
|
$6,137,500.00
|
November
25, 2036
|
|
I-29-A
|
Variable
|
$5,819,500.00
|
November
25, 2036
|
|
I-29-B
|
Variable
|
$5,819,500.00
|
November
25, 2036
|
|
I-30-A
|
Variable
|
$5,518,500.00
|
November
25, 2036
|
|
I-30-B
|
Variable
|
$5,518,500.00
|
November
25, 2036
|
|
I-31-A
|
Variable
|
$5,690,000.00
|
November
25, 2036
|
|
I-31-B
|
Variable
|
$5,690,000.00
|
November
25, 2036
|
|
I-32-A
|
Variable
|
$5,957,000.00
|
November
25, 2036
|
|
I-32-B
|
Variable
|
$5,957,000.00
|
November
25, 2036
|
|
I-33-A
|
Variable
|
$5,542,000.00
|
November
25, 2036
|
|
I-33-B
|
Variable
|
$5,542,000.00
|
November
25, 2036
|
|
I-34-A
|
Variable
|
$5,158,500.00
|
November
25, 2036
|
|
I-34-B
|
Variable
|
$5,158,500.00
|
November
25, 2036
|
|
I-35-A
|
Variable
|
$4,808,500.00
|
November
25, 2036
|
|
I-35-B
|
Variable
|
$4,808,500.00
|
November
25, 2036
|
|
I-36-A
|
Variable
|
$4,279,500.00
|
November
25, 2036
|
|
I-36-B
|
Variable
|
$4,279,500.00
|
November
25, 2036
|
|
I-37-A
|
Variable
|
$3,742,500.00
|
November
25, 2036
|
|
I-37-B
|
Variable
|
$3,742,500.00
|
November
25, 2036
|
|
I-38-A
|
Variable
|
$3,546,000.00
|
November
25, 2036
|
|
I-38-B
|
Variable
|
$3,546,000.00
|
November
25, 2036
|
|
I-39-A
|
Variable
|
$3,360,000.00
|
November
25, 2036
|
|
I-39-B
|
Variable
|
$3,360,000.00
|
November
25, 2036
|
|
I-40-A
|
Variable
|
$3,183,500.00
|
November
25, 2036
|
|
I-40-B
|
Variable
|
$3,183,500.00
|
November
25, 2036
|
|
I-41-A
|
Variable
|
$3,017,500.00
|
November
25, 2036
|
|
I-41-B
|
Variable
|
$3,017,500.00
|
November
25, 2036
|
|
I-42-A
|
Variable
|
$2,861,000.00
|
November
25, 2036
|
|
I-42-B
|
Variable
|
$2,861,000.00
|
November
25, 2036
|
|
I-43-A
|
Variable
|
$2,713,500.00
|
November
25, 2036
|
|
I-43-B
|
Variable
|
$2,713,500.00
|
November
25, 2036
|
|
I-44-A
|
Variable
|
$2,573,000.00
|
November
25, 2036
|
|
I-44-B
|
Variable
|
$2,573,000.00
|
November
25, 2036
|
|
I-45-A
|
Variable
|
$2,440,500.00
|
November
25, 2036
|
|
I-45-B
|
Variable
|
$2,440,500.00
|
November
25, 2036
|
|
I-46-A
|
Variable
|
$2,315,000.00
|
November
25, 2036
|
|
I-46-B
|
Variable
|
$2,315,000.00
|
November
25, 2036
|
|
I-47-A
|
Variable
|
$2,196,500.00
|
November
25, 2036
|
|
I-47-B
|
Variable
|
$2,196,500.00
|
November
25, 2036
|
|
I-48-A
|
Variable
|
$2,085,000.00
|
November
25, 2036
|
|
I-48-B
|
Variable
|
$2,085,000.00
|
November
25, 2036
|
|
I-49-A
|
Variable
|
$1,978,500.00
|
November
25, 2036
|
|
I-49-B
|
Variable
|
$1,978,500.00
|
November
25, 2036
|
|
I-50-A
|
Variable
|
$1,878,500.00
|
November
25, 2036
|
|
I-50-B
|
Variable
|
$1,878,500.00
|
November
25, 2036
|
|
I-51-A
|
Variable
|
$1,783,500.00
|
November
25, 2036
|
|
I-51-B
|
Variable
|
$1,783,500.00
|
November
25, 2036
|
|
I-52-A
|
Variable
|
$1,693,000.00
|
November
25, 2036
|
|
I-52-B
|
Variable
|
$1,693,000.00
|
November
25, 2036
|
|
I-53-A
|
Variable
|
$1,608,500.00
|
November
25, 2036
|
|
I-53-B
|
Variable
|
$1,608,500.00
|
November
25, 2036
|
|
I-54-A
|
Variable
|
$1,528,000.00
|
November
25, 2036
|
|
I-54-B
|
Variable
|
$1,528,000.00
|
November
25, 2036
|
|
I-55-A
|
Variable
|
$1,451,500.00
|
November
25, 2036
|
|
I-55-B
|
Variable
|
$1,451,500.00
|
November
25, 2036
|
|
I-56-A
|
Variable
|
$1,379,500.00
|
November
25, 2036
|
|
I-56-B
|
Variable
|
$1,379,500.00
|
November
25, 2036
|
|
I-57-A
|
Variable
|
$1,311,500.00
|
November
25, 2036
|
|
I-57-B
|
Variable
|
$1,311,500.00
|
November
25, 2036
|
|
I-58-A
|
Variable
|
$1,246,500.00
|
November
25, 2036
|
|
I-58-B
|
Variable
|
$1,246,500.00
|
November
25, 2036
|
|
I-59-A
|
Variable
|
$1,185,500.00
|
November
25, 2036
|
|
I-59-B
|
Variable
|
$1,185,500.00
|
November
25, 2036
|
|
I-60-A
|
Variable
|
$24,588,000.00
|
November
25, 2036
|
|
I-60-B
|
Variable
|
$24,588,000.00
|
November
25, 2036
|
|
P
|
Variable
|
$100.00
|
November
25, 2036
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loan with the latest maturity date has been designated as the “latest
possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
REMIC
II
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as “REMIC II.”
The Class R-II Interest will evidence the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the REMIC II Remittance
Rate, the initial Uncertificated Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each of the REMIC II Regular Interests (as defined herein). None of
the REMIC II Regular Interests will be certificated.
|
Designation
|
REMIC
II
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
II-LTAA
|
Variable(2)
|
$885,675,579.27
|
November
25, 2036
|
|
II-LTA1
|
Variable(2)
|
$3,845,000.00
|
November
25, 2036
|
|
II-LTA2
|
Variable(2)
|
$913,000.00
|
November
25, 2036
|
|
II-LTA3
|
Variable(2)
|
$1,618,500.00
|
November
25, 2036
|
|
II-LTA4
|
Variable(2)
|
$677,270.00
|
November
25, 2036
|
|
II-LTM1
|
Variable(2)
|
$338,900.00
|
November
25, 2036
|
|
II-LTM2
|
Variable(2)
|
$433,800.00
|
November
25, 2036
|
|
II-LTM3
|
Variable(2)
|
$144,600.00
|
November
25, 2036
|
|
II-LTM4
|
Variable(2)
|
$149,110.00
|
November
25, 2036
|
|
II-LTM5
|
Variable(2)
|
$149,110.00
|
November
25, 2036
|
|
II-LTM6
|
Variable(2)
|
$103,930.00
|
November
25, 2036
|
|
II-LTM7
|
Variable(2)
|
$90,370.00
|
November
25, 2036
|
|
II-LTM8
|
Variable(2)
|
$76,810.00
|
November
25, 2036
|
|
II-LTM9
|
Variable(2)
|
$103,930.00
|
November
25, 2036
|
|
II-LTM10
|
Variable(2)
|
$126,520.00
|
November
25, 2036
|
|
II-LTM11
|
Variable(2)
|
$117,480.00
|
November
25, 2036
|
|
II-LTZZ
|
Variable(2)
|
$9,186,681.82
|
November
25, 2036
|
|
II-LTP
|
Variable(2)
|
$100.00
|
November
25, 2036
|
|
II-LTIO
|
Variable(2)
|
N/A(3)
|
November
25, 2036
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loan with the latest maturity date has been designated as the “latest
possible maturity date” for each REMIC II Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC II Remittance Rate”
herein.
|
|
(3)
|
REMIC
II Regular Interest II-LTIO will not have an Uncertificated Balance,
but
will accrue interest on its Uncertificated Notional
Amount.
|
REMIC
III
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC II Regular Interests as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC III.”
The Class R-III Interest will evidence the sole class of “residual interests” in
REMIC III for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the initial aggregate Certificate Principal Balance and, for purposes of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for the indicated Classes of Certificates.
Each
Certificate, other than the Class P Certificate, the Class CE Certificate,
the
Class R Certificates and the Class R-X Certificates, represents ownership of
a
Regular Interest in REMIC III and also represents (i) the right to receive
payments with respect to the Net WAC Rate Carryover Amount (as defined herein)
and (ii) the obligation to pay Class IO Distribution Amounts (as defined
herein). The entitlement to principal of the Regular Interest which corresponds
to each Certificate shall be equal in amount and timing to the entitlement
to
principal of such Certificate.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
Class
A-1
|
Variable(2)
|
$384,500,000.00
|
November
25, 2036
|
|
Class
A-2
|
Variable(2)
|
$91,300,000.00
|
November
25, 2036
|
|
Class
A-3
|
Variable(2)
|
$161,850,000.00
|
November
25, 2036
|
|
Class
A-4
|
Variable(2)
|
$67,727,000.00
|
November
25, 2036
|
|
Class
M-1
|
Variable(2)
|
$33,890,000.00
|
November
25, 2036
|
|
Class
M-2
|
Variable(2)
|
$43,380,000.00
|
November
25, 2036
|
|
Class
M-3
|
Variable(2)
|
$14,460,000.00
|
November
25, 2036
|
|
Class
M-4
|
Variable(2)
|
$14,911,000.00
|
November
25, 2036
|
|
Class
M-5
|
Variable(2)
|
$14,911,000.00
|
November
25, 2036
|
|
Class
M-6
|
Variable(2)
|
$10,393,000.00
|
November
25, 2036
|
|
Class
M-7
|
Variable(2)
|
$9,037,000.00
|
November
25, 2036
|
|
Class
M-8
|
Variable(2)
|
$7,681,000.00
|
November
25, 2036
|
|
Class
M-9
|
Variable(2)
|
$10,393,000.00
|
November
25, 2036
|
|
Class
M-10
|
Variable(2)
|
$12,652,000.00
|
November
25, 2036
|
|
Class
M-11
|
Variable(2)
|
$11,748,000.00
|
November
25, 2036
|
|
Class
CE Interest
|
Variable(3)
|
$14,917,591.09
|
November
25, 2036
|
|
Class
P Interest
|
N/A(4)
|
$100.00
|
November
25, 2036
|
|
Class
Swap-IO Interest
|
N/A(5)
|
N/A
|
November
25, 2036
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each REMIC III Regular Interest.
(2) Calculated
in accordance with the definition of “Pass-Through Rate” herein.
(3) The
Class
CE Interest will accrue interest at its variable Pass-Through Rate on the
Notional Amount of the Class CE Interest outstanding from time to time, which
shall equal the Uncertificated Balance of the REMIC II Regular Interests (other
than REMIC II Regular Interest II-LTP). The Class CE Interest will not accrue
interest on its Uncertificated Balance.
(4) The
Class
P Interest will not accrue interest.
(5) The
Class
Swap-IO Interest will not have a Pass-Through Rate or a Certificate Principal
Balance, but will be entitled to 100% of the amounts distributed on REMIC II
Regular Interest II-LTIO.
REMIC
IV
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class CE Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC IV.”
The Class R-IV Interest represents the sole class of “residual interests” in
REMIC IV for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Original Class Certificate Principal Balance for the indicated Class of
Certificates that represents a “regular interest” in REMIC IV created
hereunder:
|
Class
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
Class
CE Certificates
|
Variable(2)
|
$14,917,591.09
|
November
25, 2036
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loans
with the latest maturity date has been designated as the “latest possible
maturity date” for the Class CE Certificates.
(2) The
Class
CE Certificates will receive 100% of amounts received in respect of the Class
CE
Interest.
REMIC
V
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class P Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC V.”
The Class R-V Interest represents the sole class of “residual interests” in
REMIC V for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Original Class Certificate Principal Balance for the indicated Class of
Certificates that represents a “regular interest” in REMIC V created
hereunder:
|
Class
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
Class
P Certificates
|
Variable(2)
|
$100.00
|
November
25, 2036
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loans
with the latest maturity date has been designated as the “latest possible
maturity date” for the Class P Certificates.
(2) The
Class
P Certificates will receive 100% of amounts received in respect of the Class
P
Interest.
REMIC
VI
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class SWAP-IO Interest as a REMIC for federal income
tax purposes, and such segregated pool of assets shall be designated as “REMIC
VI.” The Class R-VI Interest represents the sole class of “residual interests”
in REMIC VI for purposes of the REMIC Provisions. The following table
irrevocably sets forth the designation, the Pass-Through Rate, the initial
aggregate Certificate Principal Balance and, for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
the indicated REMIC VI Regular Interest SWAP-IO, which will be
uncertificated.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
SWAP-IO
|
Variable(2)
|
N/A
|
November
25, 2036
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loans with the latest maturity date has been designated as the “latest
possible maturity date” for REMIC IV Regular Interest
Swap-IO.
|
|
(2)
|
REMIC
IV Regular Interest Swap-IO will receive 100% of amounts received
in
respect of the Class SWAP-IO
Interest.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Stated Principal Balance
equal
to $903,750,691.09.
In
consideration of the mutual agreements herein contained, the Depositor, the
Servicer, the Master Servicer, the Trust Administrator and the Trustee agree
as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement, including, without limitation, in the Preliminary
Statement hereto, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article. Unless otherwise
specified, all calculations described herein shall be made on the basis of
a
360-day year consisting of twelve 30-day months.
“10-K
Filing Deadline”: The meaning set forth in Section 4.06(a)(iv).
“Accepted
Master Servicing Practices”: With respect to any Mortgage Loan, as applicable,
either (x) those customary mortgage loan master servicing practices of prudent
mortgage servicing institutions that master service mortgage loans of the same
type and quality as such Mortgage Loan in the jurisdiction where the related
Mortgaged Property is located, to the extent applicable to the Master Servicer
(except in its capacity as successor to the Servicer), or (y) as provided in
Section 3A.01 hereof, but in no event below the standard set forth in
clause (x).
“Accrual
Period”: With respect to the Class A Certificates and the Mezzanine Certificates
and each Distribution Date, the period commencing on the preceding Distribution
Date (or in the case of the first such Accrual Period, commencing on the Closing
Date) and ending on the day preceding the current Distribution Date. With
respect to the Class CE Certificates and the REMIC Regular Interests and each
Distribution Date, the calendar month prior to the month of such Distribution
Date.
“Additional
Disclosure”: The meaning set forth in Section 4.06(a)(v).
“Additional
Form 10-D Disclosure”: The meaning set forth in Section 4.06(a)(i).
“Additional
Form 10-K Disclosure”: The meaning set forth in Section
4.06(a)(iv).
“Adjustable-Rate
Mortgage Loan”: Each of the Mortgage Loans identified on the Mortgage Loan
Schedule as having a Mortgage Rate that is subject to adjustment.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the applicable Maximum Mortgage Rate for such Mortgage Loan (or the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the first
day
of the month preceding the month in which the related Distribution Date occurs
minus
the
sum of (i) the Servicing Fee Rate and (ii) 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 Servicing Fee Rate and (ii) the Credit Risk Manager Fee
Rate.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, the first day of the
month in which the Mortgage Rate of such Mortgage Loan changes pursuant to
the
related Mortgage Note. The first Adjustment Date following the Cut-off Date
as
to each Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
“Advance”:
With respect to any Distribution Date, as to any Mortgage Loan or REO Property,
any advance made by the Servicer in respect of Monthly Payments due during
the
related Due Period pursuant to Section 4.03 or by the Master Servicer (in its
capacity as successor Servicer) or any other successor Servicer pursuant to
Section 4.03.
“Advance
Facility”: As defined in Section 3.26 hereof.
“Advancing
Person”: As defined in Section 3.26 hereof.
“Affiliate”:
With respect to any specified Person, any other Person controlling or controlled
by or under common control with such specified Person. For the purposes of
this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise, and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Aggregate
Loss Severity Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred on any Mortgage Loans from the Cut-off Date to the
last
day of the preceding calendar month and the denominator of which is the
aggregate Stated Principal Balance of such Mortgage Loans immediately prior
to
the liquidation of such Mortgage Loans.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and any Class of
Mezzanine Certificates, (i) the sum of (a) any Realized Losses allocated to
such
Class of Certificates on such Distribution Date and (b) the amount of any
Allocated Realized Loss Amount for such Class of Certificates remaining
undistributed from the previous Distribution Date reduced by (ii) the amount
of
any Subsequent Recoveries added to the Certificate Principal Balance of such
Class of Certificates.
“Assessment
of Compliance”: As defined in Section 3.21.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form (excepting therefrom, if applicable, the mortgage recordation
information which has not been required pursuant to Section 2.01 hereof or
returned by the applicable recorder’s office), which is sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located
to
reflect of record the sale of the Mortgage, which assignment, notice of transfer
or equivalent instrument may be in the form of one or more blanket assignments
covering Mortgages secured by Mortgaged Properties located in the same county,
if permitted by law.
“Assignment
Agreement”: Each Assignment and Recognition Agreement, dated December 28, 2006,
among the Depositor, the Seller and the related Originator, forms of which
are
attached hereto as Exhibit D, pursuant to which the Seller assigns its rights
under the related Originator Master Agreement to the Depositor.
“Attestation
Report”: As defined in Section 3.21.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess of
(i) the sum of (a) the aggregate of the related Monthly Payments received on
the
Mortgage Loans by the Servicer on or prior to the related Determination Date,
(b) Net Liquidation Proceeds, Insurance Proceeds, Principal Prepayments,
Subsequent Recoveries, proceeds from repurchases of and substitutions for such
Mortgage Loans and other unscheduled recoveries of principal and interest in
respect of the Mortgage Loans received by the Servicer during the related
Prepayment Period, (c) the aggregate of any amounts received by the Servicer
in
respect of a related REO Property and withdrawn from any REO Account and
remitted to the Master Servicer for such Distribution Date, (d) the aggregate
of
any amounts on deposit in the Distribution Account representing Compensating
Interest paid by the Servicer or the Master Servicer in respect of related
Prepayment Interest Shortfalls for such Distribution Date, (e) the aggregate
of
any Advances made by the Servicer for such Distribution Date in respect of
the
Mortgage Loans and (f) the aggregate of any related Advances made by the Master
Servicer (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
the Servicer pursuant to Section 3.11(a) or to the Master Servicer pursuant
to
Section 3A.12, (b) Extraordinary Trust Fund Expenses reimbursable to the
Trustee, the Servicer, the Master Servicer or the Trust Administrator pursuant
to Section 3A.12, (c) amounts in respect of the items set forth in clauses
(i)(a) through (i)(f) above deposited in the Collection Account or the
Distribution Account, as the case may be, in error, (d) the amount of any
Prepayment Charges collected by the Servicer in connection with the full or
partial prepayment of any of the Mortgage Loans, any Originator Prepayment
Charge Payment Amount and any Servicer Prepayment Charge Payment Amount, (e)
any
indemnification and reimbursement amounts owed to the Trust Administrator,
the
Trustee or the Custodian payable from the Distribution Account pursuant to
Section 8.05, (f) the Credit Risk Manager Fee, (g) without duplication, any
amounts in respect of the items set forth in clauses (i)(a) and (i)(b) permitted
hereunder to be retained by the Master Servicer or to be withdrawn by the Master
Servicer from the Distribution Account pursuant to Section 3A.12, (h)
Servicing Fees retained by the Servicer pursuant to Section 3.11 and (i) any
Net
Swap Payment or Swap Termination Payment owed to the Swap Provider (other than
any Swap Termination Payment owed to the Swap Provider resulting from a Swap
Provider Trigger Event). Notwithstanding any of the foregoing, with respect
to
any items that are part of the Available Funds as defined above and that are
required to be remitted by the Servicer to the Master Servicer, the Available
Funds shall not be deemed to include any portion of such items that are not
actually remitted by the Servicer to the Master Servicer.
“Back-Up
Certification”: The meaning set forth in Section 4.06(a)(iv).
“Balloon
Mortgage Loan”: A Mortgage Loan that provides for the payment of the unamortized
principal balance of such Mortgage Loan in a single payment at the maturity
of
such Mortgage Loan that is substantially greater than the preceding monthly
payment.
“Balloon
Payment”: A payment of the unamortized principal balance of a Mortgage Loan in a
single payment at the maturity of such Mortgage Loan that is substantially
greater than the preceding Monthly Payment.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Basic
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Principal Remittance Amount for such Distribution Date over
(ii) the Overcollateralization Release Amount, if any, for such Distribution
Date.
“Book-Entry
Certificate”: The Class A Certificates and the Mezzanine Certificates for so
long as the Certificates of such Class shall be registered in the name of the
Depository or its nominee.
“Book-Entry
Custodian”: The custodian appointed pursuant to Section 5.01.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings and loan institutions in the State of New Jersey, the State of
California, the State of New York, or in any city in which the Corporate Trust
Office of the Trustee or the Corporate Trust Office of the Trust Administrator
are located, are authorized or obligated by law or executive order to be
closed.
“Cap
Account”: The account or accounts created and maintained pursuant to Section
4.10. The Cap Account must be an Eligible Account.
“Certification
Parties”: The meaning set forth in Section 4.06(a)(iv).
“Certificate”:
Any one of the Mortgage Pass-Through Certificates, Series 2006-HE5, Class A-1,
Class X-0, Xxxxx X-0, Class A-4, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10, Class M-11,
Class CE, Class P, Class R or Class R-X, issued under this
Agreement.
“Certificate
Factor”: With respect to any Class of Regular Certificates as of any
Distribution Date, a fraction, expressed as a decimal carried to at least six
places, the numerator of which is the aggregate Certificate Principal Balance
(or the Notional Amount, in the case of the Class CE Certificates) of such
Class
of Certificates on such Distribution Date (after giving effect to any
distributions of principal and allocations of Realized Losses in reduction
of
the Certificate Principal Balance (or the Notional Amount, in the case of the
Class CE Certificates) of such Class of Certificates to be made on such
Distribution Date), and the denominator of which is the initial aggregate
Certificate Principal Balance (or the Notional Amount, in the case of the Class
CE Certificates) of such Class of Certificates as of the Closing
Date.
“Certificate
Margin”: With respect to each Class A Certificate and Mezzanine Certificate and,
for purposes of the Marker Rate, the specified REMIC II Regular Interest, as
follows:
|
Class
|
REMIC
II Regular Interest
|
Certificate
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
X-0
|
XX-XXX0
|
0.060%
|
0.120%
|
|
X-0
|
XX-XXX0
|
0.100%
|
0.200%
|
|
X-0
|
XX-XXX0
|
0.160%
|
0.320%
|
|
X-0
|
XX-XXX0
|
0.220%
|
0.440%
|
|
M-1
|
II-LTM1
|
0.230%
|
0.345%
|
|
M-2
|
II-LTM2
|
0.270%
|
0.405%
|
|
M-3
|
II-LTM3
|
0.320%
|
0.480%
|
|
M-4
|
II-LTM4
|
0.370%
|
0.555%
|
|
M-5
|
II-LTM5
|
0.390%
|
0.585%
|
|
M-6
|
II-LTM6
|
0.450%
|
0.675%
|
|
M-7
|
II-LTM7
|
0.820%
|
1.230%
|
|
M-8
|
II-LTM8
|
1.400%
|
2.100%
|
|
M-9
|
II-LTM9
|
2.700%
|
4.050%
|
|
M-10
|
II-LTM10
|
2.700%
|
4.050%
|
|
M-11
|
II-LTM11
|
2.500%
|
3.750%
|
__________
|
(1)
|
For
the Interest Accrual Period for each Distribution Date on or prior
to the
Optional Termination Date.
|
|
(2)
|
For
the Interest Accrual Period for each Distribution Date after the
Optional
Termination Date.
|
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that a Disqualified Organization or a Non-United
States Person shall not be a Holder of a Residual Certificate for any purposes
hereof and, solely for the purposes of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Servicer
or the Master Servicer or any Affiliate thereof shall be deemed not to be
outstanding and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent has been obtained, except as otherwise
provided in Section 11.01. The Trust Administrator, the Trustee and the NIMS
Insurer may conclusively rely upon a certificate of the Depositor, the Servicer
or the Master Servicer in determining whether a Certificate is held by an
Affiliate thereof. All references herein to “Holders” or “Certificateholders”
shall reflect the rights of Certificate Owners as they may indirectly exercise
such rights through the Depository and participating members thereof, except
as
otherwise specified herein; provided, however, that the Trust Administrator,
the
Trustee and the NIMS Insurer shall be required to recognize as a “Holder” or
“Certificateholder” only the Person in whose name a Certificate is registered in
the Certificate Register.
“Certificate
Owner”: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Certificate as reflected on the books of the Depository
or on the books of a Depository Participant or on the books of an indirect
participating brokerage firm for which a Depository Participant acts as
agent.
“Certificate
Principal Balance”: With respect to each Class A Certificate, Mezzanine
Certificate or Class P Certificate as of any date of determination, the
Certificate Principal Balance of such Certificate on the Distribution Date
immediately prior to such date of determination plus any Subsequent Recoveries
added to the Certificate Principal Balance of such Certificate pursuant to
Section 4.01, minus all distributions allocable to principal made thereon
and Realized Losses allocated thereto on such immediately prior Distribution
Date (or, in the case of any date of determination up to and including the
first
Distribution Date, the initial Certificate Principal Balance of such
Certificate, as stated on the face thereof). With respect to each Class CE
Certificate as of any date of determination, an amount equal to the Percentage
Interest evidenced by such Certificate times the excess, if any, of (A) the
then
aggregate Uncertificated Balance of the REMIC II Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Class A Certificates, the
Mezzanine Certificates and the Class P Certificates then
outstanding.
“Certificate
Register”: The register maintained pursuant to Section 5.02.
“Certifying
Person”: The meaning set forth in Section 4.06(a)(iv).
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“Class
A
Certificates”: Any of the Class A-1 Certificates, Class A-2 Certificates, Class
A-3 Certificates or Class A-4 Certificates.
“Class
A-1 Certificate”: Any one of the Class A-1 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
A-2 Certificate”: Any one of the Class A-2 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
A-3 Certificate”: Any one of the Class A-3 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-3 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
A-4 Certificate”: Any one of the Class A-4 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-4 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
CE
Certificate”: Any one of the Class CE Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-16 and evidencing (i) a Regular Interest in REMIC IV, (ii) the
obligation to pay Net WAC Rate Carryover Amounts and Swap Termination Payments
and (iii) the right to receive the Class IO Distribution Amount.
“Class
CE
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class CE Certificates, evidencing a Regular
Interest in REMIC III for purposes of the REMIC Provisions.
“Class
IO
Distribution Amount”: As defined in Section 4.08 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal
the amount payable to the Trust Administrator on such Distribution Date in
excess of the amount payable on the Class SWAP-IO Interest on such Distribution
Date, all as further provided in Section 4.08 hereof.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-5 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-6 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-7 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-8 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-4 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date) and (iii) the Certificate
Principal Balance of the Class M-4 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 79.70% 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 $4,518,753.46.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-9 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-5 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (iv) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 83.00% 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
$4,518,753.46.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-10 and evidencing (i) a Regular Interest in REMIC III,
(ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-6 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (v) the Certificate Principal
Balance of the Class M-6 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 85.30% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
the excess of the aggregate Stated Principal Balance of the Mortgage Loans
as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) over $4,518,753.46.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-11 and evidencing (i) a Regular Interest in REMIC III,
(ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-7 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (vi) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 87.30% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$4,518,753.46.
“Class
M-8 Certificate”: Any one of the Class M-8 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-12 and evidencing (i) a Regular Interest in REMIC III,
(ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-8 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and (vii) the Certificate
Principal Balance of the Class M-8 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 89.00% 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 $4,518,753.46.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-13 and evidencing (i) a Regular Interest in REMIC III,
(ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-9 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date) and (viii) the Certificate Principal Balance of the Class M-9 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 91.30% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$4,518,753.46.
“Class
M-10 Certificate”: Any one of the Class M-10 Certificates executed,
authenticated and delivered by the Trust Administrator, substantially in the
form annexed hereto as Exhibit A-14 and evidencing (i) a Regular Interest in
REMIC III, (ii) the right to receive the Net WAC Rate Carryover Amount and
(iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-10 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date) and (ix) the Certificate
Principal Balance of the Class M-10 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 94.10% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $4,518,753.46.
“Class
M-11 Certificate”: Any one of the Class M-11 Certificates executed,
authenticated and delivered by the Trust Administrator, substantially in the
form annexed hereto as Exhibit A-15 and evidencing (i) a Regular Interest in
REMIC III, (ii) the right to receive the Net WAC Rate Carryover Amount and
(iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-11 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-10 Certificates (after taking into account the
distribution of the Class M-10 Principal Distribution Amount on such
Distribution Date) and (x) the Certificate Principal Balance of the Class M-11
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 96.70% 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 $4,518,753.46.
“Class
P
Certificate”: Any one of the Class P Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-17 and evidencing a Regular Interest in REMIC V for purposes of
the
REMIC Provisions.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC III for purposes of the REMIC Provisions.
“Class
R
Certificate”: Any one of the Class R Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-18 and evidencing the ownership of the Class R-I Interest, the
Class R-II Interest and the Class R-III Interest.
“Class
R-X Certificate”: The Class R-X Certificate executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-19 and evidencing the ownership of the Class R-IV Interest, the
Class R-V Interest and the Class R-VI Interest.
“Class
R-I Interest”: The uncertificated Residual Interest in REMIC I.
“Class
R-II Interest”: The uncertificated Residual Interest in REMIC II.
“Class
R-III Interest”: The uncertificated Residual Interest in REMIC III.
“Class
R-IV Interest”: The uncertificated Residual Interest in REMIC IV.
“Class
R-V Interest”: The uncertificated Residual Interest in REMIC V.
“Class
R-VI Interest”: The uncertificated Residual Interest in REMIC VI.
“Class
SWAP-IO Interest”: An uncertificated interest in the Trust Fund evidencing a
Regular Interest in REMIC III.
“Closing
Date”: December 28, 2006.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The account or accounts created and maintained, or caused to be
created and maintained, by the Servicer pursuant to Section 3.10(a), which
shall
be entitled “HomEq Servicing, as Servicer for U.S. Bank National Association, as
Trustee, in trust for the registered holders of MASTR Asset Backed Securities
Trust 2006-HE5, Mortgage Pass-Through Certificates” The Collection Account must
be an Eligible Account.
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: With respect to the Servicer and any Principal Prepayment, the amount
in respect of Prepayment Interest Shortfalls required to be paid by the Servicer
pursuant to Section 3.24 from its own funds without right of reimbursement
and
with respect to the Master Servicer, the amount in respect of Prepayment
Interest Shortfalls required to be paid by the Master Servicer pursuant to
Section 3A.10 from its own funds without right of reimbursement except as
provided in Section 3A.10, in each case, up to the aggregate compensation
payable to the Servicer or the Master Servicer, as applicable, for the related
collection period under this Agreement.
“Compensating
Interest Payment”: As defined in Section 3.24.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee or the Trust
Administrator, as the case may be, at which at any particular time its corporate
trust business in connection with this Agreement shall be administered, which
office at the date of the execution of this instrument is located at (i) with
respect to the Trustee, U.S. Bank National Association, 00 Xxxxxxxxxx Xxxxxx,
XX-XX-XX0X, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance/MASTR
2006-HE5, or at such other address as the Trustee may designate from time to
time by notice to the Certificateholders, the Depositor, the Servicer, the
Master Servicer, the Originators, and the Trust Administrator, or (ii) with
respect to the Trust Administrator, (A) for Certificate transfer and surrender
purposes, Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services—MABS 2006-HE5
and (B) for all other purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services—MABS 2006-HE5, or
in each case at such other address as the Trust Administrator may designate
from
time to time by notice to the Certificateholders, the Depositor, the Servicer,
the Master Servicer, the Originators and the Trustee.
“Corresponding
Certificate”: With respect to each REMIC II Regular Interest set forth below,
the corresponding Regular Certificate set forth in the table below:
|
REMIC
II Regular Interest
|
Regular
Certificate
|
|
II-LTA1
|
Class
A-1
|
|
II-LTA2
|
Class
X-0
|
|
XX-XXX0
|
Xxxxx
X-0
|
|
XX-XXX0
|
Class
A-4
|
|
II-LTM1
|
Class
M-1
|
|
II-LTM2
|
Class
M-2
|
|
II-LTM3
|
Class
M-3
|
|
II-LTM4
|
Class
M-4
|
|
II-LTM5
|
Class
M-5
|
|
II-LTM6
|
Class
M-6
|
|
II-LTM7
|
Class
M-7
|
|
II-LTM8
|
Class
M-8
|
|
II-LTM9
|
Class
M-9
|
|
II-LTM10
|
Class
M-10
|
|
II-LTM11
|
Class
M-11
|
|
II-LTP
|
Class
P
|
“Credit
Enhancement Percentage”: For any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is the aggregate Certificate Principal
Balance of the Mezzanine Certificates and the Class CE Certificates, and the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans, calculated prior to taking into account distributions of principal on
the
Mortgage Loans and distribution of the Principal Distribution Amount to the
Certificates then entitled to distributions of principal on such Distribution
Date.
“Credit
Risk Management Agreement”: The respective agreements between the Credit Risk
Manager and the Servicer and/or Master Servicer regarding the loss mitigation
and advisory services to be provided by the Credit Risk Manager.
“Credit
Risk Manager”: Xxxxxxx Fixed Income Services Inc., a Colorado corporation,
formerly known as The Murrayhill Company, and its successors and
assigns.
“Credit
Risk Manager Fee”: The amount payable to the Credit Risk Manager on each
Distribution Date as compensation for all services rendered by it in the
exercise and performance of any of the powers and duties of the Credit Risk
Manager under the respective Credit Risk Management Agreement and any other
agreement pursuant to which the Credit Risk Manager is to perform any duties
with respect to the related Mortgage Loans, which amount shall equal one twelfth
of the product of (i) the Credit Risk Manager Fee Rate (without regard to the
words “per annum”) and (ii) the aggregate Stated Principal Balance of the
related Mortgage Loans and any related REO Properties as of the first day of
the
related Due Period.
“Credit
Risk Manager Fee Rate”: 0.0125% per annum.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred from the Cut-off Date to the last day of the preceding
calendar month and the denominator of which is the sum of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
“Custodial
Agreement”: The Custodial Agreement, dated as of December 1, 2006, between the
Trustee and Deutsche Bank National Trust Company.
“Custodian”:
Each 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 Bank,
N.A. with respect to the Mortgage Loans originated by EquiFirst Corporation,
Decision One Mortgage Company, LLC and First NLC Financial Services, LLC or
Deutsche Bank National Trust Company with respect to the Mortgage Loans
originated by New Century Mortgage Corporation. Unless otherwise specified,
all
references to actions to be taken by the “Custodian” under this Agreement shall
be to actions to be taken or previously taken by the related Custodian.
Furthermore, the parties hereto acknowledge that any duties or actions of
Deutsche Bank National Trust Company as Custodian are subject to the terms
and
provisions of the Custodial Agreement.
“Cut-off
Date”: With respect to each Original Mortgage Loan, December 1, 2006. With
respect to all Qualified Substitute Mortgage Loans, their respective dates
of
substitution. References herein to the “Cut-off Date,” when used with respect to
more than one Mortgage Loan, shall be to the respective Cut-off Dates for such
Mortgage Loans.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid Stated
Principal Balance thereof as of the Cut-off Date of such Mortgage Loan (or
as of
the applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan), after giving effect to scheduled payments due on or before
the
Cut-off Date, whether or not received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”: As defined in Section 5.01(b).
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by a Qualified
Substitute Mortgage Loan.
“Delinquency
Percentage”: With respect to any Distribution Date, the percentage equivalent to
a fraction, the numerator of which is the aggregate Stated Principal Balance
of
all Mortgage Loans that, as of the close of business on the last day of the
previous calendar month, are 60 or more days Delinquent (including Mortgage
Loans in foreclosure, have been converted to REO Properties or are in
bankruptcy), taking into account any prepayments received through the end of
the
related Prepayment Period, and the denominator of which is the aggregate
Principal Balance of all Mortgage Loans as of the close of business on the
last
day of such month, taking into account any prepayments received through the
end
of the related Prepayment Period.
“Delinquent”:
A Mortgage Loan is Delinquent if any Monthly Payment due on a Due Date is not
made by the close of business on the next scheduled Due Date for such Mortgage
Loan (as determined and reported based on the “OTS” methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans and not including
any Liquidated Mortgage Loans).
“Depositor”:
Mortgage Asset Securitization Transactions, Inc., a Delaware corporation, or
its
successor in interest.
“Depository”:
The Depository Trust Company, or any successor Depository hereafter named.
The
nominee of the initial Depository, for purposes of registering those
Certificates that are to be Book-Entry Certificates, is Cede & Co. The
Depository shall at all times be a “clearing corporation” as defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York and a “clearing
agency” registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
Person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicer or the Master
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Servicer or the Master
Servicer on behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance, or makes decisions
as to repairs or capital expenditures with respect to such REO
Property.
“Discount
Factor”: With
respect to each Distribution Date, the product of each Projected Zero Factor
for
each preceding Distribution Date, including such Distribution Date, with the
Projected Zero Factor for the Significance Percentage Calculation Date equal
to
1.
“Disqualified
Organization”: Any of the following: (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for Xxxxxxx 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 2006-HE5, Mortgage Pass-Through
Certificates, Series 2006-HE5—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 January 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 and
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) with respect
to any escrow account, an account or accounts the deposits in which are fully
insured by the FDIC (to the limits established by such corporation), the
uninsured deposits in which account are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the NIMS Insurer, the Trust
Administrator, the Trustee and to each Rating Agency, the Certificateholders
will have a claim with respect to the funds in such account or a perfected
first
priority security interest against such collateral (which shall be limited
to
Permitted Investments) securing such funds that is superior to claims of any
other depositors or creditors of the depository institution with which such
account is maintained, (iii) a trust account or accounts maintained with the
trust department of a federal or state chartered depository institution,
national banking association or trust company acting in its fiduciary capacity
or (iv) an account otherwise acceptable to the NIMS Insurer and to each Rating
Agency without reduction or withdrawal of their then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the Trust
Administrator, the Trustee and the NIMS Insurer. Eligible Accounts may bear
interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Estate
in Real Property”: A fee simple estate in a parcel of land.
“Excess
Overcollateralized Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, the excess, if any, of (i)
the
Overcollateralized Amount for such Distribution Date, assuming that 100% of
the
Principal Remittance Amount is applied as a principal distribution on such
Distribution Date over (ii) the Overcollateralization Target Amount for such
Distribution Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the sum of (i) Monthly Interest Distributable Amount payable
on
the Class CE Certificates on such Distribution Date as reduced by Realized
Losses allocated thereto with respect to such Distribution Date pursuant to
Section 4.04 and (ii) any amounts received under the Interest Rate Swap
Agreement or the Interest Rate Cap Agreements for this purpose and (y) the
Overcollateralization Deficiency Amount for such Distribution Date.
“Extraordinary
Trust Fund Expense”: Any amounts reimbursable to the Master Servicer pursuant to
Section 3A.03 or Section 6.03, to the Trustee pursuant to Section 3.06
or Section 7.02, to the Servicer, the Trustee or the Trust Administrator, or
any
director, officer, employee or agent of the Trustee or the Trust Administrator
from the Trust Fund pursuant to Section 6.03, Section 8.05 or
Section 10.01(c) and any amounts payable from the Distribution Account in
respect of taxes pursuant to Section 10.01(g)(iii).
“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, the Servicer or the NIMS Insurer
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or Section
9.01), a determination made by the Servicer that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the Servicer, in
its
reasonable good faith judgment, expects to be finally recoverable in respect
thereof have been so recovered. The Servicer shall maintain records, prepared
by
a Servicing Officer, of each Final Recovery Determination made
thereby.
“Fixed-Rate
Mortgage Loans”: Each of the Mortgage Loans identified in the Mortgage Loan
Schedule whose Mortgage Rates remain fixed for the life of the Mortgage
Loan.
“Fixed
Swap Payment”: With respect to any Distribution Date, a fixed amount equal to
the related amount set forth in the Interest Rate Swap Agreement.
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) one-month LIBOR (as determined pursuant to the Interest
Rate
Swap Agreement for such Distribution Date), (ii) the related Base Calculation
Amount (as defined in the Interest Rate Swap Agreement), (iii) 250 and (iv)
a
fraction, the numerator of which is the actual number of days elapsed from
and
including the previous Distribution Date to but excluding the current
Distribution Date (or, for the first Distribution Date, the actual number of
days elapsed from the Closing Date to but excluding the first Distribution
Date), and the denominator of which is 360.
“Form
8-K
Disclosure Information”: The meaning set forth in Section
4.06(a)(iii).
“Formula
Rate”: For any Distribution Date and the Class A Certificates and the Mezzanine
Certificates, the lesser of (i) One-Month LIBOR plus the related Certificate
Margin and (ii) the Maximum Cap Rate.
“Xxxxxxx
Mac”: Xxxxxxx Mac, formerly known as the Federal Home Loan Mortgage Corporation,
or any successor thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Adjustable-Rate Mortgage
Loan.
“Highest
Priority”: As of any date of determination, the Class of Mezzanine Certificates
then outstanding with a Certificate Principal Balance greater than zero, with
the highest priority for payments pursuant to Section 4.01, in the
following order: Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class M-11
Certificates.
“HomEq
Servicing”: Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class CE
Certificates, the Class P Certificates, the Class R Certificates and/or the
Class R-X Certificates (or any portion thereof) which may or may not be
guaranteed by the NIMS Insurer.
“Independent”:
When used with respect to any accountants, a Person who is “independent” within
the meaning of Rule 2-01(B) of the Securities and Exchange Commission’s
Regulation S-X. Independent means, when used with respect to any other Person,
a
Person who (A) is in fact independent of another specified Person and any
affiliate of such other Person, (B) does not have any material direct or
indirect financial interest in such other Person or any affiliate of such other
Person, (C) is not connected with such other Person or any affiliate of such
other Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions and (D) is not a member of
the
immediate family of a Person defined in clause (B) or (C) above.
“Independent
Contractor”: Either (i) any Person (other than the Servicer or the Master
Servicer) that would be an “independent contractor” with respect to REMIC I
within the meaning of Section 856(d)(3) of the Code if REMIC I were a real
estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as REMIC I does
not receive or derive any income from such Person and provided that the
relationship between such Person and REMIC I is at arm’s length, all within the
meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including the Servicer and the Master Servicer) if the Trust
Administrator has received an Opinion of Counsel for the benefit of the Trustee
and the Trust Administrator to the effect that the taking of any action in
respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a)
of the Code), or cause any income realized in respect of such REO Property
to
fail to qualify as Rents from Real Property.
“Index”:
With respect to each Adjustable Rate Mortgage Loan and with respect to each
related Adjustment Date, the index specified in the related Mortgage
Note.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance
policy, covering a Mortgage Loan to the extent such proceeds are not to be
applied to the restoration of the related Mortgaged Property or released to
the
Mortgagor in accordance with the procedures that the Servicer would follow
in
servicing mortgage loans held for its own account, subject to the terms and
conditions of the related Mortgage Note and Mortgage.
“Interest
Determination Date”: With respect to the Class A Certificates, the Mezzanine
Certificates, REMIC II Regular Interest II-LTA1, REMIC II Regular Interest
II-LTA2, REMIC II Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4,
REMIC II Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC
II
Regular Interest II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular
Interest II-LTM5, REMIC II Regular Interest II-LTM6, REMIC II Regular Interest
II-LTM7, REMIC II Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9,
REMIC II Regular Interest II-LTM10 and REMIC II Regular Interest II-LTM11 and
any Accrual Period therefor, the second London Business Day preceding the
commencement of such Accrual Period.
“Interest
Rate Cap Agreement I”: The Interest Rate Cap Agreement, dated as of December 28
2006, between the Trust Administrator and the Interest Rate Cap Provider,
including any schedule, confirmations, credit support annex or other credit
support document relating thereto, and attached hereto as Exhibit
K.
“Interest
Rate Cap Agreement II”: The Interest Rate Cap Agreement, dated as of December 28
2006, between the Trust Administrator and the Interest Rate Cap Provider,
including any schedule, confirmations, credit support annex or other credit
support document relating thereto, and attached hereto as Exhibit
K.
“Interest
Rate Cap Agreements”: Collectively, Interest Rate Cap Agreement I and Interest
Rate Cap Agreement II.
“Interest
Rate Cap Collateral Account”: Shall mean the segregated trust account created
and maintained by the Trust Administrator pursuant to Section 4.11
hereof.
“Interest
Rate Cap Credit Support Annex”: The credit support annex, dated as of December
28, 2006, between the Trust Administrator and the Interest Rate Cap Provider,
which is annexed to and forms part of each of the Interest Rate Cap
Agreements.
“Interest
Rate Cap Provider”: The cap provider under the Interest Rate Cap Agreements.
Initially, the Interest Rate Cap Provider shall be UBS AG.
“Interest
Rate Swap Agreement”: The interest rate swap agreement, dated as of December 28,
2006, between the Swap Provider and the Supplemental Interest Trust Trustee,
including any schedule, confirmations, credit support annex and/or other credit
support documents relating thereto, and attached hereto as Exhibit
M.
“Interest
Remittance Amount”: With respect to any Distribution Date, that portion of the
Available Funds for such Distribution Date attributable to interest received
or
advanced with respect to the Mortgage Loans.
“Late
Collections”: With respect to any Mortgage Loan and any Due Period, all amounts
received by the Servicer subsequent to the Determination Date immediately
following such Due Period, whether as late payments of Monthly Payments or
as
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any
acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent for such Due Period and not previously recovered.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the Servicer has determined, in its reasonable judgment, as of the end
of
the related Prepayment Period, that all Liquidation Proceeds which it expects
to
recover with respect to the liquidation of the Mortgage Loan or disposition
of
the related REO Property have been recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i) such
Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made as to
such Mortgage Loan; or (iii) such Mortgage Loan is removed from REMIC I by
reason of its being purchased, repurchased or replaced pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01. With respect
to
any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from REMIC I by reason of its being purchased pursuant to Section
9.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the Servicer in
connection with (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan through a trustee’s sale, foreclosure sale or
otherwise, or (iii) the purchase, repurchase or substitution of a Mortgage
Loan
or an REO Property pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 9.01.
“Loan-to-Value
Ratio”: As of any date of determination, the fraction, expressed as a
percentage, the numerator of which is the principal balance of the related
Mortgage Loan at such date and the denominator of which is the Value of the
related Mortgaged Property.
“London
Business Day”: Any day on which banks in the City of London and 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 XX-XXX0, XX-XXX0,
XX-XXX0, XX-XXX0, II-LTM1, II-LTM2, II-LTM3, II-LTM4, II-LTM5, II-LTM6, II-LTM7,
II-LTM8, II-LTM9, II-LTM10, II-LTM11 and II-LTZZ, with the rate on each such
REMIC II Regular Interest (other than REMIC II Regular Interest II-LTZZ) subject
to a cap equal to the lesser of (a) One-Month LIBOR plus the related Certificate
Margin and (b) the Net WAC Rate for the purpose of this calculation and with
the
rate on REMIC II Regular Interest II-LTZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that solely for this purpose,
calculations of the REMIC II Remittance Rate and the related caps with respect
to such REMIC II Regular Interests (other than REMIC II Regular Interest
II-LTZZ) shall be multiplied by a fraction, the numerator of which is the actual
number of days elapsed in the related Accrual Period and the denominator of
which is 30.
“Master
Consulting Agreement”: The master consulting agreement, dated as of July 30,
2004, by and between the Depositor and the Credit Risk Manager.
“Master
Servicer”: As of the Closing Date, Xxxxx 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 Transfer Costs”: Shall mean all reasonable out-of-pocket costs and
expenses incurred by the Trustee in connection with the transfer of master
servicing from a predecessor master servicer, including, without limitation,
any
reasonable costs or expenses associated with the complete transfer of all
servicing data and master servicing data and the completion, correction or
manipulation of such servicing data as may be required by the Trustee to correct
any errors or insufficiencies in the servicing data or otherwise to enable
the
Trustee to master service the Mortgage Loans properly and
effectively.
“Maximum
Cap Rate”: For any Distribution Date with respect to the Class A Certificates
and the Mezzanine Certificates, a per annum rate equal to the sum of (i) the
product of (x) the weighted average of the Adjusted Net Maximum Mortgage Rates
of the Mortgage Loans, weighted based on their outstanding Stated Principal
Balances as of the first day of the calendar month preceding the month in which
the Distribution Date occurs and (y) a fraction, the numerator of which is
30
and the denominator of which is the actual number of days elapsed in the related
Accrual Period and (ii) (A) an amount, expressed as a percentage, equal to
a
fraction, the numerator of which is equal to the Net Swap Payment made by the
Swap Provider and the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans, multiplied by 12 and (B) an amount,
expressed as a percentage, equal to a fraction, the numerator of which is equal
to payments received under the Interest Rate Cap Agreements and the denominator
of which is equal to the aggregate Stated Principal Balance of the Mortgage
Loans, multiplied by 12 minus (a) an amount, expressed as a percentage, equal
to
the product of (I) the Net Swap Payment, if any, paid by the Trust for such
Distribution Date divided by the aggregate Stated Principal Balance of the
Mortgage Loans and (II) 12 and (b) an amount, expressed as a percentage, equal
to the product of (x) the Swap Termination Payment, if any, due from the Trust
(other than any Swap Termination Payment resulting from a Swap Provider Trigger
Event) for such Distribution Date, divided by the aggregate Stated Principal
Balance of the Mortgage Loans and (y) 12.
“Maximum
II-LTZZ Uncertificated Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (i) accrued interest at the REMIC II Remittance
Rate applicable to REMIC II Regular Interest II-LTZZ for such Distribution
Date
on a balance equal to the Uncertificated Balance of REMIC II Regular Interest
II-LTZZ minus the REMIC II Overcollateralization Amount, in each case for such
Distribution Date, over (ii) Uncertificated Interest on REMIC II Regular
Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular Interest
II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1,
REMIC II Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC
II
Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular
Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular Interest
II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10,
REMIC II Regular Interest II-LTM11 for such Distribution Date, with the rate
on
each such REMIC II Regular Interest subject to a cap equal to the lesser of
(a) One-Month LIBOR plus the related Certificate Margin and (b) the Net WAC
Rate; provided, however, each cap shall be multiplied by a fraction, the
numerator of which is the actual number of days elapsed in the related Accrual
Period and the denominator of which is 30.
“Maximum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Mezzanine
Certificate”: Any Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate, Class M-9
Certificate, Class M-10 Certificate or Class M-11 Certificate.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“MOM
Loan”: With respect to any Mortgage Loan, MERS acting as the mortgagee of such
Mortgage Loan, solely as nominee for the originator of such Mortgage Loan and
its successors and assigns, at the origination thereof.
“Monthly
Interest Distributable Amount”: With respect to the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates and any Distribution Date,
the amount of interest accrued during the related Accrual Period at the related
Pass-Through Rate on the Certificate Principal Balance (or Notional Amount
in
the case of the Class CE Certificates) of such Class immediately prior to such
Distribution Date, calculated on an actual/360 basis, reduced (to not less
than
zero) by any Prepayment Interest Shortfalls (to the extent not covered by
payments made by the Servicer or the Master Servicer) and Relief Act Interest
Shortfalls (allocated to each such Certificate based on its respective
entitlements to interest irrespective of any Prepayment Interest Shortfalls
and
Relief Act Interest Shortfalls for such Distribution Date).
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the related
Mortgagor from time to time under the related Mortgage Note, determined: (a)
after giving effect to (i) any Deficient Valuation and/or Debt Service Reduction
with respect to such Mortgage Loan and (ii) any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act;
(b)
without giving effect to any extension granted or agreed to by the Servicer
pursuant to Section 3.07 and (c) on the assumption that all other amounts,
if
any, due under such Mortgage Loan are paid when due.
“Monthly
Statement”: The statement prepared by the Trust Administrator pursuant to
Section 4.02.
“Moody’s”:
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 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.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: For any Distribution Date with respect to the Class A Certificates and
the Mezzanine Certificates, a per annum rate equal to the product of (x) the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans,
weighted based on their outstanding Principal Balances as of the first day
of
the calendar month preceding the month in which the Distribution Date occurs
minus (i) an amount, expressed as a percentage, equal to the product of (A)
the
Net Swap Payment, if any, paid by the Trust for such Distribution Date divided
by the aggregate Stated Principal Balance of the Mortgage Loans and (B) 12
and
(ii) an amount, expressed as a percentage, equal to the product of (A) the
Swap
Termination Payment, if any, due from the Trust (other than any Swap Termination
Payment resulting from a Swap Provider Trigger Event) for such Distribution
Date, divided by the aggregate Stated Principal Balance of the Mortgage Loans
and (B) 12, and (y) a fraction, the numerator of which is 30 and the denominator
of which is the actual number of days elapsed in the related Accrual
Period.
“Net
WAC
Rate Carryover Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, the sum of (A) the positive
excess of (i) the amount of interest accrued on such Class of Certificates
on
such Distribution Date calculated at the related Formula Rate, over (ii) the
amount of interest accrued on such Class of Certificates at the Net WAC Rate
for
such Distribution Date and (B) the Net WAC Rate Carryover Amount for the
previous Distribution Date not previously paid, together with interest thereon
at a rate equal to the Formula Rate for such Class of Certificates for such
Distribution Date and for such Accrual Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 4.07.
“New
Lease”: Any lease of REO Property entered into on behalf of REMIC I, including
any lease renewed or extended on behalf of REMIC I, if REMIC I has the right
to
renegotiate the terms of such lease.
“NIMS
Insurer”: Any insurer that is guaranteeing certain payments under notes secured
by collateral which includes all or a portion of the Class CE Certificates,
the
Class P Certificates, the Class R Certificates and/or the Class R-X
Certificates.
“Nonrecoverable
Advance”: Any Advance previously made or proposed to be made in respect of a
Mortgage Loan or REO Property that, in the good faith business judgment of
the
Servicer or the Master Servicer, as applicable, will not or, in the case of
a
proposed Advance, would not be ultimately recoverable from related Late
Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan
or
REO Property as provided herein.
“Nonrecoverable
Servicing Advance”: Any Servicing Advance previously made or proposed to be made
in respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer, will not or, in the case of a proposed Servicing
Advance, would not be ultimately recoverable from related Late Collections,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
“Non-United
States Person”: Any Person other than a United States Person.
“Notional
Amount”: With respect to the Class CE Interest and any Distribution Date, the
aggregate Uncertificated Balance of the REMIC II Regular Interests (other than
REMIC II Regular Interest II-LTP) for such Distribution Date.
“Officer’s
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president (however denominated),
and by the Treasurer, the Secretary, or one of the assistant treasurers or
assistant secretaries of the Servicer, the Master Servicer, an Originator,
the
Seller or the Depositor, as applicable.
“One-Month
LIBOR”: With respect to the Class A Certificates, the Mezzanine Certificates,
REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC
II
Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular
Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5,
REMIC II Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC
II
Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular
Interest II-LTM10 and REMIC II Regular Interest II-LTM11 and any Accrual Period
therefor, the rate determined by the Trust Administrator on the related Interest
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits, as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such Interest Determination Date; provided that if such rate does
not
appear on Telerate Page 3750, the rate for such date will be determined on
the
basis of the offered rates of the Reference Banks for one-month U.S. dollar
deposits, as of 11:00 a.m. (London time) on such Interest Determination Date.
In
such event, the Trust Administrator will request the principal London office
of
each of the Reference Banks to provide a quotation of its rate. If on such
Interest Determination Date, two or more Reference Banks provide such offered
quotations, One-Month LIBOR for the related Accrual Period shall be the
arithmetic mean of such offered quotations (rounded upwards if necessary to
the
nearest whole multiple of 1/16%). If on such Interest Determination Date, fewer
than two Reference Banks provide such offered quotations, One-Month LIBOR for
the related Accrual Period shall be the higher of (i) One-Month LIBOR as
determined on the previous Interest Determination Date and (ii) the Reserve
Interest Rate. Notwithstanding the foregoing, if, under the priorities described
above, One-Month LIBOR for an Interest Determination Date would be based on
One-Month LIBOR for the previous Interest Determination Date for the third
consecutive Interest Determination Date, the Trust Administrator shall select,
after consultation with the NIMS Insurer, an alternative comparable index (over
which the Trust Administrator has no control), used for determining one-month
Eurodollar lending rates that is calculated and published (or otherwise made
available) by an independent party.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be
salaried counsel for the Depositor, the Seller, the Servicer or the Master
Servicer, acceptable to the Trustee, if such opinion is delivered to the
Trustee, or acceptable to the Trust Administrator, if such opinion is delivered
to the Trust Administrator, except that any opinion of counsel relating to
(a)
the qualification of any Trust REMIC as a REMIC or (b) compliance with the
REMIC
Provisions must be an opinion of Independent counsel.
“Original
Mortgage Loan”: Any of the Mortgage Loans included in REMIC I as of the Closing
Date.
“Originator”:
New Century Mortgage Corporation, Decision One Mortgage Company, LLC, EquiFirst
Corporation and First NLC Financial Services, LLC.
“Originator
Master Agreements”: With respect to (i) First NLC Financial Services, LLC, the
Master Seller’s Purchase, Warranties and Interim Servicing Agreement, dated as
of February 1, 2006 between the Seller and First NLC Financial Services, LLC,
as
amended, (ii) New Century Mortgage Corporation, the Master Mortgage Loan
Purchase, Warranties and Interim Servicing Agreement, dated as of May 1, 2004,
among the Seller, NC Capital Corporation and New Century Mortgage Corporation,
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 and (iv) EquiFirst
Corporation, the Master Seller’s Purchase, Warranties and Interim Servicing
Agreement, dated as of May 1, 2006, between the Seller and EquiFirst
Corporation, as amended.
“Originator
Prepayment Charge Payment Amount”: The amounts payable by the Originator in
respect of any waived Prepayment Charges pursuant to Section 3.01.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (after giving effect to distributions in
respect of the Principal Remittance Amount on such Distribution
Date).
“Overcollateralization
Release Amount”: With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”: With respect to any Distribution Date, (i) 1.65% 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) 3.30% 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 XX-XXXX, XX-XXX0, XX-XXX0, XX-XXX0,
XX-XXX0, II-LTM1, II-LTM2, II-LTM3, II-LTM4, II-LTM5, II-LTM6, II-LTM7, II-LTM8,
II-LTM9, II-LTM10, II-LTM11 and II-LTZZ.
With
respect to the Class CE Certificates, 100% of the interest distributable to
the
Class CE Interest, expressed as a per annum rate.
With
respect to the Class SWAP-IO Interest, the Class SWAP-IO Interest shall not
have
a Pass-Through Rate, but interest for such Regular Interest and each
Distribution Date shall be an amount equal to 100% of the amounts distributable
to REMIC II Regular Interest II-LTIO for such Distribution Date.
“Percentage
Interest”: With respect to any Class of Certificates (other than the Residual
Certificates), the undivided percentage ownership in such Class evidenced by
such Certificate, expressed as a percentage, the numerator of which is the
initial Certificate Principal Balance or Notional Amount represented by such
Certificate and the denominator of which is the aggregate initial Certificate
Principal Balance or Notional Amount of all of the Certificates of such Class.
The Class A Certificates and the Mezzanine Certificates are issuable only in
minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $25,000 and integral multiples of $1.00 in excess thereof.
The Class P Certificates are issuable only in Percentage Interests corresponding
to initial Certificate Principal Balances of $20 and integral multiples thereof.
The Class CE Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Certificate Principal Balances of $10,000
and
integral multiples of $1.00 in excess thereof; provided, however, that a single
Certificate of each such Class of Certificates may be issued having a Percentage
Interest corresponding to the remainder of the aggregate initial Certificate
Principal Balance or Notional Amount of such Class or to an otherwise authorized
denomination for such Class plus such remainder. With respect to any Residual
Certificate, the undivided percentage ownership in such Class evidenced by
such
Certificate, as set forth on the face of such Certificate. The Residual
Certificates are issuable in Percentage Interests of 20% and multiples
thereof.
“Periodic
Rate Cap”: With respect to each Adjustable-Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage Loan
may increase or decrease (without regard to the Maximum Mortgage Rate or the
Minimum Mortgage Rate) on such Adjustment Date (other than the first Adjustment
Date) from the Mortgage Rate in effect immediately prior to such Adjustment
Date.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued or managed by the Depositor, the Servicer, the Master Servicer, the
NIMS
Insurer, the Trustee, the Trust Administrator or any of their respective
Affiliates or for which an Affiliate of the NIMS Insurer, the Trustee or the
Trust Administrator serves as an advisor:
(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 “AAAm” or “AAAm-G” 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.
“Posted
Collateral”: As defined in the Interest Rate Swap Agreement.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Mortgage and Prepayment Period, any prepayment
premium, fee, penalty or charge payable by a Mortgagor in connection with any
full or partial Principal Prepayment on a Mortgage Loan pursuant to the terms
of
the related Mortgage Note and any Originator Prepayment Charge Payment Amount
(other than any Servicer Prepayment Charge Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans provided by the Depositor included in REMIC I on such date, attached
hereto as Schedule 2 (including the Prepayment Charge Summary attached thereto).
The Prepayment Charge Schedule shall set forth the following information with
respect to each related Mortgage Loan:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Mortgage Loan; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
The
Prepayment Charge Schedule shall be amended from time to time by the Depositor
in accordance with the provisions of this Agreement and a copy of such amended
Prepayment Charge Schedule shall be furnished by the Depositor to the NIMS
Insurer and the Servicer.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full during the portion of
the
related Prepayment Period commencing on the first day of the calendar month
in
which the Distribution Date occurs and ending on the last day of the related
Prepayment Period, an amount equal to interest (to the extent received) at
the
applicable Net Mortgage Rate on the amount of such Principal Prepayment for
the
number of days commencing on the first day of the calendar month in which such
Distribution Date occurs and ending on the date on which such prepayment is
so
applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a voluntary Principal Prepayment in full during
the
portion of the related Prepayment Period commencing on the first day of the
related Prepayment Period and ending on the last day of the calendar month
preceding the month in which such Distribution Date occurs, an amount equal
to
interest on the Mortgage Loan at the applicable Net Mortgage Rate on the amount
of such Principal Prepayment for the number of days commencing on the date
such
Principal Prepayment was applied and ending on the last day of the calendar
month preceding the month in which such Distribution Date occurs.
“Prepayment
Period”: With respect to any Distribution Date and any Principal Prepayment in
full, the period commencing on the 16th day of the calendar month preceding
the
calendar month in which such Distribution Date occurs (or, in the case of the
first Distribution Date, commencing on December 1, 2006) and ending on the
15th
day of the calendar month in which such Distribution Date occurs. With respect
to any Distribution Date and any Principal Prepayment in part, the calendar
month preceding the month in which the Distribution Date occurs.
“Present
Value Maximum Probable Exposure”: With
respect to each Distribution
Date, the sum of each Present Value Probable Cash Flow from, and including,
such
Distribution Date to, and including, the Termination Date in such derivative
confirmation.
“Present
Value Probable Cash Flow”: With
respect to each Distribution
Date, the product of (i) the Probable Cash Flow and (ii) the Discount Factor
applicable for such Distribution Date.
“Principal
Balance”: As to any Mortgage Loan other than a Liquidated Mortgage Loan, and any
day, the related Cut-off Date Principal Balance, minus all collections credited
against the Cut-off Date Principal Balance of any such Mortgage Loan. For
purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have
a Principal Balance equal to the Principal Balance of the related Mortgage
Loan
as of the final recovery of related Liquidation Proceeds and a Principal Balance
of zero thereafter. As to any REO Property and any day, the Principal Balance
of
the related Mortgage Loan immediately prior to such Mortgage Loan becoming
REO
Property minus any REO Principal Amortization received with respect thereto
on
or prior to such day.
“Principal
Distribution Amount”: For any Distribution Date will be the sum of (i) the
principal portion of all scheduled monthly payments on the Mortgage Loans due
during the related Due Period, whether or not received on or prior to the
related Determination Date; (ii) the principal portion of all proceeds received
in respect of the repurchase of a Mortgage Loan (or, in the case of a
substitution, certain amounts representing a principal adjustment) during the
related Prepayment Period; (iii) the principal portion of all related Net
Liquidation Proceeds, Insurance Proceeds, Subsequent Recoveries and all full
and
partial principal prepayments, received during the related Prepayment Period,
to
the extent applied as recoveries of principal on the Mortgage Loans and (iv)
any
Extra Principal Distribution Amount for such Distribution Date minus (v) any
Overcollateralization Release Amount for such Distribution Date. In no event
will the Principal Distribution Amount with respect to any Distribution Date
be
(x) less than zero or (y) greater than the then outstanding aggregate
Certificate Principal Balance of the Class A and Mezzanine
Certificates.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount of scheduled
interest due on any Due Date in any month or months subsequent to the month
of
prepayment.
“Principal
Remittance Amount”: With respect to any Distribution Date, the sum of the
amounts set forth in clauses (i) through (iii) of the definition of Principal
Distribution Amount.
“Probable
Cash Flow”: With respect to each Distribution Date, the product of (i) the
Notional Balance in such derivative confirmation for such Distribution Date,
divided by 12, and (ii) the excess, if any, of (a) the Projected Forward Rate
over (b) the cap rate, as defined in the derivative confirmation attached hereto
as Exhibit K or the fixed rate, as defined in the derivative confirmation
attached hereto as Exhibit M, as applicable. The Probable Cash Flow for each
Distribution Date that precedes the Significance Percentage Calculation Date
shall equal zero.
“Projected
Forward Rate”: With
respect to each Distribution Date, the product of (i) One Month LIBOR (expressed
as a percentage) for the related Accrual Period made available at Bloomberg
Financial Markets, L.P. (“Bloomberg”) by typing in the following keystrokes:
FWCV <go>US<go>3<go> and inputting “1” as Forwards and
Intervals, and (ii) the sum of 1 and the product of (a) a percentage volatility
level, linearly interpolated based on “Mid USD Cap” volatility levels as
obtained from Bloomberg within 15 calendar days of such Distribution Date by
typing the keystrokes: TTCF <go>, 1 <go>, whose maturity date
corresponds to the Termination Date in such derivative confirmation, (b) a
factor of 1.3, and (c) the square root of the number of days from the
Significance Percentage Calculation Date to the first day of the Accrual Period
for each related Distribution Date divided by 360.
“Projected
Zero Factor”: With respect to each Distribution Date, a fraction, the numerator
of which is 1 and the denominator of which is the sum of (i) 1 and (ii) the
Projected Forward Rate divided by 12.
“Prospectus
Supplement”: That certain Prospectus Supplement dated December 6, 2006 relating
to the public offering of the Class A Certificates and the Mezzanine
Certificates (other than the Class M-11 Certificates).
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 9.01, and as confirmed by an Officer’s Certificate from the
Servicer to the Trustee an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof as of the date of purchase (or such other price as
provided in Section 9.01), (ii) in the case of (x) a Mortgage Loan, accrued
interest on such Stated Principal Balance at the applicable Net Mortgage Rate
in
effect from time to time from the Due Date as to which interest was last covered
by a payment by the Mortgagor or an Advance, which payment or Advance had as
of
the date of purchase been distributed pursuant to Section 4.01, through the
end of the calendar month in which the purchase is to be effected and (y) an
REO
Property, the sum of (1) accrued interest on such Stated Principal Balance
at
the applicable Net Mortgage Rate in effect from time to time from the Due Date
as to which interest was last covered by a payment by the Mortgagor or an
Advance by the Servicer through the end of the calendar month immediately
preceding the calendar month in which such REO Property was acquired, plus
(2)
REO Imputed Interest for such REO Property for each calendar month commencing
with the calendar month in which such REO Property was acquired and ending
with
the calendar month in which such purchase is to be effected, net of the total
of
all net rental income, Insurance Proceeds, Liquidation Proceeds and Advances
that as of the date of purchase had been distributed as or to cover REO Imputed
Interest pursuant to Section 4.01, (iii) any unreimbursed Advances and
Servicing Advances (including Nonrecoverable Advances and Nonrecoverable
Servicing Advances) and any unpaid Servicing Fees allocable to such Mortgage
Loan or REO Property, (iv) any amounts previously withdrawn from the Collection
Account pursuant to Section 3.11(a)(ix) and Section 3.16(b) or the Distribution
Account in respect of such Mortgage Loan or REO Property, and (v) in the case
of
a Mortgage Loan required to be purchased pursuant to Section 2.03, expenses
reasonably incurred or to be incurred by the Servicer, the Master Servicer,
the
NIMS Insurer, the Trust Administrator or the Trustee in respect of the breach
or
defect giving rise to the purchase obligation including any costs and damages
incurred by the Trust in connection with any violation with respect to such
loan
of any predatory or abusive lending law. With respect to each Originator and
any
Mortgage Loan or REO Property to be purchased pursuant to or as contemplated
by
Section 2.03 or 10.01, an amount equal to the amount set forth pursuant to
the terms of the related Originator Master Agreement.
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan by the Seller or the Originator, as applicable, pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding Stated Principal Balance, after application of all scheduled
payments of principal and interest due during or prior to the month of
substitution, not in excess of, and not more than 5% less than, the Stated
Principal Balance of the Deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs, (ii) have a Mortgage Rate
not less than (and not more than one percentage point in excess of) the Mortgage
Rate of the Deleted Mortgage Loan, (iii) with respect to any Adjustable-Rate
Mortgage Loan, have a Maximum Mortgage Rate not less than the Maximum Mortgage
Rate of the Deleted Mortgage Loan, (iv) with respect to any Adjustable-Rate
Mortgage Loan, have a Minimum Mortgage Rate not less than the Minimum Mortgage
Rate of the Deleted Mortgage Loan, (v) with respect to any Adjustable-Rate
Mortgage Loan, have a Gross Margin equal to or greater than the Gross Margin
of
the Deleted Mortgage Loan, (vi) with respect to any Adjustable-Rate Mortgage
Loan, have a next Adjustment Date not more than two months later than the next
Adjustment Date on the Deleted Mortgage Loan, (vii) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Deleted Mortgage Loan, (viii) have the same Due Date as the Due Date on the
Deleted Mortgage Loan, (ix) have a Loan-to-Value Ratio as of the date of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (x) have a risk grading determined by the
Originator at least equal to the risk grading assigned on the Deleted Mortgage
Loan, (xi) have a Prepayment Charge provision at least equal to the Prepayment
Charge provision in the Deleted Mortgage Loan, (xii) [reserved] and (xiii)
conform to each representation and warranty set forth in the related Originator
Master Agreement and related Assignment Agreement applicable to the Deleted
Mortgage Loan. In the event that one or more mortgage loans are substituted
for
one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the basis of aggregate principal balances, the Mortgage
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Rates, the terms described in clause (vii) hereof
shall be determined on the basis of weighted average remaining term to maturity,
the Loan-to-Value Ratios described in clause (ix) hereof shall be satisfied
as
to each such mortgage loan, the risk gradings described in clause (x) hereof
shall be satisfied as to each such mortgage loan and, except to the extent
otherwise provided in this sentence, the representations and warranties
described in clause (xiii) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be.
“Rating
Agency” or “Rating Agencies”: 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 the Servicer pursuant to this Agreement, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage Loan.
If
the Servicer receives Subsequent Recoveries with respect to any Mortgage Loan,
the amount of the Realized Loss with respect to that Mortgage Loan will be
reduced to the extent such recoveries are applied to principal distributions
on
any Distribution Date.
“Record
Date”: With respect to each Distribution Date and any Book-Entry Certificate,
the Business Day immediately preceding such Distribution Date. With respect
to
each Distribution Date and any other Certificates, including any Definitive
Certificates, the last Business Day of the month immediately preceding the
month
in which such Distribution Date occurs.
“Reference
Banks”: Deutsche Bank AG, 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 Cap
Account, the Interest Rate Cap Agreements, the Supplemental Interest Trust,
any
Servicer Prepayment Charge Payment Amounts or any Originator Prepayment Charge
Payment Amounts, all payments and other collections of principal and interest
due on the Mortgage Loans on or before the Cut-off Date and all Prepayment
Charges payable in connection with Principal Prepayments made before the Cut-off
Date.
“REMIC
I
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto. The designations for the respective
REMIC I Regular Interests are set forth in the Preliminary Statement
hereto.
“REMIC
I
Remittance Rate”: With respect to REMIC I Regular Interest I and REMIC I Regular
Interest I-LTP, a per annum rate equal to the weighted average Adjusted Net
Mortgage Rate of the Mortgage Loans. With respect to each REMIC I Regular
Interest ending with the designation “A”, a per annum rate equal to the weighted
average Adjusted Net Mortgage Rate of the Mortgage Loans multiplied by 2,
subject to a maximum rate of 10.900%. With respect to each REMIC I Regular
Interest ending with the designation “B”, the greater of (x) a per annum rate
equal to the excess, if any, of (i) 2 multiplied by the weighted average Net
Mortgage Rate of the Mortgage Loans over (ii) 10.900% and (y)
0.00%.
“REMIC
II”: The segregated pool of assets consisting of all of the REMIC I Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC II
Certificateholders pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
II
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount (subject to adjustment based on the actual number of days elapsed in
the
respective Accrual Periods for the indicated Regular Interests for such
Distribution Date) equal to (a) the product of the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties then outstanding and (ii)
the
REMIC II Remittance Rate for REMIC II Regular Interest II-LTAA minus the Marker
Rate, divided by (b) 12.
“REMIC
II
Overcollateralized Amount”: With respect to any date of determination, (i) 1% of
the aggregate Uncertificated Balance of the REMIC II Regular Interests (other
than REMIC II Regular Interest II-LTP and REMIC II Regular Interest II-LTIO)
minus (ii) the aggregate Uncertificated Balance of REMIC II Regular Interest
II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3,
REMIC II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC
II
Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest
II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8,
REMIC II Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10 and REMIC
II Regular Interest II-LTM11, in each case as of such date of
determination.
“REMIC
II
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to the product of (i) the aggregate Stated Principal Balance of
the
Mortgage Loans and REO Properties then outstanding and (ii) 1 minus a fraction,
the numerator of which is two times the aggregate Uncertificated Balance of
REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC
II
Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular
Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5,
REMIC II Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC
II
Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular
Interest II-LTM10, REMIC II Regular Interest II-LTM11 and the denominator of
which is the aggregate Uncertificated Balance of REMIC II Regular Interest
II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3,
REMIC II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC
II
Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest
II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8,
REMIC II Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC
II
Regular Interest II-LTM11 and REMIC II Regular Interest II-LTZZ.
“REMIC
II
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a “regular interest” in
REMIC II. Each REMIC II Regular Interest shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal (other than REMIC II Regular Interest II-LTIO),
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement hereto.
The REMIC II Regular Interests are as follows: REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2,
REMIC II Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC
II
Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular
Interest II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular Interest
II-LTM5, REMIC II Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7,
REMIC II Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC
II
Regular Interest II-LTM10, REMIC II Regular Interest II-LTM11, REMIC II Regular
Interest II-LTP and REMIC II Regular Interest I-TLZZ and REMIC II Regular
Interest II-LTIO. REMIC II Regular Interest II-LTP shall also be entitled to
any
Prepayment Charges received by the Trust Fund.
“REMIC
II
Remittance Rate”: With respect to REMIC II Regular Interest II-LTAA, REMIC II
Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular
Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular Interest
II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3,
REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC
II
Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular
Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular Interest
II-LTM10, REMIC II Regular Interest II-LTM11, REMIC II Regular Interest II-LTZZ
and REMIC II Regular Interest II-LTP, a per annum rate (but not less than zero)
equal to the weighted average of (v) with respect to REMIC I Regular Interest
I,
and REMIC I Regular Interest I-LTP, the REMIC I Remittance Rate for such REMIC
I
Regular Interest for each such Distribution Date, (w) with respect to REMIC
I
Regular Interests ending with the designation “B”, the weighted average of the
REMIC I Remittance Rates for such REMIC I Regular Interests, weighted on the
basis of the Uncertificated Principal Balance of such REMIC I Regular Interests
for each such Distribution Date and (x) with respect to REMIC I Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for each such REMIC I
Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC I Regular Interest for each such
Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
2
|
I-2-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
3
|
I-3-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
4
|
I-4-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
5
|
I-5-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
6
|
I-6-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
7
|
I-7-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
8
|
I-8-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
9
|
I-9-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
10
|
I-10-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
11
|
I-11-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
12
|
I-12-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
13
|
I-13-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
14
|
I-14-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
15
|
I-15-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
16
|
I-16-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
17
|
I-17-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
18
|
I-18-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
19
|
I-19-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
20
|
I-20-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
21
|
I-21-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
22
|
I-22-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
23
|
I-23-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
24
|
I-24-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
25
|
I-25-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
26
|
I-26-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
27
|
I-27-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
28
|
I-28-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
29
|
I-29-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
30
|
I-30-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
31
|
I-31-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
32
|
I-32-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
33
|
I-33-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
34
|
I-34-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
35
|
I-35-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
36
|
I-36-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
37
|
I-37-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
38
|
I-38-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
39
|
I-39-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
40
|
I-40-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
41
|
I-41-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
42
|
I-42-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
43
|
I-43-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
44
|
I-44-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
45
|
I-45-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
46
|
I-46-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
47
|
I-47-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
48
|
I-48-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
49
|
I-49-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
50
|
I-50-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
51
|
I-51-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
52
|
I-52-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
53
|
I-53-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
54
|
I-54-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
55
|
I-55-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
56
|
I-56-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
57
|
I-57-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
58
|
I-58-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-57-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
59
|
I-59-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-58-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
60
|
I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-59-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
thereafter
|
I-1-A
through I-60-A
|
Uncertificated
REMIC 1 Remittance Rate
|
With
respect to REMIC II Regular Interest II-LTIO, and (a) the first 60 Distribution
Dates, the excess of (i) the weighted average of the REMIC I Remittance Rates
for REMIC I Regular Interests ending with the designation “A”, over (ii) 2
multiplied by Swap LIBOR, and (b) thereafter, 0.00%.
“REMIC
II
Required Overcollateralized Amount”: 1.00% of the Overcollateralization Target
Amount.
“REMIC
III”: The segregated pool of assets consisting of all of the REMIC II Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC III
Certificateholders pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
III Certificate”: Any Regular Certificate (other than a Class CE Certificate or
Class P Certificate) or Class R Certificate.
“REMIC
III Certificateholder”: The Holder of any REMIC III Certificate.
“REMIC
III Regular Interest”: Any Class A Certificate, Mezzanine Certificate, the Class
CE Interest, the Class P Interest or the Class Swap-IO Interest.
“REMIC
IV”: The segregated pool of assets consisting of all of the Class CE Interest
conveyed in trust to the Trustee, for the benefit of the Holders of the Class
CE
Certificates and the Class R-X Certificate (in respect of the Class R-IV
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
V”: The segregated pool of assets consisting of all of the Class P Interest
conveyed in trust to the Trustee, for the benefit of the Holders of the Class
P
Certificates and the Class R-X Certificate (in respect of the Class R-V
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
VI”: The segregated pool of assets consisting of all of the Class Swap-IO
Interest conveyed in trust to the Trustee, for the benefit of the Holders of
the
REMIC VI Regular Interest SWAP-IO and the Class R-X Certificate (in respect
of
the Class R-VI Interest), pursuant to Article II hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
“REMIC
Provisions”: Provisions of the federal income tax law relating to REMICs, which
appear at Section 860A through 860G of the Code, and related provisions, and
proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
“REMIC
Regular Interest”: Any REMIC I Regular Interest, REMIC II Regular Interest,
REMIC III Regular Interest or REMIC VI Regular Interest SWAP-IO.
“REMIC
Remittance Rate”: The REMIC I Remittance Rate or the REMIC II Remittance
Rate.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Trust
Administrator and the NIMS Insurer pursuant to Section 4.03.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code as being included in the
term “rents from real property.”
“REO
Account”: The account or accounts maintained, or caused to be maintained, by the
Servicer in respect of an REO Property pursuant to Section 3.23.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of
REMIC I.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of REMIC I, one month’s interest at the
applicable Net Mortgage Rate on the Stated Principal Balance of such REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan, if appropriate) as of the close of business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 9.01 that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.23(c) in respect of the proper operation, management and
maintenance of such REO Property or (ii) payable or reimbursable to the Servicer
pursuant to Section 3.23(d) for unpaid Servicing Fees in respect of the related
Mortgage Loan and unreimbursed Advances and Servicing Advances in respect of
such REO Property or the related Mortgage Loan, over (b) the REO Imputed
Interest in respect of such REO Property for such calendar month.
“REO
Property”: A Mortgaged Property acquired by the Servicer on behalf of REMIC I
through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23.
“Reportable
Event”: The meaning set forth in Section 4.06(a)(iii).
“Request
for Release”: A request for release in such electronic or other format as shall
be mutually agreed to by the Custodian and the Servicer, in substantially the
form of Exhibit E attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trust Administrator determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of 1/16%)
of
the one-month U.S. dollar lending rates which New York City banks selected
by
the Trust Administrator are quoting on the relevant Interest Determination
Date
to the principal London offices of leading banks in the London interbank market
or (ii) in the event that the Trust Administrator can determine no such
arithmetic mean, the lowest one-month U.S. dollar lending rate which New York
City banks selected by the Trust Administrator are quoting on such Interest
Determination Date to leading European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
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.
“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”: The excess of (x) the aggregate Certificate
Principal Balance of the Class A Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 56.10% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $4,518,753.46.
“Sequential
Class M Certificates”: the Class M-1 Certificates, the Class M-2 Certificates
and the Class M-3 Certificates.
“Sequential
Class M Principal Distribution Amount”: With respect to any Distribution Date,
the excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of
the Class A Certificates (after taking into account the distribution of the
Senior Principal Distribution Amount on such Distribution Date), (ii) the
aggregate Certificate Principal Balance of the Sequential Class M Certificates
over (y) the lesser of (A) the product of (i) 76.40% 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 $4,518,753.46.
“Servicer”:
HomEq Servicing, or any successor Servicer appointed as herein provided, in
its
capacity as the Servicer hereunder.
“Servicer
Event of Default”: One or more of the events described in Section
7.01(a).
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by the Servicer in
respect of any waived Prepayment Charges pursuant to Section 3.01.
“Servicer
Remittance Date”: With respect to any Distribution Date, the 18th
day of
the calendar month in which such Distribution Date occurs or, if such
18th
day is
not a Business Day, the Business Day immediately following.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: The reasonable “out-of-pocket” costs and expenses incurred by the
Servicer in connection with a default, delinquency or other unanticipated event
by the Servicer in the performance of its servicing obligations, including,
but
not limited to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement, administration or
judicial proceedings, including foreclosures, in respect of a particular
Mortgage Loan, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS
System, (iii) the management (including reasonable fees in connection therewith)
and liquidation of any REO Property, (iv) taxes, assessments, water rates,
sewer
rents and other charges which are or may become a lien upon the Mortgage
Property and (v) the performance of its obligations under Section 3.01, Section
3.09, Section 3.13, Section 3.14, Section 3.16 and Section 3.23. Servicing
Advances shall also include any reasonable “out-of-pocket” costs and expenses
(including legal fees) incurred by the Servicer in connection with executing
and
recording instruments of satisfaction, deeds of reconveyance or Assignments
of
Mortgage in connection with any foreclosure in respect of any Mortgage Loan
to
the extent not recovered from the related Mortgagor or otherwise payable under
this Agreement. The Servicer shall not be required to make any Servicing Advance
in respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer would not be ultimately recoverable from related
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein. The Servicer shall not be required to make any Servicing
Advance that would be a Nonrecoverable Advance.
“Servicing
Criteria” means the criteria set forth in paragraph (d) of Item 1122 of
Regulation AB, as such may be amended from time to time.
“Servicing
Fee”: With respect to each Mortgage Loan, the amount of the annual fee paid to
the Servicer, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate (without regard to
the
words “per annum”) and (b) the Stated Principal Balance of such Mortgage Loan as
of the first day of the related Due Period. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is received. The obligation
for
payment of the Servicing Fee is limited to, and the Servicing Fee is payable
solely from, the interest portion (including recoveries with respect to interest
from Liquidation Proceeds) of such Monthly Payment collected by the Servicer,
or
as otherwise provided under Section 3.11.
“Servicing
Fee Rate”: With respect to each Mortgage Loan, the rate of 0.5000% per
annum.
“Servicing
Function Participant” means any Sub-Servicer or Subcontractor of a Servicer,
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, provided, however, the parties hereto agree
that the duties and obligations of Deutsche Bank National Trust Company, in
its
capacity as a Servicing Function Participant, shall be solely governed pursuant
to the terms of the Custodial Agreement.
“Servicing
Officer”: Any employee of the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name appear on a
list
of Servicing Officers furnished by the Servicer to the Master Servicer, the
Trust Administrator, the Trustee and the Depositor, upon request, as such list
may from time to time be amended. With respect to the Master Servicer, any
officer of the Master Servicer involved in or responsible for, the
administration and master servicing of the Mortgage Loans whose name appears
on
a list of master Servicing Officers furnished by the Master Servicer to the
Trustee, the Trust Administrator and the Depositor upon request, as such list
may from time to time be amended.
“Servicing
Transfer Costs”: Shall mean all reasonable out-of-pocket costs and expenses
incurred by the Trustee or the Master Servicer in connection with the transfer
of servicing from a predecessor servicer, including, without limitation, any
reasonable costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Trustee, the Master Servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
Trustee or the Master Servicer to service the Mortgage Loans properly and
effectively.
“Significance
Percentage”: The percentage equivalent of a fraction, the numerator of which is
the highest of each Present Value Maximum Probable Exposure and the denominator
of which is the aggregate Certificate Principal Balance of the Class A and
Mezzanine Certificates that are supported by the derivatives (after giving
effect to all distributions on such Distribution Date in such derivative
confirmation).
“Significance
Percentage Calculation Date”: Shall mean no later than the respective
Distribution Date.
“Single
Certificate”: With respect to any Class of Certificates (other than the Class P
Certificates and the Residual Certificates), a hypothetical Certificate of
such
Class evidencing a Percentage Interest for such Class corresponding to an
initial Certificate Principal Balance of $1,000. With respect to the Class
P
Certificates and the Residual Certificates, a hypothetical Certificate of such
Class evidencing a 100% Percentage Interest in such Class.
“Startup
Day”: With respect to each Trust REMIC, the day designated as such pursuant to
Section 10.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the Cut-off Date Principal Balance of such Mortgage Loan,
as shown in the Mortgage Loan Schedule, minus the sum of (i) the principal
portion of each Monthly Payment due on a Due Date subsequent to the Cut-off
Date, to the extent received from the Mortgagor or advanced by the Servicer
and
distributed pursuant to Section 4.01 on or before such date of
determination, (ii) all Principal Prepayments received after the Cut-off Date,
to the extent distributed pursuant to Section 4.01 on or before such date
of determination, (iii) all Liquidation Proceeds and Insurance Proceeds applied
by the Servicer as recoveries of principal in accordance with the provisions
of
Section 3.16, to the extent distributed pursuant to Section 4.01 on or
before such date of determination, and (iv) any Realized Loss incurred with
respect thereto as a result of a Deficient Valuation made during or prior to
the
Prepayment Period for the most recent Distribution Date coinciding with or
preceding such date of determination; and (b) as of any date of determination
coinciding with or subsequent to the Distribution Date on which the proceeds,
if
any, of a Liquidation Event with respect to such Mortgage Loan would be
distributed, zero. With respect to any REO Property: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property
would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of REMIC I, minus the sum of (i) if such REO Property
was
acquired before the Distribution Date in any calendar month, the principal
portion of the Monthly Payment due on the Due Date in the calendar month of
acquisition, to the extent advanced by the Servicer and distributed pursuant
to
Section 4.01 on or before such date of determination, and (ii) the
aggregate amount of REO Principal Amortization in respect of such REO Property
for all previously ended calendar months, to the extent distributed pursuant
to
Section 4.01 on or before such date of determination; and (b) as of any
date of determination coinciding with or subsequent to the Distribution Date
on
which the proceeds, if any, of a Liquidation Event with respect to such REO
Property would be distributed, zero.
“Stepdown
Date”: The earlier to occur of (i) the first Distribution Date immediately
succeeding the Distribution Date on which the aggregate Certificate Principal
Balance of the Class A Certificates has been reduced to zero and (ii) the later
to occur of (x) the Distribution Date occurring in January 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
43.90%.
“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 the Servicer (or a Sub-Servicer of the 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 the 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
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer,
relating to servicing and administration of certain Mortgage Loans, which meets
the requirements set forth in Section 3.02.
“Subsequent
Recoveries”: As of any Distribution Date, unexpected amounts received by the
Servicer (net of any related expenses permitted to be reimbursed to the Servicer
or the Master Servicer) specifically related to a Mortgage Loan that was the
subject of a liquidation or an REO Disposition prior to the related Prepayment
Period that resulted in a Realized Loss.
“Substitution
Adjustment Amount”: As defined in Section 2.03(b).
“Supplemental
Interest Trust”: As defined in Section 4.08(a).
“Supplemental
Interest Trust Trustee”: 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 Custodian 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
Custodian”: As defined in Section 4.11(b).
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due to a
discrepancy between the Uncertificated Notional Amounts of the Class SWAP-IO
Interest and the scheduled notional amount pursuant to the Swap Administration
Agreement.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by either Swap Provider
under the Interest Rate Swap Agreement.
“Swap
Provider”: The swap provider under the Interest Rate Swap Agreement. Initially,
the Swap Provider shall be UBS AG.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party (as defined in the Interest Rate Swap Agreement).
“Swap
Termination Payment”: The payment due under the Interest Rate Swap Agreement
upon the early termination of the Interest Rate Swap Agreement.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on
behalf of the Trust Fund due to the classification of portions thereof as REMICs
under the REMIC Provisions, together with any and all other information reports
or returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax
laws.
“Telerate
Page 3750”: The display designated as page “3750” on the Dow Xxxxx Telerate
Capital Markets Report (or such other page as may replace page 3750 on that
report for the purpose of displaying London interbank offered rates of major
banks).
“Termination
Price”: As defined in Section 9.01.
“Terminator”:
As defined in Section 9.01.
“Transaction
Xxxxxxxx XXXX 0000-XX0”: The transaction addendum to the Master Consulting
Agreement, dated as of December 28, 2006, by and between the Depositor and
the
Credit Risk Manager, relating to the transaction contemplated by this
Agreement.
“Transfer”:
Any direct or indirect transfer, sale, pledge, hypothecation, or other form
of
assignment of any Ownership Interest in a Certificate.
“Transferee”:
Any Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”:
Any Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date on or
after the Stepdown Date if:
(b) the
Rolling-Three Month Delinquency Percentage exceeds 36.45% of the Credit
Enhancement Percentage; or
(c) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (reduced by the aggregate amount of
Subsequent Recoveries received since the Cut-off Date through the last day
of
the related Due Period) divided by the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date exceeds the applicable percentages set
forth below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
January
2009 through December 2009
|
1.35%
for the first month, plus an additional 1/12th of 1.65% for each
month
thereafter
|
|
January
2010 through December 2010
|
3.00%
for the first month, plus an additional 1/12th of 1.65% for each
month
thereafter
|
|
January
2011 through December 2011
|
4.65%
for the first month, plus an additional 1/12th of 1.30% for each
month
thereafter
|
|
January
2012 through December 2012
|
5.95%
for the first month, plus an additional 1/12th of 0.65% for each
month
thereafter
|
|
January
2013 and thereafter
|
6.60%
|
“Trust
Administrator”: Xxxxx Fargo, or any successor in interest, or any successor
trust administrator appointed as herein provided.
“Trust
Fund”: Collectively, all of the assets of REMIC I, REMIC II, REMIC III, REMIC
IV, REMIC V and REMIC VI, the Net WAC Rate Carryover Reserve Account,
distributions made to the Trust Administrator by the Swap Administrator under
the Swap Administration Agreement to the Swap Account and the other assets
conveyed by the Depositor to the Trustee pursuant to Section 2.01.
“Trust
REMIC”: Any of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V and REMIC
VI.
“Trustee”:
U.S. Bank National Association, a national banking association, or its successor
in interest, or any successor trustee appointed as herein provided.
“Uncertificated
Balance”: The amount of any REMIC Regular Interest (other than REMIC II Regular
Interest II-LTIO) outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Balance of each REMIC Regular Interest (other than
REMIC II Regular Interest II-LTIO) shall equal the amount set forth in the
Preliminary Statement hereto as its initial uncertificated balance. On each
Distribution Date, the Uncertificated Balance of each REMIC Regular Interest
(other than REMIC II Regular Interest II-LTIO) shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.01 and, if and to the extent
necessary and appropriate, shall be further reduced on such Distribution Date
by
Realized Losses as provided in Section 4.04. The Uncertificated Balance of
REMIC II Regular Interest II-LTZZ shall be increased by interest deferrals
as
provided in Section 4.01(a)(1). The Uncertificated Balance of each REMIC
Regular Interest (other than REMIC II Regular Interest II-LTIO) shall never
be
less than zero. With respect to the Class CE Interest as of any date of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests over (B)
the
then aggregate Certificate Principal Balances of the Class A Certificates,
Mezzanine Certificates and the Class P Interest then outstanding.
“Uncertificated
Interest”: With respect to any REMIC Regular Interest for any Distribution Date,
one month’s interest at the REMIC Remittance Rate applicable to such REMIC
Regular Interest for such Distribution Date, accrued on the Uncertificated
Balance or Uncertificated Notional Amount thereof immediately prior to such
Distribution Date. Uncertificated Interest in respect of any REMIC I Regular
Interest shall accrue on the basis of a 360-day year consisting of twelve 30-day
months. Uncertificated Interest with respect to each Distribution Date, as
to
any REMIC Regular Interest, shall be reduced by an amount equal to the sum
of
(a) the aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date to the extent not covered by Compensating Interest and (b) the aggregate
amount of any Relief Act Interest Shortfall, if any allocated, in each case,
to
such REMIC Regular Interest pursuant to Section 1.02. In addition,
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
Regular Interest shall be reduced by Realized Losses, if any, allocated to
such
REMIC Regular Interest pursuant to Section 1.02 and
Section 4.04.
“Uncertificated
Notional Amount”: With respect to REMIC II Regular Interest II-LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC I Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
1
|
I-1-A
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through I-60-A
|
|
10
|
I-10-A
through I-60-A
|
|
11
|
I-11-A
through I-60-A
|
|
12
|
I-12-A
through I-60-A
|
|
13
|
I-13-A
through I-60-A
|
|
14
|
I-14-A
through I-60-A
|
|
15
|
I-15-A
through I-60-A
|
|
16
|
I-16-A
through I-60-A
|
|
17
|
I-17-A
through I-60-A
|
|
18
|
I-18-A
through I-60-A
|
|
19
|
I-19-A
through I-60-A
|
|
20
|
I-20-A
through I-60-A
|
|
21
|
I-21-A
through I-60-A
|
|
22
|
I-22-A
through I-60-A
|
|
23
|
I-23-A
through I-60-A
|
|
24
|
I-24-A
through I-60-A
|
|
25
|
I-25-A
through I-60-A
|
|
26
|
I-26-A
through I-60-A
|
|
27
|
I-27-A
through I-60-A
|
|
28
|
I-28-A
through I-60-A
|
|
29
|
I-29-A
through I-60-A
|
|
30
|
I-30-A
through I-60-A
|
|
31
|
I-31-A
through I-60-A
|
|
32
|
I-32-A
through I-60-A
|
|
33
|
I-33-A
through I-60-A
|
|
34
|
I-34-A
through I-60-A
|
|
35
|
I-35-A
through I-60-A
|
|
36
|
I-36-A
through I-60-A
|
|
37
|
I-37-A
through I-60-A
|
|
38
|
I-38-A
through I-60-A
|
|
39
|
I-39-A
through I-60-A
|
|
40
|
I-40-A
through I-60-A
|
|
41
|
I-41-A
through I-60-A
|
|
42
|
I-42-A
through I-60-A
|
|
43
|
I-43-A
through I-60-A
|
|
44
|
I-44-A
through I-60-A
|
|
45
|
I-45-A
through I-60-A
|
|
46
|
I-46-A
through I-60-A
|
|
47
|
I-47-A
through I-60-A
|
|
48
|
I-48-A
through I-60-A
|
|
49
|
I-49-A
through I-60-A
|
|
50
|
I-50-A
through I-60-A
|
|
51
|
I-51-A
through I-60-A
|
|
52
|
I-52-A
through I-60-A
|
|
53
|
I-53-A
through I-60-A
|
|
54
|
I-54-A
through I-60-A
|
|
55
|
I-55-A
through I-60-A
|
|
56
|
I-56-A
through I-60-A
|
|
57
|
I-57-A
through I-60-A
|
|
58
|
I-58-A
through I-60-A
|
|
59
|
I-59-A
and I-60-A
|
|
60
|
I-60-A
|
|
thereafter
|
$0.00
|
With
respect to the Class Swap-IO Interest and any Distribution Date, an amount
equal
to the Uncertificated Notional Amount of the REMIC II Regular Interest
II-LTIO.
“Uninsured
Cause”: Any cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the hazard insurance
policies required to be maintained pursuant to Section 3.14.
“United
States Person”: A citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of,
the
United States, any state thereof or, the District of Columbia (except, in the
case of a partnership, to the extent provided in regulations) provided that,
for
purposes solely of the restrictions on the transfer of Class R Certificates
and
Class R-X Certificates, no partnership or other entity treated as a partnership
for United States federal income tax purposes shall be treated as a United
States Person unless all persons that own an interest in such partnership either
directly or through any entity that is not a corporation for United States
federal income tax purposes are required by the applicable operative agreement
to be United States Persons or an estate whose income is subject to United
States federal income tax regardless of its source, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust. To the extent
prescribed in regulations by the Secretary of the Treasury, a trust which was
in
existence on August 20, 1996 (other than a trust treated as owned by the grantor
under subpart E of part I of subchapter J of chapter 1 of the Code), and which
was treated as a United States person on August 20, 1996 may elect to continue
to be treated as a United States person notwithstanding the previous sentence.
The term “United States” shall have the meaning set forth in Section 7701
of the Code.
“Unpaid
Interest Shortfall Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and (i) the first Distribution Date, zero, and (ii)
any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such Class
in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not paid
on
the Certificates of such Class on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate for such Class for the related
Accrual Period.
“Value”:
With respect to any Mortgage Loan, and the related Mortgaged Property, the
lesser of:
(i)
the
lesser of (a) the value thereof as determined by an appraisal made for the
Originator at the time of origination of the Mortgage Loan by an appraiser
who
met the minimum requirements of Xxxxxx Xxx and Xxxxxxx 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.
“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
Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to REMIC
I
Regular Interest I and to the REMIC I Regular Interests ending with the
designation “B”, pro rata based on, and to the extent of, one month’s interest
at the then applicable respective REMIC I Remittance Rates on the respective
Uncertificated Balances of each such REMIC I Regular Interest, and then, to
REMIC I Regular Interests ending with the designation “A”, pro rata based on,
and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Balances of each
such
REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
II
Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans for any Distribution Date shall be allocated
among REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTA1,
REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3, REMIC
II
Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest II-LTM6,
REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC
II
Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC II Regular
Interest II-LTM11 and REMIC II Regular Interest II-LTZZ, pro rata, based on,
and
to the extent of, one month’s interest at the then applicable respective REMIC
II Remittance Rates on the respective Uncertificated Balances of each such
REMIC
II Regular Interest.
SECTION
1.03. Rights
of
the NIMS Insurer.
Each
of
the rights of the NIMS Insurer set forth in this Agreement shall exist so long
as (i) the NIMS Insurer has undertaken to guarantee certain payments of notes
issued pursuant to the Indenture and (ii) the notes issued pursuant to the
Indenture remain outstanding or the NIMS Insurer is owed amounts in respect
of
its guarantee of payment on such notes; provided, however, the NIMS Insurer
shall not have any rights hereunder (except pursuant to Section 11.01 and
any rights to indemnification hereunder in the case of clause (ii) below) so
long as (i) the NIMS Insurer has not undertaken to guarantee certain payments
of
notes issued pursuant to the Indenture or (ii) any default has occurred and
is
continuing under the insurance policy issued by the NIMS Insurer with respect
to
such notes.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of the Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse,
for the benefit of the Certificateholders, all the right, title and interest
of
the Depositor, including any security interest therein for the benefit of the
Depositor, in and to the Mortgage Loans identified on the Mortgage Loan
Schedule, the rights of the Depositor under the Assignment Agreements, payments
made to the Trust Administrator by the Swap Administrator under the Swap
Administration Agreement and the Swap Account and all other assets included
or
to be included in REMIC I. Such assignment includes all interest and principal
received by the Depositor or the Servicer on or with respect to the Mortgage
Loans (other than payments of principal and interest due on such Mortgage Loans
on or before the Cut-off Date). Any payments received on the Mortgage Loans
after the Cut-off Date, whether in the form of Monthly Payments, Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments, Subsequent Recoveries
or
any other amounts collected on such Mortgage Loan, shall be used first to
satisfy any amounts due on such Mortgage Loan on or prior to the Cut-off Date,
to the Person and in the amount certified by the Servicer to the Depositor
on
the Closing Date. The Depositor herewith delivers to the Trustee executed
originals of each Assignment Agreement.
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, to the Custodian (on behalf of the Trustee), with respect
the Mortgage Loans, the following documents or instruments with respect to
each
Mortgage Loan so transferred and assigned (a “Mortgage File”):
(i) the
original Mortgage Note, endorsed in blank or in the following form: “Pay to the
order of U.S. Bank National Association, as Trustee under the applicable
agreement, without recourse,” with all prior and intervening endorsements
showing a complete chain of endorsement from the related Originator to the
Person so endorsing to the Trustee;
(ii) the
original Mortgage, noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is
a MOM Loan, with evidence of recording thereon, and the original recorded power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon;
(iii) unless
the Mortgage Loan is registered on the MERS® System, an original Assignment in
blank;
(iv) the
original recorded Assignment or Assignments showing a complete chain of
assignment from the related Originator to the Person assigning the Mortgage
to
the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System
and noting the presence of the MIN) as contemplated by the immediately preceding
clause (iii);
(v) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any; and
(vi) the
original lender’s title insurance policy, together with all endorsements or
riders that were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first or second lien on the Mortgaged
Property represented therein as a fee interest vested in the Mortgagor, or
in
the event such original title policy is unavailable, a written commitment or
uniform binder or preliminary report of title issued by the title insurance
or
escrow company.
With
respect to a maximum of 1.0% of the Mortgage Loans, by outstanding Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, if any original
Mortgage Note referred to in Section 2.01(i) above cannot be located, the
obligations of the Depositor to deliver such documents shall be deemed to be
satisfied upon delivery to the Trustee (or the Custodian on behalf of the
Trustee) of a photocopy of such Mortgage Note, if available, with a lost note
affidavit substantially in the form of Exhibit I attached hereto. If any of
the
original Mortgage Notes for which a lost note affidavit was delivered to the
Trustee (or the Custodian on behalf of the Trustee) with respect to the related
Mortgage Files, is subsequently located, such original Mortgage Note shall
be
delivered to the Trustee (or the Custodian on behalf of the Trustee) within
three Business Days.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage
or on a properly recorded assignment of the Mortgage as the mortgagee of record,
the Trustee (upon receipt of notice from the Custodian) shall promptly (within
sixty Business Days following the later of the Closing Date and the date of
receipt by the Trustee or the Custodian on behalf of the Trustee of the
recording information for a Mortgage, but in no event later than ninety days
following the Closing Date) enforce the obligations of the related Originator
pursuant to the terms of the related Originator Master Agreement to submit
or
cause to be submitted for recording, at no expense to the Trust Fund, the
Trustee, the Trust Administrator, the Custodian, the Servicer, the Master
Servicer or the Depositor, in the appropriate public office for real property
records, each Assignment referred to in Sections 2.01(iii) and (iv) above and
in
connection therewith, the Trustee (upon receipt of notice from the Custodian)
shall enforce the obligation of each Originator pursuant to the terms of the
related Originator Master Agreement to execute each original Assignment in
the
following form: “U.S. Bank National Association, as Trustee under the applicable
agreement.” In the event that any such Assignment is lost or returned unrecorded
because of a defect therein, the Trustee (upon receipt of notice from the
Custodian) shall enforce the obligation of each Originator pursuant to the
related Originator Master Agreement to promptly prepare or cause to be prepared
a substitute Assignment or cure or cause to be cured such defect, as the case
may be, and thereafter cause each such Assignment to be duly
recorded.
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Depositor further agrees that it will cause, within 30 Business
Days
after the Closing Date, the MERS® System to indicate that such Mortgage Loans
have been assigned by the Depositor to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files (a) the code in the field which identifies
the
specific Trustee and (b) the code in the field “Pool Field” which identifies the
series of the Certificates issued in connection with such Mortgage Loans. The
Depositor further agrees that it will not, and will not permit the Servicer
to,
and the Servicer agrees that it will not, alter the codes referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the terms
of this Agreement.
If
any of
the documents referred to in Sections 2.01(ii), (iii) or (iv) has, as of the
Closing Date, been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or such public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied upon
(1)
delivery to the Trustee (or the Custodian on behalf of the Trustee) of a copy
of
each such document certified by the related Originator in the case of (x) above
or the applicable public recording office in the case of (y) above to be a
true
and complete copy of the original that was submitted for recording and (2)
if
such copy is certified by the related Originator, delivery to the Trustee (or
the Custodian on behalf of the Trustee) promptly upon receipt thereof of either
the original or a copy of such document certified by the applicable public
recording office to be a true and complete copy of the original.
If
the
original lender’s title insurance policy was not delivered pursuant to Section
2.01(vi) above, the Depositor shall deliver or cause to be delivered to the
Trustee (or the Custodian on behalf of the Trustee), promptly after receipt
thereof, the original lender’s title insurance policy with a copy thereof to the
Servicer. The Depositor shall deliver or cause to be delivered to the Trustee
(or the Custodian on behalf of the Trustee) promptly upon receipt thereof any
other original documents constituting a part of a Mortgage File received with
respect to any Mortgage Loan, including, but not limited to, any original
documents evidencing an assumption or modification of any Mortgage Loan with
a
copy thereof to the Servicer.
The
Depositor shall deliver or cause each Originator, the Trustee or the Custodian
on behalf of the Trustee to deliver to the Servicer copies of all trailing
documents required to be included in the servicing file at the same time the
originals or certified copies thereof are delivered to the Trustee or the
Custodian, such documents including but not limited to the mortgagee policy
of
title insurance and any mortgage loan documents upon return from the recording
office. The Servicer shall not be responsible for any custodian fees or other
costs incurring in obtaining such documents and the Depositor shall cause the
Servicer to be reimbursed for any such costs it may incur in connection with
performing its obligations under this Agreement. Subject to Section 6.03(a),
the
Servicer shall have no liability as a result of an inability to service any
Mortgage Loan due to its failure to receive any documents missing from the
Mortgage File or servicing file.
All
original documents relating to the Mortgage Loans that are not delivered to
the
Trustee (or the Custodian on behalf of the Trustee) are and shall be held by
or
on behalf of the related Originator, the Seller, the Depositor or the Servicer,
as the case may be, in trust for the benefit of the Trustee on behalf of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section 2.01 to be a part of a Mortgage File,
such
document shall be delivered promptly to the Trustee (or the Custodian on behalf
of the Trustee). Any such original document delivered to or held by the
Depositor that is not required pursuant to the terms of this Section to be
a
part of a Mortgage File, shall be delivered promptly to the
Servicer.
The
Depositor and the Trustee hereto understand and agree that it is not intended
that any Mortgage Loan be included in the Trust that is a “High-Cost Home Loan”
as defined by the Homeownership and Equity Protection Act of 1994 or any other
applicable predatory or abusive lending laws.
SECTION
2.02. Acceptance
of REMIC I by Trustee.
The
Trustee acknowledges receipt (or receipt by the Custodian on behalf of the
Trustee), subject to the provisions of Section 2.01 and subject to any
exceptions noted on the exception report described in the next paragraph below,
of the documents referred to in Section 2.01 (other than such documents
described in Section 2.01(v)) above and all other assets included in the
definition of “REMIC I” under clauses (i), (iii), (iv) and (v) (to the extent of
amounts deposited into the Distribution Account) and declares that it holds
and
will hold such documents and the other documents delivered to it constituting
a
Mortgage File, and that it holds or will hold all such assets and such other
assets included in the definition of “REMIC I” in trust for the exclusive use
and benefit of all present and future Certificateholders.
The
Trustee (or the Custodian on behalf of the Trustee pursuant to this Agreement
or
the Custodial Agreement, as applicable) 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 or the form specified
in the Custodial Agreement.
The
Trustee (or the Custodian on behalf of the Trustee pursuant to this Agreement
or
the Custodial Agreement, as applicable) 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 or the form specified
in
the Custodial Agreement (such certification may be combined with the
certification given in the preceding paragraph) 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 pursuant to this Agreement or the Custodial Agreement,
as
applicable) 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 or the form specified in the Custodial Agreement
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 if a party to this Agreement, otherwise with respect to Deutsche
Bank
National Trust Company, pursuant to the Custodial 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, the 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,
the Servicer, the Master Servicer, the Trust Administrator or the Custodian,
that the related Originator or the Seller, as applicable, has not delivered
such
missing document or cured such defect or breach in all material respects during
such period, the Trustee shall enforce the obligations of such Originator or
the
Seller, as applicable, under the related Master Agreement or Assignment
Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price.
The Purchase Price for the repurchased Mortgage Loan shall be remitted to the
Servicer for deposit in the Collection Account and the Trustee (or the Custodian
on behalf of the Trustee), upon receipt of written certification from the
Servicer of such deposit, shall release to the related Originator or the Seller,
as applicable, the related Mortgage File and the Trustee shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as the related Originator or the Seller, as applicable, shall furnish
to it and as shall be necessary to vest in such Originator or the Seller, as
applicable, any Mortgage Loan released pursuant hereto. In furtherance of the
foregoing, if an Originator or the Seller, as applicable, is not a member of
MERS and repurchases a Mortgage Loan which is registered on the MERS® System,
the related Originator or the Seller, as applicable, at its own expense and
without any right of reimbursement, shall cause MERS to execute and deliver
an
assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS
to the related Originator or the Seller, as applicable, and shall cause such
Mortgage to be removed from registration on the MERS® System in accordance with
MERS’ rules and regulations. Neither the Trustee nor the Custodian shall have
any further responsibility with regard to such Mortgage File. In lieu of
repurchasing any such Mortgage Loan as provided above, if so provided in the
related Originator Master Agreement or Assignment Agreement, an Originator
or
the Seller, as applicable, may cause such Mortgage Loan to be removed from
REMIC
I (in which case it shall become a Deleted Mortgage Loan) and substitute one
or
more Qualified Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(b); provided, however, the related
Originator or the Seller, as applicable, may not substitute a Qualified
Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any
predatory or abusive lending law. It is understood and agreed that the
obligation of the Originators or the Seller, as applicable, to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a document
is
missing, a material defect in a constituent document exists or as to which
such
a breach has occurred and is continuing shall constitute the sole remedy
respecting such omission, defect or breach available to the Trustee and the
Certificateholders.
(b) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) must be effected prior to the date which
is two years after the Startup Day for REMIC I.
As
to any
Deleted Mortgage Loan for which an Originator or the Seller, as applicable,
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by such Originator or the Seller, as applicable, delivering
to
the Trustee (or the Custodian on behalf of the Trustee), for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
Assignment in blank or to the Trustee (or the Custodian on behalf of the
Trustee), and such other documents and agreements, with all necessary
endorsements thereon, as are required by Section 2.01, together with an
Officers’ Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution Adjustment
Amount (as described below), if any, in connection with such substitution.
The
Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt
for such Qualified Substitute Mortgage Loan or Loans and, within ten Business
Days thereafter, review such documents as specified in Section 2.02 and deliver
to the Depositor, the NIMS Insurer and the Servicer, with respect to such
Qualified Substitute Mortgage Loan or Loans, a certification substantially
in
the form attached hereto as Exhibit C-1, with any applicable exceptions noted
thereon. Within one year of the date of substitution, the Trustee (or the
Custodian on behalf of the Trustee) shall deliver to the Depositor, the NIMS
Insurer and the Servicer a certification substantially in the form of Exhibit
C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans,
with any applicable exceptions noted thereon. Monthly Payments due with respect
to Qualified Substitute Mortgage Loans in the month of substitution are not
part
of REMIC I and will be retained by the related Originator or the Seller, as
applicable. For the month of substitution, distributions to Certificateholders
will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before
the Due Date in the month of substitution, and the related Originator or the
Seller, as applicable, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Depositor
shall give or cause to be given written notice to the Certificateholders and
the
NIMS Insurer that such substitution has taken place, shall amend the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the
terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan
Schedule to the Master Servicer, the Trust Administrator, the Trustee, the
Custodian, the Servicer and the NIMS Insurer. Upon such substitution, such
Qualified Substitute Mortgage Loan or Loans shall constitute part of the
Mortgage Pool and shall be subject in all respects to the terms of this
Agreement and the related Originator Master Agreement or Assignment Agreement,
as applicable, including, all applicable representations and warranties thereof
included therein.
For
any
month in which an Originator or the Seller, as applicable, substitutes one
or
more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Servicer will determine the amount (the “Substitution Adjustment Amount”),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage
Loans
exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan,
the Stated Principal Balance thereof as of the date of substitution, together
with one month’s interest on such Stated Principal Balance at the applicable Net
Mortgage Rate, plus all outstanding Advances and Servicing Advances (including
Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto.
On the date of such substitution, the related Originator or the Seller, as
applicable, will deliver or cause to be delivered to the Servicer for deposit
in
the Collection Account an amount equal to the Substitution Adjustment Amount
if
any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt
of the related Qualified Substitute Mortgage Loan or Loans and written notice
by
the Servicer of such deposit, shall release to the related Originator or the
Seller, as applicable, the related Mortgage File or Files and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, the related Originator or the Seller, as applicable, shall
deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In
addition, the related Originator or the Seller, as applicable, shall obtain
at
its own expense and deliver to the Trustee, the Trust Administrator and the
NIMS
Insurer an Opinion of Counsel to the effect that such substitution will not
cause (a) any federal tax to be imposed on any Trust REMIC, including without
limitation, any federal tax imposed on “prohibited transactions” under Section
860F(a)(1) of the Code or on “contributions after the startup date” under
Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify as
a
REMIC at any time that any Certificate is outstanding.
(c) Upon
discovery by the Depositor, the Servicer, the NIMS Insurer, any Originator,
the
Seller, the Master Servicer or the Trust Administrator that any Mortgage Loan
does not constitute a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall within two
Business Days give written notice thereof to the other parties hereto and the
Trustee shall give written notice to the related Originator and the Seller.
In
connection therewith, the related Originator, the Seller or the Depositor shall
repurchase or, subject to the limitations set forth in Section 2.03(b),
substitute one or more Qualified Substitute Mortgage Loans for the affected
Mortgage Loan within 90 days of the earlier of discovery or receipt of such
notice with respect to such affected Mortgage Loan. Such repurchase or
substitution shall be made by (i) the related Originator or the Seller, as
the
case may be, if the affected Mortgage Loan’s status as a non-qualified mortgage
is or results from a breach of any representation, warranty or covenant made
by
such Originator or the Seller, as the case may be, under the related Originator
Master Agreement or Assignment Agreement, or (ii) the Depositor, if the affected
Mortgage Loan’s status as a non-qualified mortgage is a breach of no
representation or warranty. Any such repurchase or substitution shall be made
in
the same manner as set forth in Section 2.03(a). The Trustee shall reconvey
to
the Depositor, the related Originator or the Seller, as the case may be, the
Mortgage Loan to be released pursuant hereto in the same manner, and on the
same
terms and conditions, as it would a Mortgage Loan repurchased for breach of
a
representation or warranty.
SECTION
2.04. Reserved.
SECTION
2.05. Representations,
Warranties and Covenants of the Servicer and the Master Servicer.
(a) The
Servicer hereby represents, warrants and covenants to the Trust Administrator,
the Master Servicer and the Trustee, for the benefit of each of the Trustee,
the
Master Servicer, the Trust Administrator, the Certificateholders and to the
Depositor that as of the Closing Date or as of such date specifically provided
herein:
(i) The
Servicer is duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in the states where the Mortgaged Property is located if the
laws
of such state require licensing or qualification in order to conduct business
of
the type conducted by the Servicer or to ensure the enforceability or validity
of each Mortgage Loan; the Servicer has the power and authority to execute
and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Servicer, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally; and all requisite corporate action has been taken
by the Servicer to make this Agreement valid and binding upon the Servicer
in
accordance with its terms;
(ii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer and will not result in the material
breach of any term or provision of the charter or by-laws of the Servicer or
result in the breach of any term or provision of, or conflict with or constitute
a default under or result in the acceleration of any obligation under, any
material agreement, indenture or loan or credit agreement or other instrument
to
which the Servicer or its property is subject, or result in the violation of
any
law, rule, regulation, order, judgment or decree to which the Servicer or its
property is subject;
(iii) The
execution and delivery of this Agreement by the Servicer and the performance
and
compliance with its obligations and covenants hereunder do not require the
consent or approval of any governmental authority or, if such consent or
approval is required, it has been obtained;
(iv) This
Agreement, and all documents and instruments contemplated hereby which are
executed and delivered by the Servicer, constitute and will constitute valid,
legal and binding obligations of the Servicer, enforceable in accordance with
their respective terms, except as the enforcement thereof may be limited by
applicable bankruptcy laws and general principles of equity;
(v) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vi) There
is
no action, suit, proceeding or investigation pending or, to its knowledge,
threatened against the Servicer that, either individually or in the aggregate,
(A) may result in any change in the business, operations, financial condition,
properties or assets of the Servicer that might prohibit or materially and
adversely affect the performance by the Servicer of its obligations under,
or
validity or enforceability of, this Agreement, or (B) may result in any material
impairment of the right or ability of the Servicer to carry on its business
substantially as now conducted, or (C) would draw into question the validity
or
enforceability of this Agreement or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or (D)
would otherwise be likely to impair materially the ability of the Servicer
to
perform under the terms of this Agreement;
(vii) No
information, certificate of an officer, statement furnished in writing or report
delivered to the Trustee or the Trust Administrator by the Servicer in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact;
(viii) The
Servicer covenants that its computer and other systems used in servicing the
Mortgage Loans operate in a manner such that the Servicer can service the
Mortgage Loans in accordance with the terms of this Agreement;
(ix) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section 3.01;
(x) The
Servicer has accurately and fully reported, and will continue to accurately
and
fully report on a monthly basis, its borrower credit files to each of the three
national credit repositories in a timely manner;
(xi) The
Servicer is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS; and
(xii) The
Servicer will transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and that for each Mortgage
Loan,
the Servicer agrees to report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed or charged off.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trustee or to the Custodian on its behalf and shall inure to the benefit of
the
Trustee, the Trust Administrator, the Depositor and the Certificateholders.
Upon
discovery by any of the Depositor, the Servicer, the NIMS Insurer, the Trust
Administrator or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely affects
the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice (but in no event later than two Business Days following such discovery)
to the Servicer, the NIMS Insurer, the Trustee and the Trust Administrator.
Subject to Section 7.01(a), the obligation of the Servicer set forth in Section
2.03(c) to cure breaches shall constitute the sole remedies against the Servicer
available to the Certificateholders, the Depositor, the Trust Administrator
or
the Trustee on behalf of the Certificateholders respecting a breach of the
representations, warranties and covenants contained in this Section
2.05.
(b) The
Master Servicer hereby represents, warrants and covenants to the Trustee, for
the benefit of each of the Trustee and the Certificateholders, and to the
Servicer, the NIMS Insurer and the Depositor that as of the Closing Date or
as
of such date specifically provided herein:
(i) The
Master Servicer is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Depositor and the
Trustee, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or any statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, the
ability of the Master Servicer to perform its obligations under this
Agreement;
(iv) The
Master Servicer or an Affiliate thereof is an approved seller/servicer for
Xxxxxx Xxx or Xxxxxxx Mac in good standing and is a HUD approved mortgagee
pursuant to Section 203 of the National Housing Act;
(v) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
(vi) No
litigation is pending against the Master Servicer that would materially and
adversely affect the execution, delivery or enforceability of this Agreement
or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof,
(vii) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(viii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations or orders, if any, that have been obtained
prior to the Closing Date.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the Trust Administrator, the Trustee or the Custodian, as applicable and shall
inure to the benefit of the Trustee, the Depositor and the Certificateholders.
Upon discovery by any of the Depositor, the Servicer, the Master Servicer,
the
NIMS Insurer or the Trustee of a breach of any of the foregoing representations,
warranties and covenants which materially and adversely affects the value of
any
Mortgage Loan or the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice (but in no event later
than two Business Days following such discovery) to other parties to this
Agreement.
SECTION
2.06. Conveyance
of REMIC Regular Interests and Acceptance of REMIC I, REMIC II, REMIC III,
REMIC IV, REMIC V and REMIC VI by the Trustee; Issuance of
Certificates.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC I for the benefit of the Holders of the
REMIC I Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-I Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC I and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC I Regular Interests and the Class R Certificates (in
respect of the Class R-I Interest). The interests evidenced by the Class R-I
Interest, together with the REMIC I Regular Interests, constitute the entire
beneficial ownership interest in REMIC I.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests (which are uncertificated) for the benefit of the Holders
of
the REMIC II Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-II Interest). The Trustee acknowledges
receipt of the REMIC I Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of the Holders of
the
REMIC II Regular Interests and the Class R Certificates (in respect of the
Class
R-II Interest). The interests evidenced by the Class R-II Interest, together
with the REMIC II Regular Interests, constitute the entire beneficial ownership
interest in REMIC II.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests (which are uncertificated) for the benefit of the Holders
of the REMIC III Regular Interests and the Class R Certificates (in respect
of
the Class R-III Interest). The Trustee acknowledges receipt of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust
for
the exclusive use and benefit of the Holders of the REMIC III Regular Interests
and the Class R Certificates (in respect of the Class R-III Interest). The
interests evidenced by the Class R-III Interest, together with the Regular
Certificates (other than the Class CE Certificates and the Class P
Certificates), the Class CE Interest, the Class P Interest and the Class Swap-IO
Interest constitute the entire beneficial ownership interest in REMIC
III.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
CE Interest (which is uncertificated) for the benefit of the Holders of the
Class CE Certificates and the Class R-X Certificates (in respect of the Class
R-IV Interest). The Trustee acknowledges receipt of the Class CE Interest and
declares that it holds and will hold the same in trust for the exclusive use
and
benefit of the Holders of the Class CE Certificates and the Class R-X
Certificates (in respect of the Class R-IV Interest). The interests evidenced
by
the Class R-IV Interest, together with the Class CE Certificates, constitute
the
entire beneficial ownership interest in REMIC IV.
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
P Interest (which is uncertificated) for the benefit of the Holders of the
Class
P Certificates and the Class R-X Certificates (in respect of the Class R-V
Interest). The Trustee acknowledges receipt of the Class P Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class P Certificates and the Class R-X Certificates (in
respect of the Class R-V Interest). The interests evidenced by the Class R-V
Interest, together with the Class P Certificates, constitute the entire
beneficial ownership interest in REMIC V.
(f) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
Swap-IO Interest (which is uncertificated) for the benefit of the Holders of
REMIC VI Regular Interest SWAP-IO and the Class R-X Certificates (in respect
of
the Class R-VI Interest). The Trustee acknowledges receipt of the Class Swap-IO
Interest and declares that it holds and shall hold the same in trust for the
exclusive use and benefit of the Holders of REMIC VI Regular Interest SWAP-IO
and the Class R-X Certificates (in respect of the Class R-VI Interest). The
interests evidenced by the Class R-VI Interest, together with REMIC VI Regular
Interest SWAP-IO, constitute the entire beneficial ownership interest in REMIC
VI.
SECTION
2.07. Issuance
of Class R Certificates and Class R-X Certificates.
(a) The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and
REMIC II Regular Interests and, concurrently therewith and in exchange therefor,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, the Trustee has executed, authenticated and delivered to or upon
the
order of the Depositor, the Class R Certificates in authorized denominations.
The interests evidenced by the Class R Certificates (in respect of the Class
R-III Interest), together with the REMIC III Certificates, the Class CE
Interest, the Class P Interest and the Class Swap-IO Interest, constitute the
entire beneficial ownership interest in REMIC III.
(b) The
Trustee acknowledges the assignment to it of the Class CE Interest, the Class
P
Interest and the Class Swap-IO Interest, concurrently therewith and in exchange
therefor, pursuant to the written request of the Depositor executed by an
officer of the Depositor, the Trustee has executed, authenticated and delivered
to or upon the order of the Depositor, the Class R-X Certificates in authorized
denominations. The interests evidenced by the Class R-X Certificates, together
with the Class CE Certificates, the Class P Certificates and the REMIC VI
Regular Interest SWAP-IO constitute the entire beneficial ownership interest
in
REMIC IV, REMIC V and REMIC VI.
SECTION
2.08. Authorization
to Enter into Interest Rate Cap Agreements and Interest Rate Swap
Agreement.
(a) The
Trust
Administrator is hereby directed to execute and deliver each of the Interest
Rate Cap Agreements on behalf of Party B (as defined therein) and to exercise
the rights, perform the obligations, and make the representations of Party
B
thereunder, solely in its capacity as Trust Administrator on behalf of Party
B
(as defined therein) and not in its individual capacity. The Servicer, the
Depositor and the Certificateholders (by acceptance of their Certificates)
acknowledge and agree that (i) the Trust Administrator shall execute and deliver
each of the Interest Rate Cap Agreements on behalf of Party B (as defined
therein), (ii) the Trust Administrator shall exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely in
its
capacity as Trust Administrator on behalf of Party B, as defined therein) and
not in its individual capacity, and (iii) the Trust Administrator shall be
entitled to exercise the rights and is obligated to perform the obligations
of
Party B under each of the Interest Rate Cap Agreements. Every provision of
this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trust Administrator shall apply to the Trust Administrator’s
execution of the Interest Rate Cap Agreements, and the performance of its duties
and satisfaction of its obligations thereunder.
(b) The
Trust
Administrator, not in its individual capacity but solely in its separate
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 Trust Administrator (in its capacity as Supplemental
Interest Trust Trustee) is hereby directed to execute and deliver the Interest
Rate Swap Agreement on behalf of Party B (as defined therein) and to exercise
the rights, perform the obligations, and make the representations of Party
B
thereunder, solely in its capacity as Supplemental Interest Trust Trustee on
behalf of Party B (as defined therein) and not in its individual capacity.
The
Servicer, the Depositor and the Certificateholders (by acceptance of their
Certificates) acknowledge and agree that (i) the Trust Administrator (in its
capacity as Supplemental Interest Trust Trustee) shall execute and deliver
the
Interest Rate Swap Agreement on behalf of Party B (as defined therein), (ii)
the
Trust Administrator (in its capacity as Supplemental Interest Trust Trustee)
shall exercise the rights, perform the obligations, and make the representations
of Party B thereunder, solely in its capacity as Supplemental Interest Trust
Trustee on behalf of Party B as defined therein) and not in its individual
capacity, and (iii) the Trust Administrator (in its capacity as Supplemental
Interest Trust Trustee) shall be entitled to exercise the rights and is
obligated to perform the obligations of Party B under the Interest Rate Swap
Agreement. Every provision of this Agreement relating to the conduct or
affecting the liability of or affording protection to the Trust Administrator
shall apply to the Trust Administrator’s execution (in its capacity as
Supplemental Interest Trust Trustee) of the Interest Rate Swap Agreement, and
the performance of its duties and satisfaction of its obligations
thereunder
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
SECTION
3.01. Servicer
to Act as Servicer.
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
Fund and in the best interests of and for the benefit of the Certificateholders
(as determined by the Servicer in its reasonable judgment) in accordance with
the terms of this Agreement and the Mortgage Loans and, to the extent consistent
with such terms, in the same manner in which it services and administers similar
mortgage loans for its own portfolio, giving due consideration to customary
and
usual standards of practice of mortgage lenders and loan servicers administering
similar mortgage loans but without regard to:
(i) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make Advances or Servicing Advances; or
(iv) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer (a) shall seek to maximize
the timely and complete recovery of principal and interest on the Mortgage
Notes
and (b) may waive (or permit a Sub-Servicer to waive) a Prepayment Charge only
under the following circumstances: (i) such waiver is standard and customary
in
servicing similar Mortgage Loans and such waiver relates to a default or a
reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value
of
such Prepayment Charge and the related Mortgage Loan, (ii) the collection of
such Prepayment Charge would be in violation of applicable laws, (iii) the
amount of the Prepayment Charge set forth on the Prepayment Charge Schedule
is
not consistent with the related Mortgage Note or is otherwise unenforceable,
(iv) the collection of such Prepayment Charge would be considered “predatory”
pursuant to written guidance published or issued by any applicable federal,
state or local regulatory authority acting in its official capacity and having
jurisdiction over such matters or (v) the Servicer has not received information
and documentation sufficient to confirm the existence or amount of such
Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting
the
standard described in clauses (ii), (iii), (iv) or (v) above, then the Trustee
(upon receipt of written notice from the Servicer that such waiver has occurred)
shall enforce the obligation of the related Originator to pay the amount of
such
waived Prepayment Charge to the Trust Administrator for deposit in the
Distribution Account for the benefit of the Holders of the Class P Certificates
(the “Originator Prepayment Charge Payment Amount”). If a Prepayment Charge is
waived other than in accordance with (i), (ii), (iii), (iv) or (v) above, the
Servicer shall pay the amount of such waived Prepayment Charge to the Trust
Administrator for deposit in the Distribution Account for the benefit of the
Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment
Amount”).
To
the
extent consistent with the foregoing, the Servicer shall seek to maximize the
timely and complete recovery of principal and interest on the Mortgage Notes.
Subject only to the above-described servicing standards and the terms of this
Agreement and of the Mortgage Loans, the Servicer shall have full power and
authority, acting alone or through Sub-Servicers as provided in Section 3.02,
to
do or cause to be done any and all things in connection with such servicing
and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Servicer in its own name or in the name of
a
Sub-Servicer or in the name of the Trustee, solely in its capacity as Trustee
of
the Trust, is hereby authorized and empowered by the Trustee when the Servicer
believes it appropriate in its best judgment in accordance with the servicing
standards set forth above, to execute and deliver, on behalf of the
Certificateholders and the Trustee, any and all instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans and the Mortgaged
Properties and to institute foreclosure proceedings or obtain a deed-in-lieu
of
foreclosure so as to convert the ownership of such properties, and to hold
or
cause to be held title to such properties, on behalf of the Trustee and
Certificateholders. The Servicer shall service and administer the Mortgage
Loans
in accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. The Servicer
shall also comply in the performance of this Agreement with all reasonable
rules
and requirements of each insurer under any standard hazard insurance policy.
Subject to Section 3.17, within fifteen (15) days of the Closing Date, the
Trustee shall execute, at the written request of the Servicer, and furnish
to
the Servicer and any Sub-Servicer any special or limited powers of attorney
and
other documents necessary or appropriate to enable the Servicer or any
Sub-Servicer to carry out their servicing and administrative duties hereunder;
provided,
such
limited powers of attorney or other documents shall be prepared by the Servicer
and submitted to the Trustee for execution. The Trustee shall not be liable
for
the actions of the Servicer or any Sub-Servicers under such powers of
attorney.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on
the MERS® System, or cause the removal from the registration of any Mortgage
Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment
and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses incurred in connection with
the
actions described in the preceding sentence or as a result of MERS discontinuing
or becoming unable to continue operations in connection with the MERS® System,
shall be reimbursable to the Servicer by withdrawal from the Collection Account
pursuant to Section 3.11.
Subject
to Section 3.09 hereof, in accordance with the standards of the preceding
paragraph, the Servicer, on escrowed accounts, shall advance or cause to be
advanced funds as necessary for the purpose of effecting the payment of taxes
and assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
Any cost incurred by the Servicer or by Sub-Servicers in effecting the payment
of taxes and assessments on a Mortgaged Property shall not, for the purpose
of
calculating distributions to Certificateholders, be added to the unpaid Stated
Principal Balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit, provided, however, that the Servicer may
capitalize the amount of any Servicing Advances incurred pursuant to this
Section 3.01 in connection with the modification of a Mortgage Loan, subject
to
Section 3.07.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
advances with respect to a Mortgage Loan (except as provided in Section 4.03)
and the Servicer shall not (i) permit any modification with respect to any
Mortgage Loan (except with respect to a Mortgage Loan that is in default or,
in
the judgment of the Servicer, such default is reaonsably foreseeable) that
would
change the Mortgage Rate, reduce or increase the Stated Principal Balance
(except for reductions resulting from actual payments of principal) or change
the final maturity date on such Mortgage Loan (unless, as provided in Section
3.07, the Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Servicer, reasonably foreseeable) or (ii)
permit any modification, waiver or amendment of any term of any Mortgage Loan
that would both (A) effect an exchange or reissuance of such Mortgage Loan
under
Section 1001 of the Code (or Treasury regulations promulgated thereunder) and
(B) cause any REMIC created hereunder to fail to qualify as a REMIC under the
Code or the imposition of any tax on “prohibited transactions” or “contributions
after the startup date” under the REMIC Provisions.
Notwithstanding
anything in this Agreement to the contrary and notwithstanding its ability
to do
so pursuant to the terms of the related mortgage note, the Servicer shall not
be
required to enforce any provision in any mortgage note the enforcement of which
would violate federal, state or local laws or ordinances designed to discourage
predatory lending practices.
SECTION
3.02. Sub-Servicing
Agreements Between Servicer and Sub-Servicers.
(a) The
Servicer may enter into Sub-Servicing Agreements with Sub-Servicers, which
may
be Affiliates of the Servicer, for the servicing and administration of the
Mortgage Loans; provided, however, that (i) such sub-servicing arrangement
and
the terms of the related Sub-Servicing Agreement must provide for the servicing
of the Mortgage Loans in a manner consistent with the servicing arrangement
contemplated hereunder and (ii) the NIMS Insurer shall have consented to such
Sub-Servicing Agreement. The Trustee is hereby authorized to acknowledge, at
the
request of the Servicer, any Sub-Servicing Agreement that the Servicer certifies
in writing to the Trustee meets the requirements applicable to Sub-Servicing
Agreements set forth in this Agreement and that is otherwise permitted under
this Agreement..
Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
where the related Mortgaged Properties it is to service are situated, if and
to
the extent required by applicable law to enable the Sub-Servicer to perform
its
obligations hereunder and under the Sub-Servicing Agreement and (ii) a Xxxxxxx
Mac or Xxxxxx Mae approved mortgage servicer. Each Sub-Servicing Agreement
must
impose on the Sub-Servicer requirements conforming to the provisions set forth
in Section 3.08, 3.20, 3.21 and 4.06 and provide for servicing of the Mortgage
Loans consistent with the terms of this Agreement. The Servicer will examine
each Sub-Servicing Agreement and will be familiar with the terms thereof. The
terms of any Sub-Servicing Agreement will not be inconsistent with any of the
provisions of this Agreement. Any material variations in any Sub-Servicing
Agreements from the provisions set forth in Section 3.08 relating to insurance
or priority requirements of Sub-Servicing Accounts, or credits and charges
to
the Sub- Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to the Servicer, Section 3.20 or Section 3.21, are conclusively
deemed to be inconsistent with this Agreement and therefore prohibited. The
Servicer shall deliver to the Trust Administrator, the Master Servicer, the
NIMS
Insurer and the Trustee copies of all Sub-Servicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer’s execution and
delivery of such instruments.
(b) As
part
of its servicing activities hereunder, the Servicer, for the benefit of the
Trustee and the Certificateholders, shall enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement, including, without
limitation, any obligation to make advances in respect of delinquent payments
as
required by a Sub-Servicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements, and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Servicer, in its
good
faith business judgment, would require were it the owner of the related Mortgage
Loans. The Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting
from
such enforcement, to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans, or (ii) from a specific recovery
of costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
SECTION
3.03. Successor
Sub-Servicers.
The
Servicer, with the consent of the NIMS Insurer, shall be entitled to terminate
any Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of
any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the Servicer without any act or deed on the part of such
Sub-Servicer or the Servicer, and the Servicer either shall service directly
the
related Mortgage Loans or shall enter into a Sub-Servicing Agreement with a
successor Sub-Servicer which qualifies under Section 3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Master Servicer or the Trustee (if the Master
Servicer or the Trustee is acting as Servicer) without fee, in accordance with
the terms of this Agreement, in the event that the Servicer (or the Master
Servicer, if it is then acting as Servicer) shall, for any reason, no longer
be
the Servicer (including termination due to a Servicer Event of
Default).
SECTION
3.04. Liability
of the Servicer.
Notwithstanding
any Sub-Servicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Servicer and a Sub-Servicer or reference
to actions taken through a Sub-Servicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee and the Certificateholders for
the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability
by
virtue of such Sub-Servicing Agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the
same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with a Sub- Servicer for indemnification of the Servicer by such Sub-Servicer
and nothing contained in this Agreement shall be deemed to limit or modify
such
indemnification.
SECTION
3.05. No
Contractual Relationship Between Sub-Servicers and the Trustee, the Trust
Administrator, the Master Servicer, the NIMS Insurer or
Certificateholders.
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer alone,
and the Trustee, the Master Servicer, the Trust Administrator, the NIMS Insurer
and the Certificateholders shall not be deemed parties thereto and shall have
no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.06. The Servicer shall be solely
liable for all fees owed by it to any Sub-Servicer, irrespective of whether
the
Servicer’s compensation pursuant to this Agreement is sufficient to pay such
fees.
SECTION
3.06. Assumption
or Termination of Sub-Servicing Agreements by Master Servicer.
In
the
event the Servicer shall for any reason no longer be the Servicer (including
by
reason of the occurrence of a Servicer Event of Default), the Master Servicer
or, if the Master Servicer is the Servicer, the Trustee (or the successor
servicer appointed pursuant to Section 7.02), as applicable, shall thereupon
assume all of the rights and obligations of the Servicer under each
Sub-Servicing Agreement that the Servicer may have entered into, unless the
Master Servicer or the Trustee, as applicable, elects to terminate any
Sub-Servicing Agreement in accordance with its terms as provided in Section
3.03. Upon such assumption, the Master Servicer or the Trustee (or the successor
servicer appointed pursuant to Section 7.02), as applicable, shall be deemed,
subject to Section 3.03, to have assumed all of the departing Servicer’s
interest therein and to have replaced the departing Servicer as a party to
each
Sub-Servicing Agreement to the same extent as if each Sub-Servicing Agreement
had been assigned to the assuming party, except that (i) the departing Servicer
shall not thereby be relieved of any liability or obligations under any
Sub-Servicing Agreement that arose before it ceased to be the Servicer and
(ii)
none of the Trust Administrator nor any successor Servicer shall be deemed
to
have assumed any liability or obligation of the Servicer that arose before
it
ceased to be the Servicer.
The
Servicer at its expense shall, upon request of the Master Servicer or the
Trustee, as applicable, deliver to the assuming party all documents and records
relating to each Sub-Servicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by or on behalf of
it,
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreements to the assuming party.
SECTION
3.07. Collection
of Certain Mortgage Loan Payments.
The
Servicer shall make reasonable efforts, in accordance with the servicing
standards set forth in Section 3.01, to collect all payments called for under
the terms and provisions of the Mortgage Loans and the provisions of any
applicable insurance policies provided to the Servicer. Consistent with the
foregoing, the Servicer may in its discretion (i) waive any late payment charge
or, if applicable, any penalty interest, (ii) waive any provisions of any
Mortgage Loan requiring the related Mortgagor to submit to mandatory arbitration
with respect to disputes arising thereunder or (iii) extend the due dates for
the Monthly Payments due on a Mortgage Note for a period of not greater than
180
days; provided, however, that any extension pursuant to clause (iii) above
shall
not affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (iii) above, the Servicer shall make timely
Advances on such Mortgage Loan during such extension pursuant to Section 4.03
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangement. Notwithstanding the
foregoing, in the event that any Mortgage Loan is in default or, in the judgment
of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section 3.01, may also waive, modify
or vary any term of such Mortgage Loan (including, but not limited to,
modifications that would change the Mortgage Rate, forgive the payment of
principal or interest or extend the final maturity date of such Mortgage Loan),
accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of such Mortgage Loan, or consent to
the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as “forbearance”). The Servicer’s analysis supporting any
forbearance and the conclusion that any forbearance meets the standards of
Section 3.01 shall be reflected in writing in the Mortgage File or the
Servicer’s books and records.
SECTION
3.08. Sub-Servicing
Accounts.
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall comply with all
requirements of this Agreement relating to the Collection Account. The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Servicer for deposit in the Collection Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
SECTION
3.09. Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
The
Servicer shall establish and maintain, or cause to be established and
maintained, one or more accounts (the “Servicing Accounts”), into which
all
collections from the Mortgagors (or related advances from Sub-Servicers) for
the
payment of taxes, assessments, fire, flood, and hazard insurance premiums,
hazard insurance proceeds (to the extent such amounts are to be applied to
the
restoration or repair of the property) and comparable items for the account
of
the Mortgagors (“Escrow Payments”) shall
be
deposited and retained. Servicing Accounts shall be Eligible Accounts. The
Servicer shall deposit in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one Business
Day after the Servicer’s receipt thereof, all Escrow Payments collected on
account of the Mortgage Loans and shall thereafter deposit such Escrow Payments
in the Servicing Accounts, in no event more than two Business Days after the
receipt of such Escrow Payments, all Escrow Payments collected on account of
the
Mortgage Loans for the purpose of effecting the payment of any such items as
required under the terms of this Agreement. Withdrawals of amounts from a
Servicing Account may be made only to (i) effect payment of taxes, assessments,
hazard insurance premiums, and comparable items in a manner and at a time that
assures that the lien priority of the Mortgage is not jeopardized (or, with
respect to the payment of taxes, in a manner and at a time that avoids the
loss
of the Mortgaged Property due to a tax sale or the foreclosure as a result
of a
tax lien); (ii) reimburse the Servicer (or a Sub-Servicer to the extent provided
in the related Sub-Servicing Agreement) out of related collections for any
Servicing Advances made pursuant to Section 3.01 (with respect to taxes and
assessments) and Section 3.14 (with respect to hazard insurance); (iii) refund
to Mortgagors any sums as may be determined to be overages; (iv) pay interest,
if required and as described below, to Mortgagors on balances in the Servicing
Account; or (v) clear and terminate the Servicing Account at the termination
of
the Servicer’s obligations and responsibilities in respect of the Mortgage Loans
under this Agreement in accordance with Article IX. In the event the Servicer
shall deposit in a Servicing Account any amount not required to be deposited
therein or any amount previously deposited therein is unpaid by the related
Mortgagor’s banking institution, it may at any time withdraw such amount from
such Servicing Account, any provision herein to the contrary notwithstanding.
The Servicer will be responsible for the administration of the Servicing
Accounts and will be obligated to make Servicing Advances to such accounts
when
and as necessary to avoid the lapse of insurance coverage on the Mortgaged
Property, or which the Servicer knows, or in the exercise of the required
standard of care of the Servicer hereunder should know, is necessary to avoid
the loss of the Mortgaged Property due to a tax sale or the foreclosure as
a
result of a tax lien. If any such payment has not been made and the Servicer
receives notice of a tax lien with respect to the Mortgage being imposed, the
Servicer will, within 10 Business Days of receipt of such notice, advance or
cause to be advanced funds necessary to discharge such lien on the Mortgaged
Property. As part of its servicing duties, the Servicer or Sub-Servicers shall
pay to the Mortgagors interest on funds in the Servicing Accounts, to the extent
required by law and, to the extent that interest earned on funds in the
Servicing Accounts is insufficient, to pay such interest from its or their
own
funds, without any reimbursement therefor. The Servicer may pay to itself any
excess interest on funds in the Servicing Accounts, to the extent such action
is
in conformity with the servicing standard set forth in Section 3.01, is
permitted by law and such amounts are not required to be paid to Mortgagors
or
used for any of the other purposes set forth above.
SECTION
3.10. Collection
Account.
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (such account or accounts,
the
“Collection Account”), held in trust for the benefit
of the Trust Administrator, the Trustee and the Certificateholders.
On
behalf of the Trust Fund, the Servicer shall deposit or cause to be deposited
in
the clearing account in which it customarily deposits payments and collections
on mortgage loans in connection with its mortgage loan servicing activities
on a
daily basis, and in no event more than one Business Day after the Servicer’s
receipt thereof, and shall thereafter deposit in the Collection Account, in
no
event more than two Business Days after the Servicer’s receipt thereof, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than
in
respect of principal or interest on the Mortgage Loans due on or before the
Cut-off Date) or payments (other than Principal Prepayments) received by it
on
or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all
payments on account of principal, including Principal Prepayments (but not
Prepayment Charges), on the Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee and any Prepayment
Interest Excess) on each Mortgage Loan;
(iii) all
Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and condemnation
proceeds (other than proceeds collected in respect of any particular REO
Property and amounts paid in connection with a purchase of Mortgage Loans and
REO Properties pursuant to Section 9.01);
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection with
any
losses realized on Permitted Investments with respect to funds held in the
Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
Section 2.03, Section 3.16(c) or Section 9.01;
(vii) all
amounts required to be deposited in connection with Substitution Adjustments
pursuant to Section 2.03; and
(viii) all
Prepayment Charges collected by the Servicer, and any Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans.
The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of Servicing Fees, late payment charges,
Prepayment Interest Excess, assumption fees, insufficient funds charges and
ancillary income (other than Prepayment Charges) need not be deposited by the
Servicer in the Collection Account and may be retained by the Servicer as
additional compensation. In the event the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
(b) On
behalf
of the Trust Fund, the Servicer shall deliver to the Trust Administrator in
immediately available funds for deposit in the Distribution Account (i) on
the
Servicer Remittance Date, that portion of the Available Funds (calculated
without regard to the references in the definition thereof to amounts that
may
be withdrawn from the Distribution Account) for the related Distribution Date
then on deposit in the Collection Account, the amount of all Prepayment Charges
or any Originator Prepayment Charge Payment Amounts collected during the
applicable Prepayment Period by the Servicer and Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans then on deposit in the Collection Account, the amount of any
funds reimbursable to an Advancing Person pursuant to Section 3.26 (unless
such
amounts are to be remitted in another manner as specified in the documentation
establishing the related Advance Facility) and (ii) on each Business Day as
of
the commencement of which the balance on deposit in the Collection Account
exceeds $75,000 following any withdrawals pursuant to the next succeeding
sentence, the amount of such excess, but only if the Collection Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of “Eligible Account.” If the balance on deposit in the Collection Account
exceeds $75,000 as of the commencement of business on any Business Day and
the
Collection Account does not qualify as an Eligible Account pursuant to clauses
(i), (iii) or (iv) of the definition of “Eligible Account,” the Servicer shall,
on or before 4:00 p.m. New York time on such Business Day, withdraw from the
Collection Account any and all amounts payable or reimbursable to the Servicer,
the Advancing Person, the Trustee, the Trust Administrator or any Sub-Servicer
pursuant to Section 3.11 and shall pay such amounts to the Persons entitled
thereto.
(c) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. The Servicer shall give written
notice to the Trust Administrator, the Depositor, the Master Servicer and the
NIMS Insurer of the location of the Collection Account maintained by it when
established and prior to any change thereof. The Trust Administrator shall
give
notice to the NIMS Insurer, the Servicer and the Depositor of the location
of
the Distribution Account when established and prior to any change
thereof.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
to
the Trust Administrator for deposit in an account (which may be the Distribution
Account and must satisfy the standards for the Distribution Account as set
forth
in the definition thereof) and for all purposes of this Agreement shall be
deemed to be a part of the Collection Account; provided, however, that the
Trust
Administrator shall have the sole authority to withdraw any funds held pursuant
to this subsection (d). In the event the Servicer shall deliver to the Trust
Administrator for deposit in the Distribution Account any amount not required
to
be deposited therein, it may at any time request in writing that the Trust
Administrator withdraw such amount from the Distribution Account and remit
to it
any such amount, any provision herein to the contrary notwithstanding. In
addition, the Servicer, with respect to items (i) through (iv) below, shall
deliver to the Trust Administrator from time to time for deposit, and the Trust
Administrator, with respect to items (i) through (iv) below, shall so deposit,
in the Distribution Account:
(i) any
Advances, as required pursuant to Section 4.03;
(ii) any
amounts required to be deposited pursuant to Section 3.23(d) or (f) in
connection with any REO Property;
(iii) any
amounts to be paid by the Servicer in connection with a purchase of Mortgage
Loans and REO Properties pursuant to Section 9.01;
(iv) any
Compensating Interest to be deposited pursuant to Section 3.24 in connection
with any Prepayment Interest Shortfall; and
(v) any
amounts required to be paid to the Trustee pursuant to the Agreement, including,
but not limited to Section 3.06 and Section 7.02.
(e) The
Servicer shall deposit in the Collection Account any amounts required to be
deposited pursuant to Section 3.12(b) in connection with losses realized on
Permitted Investments with respect to funds held in the Collection
Account.
SECTION
3.11. Withdrawals
from the Collection Account
(a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes, without priority, or as described in Section
4.04:
(i) to
remit
to the Trust Administrator for deposit in the Distribution Account the amounts
required to be so remitted pursuant to Section 3.10(b) or permitted to be so
remitted pursuant to the first sentence of Section 3.10(d) and paid to the
Trust
Administrator in accordance with Section 3.10(d)(v);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for (a) any unreimbursed Advances
to the extent of amounts received which represent Late Collections (net of
the
related Servicing Fees), Liquidation Proceeds and Insurance Proceeds on Mortgage
Loans or REO Properties with respect to which such Advances were made in
accordance with the provisions of Section 4.04; or (b) without limiting any
right of withdrawal set forth in clause (vi) below, any unreimbursed Advances
that, upon a Final Recovery Determination with respect to such Mortgage Loan,
are Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Servicer for such unreimbursed
Advances;
(iii) subject
to Section 3.16(d), to pay the Servicer or any Sub-Servicer (a) any unpaid
Servicing Fees, (b) any unreimbursed Servicing Advances with respect to each
Mortgage Loan, but only to the extent of any Late Collections, Liquidation
Proceeds and Insurance Proceeds received with respect to such Mortgage Loan
or
REO Property, and (c) without limiting any right of withdrawal set forth in
clause (vi) below, any Servicing Advances made with respect to a Mortgage Loan
that, upon a Final Recovery Determination with respect to such Mortgage Loan
are
Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Servicer or any Sub-Servicer
for
Servicing Advances;
(iv) to
pay to
the Servicer as additional servicing compensation (in addition to the Servicing
Fee) on the Servicer Remittance Date any interest or investment income earned
on
funds deposited in the Collection Account;
(v) to
pay
itself or the Originator or the Seller with respect to each Mortgage Loan that
has previously been purchased or replaced pursuant to Section 2.03 or Section
3.16(c) all amounts received thereon subsequent to the date of purchase or
substitution, as the case may be;
(vi) to
reimburse the Servicer for (a) any Advance or Servicing Advance previously
made
which the Servicer has determined to be a Nonrecoverable Advance in accordance
with the provisions of Section 4.03 and (b) following the liquidation of a
second lien Mortgage Loan, any unpaid Servicing Fees for the six-month period
immediately following the last paid through date with respect to such Mortgage
Loan, to the extent not recoverable from Liquidation Proceeds, Insurance
Proceeds or other amounts received with respect to the related second lien
Mortgage Loan;
(vii) to
pay,
or to reimburse the Servicer for Servicing Advances in respect of, expenses
incurred in connection with any Mortgage Loan pursuant to Section
3.16(b);
(viii) to
reimburse the Servicer or the Depositor for expenses incurred by or reimbursable
to the Servicer or the Depositor pursuant to Section 6.03;
(ix) to
reimburse the NIMS Insurer, the Servicer, the Trust Administrator, the Master
Servicer or the Trustee, as the case may be, for expenses reasonably incurred
in
respect of the breach or defect giving rise to the purchase obligation under
Section 2.03 of this Agreement that were included in the Purchase Price of
the
Mortgage Loan, including any expenses arising out of the enforcement of the
purchase obligation;
(x) to
pay
itself any Prepayment Interest Excess (to the extent not otherwise
retained);
(xi) to
reimburse the Servicer for any Advance or Servicing Advance made with respect
to
a delinquent Mortgage Loan which has been modified by the Servicer in accordance
with the terms of this Agreement but only after receipt by the Servicer of
three
(3) consecutive payments following such modification;
(xii) to
invest
funds in Permitted Investments in accordance with Section 3.12;
(xiii) to
clear
and terminate the Collection Account pursuant to Section 9.01; and
(xiv) to
make
reimbursements for amounts owed on Mortgage Loans on or prior to the Cut-off
Date pursuant to Section 2.01 of this Agreement.
(b) The
foregoing requirements for withdrawal from the Collection Account shall be
exclusive. In the event the Servicer shall deposit in the Collection Account
any
amount not required to be deposited therein or any amount previously deposited
therein is unpaid by the related Mortgagor’s banking institution, it may at any
time withdraw such amount from the Collection Account, any provision herein
to
the contrary notwithstanding.
(c) The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Collection Account, to the extent held by or on behalf of it, pursuant to
subclauses (ii), (iii), (iv), (v), (vi) and (vii) above. The Servicer shall
provide written notification to the NIMS Insurer and the Trust Administrator,
on
or prior to the next succeeding Servicer Remittance Date, upon making any
withdrawals from the Collection Account pursuant to subclause (vi) above;
provided that an Servicing Officer’s certification in the form described under
Section 4.03(d) shall suffice for such written notification to the Trust
Administrator in respect hereof.
SECTION
3.12. Investment
of Funds in the Collection Account.
(a) The
Servicer may direct any depository institution maintaining the Collection
Account and REO Account to invest the funds on deposit in such accounts or
to
hold such funds uninvested (each such account, for the purposes of this Section
3.12, an “Investment Account”). All investments pursuant to this Section 3.12
shall be in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, (i) no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the Trust Administrator is the obligor thereon or if such investment is managed
or advised by a Person other than the Trust Administrator or an Affiliate of
the
Trust Administrator, and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
Trust Administrator is the obligor thereon or if such investment is managed
or
advised by the Trust Administrator or any Affiliate. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trust
Administrator (in its capacity as such), or in the name of a nominee of the
Trust Administrator. The Trust Administrator shall be entitled to sole
possession (except with respect to investment direction of funds held in the
Collection Account and REO Account and any income and gain realized thereon)
over each such investment, and any certificate or other instrument evidencing
any such investment shall be delivered directly to the Trust Administrator
or
its agent, together with any document of transfer necessary to transfer title
to
such investment to the Trust Administrator or its nominee. In the event amounts
on deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trust Administrator shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trust Administrator that such Permitted Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account and any REO Account held by or on behalf of the Servicer
shall be for the benefit of the Servicer and shall be subject to its withdrawal
in accordance with Section 3.11 or Section 3.23, as applicable. The Servicer
shall deposit in the Collection Account or any REO Account, as applicable,
the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such Account immediately upon realization of
such
loss.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trust
Administrator may and, subject to Section 8.01 and Section 8.02(a)(v), upon
the
request of the NIMS Insurer or the Holders of Certificates representing more
than 50% of the Voting Rights allocated to any Class of Certificates, shall
take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate
proceedings.
SECTION
3.13. [Reserved].
SECTION
3.14. Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity Coverage.
(a) The
Servicer shall cause to be maintained for each Mortgage Loan hazard insurance
with extended coverage on the Mortgaged Property in an amount which is at least
equal to the least of (i) the current Principal Balance of such Mortgage Loan,
(ii) the amount necessary to fully compensate for any damage or loss to the
improvements that are a part of such property on a replacement cost basis and
(iii) the maximum insurable value of the improvements which are part of such
Mortgaged Property, in each case in an amount not less than such amount as
is
necessary to avoid the application of any coinsurance clause contained in the
related hazard insurance policy. The Servicer shall also cause to be maintained
hazard insurance with extended coverage on each REO Property in an amount which
is at least equal to the least of (i)
the
outstanding Principal Balance of the related Mortgage Loan at the time it became
an REO Property and (ii) 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 Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond in the form and
amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless
the
Servicer has obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx
Mac. The Servicer shall be deemed to have complied with this provision if an
Affiliate of the Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. Any such errors and
omissions policy and fidelity bond shall by its terms not be cancelable without
thirty days’ prior written notice to the Trust Administrator and the NIMS
Insurer. The Servicer shall also cause each Sub-Servicer to maintain a policy
of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
SECTION
3.15. Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that the Servicer shall
not be required to take such action if in its sole business judgment the
Servicer believes it is not in the best interests of the Trust Fund and shall
not exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into an assumption
and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. The Servicer is also authorized,
to
the extent permitted under the related Mortgage Note, to enter into a
substitution of liability agreement with such person, pursuant to which the
original Mortgagor is released from liability and such person is substituted
as
the Mortgagor and becomes liable under the Mortgage Note, provided that no
such
substitution shall be effective unless such person satisfies the underwriting
criteria of the Servicer for a mortgage loan similar to the Mortgage Loan.
In
connection with any assumption, modification or substitution, the Servicer
shall
apply such underwriting standards and follow such practices and procedures
as
shall be normal and usual in its general mortgage servicing activities and
as it
applies to other mortgage loans owned solely by it. The Servicer shall not
take
or enter into any assumption and modification agreement, however, unless (to
the
extent practicable in the circumstances) it shall have received confirmation,
in
writing, of the continued effectiveness of any applicable hazard insurance
policy. Any fee collected by the Servicer in respect of an assumption,
modification or substitution of liability agreement shall be retained by the
Servicer as additional servicing compensation. In connection with any such
assumption, no material term of the Mortgage Note (including but not limited
to
the related Mortgage Rate and the amount of the Monthly Payment) may be amended
or modified, except as otherwise required pursuant to the terms thereof. The
Servicer shall notify the Master Servicer, the Trust Administrator and the
Custodian that any such substitution, modification or assumption agreement
has
been completed by forwarding to the Custodian the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered
a
part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.15, the term “assumption” is deemed
to also include a sale (of the Mortgaged Property) subject to the Mortgage
that
is not accompanied by an assumption or substitution of liability
agreement.
SECTION
3.16. Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall use its best efforts, consistent with the servicing standards
set
forth in Section 3.01, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments pursuant to Section 3.07. The Servicer shall
be responsible for all costs and expenses incurred by it in any such
proceedings; provided, however, that such costs and expenses will be recoverable
as Servicing Advances by the Servicer as contemplated in Section 3.11(a) and
Section 3.23. The foregoing is subject to the provision that, in any case in
which a Mortgaged Property shall have suffered damage from an Uninsured Cause,
the Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion that
such restoration will increase the proceeds of liquidation of the related
Mortgage Loan after reimbursement to itself for such expenses. With respect
to
any second lien Mortgage Loan for which the related first lien mortgage loan
is
not included in the Trust Fund, if, after such Mortgage Loan becomes 180 days
or
more delinquent, the Servicer determines that a significant recovery is not
possible through foreclosure, such Mortgage Loan may be charged off and the
Mortgage Loan will be treated as a Liquidated Mortgage Loan giving rise to
a
Realized Loss.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Servicer has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to,
such
Mortgaged Property, if, as a result of any such action, the Trustee, the Trust
Fund or the Certificateholders would be considered to hold title to, to be
a
“mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined,
based
on its reasonable judgment and a report prepared by a Person who regularly
conducts environmental audits using customary industry standards,
that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
The
Servicer shall forward a copy of the environmental audit report to the
Depositor, the Master Servicer and the NIMS Insurer. Notwithstanding the
foregoing, if such environmental audit reveals, or if the Servicer has actual
knowledge or notice, that such Mortgaged Property contains such wastes or
substances, the Servicer shall not foreclose or accept a deed in lieu of
foreclosure without the prior written consent of the NIMS Insurer.
The
cost
of the environmental audit report contemplated by this Section 3.16 shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(vii), such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund;
provided that any amounts disbursed by the Servicer pursuant to this Section
3.16(b) shall constitute Servicing Advances, subject to Section 4.03(d). The
cost of any such compliance, containment, clean-up or remediation shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(vii), such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
(c) The
Servicer or the NIMS Insurer may, at its option, purchase a Mortgage Loan which
has become 90 or more days delinquent or for which the Servicer has accepted
a
deed in lieu of foreclosure. Prior to purchase pursuant to this Section 3.16(c),
the Servicer shall be required to continue to make Advances pursuant to Section
4.03. If the Servicer or the NIMS Insurer purchases any delinquent Mortgage
Loans pursuant to this Section 3.16(c), it must purchase Mortgage Loans that
are
delinquent the greatest number of days before it may purchase any that are
delinquent any fewer number of days. The Servicer or the NIMS Insurer shall
purchase such delinquent Mortgage Loan at a price equal to the Purchase Price
of
such Mortgage Loan. Any such purchase of a Mortgage Loan pursuant to this
Section 3.16(c) shall be accomplished by deposit in the Collection Account
of
the amount of the Purchase Price. Upon the satisfaction of the requirements
set
forth in Section 3.17(a), the Custodian, if a party to this Agreement or
pursuant to the Custodial Agreement with respect to Deutsche Bank National
Trust
Company, 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 (pursuant to this Agreement or the Custodial Agreement, as applicable)
shall 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, 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 with respect to Xxxxx Fargo and within five Business Days with
respect to Deutsche Bank National Trust Company, and the Trustee shall, at
the
written direction of the Servicer, execute such documents as shall be necessary
to the prosecution of any such proceedings. Such Request for Release shall
obligate the Servicer to return each and every document previously requested
from the Mortgage File to the Custodian when the need therefor by the Servicer
no longer exists, unless the Mortgage Loan has been liquidated or charged off
and the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the Collection Account or the Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public official as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially
or
non-judicially, and the Servicer has delivered to the Custodian, on behalf
of
the Trustee, a Servicing Officer’s certification as to such liquidation or
action or proceedings. Upon the request of the Custodian, the Servicer shall
provide notice to the Custodian of the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes
of
such delivery. Upon receipt of a Request for Release, in written (with two
executed copies) or electronic format, from a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, such Mortgage Loan shall be released by the
Custodian, on behalf of the Trustee, to the Servicer or its
designee.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer or the Sub-Servicer, as the case may be, copies of,
any
court pleadings, requests for trustee’s sale or other documents necessary to the
foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note
or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or
rights provided by the Mortgage Note or Mortgage or otherwise available at
law
or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien
of the Mortgage, except for the termination of such a lien upon completion
of
the foreclosure or trustee’s sale.
SECTION
3.18. Servicing
Compensation.
As
compensation for the activities of the Servicer hereunder, the Servicer shall
be
entitled to the Servicing Fee with respect to each Mortgage Loan payable solely
from payments of interest in respect of such Mortgage Loan or as otherwise
provided in Section 3.11, subject to Section 3.24. In addition, the Servicer
shall be entitled to recover unpaid Servicing Fees out of Insurance Proceeds,
Liquidation Proceeds or condemnation proceeds to the extent permitted by Section
3.11(a)(iii) and out of amounts derived from the operation and sale of an REO
Property to the extent permitted by Section 3.23. Except as provided in Section
3.26 or Section 6.04, the right to receive the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all
of
the Servicer’s responsibilities and obligations under this Agreement; provided,
however, that the Servicer may pay from the Servicing Fee any amounts due to
a
Sub-Servicer pursuant to a Sub-Servicing Agreement entered into under Section
3.02.
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges, ancillary income or otherwise (other than Prepayment
Charges) shall be retained by the Servicer only to the extent such fees or
charges are received by the Servicer. The Servicer shall also be entitled
pursuant to Section 3.11(a)(iv) to withdraw from the Collection Account and
pursuant to Section 3.23(b) to withdraw from any REO Account, as additional
servicing compensation, interest or other income earned on deposits therein,
subject to Section 3.12 and Section 3.24. The Servicer shall also be entitled
to
receive Prepayment Interest Excess pursuant to Section 3.10 and 3.11 as
additional servicing compensation. The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
(including premiums for the insurance required by Section 3.14, to the extent
such premiums are not paid by the related Mortgagors or by a Sub-Servicer and
servicing compensation of each Sub-Servicer) and shall not be entitled to
reimbursement therefor except as specifically provided herein.
SECTION
3.19. Reports
to the Trust Administrator; Collection Account Statements.
Not
later
than twenty days after each Distribution Date, the Servicer shall forward,
upon
request, to the Trust Administrator, the NIMS Insurer and the Depositor the
most
current available bank statement for the Collection Account. Copies of such
statement shall be provided by the Trust Administrator to any Certificateholder
and to any Person identified to the Trust Administrator as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party, provided such statement is delivered by the Servicer to the Trust
Administrator.
SECTION
3.20. Statement
as to Compliance.
The
Servicer, the Master Servicer and the Trust Administrator shall deliver (or
otherwise make available) (and each of the Servicer, the Master Servicer and
the
Trust Administrator shall cause any Sub-Servicer subject to Item 1108(a)(2)
of
Regulation AB engaged by it to deliver) to the Trust Administrator (and the
Trust Administrator shall deliver (or otherwise make available) to the
Depositor) on or before March 15th
(with no
cure period) of each year, commencing in March 2007, an Officer’s Certificate
stating, as to the signer thereof, that (A) a review of such party’s activities
during the preceding calendar year or portion thereof and of such party’s
performance under this Agreement, or such other applicable agreement in the
case
of a Sub-Servicer subject to Item 1108(a)(2) of Regulation AB, has been made
under such officer’s supervision and (B) to the best of such officer’s
knowledge, based on such review, such party has fulfilled all its obligations
under this Agreement, or such other applicable agreement in the case of a
Sub-Servicer subject to Item 1108(a)(2) of Regulation AB, in all material
respects throughout such year or portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status thereof. The
Custodian, in its capacity as such, shall not be required to deliver such
Officer’s Certificate.
The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicer with its own annual statement of compliance to be submitted
to
the Trust Administrator pursuant to this Section.
In
the
event the Servicer, the Master Servicer, the Trust Administrator or any
Sub-Servicer subject to Item 1108(a)(2) of Regulation AB engaged by any such
party is terminated or resigns pursuant to the terms of this Agreement, or
any
applicable agreement in the case of a Sub-Servicer subject to Item 1108(a)(2)
of
Regulation AB, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.20 or the relevant section of such other
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
Failure
of the Servicer to timely comply with this Section 3.20 shall be deemed a
Servicer Event of Default, and upon receipt of written notice from the Trust
Administrator of such Servicer Event of Default, the Trustee or the Master
Servicer, as applicable, may at the direction of the Depositor, in addition
to
whatever rights the Trustee or the Master Servicer, as applicable, may have
under this Agreement and at law or in equity or to damages, including injunctive
relief and specific performance, upon notice immediately terminate (as provided
in Section 7.01(a)) all the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same (other than the Servicer’s rights to
reimbursement of unreimbursed Advances and Servicing Advances and accrued and
unpaid Servicing Fees in the manner provided in this Agreement). This paragraph
shall supersede any other provision in this Agreement or any other agreement
to
the contrary.
Each
of
the Servicer, the Master Servicer and the Trust Administrator (each, an
“Indemnifying Party”) shall indemnify and hold harmless the Depositor, the
Master Servicer, the Trust Administrator and their officers, directors and
Affiliates, as applicable, from and against any actual losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses that such Person may sustain
based
upon a breach of the obligations of such Indemnifying Party under this Section
3.20.
SECTION
3.21. Assessments
of Compliance and Attestation Reports.
(a) By
March
15th
(with no
cure period) of each calendar year during which a Form 10-K is required to
be
filed pursuant to Section 4.06 hereunder, commencing in March 2007, the
Servicer, the Master Servicer, the Trust Administrator and the Custodian (if
a
party to this Agreement, or otherwise pursuant to the Custodial Agreement),
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 (if a party to this
Agreement, or otherwise pursuant to the Custodial Agreement), 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 Servicer 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
(if a party to this Agreement, or otherwise pursuant to the Custodial
Agreement), or any Servicing Function Participant engaged by any such party
is
terminated, assigns its rights and obligations under, or resigns pursuant to,
the terms of this Agreement, or any other applicable agreement, as the case
may
be, such party shall provide a report on assessment of compliance pursuant
to
this Section 3.21, or the relevant section of such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
(b) By
March
15th
(with no
cure period) of each year, commencing in March 2007, the Servicer, the Master
Servicer, the Trust Administrator and the Custodian (if a party to this
Agreement, or otherwise pursuant to the Custodial Agreement), 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 (if a party to this
Agreement, or otherwise pursuant to the Custodial Agreement), 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
Servicer 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
(if a party to this Agreement, or otherwise pursuant to the Custodial
Agreement), 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
(if
a party to this Agreement, or otherwise pursuant to the Custodial Agreement)
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 Xxxxx Fargo Bank, N.A. as 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. The parties
hereto further acknowledge that any duties or actions of Deutsche Bank National
Trust Company as Custodian are subject to the terms and provisions of the
Custodial Agreement.
If
the
indemnifications provided for herein are unavailable or insufficient to hold
harmless any indemnified party, then the indemnifying party agrees that it
shall
contribute to the amount paid or payable by such indemnified party as a result
of any claims, losses, damages or liabilities incurred by such indemnified
party
in such proportion as is appropriate to reflect the relative fault of such
indemnified party on the one hand and the indemnifying party on the other.
This
indemnification shall survive the termination of this Agreement or the
termination of the indemnifying party.
Notwithstanding
the foregoing, in no event shall the Custodian be liable for any consequential,
indirect or punitive damages pursuant to this Section 3.21.
SECTION
3.22. Access
to
Certain Documentation.
The
Servicer shall provide to the to the Trustee, the Trust Administrator and the
Depositor, at the request of the Office of the Comptroller of the Currency,
the
Office of Thrift Supervision, the FDIC, and any other federal or state banking
or insurance regulatory authority that may exercise authority over any
Certificateholder, access to the documentation regarding the Mortgage Loans
required by applicable laws and regulations. Such access shall be afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the Servicer designated by it. Nothing in this Section
shall limit the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors (absent proof
that it is in compliance with applicable law) and the failure of the Servicer
to
provide access as provided in this Section as a result of such obligation shall
not constitute a breach of this Section. In addition, access to the
documentation regarding the Mortgage Loans will be provided to the Trust
Administrator, the NIMS Insurer, the Trustee, on behalf of the
Certificateholders or a prospective transferee of a Certificate, subject to
the
execution of a confidentiality agreement in form and substance satisfactory
to
the Servicer, upon reasonable written request during normal business hours
at
the offices of the Servicer designated by it at the expense of the Person
requesting such access. Nothing in this Section 3.22 shall require the Servicer
to collect, create, collate or otherwise generate any information that it does
not generate in its usual course of business. The Servicer shall not be required
to make copies of or ship documents to any party unless provisions have been
made for the reimbursement of the costs thereof.
The
Servicer agrees to fully furnish in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company or their successors (the “Credit
Repositories”) in a timely manner on a monthly basis.
SECTION
3.23. Title,
Management and Disposition of REO Property.
(a) In
the
event that title to an REO Property is acquired in foreclosure or by deed in
lieu of foreclosure, the deed or certificate of sale shall be taken (pursuant
to
a limited power of attorney to be provided by the Trustee to the Servicer)
in
the name of the Trustee or a nominee thereof, on behalf of the
Certificateholders, or in the event the Trustee or a nominee thereof is not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Servicer (the cost of
which shall constitute a Servicing Advance) from an attorney duly licensed
to
practice law in the state where the REO Property is located. Any Person or
Persons holding such title other than the Trustee shall acknowledge in writing
that such title is being held as nominee for the benefit of the Trustee. The
Trustee’s name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The Servicer shall ensure
that the title to such REO Property references this Agreement and the Trustee’s
capacity hereunder. The Servicer, on behalf of REMIC I, shall sell any REO
Property as soon as practicable and in any event no later than the end of the
third full taxable year after the taxable year in which such REMIC acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code
or
request from the Internal Revenue Service, no later than 60 days before the
day
on which the three-year grace period would otherwise expire, an extension of
such three-year period, unless the Servicer shall have delivered to the Trust
Administrator, the Trustee and the NIMS Insurer an Opinion of Counsel acceptable
to the NIMS Insurer and addressed to the Trust Administrator, the Trustee,
the
NIMS Insurer and the Depositor, to the effect that the holding by the REMIC
of
such REO Property subsequent to three years after its acquisition will not
result in the imposition on the REMIC of taxes on “prohibited transactions”
thereof, as defined in Section 860F of the Code, or cause any of the REMICs
created hereunder to fail to qualify as a REMIC under Federal law at any time
that any Certificates are outstanding. The Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for
the
purpose of its prompt disposition and sale in a manner which does not cause
such
REO Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any of the REMICs
created hereunder of any “income from non-permitted assets” within the meaning
of Section 860F(a)(2)(B) of the Code, or any “net income from foreclosure
property” which is subject to taxation under the REMIC Provisions.
(b) The
Servicer shall separately account for all funds collected and received in
connection with the operation of any REO Property and shall establish and
maintain, or cause to be established and maintained, with respect to REO
Properties an account held in trust for the Trustee for the benefit of the
Certificateholders (the “REO Account”), which shall be an Eligible Account. The
Servicer shall be permitted to allow the Collection Account to serve as the
REO
Account, subject to separate ledgers for each REO Property. The Servicer shall
be entitled to retain or withdraw any interest income paid on funds deposited
in
the REO Account.
(c) The
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which
the
Servicer manages and operates similar property owned by the Servicer or any
of
its Affiliates, all on such terms and for such period (subject to the
requirement of prompt disposition set forth in Section 3.23(a)) as the Servicer
deems to be in the best interests of Certificateholders. In connection
therewith, the Servicer shall deposit, or cause to be deposited in the clearing
account in which it customarily deposits payments and collections on mortgage
loans in connection with its mortgage loan servicing activities on a daily
basis, and in no event more than one Business Day after the Servicer’s receipt
thereof, and shall thereafter deposit in the REO Account, in no event more
than
two Business Days after the Servicer’s receipt thereof, all revenues received by
it with respect to an REO Property and shall withdraw therefrom funds necessary
for the proper operation, management and maintenance of such REO Property
including, without limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain, operate and dispose of such REO
Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if,
the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Notwithstanding
the foregoing, none of the Servicer, the Trust Administrator or the Trustee
shall:
(a) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property, if the New Lease by its terms will give rise to any income that
does not constitute Rents from Real Property;
(b) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(c) authorize
any construction on any REO Property, other than the completion of a building
or
other improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed before default
on the related Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(d) authorize
any Person to Directly Operate any REO Property on any date more than 90 days
after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel, provided
to
the Trust Administrator, the Master Servicer and the NIMS Insurer, to the effect
that such action will not cause such REO Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code at
any time that it is held by the REMIC, in which case the Servicer may take
such
actions as are specified in such Opinion of Counsel.
The
Servicer may contract with any Independent Contractor for the operation and
management of any REO Property; provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the Servicer
as soon as practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none
of
the provisions of this Section 3.23(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
the Servicer of any of its duties and obligations to the Trustee on behalf
of
the Certificateholders with respect to the operation and management of any
such
REO Property; and
(iv) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.18 is sufficient to pay such fees; provided,
however, that to the extent that any payments made by such Independent
Contractor would constitute Servicing Advances if made by the Servicer, such
amounts shall be reimbursable as Servicing Advances made by the
Servicer.
(d) In
addition to the withdrawals permitted under Section 3.23(c), the Servicer may
from time to time make withdrawals from the REO Account for any REO Property:
(i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect of the
related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, the
Servicer shall withdraw from each REO Account maintained by it and deposit
into
the Distribution Account in accordance with Section 3.10(d)(ii), for
distribution on the related Distribution Date in accordance with Section 4.01,
the income from the related REO Property received during the prior calendar
month, net of any withdrawals made pursuant to Section 3.23(c) or this Section
3.23(d).
(e) Subject
to the time constraints set forth in Section 3.23(a), each REO Disposition
shall
be carried out by the Servicer in a manner, at such price and upon such terms
and conditions as shall be normal and usual in the servicing standard set forth
in Section 3.01.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above, shall
be
deposited in the Distribution Account in accordance with Section 3.10(d)(ii)
on
the Servicer Remittance Date in the month following the receipt thereof for
distribution on the related Distribution Date in accordance with Section 4.01.
Any REO Disposition shall be for cash only (unless changes in the REMIC
Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(g) The
Servicer shall file information returns with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness income
with respect to any Mortgaged Property as required by Sections 6050H, 6050J
and
6050P of the Code, respectively. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
SECTION
3.24. Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls.
Not
later
than 2:00 p.m. New York time on each Servicer Remittance Date, the Servicer
shall remit to the Distribution Account an amount (“Compensating Interest”)
equal to the lesser of (A) the aggregate of the Prepayment Interest Shortfalls
for the related Distribution Date and (B) its aggregate Servicing Fee received
in the related Due Period. The Servicer shall not have the right to
reimbursement for any amounts remitted to the Trust Administrator in respect
of
Compensating Interest. Such amounts so remitted shall be included in the
Available Funds and distributed therewith on the next Distribution Date. The
Servicer shall not be obligated to pay Compensating Interest with respect to
Relief Act Interest Shortfalls or Principal Prepayments in full occurring from
the Cut-off Date through December 15, 2006.
SECTION
3.25. Obligations
of the Servicer in Respect of Mortgage Rates and Monthly Payments.
In
the
event that a shortfall in any collection on or liability with respect to the
Mortgage Loans in the aggregate results from or is attributable to adjustments
to Mortgage Rates, Monthly Payments or Stated Principal Balances that were
made
by the Servicer in a manner not consistent with the terms of the related
Mortgage Note and this Agreement, the Servicer, upon discovery or receipt of
notice thereof, immediately shall deposit in the Collection Account from its
own
funds the amount of any such shortfall and shall indemnify and hold harmless
the
Trust Fund, the Trustee, the Trust Administrator, the Depositor and any
successor servicer in respect of any such liability. Such indemnities shall
survive the termination or discharge of this Agreement. Notwithstanding the
foregoing, this Section 3.25 shall not limit the ability of the Servicer to
seek
recovery of any such amounts from the related Mortgagor under the terms of
the
related Mortgage Note, as permitted by law.
SECTION
3.26. Advance
Facility
The
Servicer is hereby authorized to enter into a financing or other facility (any
such arrangement, an “Advance Facility”) under which (1) the Servicer sells,
assigns or pledges to another Person (together with such Person’s successors and
assigns, an “Advancing Person”) the Servicer’s rights under this Agreement to be
reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person
agrees to fund some or all Advances and/or Servicing Advances required to be
made by the Servicer pursuant to this Agreement. No consent of the Depositor,
the Trustee, the Trust Administrator, the Certificateholders or any other party
shall be required before the Servicer may enter into an Advance Facility. The
Servicer shall notify each other party to this Agreement prior to or promptly
after entering into or terminating any Advance Facility. Notwithstanding the
existence of any Advance Facility under which an Advancing Person agrees to
fund
Advances and/or Servicing Advances on the Servicer’s behalf, the Servicer shall
remain obligated pursuant to this Agreement to make Advances and Servicing
Advances pursuant to and as required by this Agreement. If the Servicer enters
into an Advance Facility, and for so long as an Advancing Person remains
entitled to receive reimbursement for any Advances including Nonrecoverable
Advances (“Advance Reimbursement Amounts”) and/or Servicing Advances including
Nonrecoverable Advances (“Servicing Advance Reimbursement Amounts” and together
with Advance Reimbursement Amounts, “Reimbursement Amounts”) (in each case to
the extent such type of Reimbursement Amount is included in the Advance
Facility), as applicable, pursuant to this Agreement, then, the Servicer shall
identify such Reimbursement Amounts consistent with the reimbursement rights
set
forth in Section 3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement
Amounts in accordance with Section 3.10(b) or otherwise in accordance with
the
documentation establishing the Advance Facility to such Advancing Person or
to a
trustee, agent or custodian (an “Advance Facility Trustee”) designated by such
Advancing Person. Notwithstanding anything to the contrary herein, in no event
shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts
be included in the Available Funds or distributed to
Certificateholders.
Reimbursement
Amounts shall consist solely of amounts in respect of Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would
be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer or the Advancing Person had made the related Advance(s) and/or
Servicing Advance(s). Notwithstanding the foregoing, except with respect to
reimbursement of Nonrecoverable Advances as set forth in this Agreement, no
Person shall be entitled to reimbursement from funds held in the Collection
Account for future distribution to Certificateholders pursuant to this
Agreement. None of the Depositor, the Trust Administrator or the Trustee shall
have any duty or liability with respect to the calculation or payment of any
Reimbursement Amount, nor shall the Depositor, the Master Servicer, the Trust
Administrator or the Trustee have any responsibility to track or monitor the
administration of the Advance Facility or the payment of Reimbursement Amounts
to the related Advancing Person or Advance Facility Trustee. The Servicer shall
maintain and provide to any successor servicer and (upon request) the Trust
Administrator a detailed accounting on a loan by loan basis as to amounts
advanced by, sold, pledged or assigned to, and reimbursed to any Advancing
Person. The successor servicer shall be entitled to rely on any such information
provided by the predecessor servicer, and the successor servicer shall not
be
liable for any errors in such information.
An
Advancing Person who receives an assignment or pledge of the rights to be
reimbursed for Advances and/or Servicing Advances, and/or whose obligations
hereunder are limited to the funding or purchase of Advances and/or Servicing
Advances shall not be required to meet the criteria for qualification of a
subservicer set forth in this Agreement.
Reimbursement
Amounts distributed with respect to each Mortgage Loan shall be allocated to
outstanding unreimbursed Advances or Servicing Advances (as the case may be)
made with respect to that Mortgage Loan on a “first in, first out” (FIFO) basis.
Such documentation shall also require the Servicer to provide to the related
Advancing Person or Advance Facility Trustee loan by loan information with
respect to each Reimbursement Amount distributed to such Advancing Person or
Advance Facility Trustee, to enable the Advancing Person or Advance Facility
Trustee to make the FIFO allocation of each Reimbursement Amount with respect
to
each Mortgage Loan. The Servicer shall remain entitled to be reimbursed for
all
Advances and Servicing Advances funded by the Servicer to the extent the related
rights to be reimbursed therefor have not been sold, assigned or pledged to
an
Advancing Person.
The
Servicer shall indemnify the Depositor, the Trustee, the Master Servicer, the
Trust Administrator, any successor servicer and the Trust Fund resulting from
any claim by the related Advancing Person arising out of the Advance Facility,
except to the extent that such claim, loss, liability or damage resulted from
or
arose out of negligence, recklessness or willful misconduct or breach of its
duties hereunder on the part of the Depositor, the Trust Administrator, the
Trustee or any successor servicer.
Any
amendment to this Section 3.26 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 3.26, including amendments to add provisions
relating to a successor servicer, may be entered into by the Trustee, the Trust
Administrator, the Depositor and the Servicer without the consent of any
Certificateholder, provided such amendment complies with Section 11.01 hereof.
All reasonable costs and expenses (including attorneys’ fees) of each party
hereto of any such amendment shall be borne solely by the Servicer. Prior to
entering into an Advance Facility, the Servicer shall notify the Advancing
Person in writing that: (a) the Advances and/or Servicing Advances purchased,
financed by and/or pledged to the Advancing Person are obligations owed to
the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances and/or Servicing
Advances only to the extent provided herein, and the Trustee, the Trust
Administrator and the Trust are not otherwise obligated or liable to repay
any
Advances and/or Servicing Advances financed by the Advancing Person; (b) the
Servicer will be responsible for remitting to the Advancing Person the
applicable amounts collected by it as reimbursement for Advances and/or
Servicing Advances funded by the Advancing Person, subject to the restrictions
and priorities created in this Agreement; and (c) neither the Trustee nor the
Trust Administrator shall have any responsibility to track or monitor the
administration of the Advance Facility between the Servicer and the Advancing
Person.
SECTION
3.27. Solicitations.
The
Servicer shall not take any action or cause any action to be taken by any of
its
employees, agents or Affiliates, or by any independent contractors acting on
the
Servicer’s behalf, to solicit any borrower in any manner whatsoever, including
but not limited to, soliciting a borrower to prepay or refinance a Mortgage
Loan. Furthermore, neither the Servicer nor any of its Affiliates shall directly
or indirectly provide information to any third party for purposes of soliciting
the borrowers related to the Mortgage Loans. It is understood that promotions
undertaken by the Servicer or its Affiliates which are directed to the general
public at large (i.e., newspaper advertisements, radio or T.V. ads, etc.) and
not specifically directed to the borrowers related to the Mortgage Loans shall
not constitute a breach of this Section 3.27. From and after the Closing Date,
Servicer hereby agrees that Servicer will not take any action or cause any
action to be taken by any of its agents or Affiliates, or by any independent
contractors or independent mortgage brokerage companies on the Servicer’s
behalf, to personally, by telephone or mail, solicit the borrower under any
Mortgage Loan for the purpose of refinancing such Mortgage Loan; provided,
that
Servicer may solicit any borrower for whom Servicer has received a request
for
verification of mortgage, a request for demand for payoff, a borrower initiated
written or verbal communication indicating a desire to prepay the related
Mortgage Loan, or the borrower initiates a title search, provided further,
it is
understood and agreed that promotions undertaken by the Servicer or any of
its
affiliates which concern optional insurance products or other additional
products shall not constitute solicitation nor is the Servicer prohibited from
responding to unsolicited requests or inquiries made by a borrower or an agent
of a borrower. Notwithstanding the foregoing, the following solicitations,
if
undertaken by the Servicer or any Affiliate of the Servicer, shall not be
prohibited: (i) solicitations or promotions that are directed to the general
public at large, including, without limitation, mass mailings based on mailing
lists and newspaper, radio, television and other mass media advertisements
and
(ii) borrower messages included on, and statement inserts provided with, the
monthly statements sent to borrowers; provided, however, that similar messages
and inserts are sent to all other borrowers of similar type mortgage loans
serviced by the Servicer and such Affiliates, including, but not limited to,
those mortgage loans serviced for the Servicer’s and/or such Affiliates own
account; and (iii) solicitations made as a part of a campaign directed to
borrowers with mortgage loans meeting certain defined parameters (other than
parameters relating to the borrowers or the Mortgage Loans specifically),
provided, that such solicitations are made to all borrowers of mortgage loans
serviced by the Servicer and such Affiliates with respect to mortgage loans
meeting such defined parameters, including, but not limited to, those mortgage
loans serviced for the Servicer’s and/or such Affiliates own
account.
ARTICLE
IIIA
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
SECTION
3A.01. Master
Servicer to Act as Master Servicer
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicer to service and administer the Mortgage Loans in accordance with the
terms of this Agreement and shall have full power and authority to do any and
all things which it may deem necessary or desirable in connection with such
master servicing and administration. In performing its obligations hereunder,
the Master Servicer shall act in a manner consistent with Accepted Master
Servicing Practices. Furthermore, the Master Servicer shall oversee and consult
with the Servicer as reasonably necessary from time-to-time to carry out the
Master Servicer’s obligations hereunder, shall receive, review and evaluate all
reports, information and other data provided to the Master Servicer by the
Servicer and shall cause the Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by the Servicer under
this Agreement. The Master Servicer shall independently monitor the Servicer’s
servicing activities with respect to each Mortgage Loan, reconcile the results
of such monitoring with such information provided in the previous sentence
on a
monthly basis and coordinate corrective adjustments to the Servicer’s and Master
Servicer’s records, and based on such reconciled and corrected information, the
Master Servicer shall provide such information to the Trust Administrator as
shall be necessary in order for it to prepare the statements specified in
Section 4.02, and prepare any other information and statements required to
be forwarded by the Master Servicer hereunder. The Master Servicer shall
reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicer to the Collection Account pursuant to Section
3.10.
The
Trustee shall furnish the Servicer and the Master Servicer with any powers
of
attorney and other documents in form as provided to it necessary or appropriate
to enable the Servicer and the Master Servicer to service and administer the
Mortgage Loans and REO Properties.
The
Trustee and the Trust Administrator shall provide access to the records and
documentation in possession of the Trustee or the Trust Administrator, as
applicable, regarding the Mortgage Loans and REO Properties and the servicing
thereof to the Certificateholders, the FDIC, and the supervisory agents and
examiners of the FDIC, such access being afforded only upon reasonable prior
written request and during normal business hours at the office of the Trustee
or
the Trust Administrator, as applicable; provided, however, that, unless
otherwise required by law, neither the Trustee nor the Trust Administrator
shall
be required to provide access to such records and documentation if the provision
thereof would violate the legal right to privacy of any Mortgagor. The Trustee
and the Trust Administrator shall allow representatives of the above entities
to
photocopy any of the records and documentation and shall provide equipment
for
that purpose at a charge that covers the Trustee’s or Trust Administrator’s, as
applicable, actual costs.
The
Trustee shall execute and deliver to the Servicer and the Master Servicer any
court pleadings, requests for trustee’s sale or other documents necessary or
desirable to (i) the foreclosure or trustee’s sale with respect to a Mortgaged
Property; (ii) any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Security Instrument; (iii) obtain a deficiency judgment
against the Mortgagor; or (iv) enforce any other rights or remedies provided
by
the Mortgage Note or Mortgage or otherwise available at law or
equity.
SECTION
3A.02. [Reserved].
SECTION
3A.03. Monitoring
of Servicer.
The
Master Servicer shall be responsible for reporting to the Trustee, the Trust
Administrator and the Depositor the non-compliance by the Servicer with its
duties under this Agreement. In the review of the Servicer’s activities, the
Master Servicer may rely upon an Officers’ Certificate of the Servicer (or
similar document signed by a Servicing Officer of the Servicer) with regard
to
the Servicer’s compliance with the terms of this Agreement. In the event that
the Master Servicer, in its good faith judgment, determines that the Servicer
should be terminated in accordance with the terms hereof, or that a notice
should be sent pursuant to the terms hereof with respect to the occurrence
of an
event that, unless cured, would constitute grounds for such termination, the
Master Servicer shall notify the Depositor, the Trust Administrator and the
Trustee thereof and the Master Servicer shall issue such notice or take such
other action as it deems appropriate.
The
Master Servicer (or if the Master Servicer is the Servicer, the Trustee), for
the benefit of the Certificateholders, shall enforce the obligations of the
Servicer under this Agreement, and shall, in the event that it receives notice
and confirms that the Servicer has failed to perform its obligations in
accordance with this Agreement, subject to the preceding paragraph, terminate
the rights and obligations of the Servicer hereunder and in accordance with
the
provisions of Article VII of this Agreement and act as Servicer of the Mortgage
Loans or appoint a successor servicer; provided, however, it is understood
and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor servicer. Such enforcement, including, without
limitation, the legal prosecution of claims and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer or Trustee, as applicable, in its good faith
business judgment, would require were it the owner of the Mortgage Loans. The
Master Servicer or the Trustee, as applicable, shall pay the costs of such
enforcement at its own expense, provided that the Master Servicer or the
Trustee, as applicable, shall not be required to prosecute or defend any legal
action except to the extent that the Master Servicer or the Trustee, as
applicable, shall have received reasonable indemnity for its costs and expenses
in pursuing such action.
To
the
extent that the costs and expenses of the Master Servicer or Trustee, as
applicable, related to any termination of the Servicer, appointment of a
successor servicer or the transfer and assumption of servicing by the Master
Servicer or the Trustee, as applicable, with respect to this Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of a Servicer Event of Default and
(ii)
all costs and expenses associated with the complete transfer of servicing,
including all servicing files and all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
successor servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the successor servicer to service the Mortgage
Loans
in accordance with this Agreement) are not fully and timely reimbursed by the
terminated Servicer, the Master Servicer or the Trustee, as applicable, shall
be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
The
Master Servicer (or if the Master Servicer is the Servicer, the Trustee) shall,
upon receipt from the Servicer, the Master Servicer or the Trust Administrator,
of notice of any failure of the Servicer to comply with the remittance
requirements and other obligations set forth in this Agreement, enforce such
obligations.
If
the
Master Servicer or the Trustee, as applicable, acts as Servicer, it will not
assume liability for the representations and warranties of the Servicer that
it
replaces.
SECTION
3A.04. Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicer.
SECTION
3A.05. Power
to
Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement; provided, however,
that the Master Servicer shall not (and, consistent with its responsibilities
under Article X, shall not permit the 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 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 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 late payment charges or
assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges and (B) 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) to
reimburse the Master Servicer or (if the Master Servicer is the Servicer) the
Trustee (to the extent either of them is obligated to do so as successor
Servicer) for any Advance of its own funds, the right of the Master Servicer
or
the Trustee, as applicable, to reimbursement pursuant to this subclause (i)
being limited to amounts received on a particular Mortgage Loan (including,
for
this purpose, the Purchase Price therefor, Insurance Proceeds, Liquidation
Proceeds and Subsequent Recoveries) which represent late payments or recoveries
of the principal of or interest on such Mortgage Loan respecting which such
Advance was made;
(ii) to
reimburse the Master Servicer from Insurance Proceeds, Liquidation Proceeds
or
Subsequent Recoveries relating to a particular Mortgage Loan for amounts
expended by the Master Servicer in good faith in connection with the restoration
of the related Mortgaged Property which was damaged by an Uninsured Cause or
in
connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer from Insurance Proceeds relating to a particular
Mortgage Loan for insured expenses incurred with respect to such Mortgage Loan
and to reimburse the Master Servicer from Liquidation Proceeds and Subsequent
Recoveries from a particular Mortgage Loan for Liquidation Expenses incurred
with respect to such Mortgage Loan;
(iv) to
reimburse the Master Servicer for advances of funds (other than Advances) made
with respect to the Mortgage Loans, and the right to reimbursement pursuant
to
this subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and Subsequent Recoveries) which represent late recoveries
of the payments for which such advances were made;
(v) to
reimburse the Master Servicer (or if the Master Servicer is the Servicer) the
Trustee (to the extent either of them is obligated to do so as successor
Servicer) for any Advance or Servicing Advance, after a Realized Loss has been
allocated with respect to the related Mortgage Loan if the Advance or Servicing
Advance has not been reimbursed pursuant to clauses (i) through
(iv);
(vi) to
make
distributions in accordance with Section 4.01;
(vii) to
pay
compensation to the Trust Administrator on each Distribution Date;
(viii) to
pay
any amounts in respect of taxes pursuant to Section 10.01(g);
(ix) without
duplication of the amount set forth in clause (iii) above, to pay any
Extraordinary Trust Fund Expenses to the extent not paid by the Master Servicer
from the Distribution Account;
(x) without
duplication of any of the foregoing, to reimburse or pay the Servicer any such
amounts as are due thereto under this Agreement and have not been retained
by or
paid to the Servicer, to the extent provided in this Agreement and to refund
to
the Servicer any amount remitted by the Servicer to the Master Servicer in
error;
(xi) to
pay to
the Master Servicer, any interest or investment income earned on funds deposited
in the Distribution Account;
(xii) to
pay
the Credit Risk Manager the Credit Risk Manager Fee;
(xiii) to
withdraw any amount deposited in the Distribution Account in error;
(xiv) to
clear
and terminate the Distribution Account pursuant to Section 9.01;
and
(xv) to
make
distributions to the Swap Account.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of accounting for any reimbursement
from
the Distribution Account pursuant to clauses (i) through (v) above or with
respect to any such amounts which would have been covered by such clauses had
the amounts not been retained by the Master Servicer without being deposited
in
the Distribution Account.
On
or
before the Business Day prior to each Distribution Date, the Master Servicer
or
(if the Master Servicer is the Servicer) the Trustee (to the extent either
of
them is obligated to do so as successor Servicer) shall remit to the Trust
Administrator for deposit in the Distribution Account any Advances required
to
be made and the Master Servicer shall deposit in the Distribution Account any
Compensating Interest required to be paid, in either such case by the Master
Servicer or the Trustee, as applicable, with respect to the Mortgage
Loans.
SECTION
3A.13. Late
Remittance.
With
respect to any remittance received by the Master Servicer after the day on
which
such payment was due, the Servicer shall pay to the Master Servicer interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, plus three percentage points, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall be
deposited in the Distribution Account by the Servicer on the date such late
payment is made and shall cover the period commencing with the day following
the
day such payment was due and ending with the Business Day on which such payment
is made, both inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Servicer Remittance Date. The
payment by the Servicer of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Servicer Event of Default.
ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS
SECTION
4.01. Distributions.
(a) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC I to REMIC II on account of the REMIC I Regular
Interests and distributed to the holders of the Class R Certificates (in respect
of the Class R-I Interest), as the case may be:
(i) to
Holders of REMIC I Regular Interest I, REMIC I Regular Interest I-1-A through
I-60-B, pro rata, in an amount equal to (A) Uncertificated Interest for such
REMIC I Regular Interests for such Distribution Date, plus (B) any amounts
payable in respect thereof remaining unpaid from previous Distribution
Dates.
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(1)
above, payments of principal shall be allocated as follows: (A) first, to REMIC
I Regular Interest I and then to REMIC I Regular Interests I-1-A through I-60-B
starting with the lowest numerical denomination until the Uncertificated Balance
of each such REMIC I Regular Interest is reduced to zero, provided that, for
REMIC I Regular Interests with the same numerical denomination, such payments
of
principal shall be allocated pro rata between such REMIC I Regular Interests
and
(B) second, to the extent of any Overcollateralization Reduction Amounts, first
to REMIC I Regular Interest I until the Uncertificated Balance of such REMIC
I
Regular Interest is reduced to zero, then, to REMIC I Regular Interests I-1-A
through I-60-B starting with the lowest numerical denomination until the
Uncertificated Balance of each such REMIC I Regular Interest is reduced to
zero,
provided that, for REMIC I Regular Interests with the same numerical
denomination, such Overcollateralization Reduction Amounts shall be allocated
pro rata between such REMIC I Regular Interests.
(iii) to
the
Holders of REMIC I Regular Interest I-LTP, (A) all amounts representing
Prepayment Charges (other than any Originator Prepayment Charge Payment Amount)
in respect of the Mortgage Loans received during the related Prepayment Period
and (B) on the Distribution Date immediately following the expiration of the
latest Prepayment Charge as identified on the Prepayment Charge Schedule or
any
Distribution Date thereafter until $100 has been distributed pursuant to this
clause.
(b) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests or withdrawn from the Distribution Account and distributed to the
holders of the Class R Certificates (in respect of the Class R-II Interest),
as
the case may be:
(i) to
the
Holders of REMIC II Regular Interest II-LTIO, in an amount equal to (a)
Uncertificated Accrued Interest for such REMIC II Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates.
(ii) to
Holders of REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTA1,
REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3, REMIC
II
Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest II-LTM6,
REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC
II
Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC II Regular
Interest II-LTM11, REMIC II Regular Interest II-LTZZ and REMIC II Regular
Interest II-LTP, pro rata, in an amount equal to (A) the Uncertificated Interest
for such Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates. Amounts payable as Uncertificated
Interest in respect of REMIC II Regular Interest II-LTZZ shall be reduced and
deferred when the REMIC II Overcollateralized Amount is less than the REMIC
II
Required Overcollateralization Amount, by the lesser of (x) the amount of such
difference and (y) the Maximum II-LTZZ Uncertificated Interest Deferral Amount
and such amount will be payable to the Holders of REMIC II Regular Interest
II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3,
REMIC II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC
II
Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest
II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8,
REMIC II Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10 and REMIC
II Regular Interest II-LTM11 in the same proportion as the Overcollateralization
Deficiency Amount is allocated to the Corresponding Certificates and the
Uncertificated Balance of REMIC II Regular Interest II-LTZZ shall be increased
by such amount; and
(iii) to
the
Holders of REMIC II Regular Interest II-LTP, (A) on each Distribution Date,
100%
of the amount paid in respect of Prepayment Charges (other than any Originator
Prepayment Charge Payment Amount) and (B) on the Distribution Date immediately
following the expiration of the latest Prepayment Charge as identified on the
Prepayment Charge Schedule or any Distribution Date thereafter until $100 has
been distributed pursuant to this clause;
(iv) to
the
Holders of the REMIC II Regular Interests, in an amount equal to the remainder
of the Available Funds for such Distribution Date after the distributions made
pursuant to clauses (i), (ii) and (iii) above, allocated as
follows:
(a) 98.00%
of
such remainder to the Holders of REMIC II Regular Interest II-LTAA, until the
Uncertificated Balance of such REMIC II Regular Interest is reduced to
zero;
(b) 2.00%
of
such remainder, first to the Holders of REMIC II Regular Interest II-LTA1,
REMIC
II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3, REMIC II Regular
Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest
II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest II-LTM4,
REMIC II Regular Interest II-LTM5, REMIC II Regular Interest II-LTM6, REMIC
II
Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC II Regular
Interest II-LTM9, REMIC II Regular Interest II-LTM10 and REMIC II Regular
Interest II-LTM11, equal to 1.00% of and in the same proportion as principal
payments are allocated to the Corresponding Certificates, until the
Uncertificated Balances of such REMIC II Regular Interests are reduced to zero
and second, to the Holders of REMIC II Regular Interest II-LTZZ, 1.00%, until
the Uncertificated Balance of such REMIC II Regular Interest is reduced to
zero;
and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of the
Class R-II Interest);
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Release Amount shall be allocated
to
Holders of (i) REMIC II Regular Interest II-LTAA and REMIC II Regular Interest
II-LTZZ, respectively; once the Uncertificated Principal Balances of REMIC
II
Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular
Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular Interest
II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3,
REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC
II
Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular
Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular Interest
II-LTM10, and REMIC II Regular Interest II-LTM11 have been reduced to
zero.
On
each
Distribution Date, all amounts representing Prepayment Charges (other than
any
Originator Prepayment Charge Payment Amount) in respect of the Mortgage Loans
during the related Prepayment Period will be distributed by REMIC II to the
Holders of REMIC II Regular Interest II-LTP. The payment of the foregoing
amounts to the Holders of REMIC II Regular Interest II-LTP shall not reduce
the
Uncertificated Balance thereof.
(c) On
each
Distribution Date, the Trust Administrator shall withdraw from the Distribution
Account that portion of Available Funds for such Distribution Date consisting
of
the Interest Remittance Amount for such Distribution Date, and make the
following distributions in the order of priority described below, in each case
to the extent of the Interest Remittance Amount remaining for such Distribution
Date:
(i) concurrently,
to the Holders of the Class A Certificates, on a pro rata basis based on the
entitlement of each such Class, the Monthly Interest Distributable Amount and
the Unpaid Interest Shortfall Amount, if any, for such Certificates for such
Distribution Date; and
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates, the Class M-10 Certificates and the
Class M-11 Certificates, in that order, the Monthly Interest Distributable
Amount allocable to each such Class of Certificates.
(d) (I) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the
Principal Distribution Amount shall be made in the following amounts and order
of priority:
(i) to
the
Holders of the Class A Certificates (allocated among the Class A Certificates
in
the priority described below), until the Certificate Principal Balances thereof
have been reduced to zero; and
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates, the Class M-10 Certificates and the
Class M-11 Certificates, in that order, until the Certificate Principal Balances
thereof have been reduced to zero.
(II) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Principal Distribution Amount shall be made in the following amounts and
order of priority:
(iii) to
the
Holders of the Class A Certificates (allocated among the Class A Certificates
in
the priority described below), the Senior Principal Distribution Amount until
the Certificate Principal Balances thereof have been reduced to
zero;
(iv) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates and
the
Class M-3 Certificates, the Sequential Class M Principal Distribution Amount
until the Certificate Principal Balances thereof have been reduced to
zero;
(v) to
the
Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vi) to
the
Holders of the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vii) to
the
Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(viii) to
the
Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(ix) to
the
Holders of the Class M-8 Certificates, the Class M-8 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(x) to
the
Holders of the Class M-9 Certificates, the Class M-9 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(xi) to
the
Holders of the Class M-10 Certificates, the Class M-10 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(xii) to
the
Holders of the Class M-11 Certificates, the Class M-11 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero.
With
respect to the Class A Certificates, all principal distributions will be
distributed sequentially to the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class A-4 Certificates, in
that
order, until their respective Certificate Principal Balances have been reduced
to zero. Notwithstanding any provisions contained in this Agreement to the
contrary, on any Distribution Date on which the aggregate Certificate Principal
Balance of the Subordinate Certificates has been reduced to zero, all
distributions of principal to the Class A Certificates shall be distributed
concurrently to the Class A-1 Certificates, the Class A-2 Certificates, the
Class A-3 Certificates and the Class A-4 Certificates, on a pro rata basis
based
on the Certificate Principal Balance of each such Class.
(e) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed as
follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Cap Agreements and the Interest Rate Swap Agreement,
distributable to such Holders as part of the Principal Distribution Amount,
as
applicable, as described under Section 4.01(b) above;
(ii) sequentially,
to the Holders of the Class M-1 Certificates, Class M-2 Certificates, Class
M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates, Class M-10 Certificates and Class M-11 Certificates, in that
order, in each case first, in an amount equal to the Unpaid Interest Shortfall
Amount allocable to such Certificates and second, in an amount equal to the
Allocated Realized Loss Amount allocable to such Certificates;
(iii) to
the
Net WAC Rate Carryover Reserve Account, the amount of any Net WAC Rate Carryover
Amounts, without taking into account amounts, if any, received under the
Interest Rate Cap Agreements and the Interest Rate Swap Agreement;
(iv) to
the
Swap Provider, any Swap Termination Payments resulting from a Swap Provider
Trigger Event;
(v) to
the
Holders of the Class CE Certificates, (a) the Monthly Interest Distributable
Amount and any Overcollateralization Release Amount for such Distribution Date
and (b) on any Distribution Date on which the aggregate Certificate Principal
Balance of the Class A Certificates and the Mezzanine Certificates has been
reduced to zero, any remaining amounts in reduction of the Certificate Principal
Balance of the Class CE Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
(vi) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero; and
(vii) any
remaining amounts to the Holders of the Residual Certificates (in respect of
the
appropriate Class R Interest).
Without
limiting the provisions of Section 9.01(b), by acceptance of the Residual
Certificates the Holders of the Residual Certificates agree, and it is the
understanding of the parties hereto, that for so long as any of the notes issued
pursuant to the Indenture are outstanding or any amounts are reimbursable or
payable to the NIMS Insurer in accordance with the terms of the Indenture,
to
pledge their rights to receive any amounts otherwise distributable to the
Holders of the Class R Certificates (and such rights are hereby assigned and
transferred) to the Holders of the Class CE Certificates.
(f) On
each
Distribution Date, after making the distributions of the Available Funds as
set
forth above, the Trust Administrator will withdraw from the Net WAC Rate
Carryover Reserve Account, to the extent of amounts remaining on deposit
therein, the amount of any Net WAC Rate Carryover Amount for such Distribution
Date and distribute such amount in the following order of priority:
(i) concurrently,
to the Class A Certificates, on a pro rata basis based on the remaining Net
WAC
Rate Carryover Amount for each such Class; and
(ii) sequentially,
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates, Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates, Class M-10
Certificates and Class M-11 Certificates, in that order, the Net WAC Rate
Carryover Amount for each such Class.
On
each
Distribution Date, the Trust Administrator shall withdraw any amounts then
on
deposit in the Distribution Account that represent (i) Prepayment Charges
collected by the Servicer and remitted to the Master Servicer in connection
with
the Principal Prepayment of any of the Mortgage Loans, (ii) any Originator
Prepayment Charge Payment Amounts or (iii) any Servicer Prepayment Charge
Payment Amounts, and shall distribute such amounts to the Holders of the Class
P
Certificates. Such distributions shall not be applied to reduce the Certificate
Principal Balance of the Class P Certificates.
Following
the foregoing distributions, an amount equal to the amount of Subsequent
Recoveries remitted to the Master Servicer shall be applied to increase the
Certificate Principal Balance of the Class of Certificates with the Highest
Priority up to the extent of such Realized Losses previously allocated to that
Class of Certificates pursuant to Section 4.04. An amount equal to the
amount of any remaining Subsequent Recoveries shall be applied to increase
the
Certificate Principal Balance of the Class of Certificates with the next Highest
Priority, up to the amount of such Realized Losses previously allocated to
that
Class of Certificates pursuant to Section 4.04. Holders of such
Certificates will not be entitled to any distribution in respect of interest
on
the amount of such increases for any Accrual Period preceding the Distribution
Date on which such increase occurs. Any such increases shall be applied to
the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(g) On
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 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 X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, the related Monthly Interest Distributable Amount and Unpaid Interest
Shortfall Amount, to the extent remaining undistributed after the distributions
of the Interest Remittance Amount and the Net Monthly Excess
Cashflow;
(iii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Principal Distribution Amount, remaining undistributed after distribution of
the
Net Monthly Excess Cashflow;
(iv) sequentially
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, in each case up to the related Allocated Realized Loss Amount related
to
such Certificates for such Distribution Date remaining undistributed after
distribution of the Net Monthly Excess Cashflow;
(v) concurrently,
to each Class of Class A Certificates, the Net WAC Rate Carryover Amount, to
the
extent remaining undistributed after distributions are made from the Net WAC
Rate Carryover Reserve Account, on a pro rata basis based on such respective
Net
WAC Rate Carryover Amounts remaining; and
(vi) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, the Net WAC Rate Carryover Amount, to the extent remaining undistributed
after distributions are made from the Net WAC Rate Carryover Reserve
Account.
(h) On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow, amounts on deposit in the Net WAC Rate Carryover
Reserve Account and amounts on deposit in the Swap Account as set forth above,
the Trust Administrator shall distribute the amount on deposit in the Cap
Account as follows:
(i) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed after the distributions of the Interest Remittance Amount, on
a
pro rata basis based on such respective remaining Monthly Interest Distributable
Amount and Unpaid Interest Shortfall Amount;
(ii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, the related Monthly Interest Distributable Amount and Unpaid Interest
Shortfall Amount, to the extent remaining undistributed after the distributions
of the Interest Remittance Amount and the Net Monthly Excess
Cashflow;
(iii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Principal Distribution Amount, remaining undistributed after distribution of
the
Net Monthly Excess Cashflow;
(iv) sequentially
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, in each case up to the related Allocated Realized Loss Amount related
to
such Certificates for such Distribution Date remaining undistributed after
distribution of the Net Monthly Excess Cashflow;
(v) concurrently,
to each Class of Class A Certificates, the 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;
(vi) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, the related Net WAC Rate Carryover Amount, to the extent remaining
undistributed after distributions are made from the Net WAC Rate Carryover
Reserve Account; and
(vii) any
remaining amount to the Holders of the Class CE Certificates.
(i) Distributions
made with respect to each Class of Certificates on each Distribution Date shall
be allocated pro rata among the outstanding Certificates in such Class based
on
their respective Percentage Interests. Distributions in respect of each Class
of
Certificates on each Distribution Date will be made to the Holders of the
respective Class of record on the related Record Date (except as otherwise
provided in Section 4.01(d) or Section 9.01 respecting the final
distribution on such Class), based on the aggregate Percentage Interest
represented by their respective Certificates, and shall be made by wire transfer
of immediately available funds to the account of any such Holder at a bank
or
other entity having appropriate facilities therefor, if such Holder shall have
so notified the Trust Administrator in writing at least five Business Days
prior
to the Record Date immediately prior to such Distribution Date and is the
registered owner of Certificates having an initial aggregate Certificate
Principal Balance or Notional Amount that is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the initial Certificate Principal Balance
or
Notional Amount of such Class of Certificates, or otherwise by check mailed
by
first class mail to the address of such Holder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trust Administrator or such other location
specified in the notice to Certificateholders of such final
distribution.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Trust
Administrator, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(j) The
rights of the Certificateholders to receive distributions in respect of the
Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Agreement. None of the Holders of any Class of
Certificates, the Trustee, the Trust Administrator or the Master Servicer shall
in any way be responsible or liable to the Holders of any other Class of
Certificates in respect of amounts properly previously distributed on the
Certificates.
(k) Except
as
otherwise provided in Section 9.01, whenever the Trust Administrator
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Trust Administrator shall,
no
later than three (3) days before the related Distribution Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect
that:
(i) the
Trust
Administrator expects that the final distribution with respect to such Class
of
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Trust Administrator
therein specified, and
(ii) no
interest shall accrue on such Certificates from and after the end of the related
Accrual Period.
Any
funds
not distributed to any Holder or Holders of Certificates of such Class on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust by the
Trust Administrator and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 4.01(e) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trust Administrator shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order
to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trust Administrator shall, directly or through an agent,
mail
a final notice to the remaining non-tendering Certificateholders concerning
surrender of their Certificates but shall continue to hold any remaining funds
for the benefit of non-tendering Certificateholders. The costs and expenses
of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in the Trust Fund. If within one year after
the final notice any such Certificates shall not have been surrendered for
cancellation, the Trust Administrator shall pay to UBS Securities LLC all such
amounts, and all rights of non-tendering Certificateholders in or to such
amounts shall thereupon cease. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trust Administrator as
a
result of such Certificateholder’s failure to surrender its Certificate(s) for
final payment thereof in accordance with this Section 4.01(d). Any such
amounts held in trust by the Trust Administrator shall be held in an Eligible
Account and the Trust Administrator may direct any depository institution
maintaining such account to invest the funds in one or more Permitted
Investments. All income and gain realized from the investment of funds deposited
in such accounts held in trust by the Trust Administrator shall be for the
benefit of the Trust Administrator; provided, however, that the Trust
Administrator shall deposit in such account the amount of any loss of principal
incurred in respect of any such Permitted Investment made with funds in such
accounts immediately upon the realization of such loss.
(l) Notwithstanding
anything to the contrary herein, (i) in no event shall the Certificate Principal
Balance of a Class A Certificate or a Mezzanine Certificate be reduced more
than
once in respect of any particular amount both (a) allocated to such Certificate
in respect of Realized Losses pursuant to Section 4.04 and (b) distributed
to the Holder of such Certificate in reduction of the Certificate Principal
Balance thereof pursuant to this Section 4.01 from Net Monthly Excess
Cashflow and (ii) in no event shall the Uncertificated Balance of a REMIC I
Regular Interest be reduced more than once in respect of any particular amount
both (a) allocated to such REMIC I Regular Interest in respect of Realized
Losses pursuant to Section 4.04 and (b) distributed on such REMIC I Regular
Interest in reduction of the Uncertificated Balance thereof pursuant to this
Section 4.01.
SECTION
4.02. Statements
to Certificateholders.
On
each
Distribution Date, based (in part), as applicable, on information provided
to
the Trust Administrator by the Master Servicer (which in turn shall be based
(in
part), as applicable, on information provided to the Master Servicer by the
Servicer), the Trust Administrator shall prepare and make available to each
Holder of the Regular Certificates, the Credit Risk Manager, the other parties
hereto and the Rating Agencies, a statement as to the distributions to be made
on such Distribution Date containing the following information:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to principal, and the amount of the
distribution made on such Distribution Date to the Holders of the Class P
Certificates allocable to Prepayment Charges, Originator Prepayment Charge
Payment Amounts and Servicer Prepayment Charge Payment Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to interest;
(iii) the
fees
and expenses of the Trust accrued and paid on such Distribution Date and to
whom
such fees and expenses were paid;
(iv) the
aggregate amount of Advances for such Distribution Date (including the general
purpose of such Advances);
(v) the
aggregate Stated Principal Balance of the Mortgage Loans and any REO Properties
as of the last day of the related Due Period;
(vi) the
number, aggregate Stated Principal Balance, weighted average remaining term
to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of the
related Due Date;
(vii) the
number and aggregate unpaid Principal Balance of Mortgage Loans (a) delinquent
30 to 59 days, (b) delinquent 60 to 89 days, (c) delinquent 90 or more days,
in
each case, as of the last day of the preceding calendar month, not including
Liquidated Mortgage Loans as of the end of the related Prepayment Period, (d)
as
to which foreclosure proceedings have been commenced and (e) with respect to
which the related Mortgagor has filed for protection under applicable bankruptcy
laws, with respect to whom bankruptcy proceedings are pending or with respect
to
whom bankruptcy protection is in force and with respect to (a), (b) and (c)
above, delinquencies shall be determined by and reported utilizing the OTS
methodology;
(viii) the
total
number and cumulative principal balance of all REO Properties as of the close
of
business on the last day of the preceding Prepayment Period;
(ix) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(x) the
Delinquency Percentage;
(xi) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, which will include the aggregate amount of Subsequent Recoveries
received during the related Prepayment Period and the aggregate amount of
Realized Losses incurred since the Closing Date, which will include the
cumulative amount of Subsequent Recoveries received since the Closing
Date;
(xii) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(xiii) the
aggregate Certificate Principal Balance and Notional Amount, as applicable,
of
each Class of Certificates, before and after giving effect to the distributions,
and allocations of Realized Losses, made on such Distribution Date, separately
identifying any reduction thereof due to allocations of Realized
Losses;
(xiv) the
Certificate Factor for each such Class of Certificates applicable to such
Distribution Date;
(xv) the
Monthly Interest Distributable Amount in respect of the Class A Certificates,
the Mezzanine Certificates and the Class CE Certificates for such Distribution
Date and the Unpaid Interest Shortfall Amount, if any, with respect to the
Class
A Certificates and the Mezzanine Certificates on such Distribution Date,
separately identifying any reduction thereof due to allocations of Realized
Losses, Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls;
(xvi) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the Servicer or the Master
Servicer;
(xvii) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(xviii) the
Net
Monthly Excess Cashflow, the Overcollateralization Target Amount, the
Overcollateralized Amount, the Overcollateralization Deficiency Amount and
the
Credit Enhancement Percentage for such Distribution Date;
(xix) the
respective Pass-Through Rates applicable to the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates for such Distribution
Date
(and whether such Pass-Through Rate was limited by the Net WAC
Rate);
(xx) the
Aggregate Loss Severity Percentage;
(xxi) whether
the Stepdown Date or a Trigger Event is in effect;
(xxii) the
total
cashflows received and the general sources thereof;
(xxiii) the
Available Funds;
(xxiv) the
Net
WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine
Certificates, if any, for such Distribution Date, the amount remaining unpaid
after reimbursements therefor on such Distribution Date;
(xxv) payments,
if any, made under the Interest Rate Cap Agreements and the amount of any Net
Swap Payments or Swap Termination Payments; and
(xxvi) unless
otherwise set forth in the Form 10-D relating to such Distribution Date,
material modifications, extensions or waivers to Mortgage Loan terms, fees,
penalties or payments during the preceding calendar month or that have become
material over time and the aggregate number of Mortgage Loans which have been
modified, waived or amended since the Closing Date; and
(xxvii) the
applicable Record Dates, Accrual Periods and Determination Dates for calculating
distributions for such Distribution Date.
The
Trust
Administrator will make such statement (and, at its option, any additional
files
containing the same information in an alternative format) available each month
to Certificateholders, the Master Servicer, the Servicer, the Depositor and
the
Rating Agencies via the Trust Administrator’s internet website. The Trust
Administrator’s internet website shall initially be located at
“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
the Servicer.
On
each
Distribution Date the Trust Administrator shall provide Intex Solutions, Inc.
and Bloomberg Financial Markets, L.P. (“Bloomberg”) CUSIP level factors for each
class of Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Trust Administrator and Bloomberg.
(b) For
each
Distribution Date, through and including the Distribution Date in December
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.
Notwithstanding
the foregoing, the Trust Administrator shall not have any obligations pursuant
to the immediately preceding two paragraphs if a Form 15 Suspension Notification
with respect to the Trust is filed on or prior to January 30, 2007.
SECTION
4.03. Remittance
Reports, Advances.
(a) On
the
2nd Business Day following the Determination Date, but in no event later than
noon on the 18th calendar day (or, if such 18th day is not a Business Day (other
than a Saturday), then on the next succeeding Business Day, or, if such 18th
day
is a Saturday, then on the preceding Business Day), the Servicer shall furnish
to the Trust Administrator, the NIMS Insurer and the Credit Risk Manager
(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 Servicer and the Trust Administrator, containing such
information regarding the Mortgage Loans as is needed by the Trust Administrator
to perform its duties as set forth in Section 4.01 and 4.02 hereof. Such
Remittance Report will also include a delinquency report substantially in the
form set forth in Exhibit R-1 and a realized loss report substantially in the
form set forth in Exhibit R-3 (or in either case, such other format as mutually
agreed to between the Servicer and the Trust Administrator).
(b) With
respect to any Mortgage Loan on which a Monthly Payment was due during the
related Due Period and delinquent on the related Determination Date, the amount
of the Servicer’s Advance will be equal to the Monthly Payment (net of the
related Servicing Fee) that would have been due on the related Due Date in
respect of the related Mortgage Loan. With respect to each REO Property, which
REO Property was acquired during or prior to the related Prepayment Period
and
as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the Monthly
Payment (net of the related Servicing Fee) that would have been due on the
related Due Date in respect of the related Mortgage Loan, over the net income
from such REO Property deposited in the Collection Account pursuant to Section
3.23 for distribution on such Distribution Date.
On
the
Servicer Remittance Date, the Servicer shall remit in immediately available
funds to the Trust Administrator for deposit in the Distribution Account an
amount equal to the aggregate amount of Advances, if any, to be made in respect
of the Mortgage Loans for the related Distribution Date either (i) from its
own
funds or (ii) from the Collection Account, to the extent of funds held therein
for future distribution (in which case it will cause to be made an appropriate
entry in the records of the Collection Account that amounts held for future
distribution have been, as permitted by this Section 4.03, used by the Servicer
in discharge of any such Advance) or (iii) in the form of any combination of
(i)
and (ii) aggregating the total amount of Advances to be made by the Servicer
with respect to the Mortgage Loans. Any amounts held for future distribution
used by the Servicer to make an Advance as permitted in the preceding sentence
shall be appropriately reflected in the Servicer’s records and replaced by the
Servicer by deposit in the Collection Account on or before any future Servicer
Remittance Date to the extent that the Available Funds for the related
Distribution Date (determined without regard to Advances to be made on the
Servicer Remittance Date) shall be less than the total amount that would be
distributed to the Certificateholders pursuant to Section 4.01 on such
Distribution Date if such amounts held for future distributions had not been
so
used to make Advances. The Trust Administrator will provide notice to the
Servicer and the NIMS Insurer by telecopy by the close of business on the
Servicer Remittance Date in the event that the amount remitted by the Servicer
to the Trust Administrator on such date is less than the Advances required
to be
made by the Servicer for the related Distribution Date.
(c) The
obligation of the Servicer to make such Advances is mandatory, notwithstanding
any other provision of this Agreement but subject to (d) below, and, with
respect to any Mortgage Loan or REO Property, shall continue until a Final
Recovery Determination in connection therewith or the removal thereof from
the
Trust Fund pursuant to any applicable provision of this Agreement, except as
otherwise provided in this Section. With respect however to Balloon Mortgage
Loans, the Servicer shall not be required to make any Advances covering the
Balloon Payment.
(d) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by the Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance or Nonrecoverable
Servicing Advance, respectively. The determination by the Servicer that it
has
made a Nonrecoverable Advance or a Nonrecoverable Servicing Advance or that
any
proposed Advance or Servicing Advance, if made, would constitute a
Nonrecoverable Advance or Nonrecoverable Servicing Advance, respectively, shall
be evidenced by a certification of a Servicing Officer delivered to the Trust
Administrator (whereupon, upon receipt of such certification, the Trust
Administrator shall forward a copy of such certification to the Depositor,
the
Trustee, the NIMS Insurer and the Credit Risk Manager). Notwithstanding the
foregoing, if following the application of Liquidation Proceeds on any Mortgage
Loan that was the subject of a Final Recovery Determination, any Servicing
Advance with respect to such Mortgage Loan shall remain unreimbursed to the
Servicer, then without limiting the provisions of Section 3.11(a), a
certification of a Servicing Officer regarding such Nonrecoverable Servicing
Advance shall not be required to be delivered by the Servicer to the Trust
Administrator.
(e) In
the
event the Servicer fails to make any Advance required to be made by it pursuant
to this Section 4.03 and such failure is not remedied within the applicable
cure
period pursuant to Section 7.01(a), then, pursuant to Section 7.01(a), the
Servicer will be terminated, and, in accordance with Sections 7.01(a) and 7.02,
the Master Servicer or (if the Master Servicer is the Servicer) the Trustee
(in
its respective capacity as successor servicer) or another successor servicer
shall be required to make such Advance on the Distribution Date with respect
to
which the Servicer was required to make such Advance, subject to the Master
Servicer’s or the Trustee’s (or other successor servicer’s) determination of
recoverability. The Servicer, the Master Servicer or the Trustee, as applicable
(or other successor servicer) shall not be required to make any Advance to
cover
any Relief Act Interest Shortfall on any Mortgage Loan or shortfalls relating
to
bankruptcy proceedings. If the Master Servicer or the Trustee, as applicable
(or
other successor servicer) is required to make any Advances, such advances may
be
made by it in the manner set forth under subsection 4.03(b) above.
SECTION
4.04. Allocation
of Realized Losses.
(a) Prior
to
each Distribution Date, the Servicer shall determine as to each Mortgage Loan
and REO Property: (i) the total amount of Realized Losses, if any, incurred
in
connection with any Final Recovery Determinations made during the related
Prepayment Period; (ii) whether and the extent to which such Realized Losses
constituted Bankruptcy Losses; and (iii) the respective portions of such
Realized Losses allocable to interest and allocable to principal. Prior to
each
Distribution Date, the Servicer shall also determine as to each Mortgage Loan:
(A) the total amount of Realized Losses, if any, incurred in connection with
any
Deficient Valuations made during the related Prepayment Period; and (B) the
total amount of Realized Losses, if any, incurred in connection with Debt
Service Reductions in respect of Monthly Payments due during the related Due
Period. The information described in the two preceding sentences that is to
be
supplied by the Servicer shall be either included in the related Remittance
Report or evidenced by an Servicing Officer certification delivered to the
Trust
Administrator by the Servicer not later than the 18th of the calendar month
in
which such Distribution Date occurs (or, if such 18th day is not a Business
Day
(other than a Saturday), then on the next succeeding Business Day, or, if such
18th day is a Saturday, then on the preceding Business Day), immediately
following the end of (x) in the case of Bankruptcy Losses allocable to interest,
the Due Period during which any such Realized Loss was incurred, and (y) in
the
case of all other Realized Losses, the Prepayment Period during which any such
Realized Loss was incurred.
(b) All
Realized Losses on the Mortgage Loans shall be allocated by the Trust
Administrator on each Distribution Date as follows: first, to Net Monthly Excess
Cashflow; second, to Net Swap Payments received under the Interest Rate Swap
Agreement, third, to payments received under the Interest Rate Cap Agreements,
fourth, to the Class CE Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; fifth, to the Class M-11 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; sixth,
to
the Class M-10 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; seventh, to the Class M-9 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eighth, to
the
Class M-8 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; ninth, to the Class M-7 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; tenth, to the Class M-6
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; eleventh, to the Class M-5 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; twelfth, to the Class M-4
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; thirteenth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; fourteenth, to the Class
M-2
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; and fifteenth, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All Realized Losses to
be
allocated to the Certificate Principal Balances of all Classes on any
Distribution Date shall be so allocated after the actual distributions to be
made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Certificates shall be to the Certificate
Principal Balance of such Class immediately prior to the relevant Distribution
Date, before reduction thereof by any Realized Losses, in each case to be
allocated to such Class of Certificates, on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof by
the
amount so allocated; any allocation of Realized Losses to a Class CE Certificate
shall be made by reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(a)(5)(iv). No allocations of any Realized Losses
shall be made to the Certificate Principal Balances of the Class A Certificates
or the Class P Certificates.
As
used
herein, an allocation of a Realized Loss on a “pro rata basis” among two or more
specified Classes of Certificates means an allocation on a pro rata basis,
among
the various Classes so specified, to each such Class of Certificates on the
basis of their then outstanding Certificate Principal Balances prior to giving
effect to distributions to be made on such Distribution Date. All Realized
Losses and all other losses allocated to a Class of Certificates hereunder
will
be allocated among the Certificates of such Class in proportion to the
Percentage Interests evidenced thereby.
(c) With
respect to the REMIC I Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated by the Trust Administrator on each Distribution Date
first, to REMIC I Regular Interest I until the Uncertificated Balance has been
reduced to zero and then to REMIC I Regular Interest I-1-A through I-60-B,
starting with the lowest numerical denomination until the Uncertificated Balance
of each such REMIC I Regular Interest is reduced to zero, provided that, for
REMIC I Regular Interests with the same numerical denomination, such Realized
Losses shall be allocated pro rata between such REMIC I Regular
Interests.
(d) With
respect to the REMIC II Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated by the Trust Administrator on each Distribution Date
to
the following REMIC II Regular Interests in the specified percentages, as
follows: first, to Uncertificated Interest payable to the REMIC II Regular
Interest II-LTAA and REMIC II Regular Interest II-LTZZ up to an aggregate amount
equal to the REMIC II Interest Loss Allocation Amount, 98% and 2%, respectively;
second, to the Uncertificated Balances of the REMIC II Regular Interest II-LTAA
and REMIC II Regular Interest II-LTZZ up to an aggregate amount equal to the
REMIC II Principal Loss Allocation Amount, 98% and 2%, respectively; third,
to
the Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II
Regular Interest II-LTM11 and REMIC II Regular Interest II-LTZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM11 has been reduced to zero; fourth, to the Uncertificated Balances of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM10 and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM10 has been reduced
to
zero; fifth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTM9 and REMIC II Regular Interest
II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of
REMIC
II Regular Interest II-LTM9 has been reduced to zero; sixth, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular
Interest II-LTM8 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM8 has been reduced to zero; seventh, to the Uncertificated Balances of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM7 and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM7 has been reduced
to
zero; eighth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTM6 and REMIC II Regular Interest
II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of
REMIC
II Regular Interest II-LTM6 has been reduced to zero; ninth, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular
Interest II-LTM5 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM5 has been reduced to zero; tenth, to the Uncertificated Balances of
REMIC
II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM4 and REMIC II
Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC II Regular Interest II-LTM4 has been reduced to zero; eleventh,
to the Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC
II
Regular Interest II-LTM3 and REMIC II Regular Interest II-LTZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM3 has been reduced to zero; twelfth, to the Uncertificated Balances of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM2 and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM2 has been reduced
to
zero; and thirteenth, to the Uncertificated Balances of REMIC II Regular
Interest II-LTAA, REMIC II Regular Interest II-LTM1 and REMIC II Regular
Interest II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC II Regular Interest II-LTM1 has been reduced to zero.
SECTION
4.05. Compliance
with Withholding Requirements.
Notwithstanding
any other provision of this Agreement, the Trust Administrator shall comply
with
all federal withholding requirements respecting payments to Certificateholders
of interest or original issue discount that the Trust Administrator reasonably
believes are applicable under the Code. The consent of Certificateholders shall
not be required for such withholding. In the event the Trust Administrator
does
withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trust Administrator shall indicate the amount withheld to
such
Certificateholders.
SECTION
4.06. Exchange
Commission Filings; Additional Information.
(a) (i)
Within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Trust Administrator shall, in accordance with
industry standards, prepare and file with the Commission via the Electronic
Data
Gathering and Retrieval System (“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. 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 the Servicer, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in this
paragraph or in the Custodial Agreement, as applicable, that are applicable
to
the parties to this Agreement or the Custodial Agreement, as applicable, 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 the Servicer, the Custodian (if a party to this Agreement) and any
Servicing Function Participant strictly observing deadlines no later than those
set forth in this paragraph (or as set forth in the Custodial Agreement with
respect to Deutsche Bank National Trust Company) that are applicable to the
parties to this Agreement (or the Custodial Agreement) in the delivery to the
Trust Administrator of any necessary Form 8-K Disclosure Information pursuant
to
any 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 or timely file such Form
8-K, where such failure results from the Trust Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from the
Servicer, the Custodian or any Servicing Function Participant (other than any
Servicing Function Participant engaged by the Master Servicer or Trust
Administrator) needed to prepare, arrange for execution or file such Form 8-K,
not resulting from its own negligence, bad faith or willful misconduct.
Notwithstanding anything contained herein, the Trust Administrator shall
promptly notify the Depositor if a Form 8-K cannot be timely filed prior to
the
related filing deadline.
(iv)
On
or
prior to the 90th day after the end of each fiscal year of the Trust or such
earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”)
(it being understood that the fiscal year for the Trust ends on December 31st
of
each year), commencing in March 2007, the Trust Administrator shall prepare
and
file on behalf of the Trust a Form 10-K, in form and substance as required
by
the Exchange Act. Each such Form 10-K shall include the following items, in
each
case to the extent they have been delivered to the Trust Administrator within
the applicable time frames set forth in this Agreement:
(a) an
annual
compliance statement for the Servicer, the Master Servicer, the Trust
Administrator and any Servicing Function Participant engaged by such parties
(each, a “Reporting
Servicer”)
as
described under Section 3.20 of this Agreement, provided,
however,
that
the Trust Administrator, at its discretion, may omit from the Form 10-K any
annual compliance statement that is not required to be filed with such Form
10-K
pursuant to Regulation AB;
(b) (A)
the
annual reports on assessment of compliance with Servicing Criteria for each
Reporting Servicer, as described under Section 3.21 of this Agreement and (B)
if
each Reporting Servicer’s report on assessment of compliance with Servicing
Criteria identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if each Reporting Servicer’s
report on assessment of compliance with Servicing Criteria is not included
as an
exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation why such report is not included, provided,
however,
that
the Trust Administrator, at its discretion, may omit from the Form 10-K any
assessment of compliance or attestation report described in clause (c) below
that is not required to be filed with such Form 10-K pursuant to Regulation
AB;
(c) (A)
the
registered public accounting firm attestation report for each Reporting
Servicer, as described under Section 3.21 of this Agreement and (B) if any
registered public accounting firm attestation report identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included;
and
(d) a
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 2007, (i) the parties described on Exhibit
P shall be required to provide to the Trust Administrator and to the Depositor,
to the extent known by a Responsible Officer thereof, in 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 the Servicer, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph (or as set forth in the Custodial Agreement with respect
to
Deutsche Bank National Trust Company) that are applicable to the parties to
this
Agreement (or the Custodial Agreement) in the delivery to the Trust
Administrator of any necessary Additional Form 10-K Disclosure, any annual
statement of compliance and any assessment of compliance and attestation
pursuant to the related Servicing Agreement, the Custodial Agreement or any
other applicable agreement. Neither the Master Servicer nor the Trust
Administrator shall have any liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-K, where such failure results from the Trust
Administrator’s inability or failure to obtain or receive, on a timely basis,
any information from the Servicer, the Custodian or any Servicing Function
Participant needed to prepare, arrange for execution or file such Form 10-K,
not
resulting from its own negligence, bad faith or willful misconduct.
Notwithstanding anything contained herein, the Trust Administrator shall
promptly notify the Depositor if a Form 10-K cannot be timely filed prior to
the
related filing deadline.
Each
Form
10-K shall include a 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. The Servicer and the Trust Administrator shall
provide, and each such party shall cause any Servicing Function Participant
engaged by it to provide, to the Person who signs the 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 any
other
agreement.
(v) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trust Administrator’s obligation to
include such Additional Information in the applicable Exchange Act report is
subject to its receipt of such information from the entity that is indicated
in
Exhibit P as the responsible party for providing such information, if other
than
the Trust Administrator, as and when required as described in Section
4.06(a)(ii) through (iv) above. Each of the Master Servicer, the Servicer and
Depositor hereby agree to notify and to provide, to the extent known, to the
Trust Administrator and the Depositor, all Additional Disclosure relating to
the
Trust Fund, with respect to which such party is the responsible party for
providing that information, as indicated in Exhibit P hereof. The Swap Provider
will be obligated pursuant to the 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. The 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 the Servicer, the Custodian or any Servicing
Function Participant needed to prepare, arrange for execution or file such
Form
15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trust Administrator, from time
to
time upon request, such further information, reports and financial statements
within its control related to this Agreement, and the Mortgage Loans as the
Trust Administrator reasonably deems appropriate to prepare and file all
necessary reports with the Commission. The Trust Administrator shall have no
responsibility to file any items other than those specified in this Section
4.06; provided, however, the Trust Administrator will cooperate with the
Depositor in connection with any additional filings with respect to the Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees and expenses
incurred by the Trust Administrator in connection with this Section 4.06 shall
not be reimbursable from the Trust Fund.
(vii) [Reserved].
(b) The
Trust
Administrator shall indemnify and hold harmless the Depositor and its officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon (i) a breach of the
Trust Administrator’s obligations under this Section 4.06 or the Trust
Administrator’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Annual Statement
of Compliance and the Assessment of Compliance delivered by the Trust
Administrator pursuant to Section 3.20 and Section 3.21.
The
Depositor shall indemnify and hold harmless the Trust Administrator and the
Master Servicer and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Depositor under
this Section 4.06 or the Depositor’s negligence, bad faith or willful misconduct
in connection therewith.
The
Master Servicer shall indemnify and hold harmless the Trust Administrator and
the Depositor and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) a breach of the obligations of the Master
Servicer under this Section 4.06 or the Master Servicer’s negligence, bad faith
or willful misconduct in connection therewith or (ii) any material misstatement
or omission in the Statement as to Compliance delivered by the Master Servicer
pursuant to Section 3.20 or the Assessment of Compliance delivered by the Master
Servicer pursuant to Section 3.21.
The
Servicer shall indemnify and hold harmless the Master Servicer, Trust
Administrator and the Depositor and their respective officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon (i) a breach of the obligations of
the
Servicer under this Section 4.06 and (ii) any material misstatement or omission
in the Annual Statement of Compliance delivered by the Servicer pursuant to
Section 3.20 or the Assessment of Compliance delivered by the Servicer pursuant
to Section 3.21.
Notwithstanding
the provisions set forth in this Agreement, the Servicer shall not be obligated
to provide any indemnification or reimbursement hereunder to any other party
for
any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain which are indirect, consequential, punitive or special in
nature.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, the Master Servicer or the Trust Administrator, as
applicable, then the defaulting party, in connection with a breach of its
respective obligations under this Section 4.06 or its respective negligence,
bad
faith or willful misconduct in connection therewith, agrees that it shall
contribute to the amount paid or payable by the other parties as a result of
the
losses, claims, damages or liabilities of the other party in such proportion
as
is appropriate to reflect the relative fault and the relative benefit of the
respective parties.
(c) Nothing
shall be construed from the foregoing subsections (a) and (b) to require the
Trust Administrator or any officer, director or Affiliate thereof to sign any
Form 10-K or any certification contained therein. Furthermore, the inability
of
the Trust Administrator to file a Form 10-K as a result of the lack of required
information as set forth in Section 4.06(a) or required signatures on such
Form
10-K or any certification contained therein shall not be regarded as a breach
by
the Trust Administrator of any obligation under this Agreement.
(d) Notwithstanding
the provisions of Section 11.01, this Section 4.06 may be amended without the
consent of the Certificateholders.
SECTION
4.07. Net
WAC
Rate Carryover Reserve Account.
No
later
than the Closing Date, the Trust Administrator shall establish and maintain
with
itself a separate, segregated trust account titled, “Xxxxx Fargo Bank, N.A. as
Trust Administrator, in trust for the registered holders of MASTR Asset Backed
Securities Trust 2006-HE5, Mortgage Pass-Through Certificates, Series
2006-HE5—Net WAC Rate Carryover Reserve Account.” All amounts deposited in the
Net WAC Rate Carryover Reserve Account shall be distributed to the Holders
of
the Class A Certificates and/or the Mezzanine Certificates in the manner set
forth in Section 4.01.
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to the Class A Certificates and/or the Mezzanine Certificates, the Trust
Administrator has been directed by the Class CE Certificateholders to, and
therefore will, deposit into the Net WAC Rate Carryover Reserve Account the
amounts described in Section 4.01(e)(v), rather than distributing such
amounts to the Class CE Certificateholders. On each such Distribution Date,
the
Trust Administrator shall hold all such amounts for the benefit of the Holders
of the Class A Certificates and the Mezzanine Certificates, and will distribute
such amounts to the Holders of the Class A Certificates and/or the Mezzanine
Certificates in the amounts and priorities set forth in
Section 4.01(a).
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Net WAC Rate Carryover Reserve Account be
disregarded as an entity separate from the Holder of the Class CE Certificates
unless and until the date when either (a) there is more than one Class CE
Certificateholder or (b) any Class of Certificates in addition to the Class
CE
Certificates is recharacterized as an equity interest in the Net WAC Rate
Carryover Reserve Account for federal income tax purposes, in which case it
is
the intention of the parties hereto that, for federal and state income and
state
and local franchise tax purposes, the Net WAC Rate Carryover Reserve Account
be
treated as a grantor trust; provided, that the Trust Administrator shall not
be
required to prepare and file grantor trust tax returns in respect of such
grantor trust unless it receives additional reasonable compensation (not to
exceed $10,000 per year) from the Holders of the Class CE Certificates for
the
preparation of such filings, written notification recognizing the creation
of a
grantor trust and comparable documentation evidencing the grantor trust, if
any.
All amounts deposited into the Net WAC Rate Carryover Reserve Account shall
be
treated as amounts distributed by REMIC III to the Holder of the Class CE
Interest and by REMIC IV to the Holder of the Class CE Certificates. The Net
WAC
Rate Carryover Reserve Account will be an “outside reserve fund” within the
meaning of Treasury Regulation Section 1.860G-2(h). Upon the termination of
the
Trust, or the payment in full of the Class A and the Mezzanine Certificates,
all
amounts remaining on deposit in the Net WAC Rate Carryover Reserve Account
will
be released by the Trust and distributed to the Seller or its designee. The
Net
WAC Rate Carryover Reserve Account will be part of the Trust but not part of
any
REMIC and any payments to the Holders of the Class A and the Mezzanine
Certificates of Net WAC Rate Carryover Amounts will not be payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class CE Certificate, each Class CE Certificateholder hereby agrees
to direct the Trust Administrator, and the Trust Administrator hereby is
directed, to deposit into the Net WAC Rate Carryover Reserve Account the amounts
described above on each Distribution Date as to which there is any Net WAC
Rate
Carryover Amount rather than distributing such amounts to the Class CE
Certificateholders. By accepting a Class CE Certificate, each Class CE
Certificateholder further agrees that such direction is given for good and
valuable consideration, the receipt and sufficiency of which is acknowledged
by
such acceptance. Amounts on deposit in the Net WAC Rate Carryover Reserve
Account shall remain uninvested.
SECTION
4.08. Swap
Account.
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit: (i) the Interest Rate
Swap Agreement and (ii) the Swap Administration Agreement. The Supplemental
Interest Trust shall be maintained by the Supplemental Interest Trust Trustee.
No later than the Closing Date, the Supplemental Interest Trust Trustee shall
establish and maintain with itself a separate, segregated trust account titled,
“Xxxxx Fargo Bank, N.A. as Supplemental Interest Trust Trustee, in trust for
the
registered holders of MASTR Asset Backed Securities Trust 2006-HE5, Mortgage
Pass-Through Certificates, Series 2006-HE5—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. Cap
Account.
(a) 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 2006-HE5, Mortgage Pass-Through Certificates, Series
2006-HE5—Cap Account.” Such account shall be an Eligible Account and amounts
therein shall be held uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the Trust
Administrator shall deposit into the Cap Account amounts received by the Trust
Administrator under the Interest Rate Cap Agreements for distribution in
accordance with Section 4.01(h) above.
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Cap Account be disregarded as an entity
separate from the Holder of the Class CE Certificates unless and until the
date
when either (a) there is more than one Class CE Certificateholder or (b) any
Class of Certificates in addition to the Class CE Certificates is
recharacterized as an equity interest in the Cap Account for federal income
tax
purposes, in which case it is the intention of the parties hereto that, for
federal and state income and state and local franchise tax purposes, the Cap
Account be treated as a grantor trust; 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. The
Cap
Account will be an “outside reserve fund” within the meaning of Treasury
Regulation Section 1.860G-2(h). Upon the termination of the Trust Fund, or
the
payment in full of the Class A Certificates and the Mezzanine Certificates,
all
amounts remaining on deposit in the Cap Account shall be released by the Trust
Fund and distributed to the Class CE Certificateholders or their designees.
The
Cap Account shall be part of the Trust Fund but not part of any Trust REMIC
and
any payments to the Holders of the Floating Rate Certificates of Net WAC Rate
Carryover Amounts will not be payments with respect to a “regular interest” in a
REMIC within the meaning of Code Section 860(G)(a)(1).
(d) By
accepting a Class CE Certificate, each Class CE Certificateholder hereby agrees
to direct the Trust Administrator, and the Trust Administrator is hereby
directed, to deposit into the Cap Account the amounts described above on each
Distribution Date.
(e) For
federal income tax purposes, the Depositor shall provide the Trust
Administrator, no later than January 1, 2007, the value of the right of the
Class A and Mezzanine Certificates to receive Net WAC Rate Carryover Amounts
from the Net WAC Rate Carryover Reserve Account and the Swap
Account.
SECTION
4.11. Collateral
Accounts.
(a) The
Trust
Administrator is hereby directed to perform the obligations of the Custodian
as
defined under the Interest Rate Cap Credit Support Annex (the “Interest Rate Cap
Custodian”). On or before the Closing Date, the Interest Rate Cap Custodian
shall establish an Interest Rate Cap Collateral Account. The Interest Rate
Cap
Collateral Account shall be held in the name of the Interest Rate Cap Custodian
in trust for the benefit of the Certificateholders. The Interest Rate Cap
Collateral Account must be an Eligible Account and shall be titled “Interest
Rate Cap Collateral Account, Xxxxx Fargo Bank, N.A., as Interest Rate Cap
Custodian for Xxxxx Fargo Bank, N.A. as Trust Administrator, in trust for the
registered Certificateholders of MASTR Asset Backed Securities Trust 2006-HE5,
Mortgage Pass-Through Certificates, Series 2006-HE5.”
The
Interest Rate Cap Custodian shall credit to Interest Rate Cap Collateral Account
all collateral (whether in the form of cash or securities) posted by the
Interest Rate Cap Provider to secure the obligations of the Interest Rate Cap
Provider in accordance with the terms of the Interest Rate Cap Agreements.
Except for investment earnings, the Interest Rate Cap Provider shall not have
any legal, equitable or beneficial interest in the Interest Rate Cap Collateral
Account other than in accordance with this Agreement, the Interest Rate Cap
Agreements and applicable law. The Interest Rate Cap Custodian shall maintain
and apply all collateral and earnings thereon on deposit in the Interest Rate
Cap Collateral Account in accordance with the Interest Rate Cap Credit Support
Annex and this Agreement.
Cash
collateral posted by the Interest Rate Cap Provider in accordance with the
Interest Rate Cap Credit Support Annex shall be maintained in accordance with
the requirements of the Interest Rate Cap Credit Support Annex. The Trust
Administrator shall not be liable for any losses incurred on such investment.
All amounts earned on amounts on deposit in the Interest Rate Cap Collateral
Account (whether cash collateral or securities) shall be taxable to the Interest
Rate Cap Provider.
Upon
the
occurrence of an Event of Default, a Termination Event, or an Additional
Termination Event (each as defined in the Interest Rate Cap Agreements) with
respect to the Interest Rate Cap Provider or upon the occurrence or designation
of an Early Termination Date (as defined in the Interest Rate Cap Agreements)
as
a result of any such Event of Default, Termination Event, or Additional
Termination Event with respect to the Interest Rate Cap Provider, and, in either
such case, unless the Interest Rate Cap Provider has paid in full all of its
Obligations (as defined in the Interest Rate Cap Credit Support Annex) that
are
then due, then any collateral posted by the Interest Rate Cap Provider in
accordance with the Interest Rate Cap Credit Support Annex shall be applied
to
the payment of any Obligations due to Party B (as defined in the Interest Rate
Cap Agreements) in accordance with the Interest Rate Cap Credit Support Annex.
Any excess amounts held in such Interest Rate Cap Collateral Account after
payment of all amounts owing to Party B under the Interest Rate Cap Agreement
shall be withdrawn from the Interest Rate Cap Collateral Account and paid to
the
Interest Rate Cap Provider in accordance with the Interest Rate Cap Credit
Support Annex.
(b) The
Trust
Administrator (in its capacity as Supplemental Interest Trust Trustee) is hereby
directed to perform the obligations of the Custodian as defined under the Swap
Credit Support Annex (the “Swap Custodian”). On or before the Closing Date, the
Swap Custodian shall establish a Swap Collateral Account. The Swap Collateral
Account shall be held in the name of the Swap Custodian in trust for the benefit
of the Certificateholders. The Swap Collateral Account must be an Eligible
Account and shall be titled “Swap Collateral Account, 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
2006-HE5, Mortgage Pass-Through Certificates, Series 2006-HE5.”
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, a Termination Event, or an Additional
Termination Event (each as defined in the Interest Rate Swap Agreement) with
respect to the Swap Provider or upon the 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, Termination Event, or Additional Termination Event
with respect to the Interest Rate Swap Provider, and, in either such case,
unless the Swap Provider has paid in full all of its Obligations (as defined
in
the Swap Credit Support Annex) that are then due, then any collateral posted
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 Swap Credit Support Annex.
Any excess amounts held in such Swap Collateral Account after payment of all
amounts owing to Party B under the Interest Rate Swap Agreement shall be
withdrawn from the Swap Collateral Account and paid to the Swap Provider in
accordance with the Swap Credit Support Annex.
SECTION
4.12. Rights
and Obligations Under the Interest Rate Cap Agreements and the Interest Rate
Swap Agreement.
(a) In
the
event that the Interest Rate Cap Provider fails to perform any of its
obligations under either of the Interest Rate Cap Agreements (including, without
limitation, its obligation to make any payment or transfer collateral), or
breaches any of its representations and warranties thereunder, or in the event
that any Event of Default, Termination Event, or Additional Termination Event
(each as defined in the Interest Rate Cap Agreements) occurs with respect to
either of the Interest Rate Cap Agreements, the Trust Administrator shall,
promptly following actual notice of such failure, breach or event, notify the
Depositor and send any notices and make any demands, on behalf of the Trust,
required to enforce the rights of the Trust under the related Interest Rate
Cap
Agreement.
In
the
event that the Interest Rate Cap Provider’s obligations are guaranteed by a
third party under a guaranty relating to either of the Interest Rate Cap
Agreements (such guaranty the “Guaranty” and such third party the “Guarantor”),
then to the extent that the Interest Rate Cap Provider fails to make any payment
by the close of business on the day it is required to make payment under the
terms of the related Interest Rate Cap Agreement, the Trust Administrator shall,
promptly following actual knowledge of the Interest Rate Cap Provider’s failure
to pay, demand that the Guarantor make any and all payments then required to
be
made by the Guarantor pursuant to such Guaranty; provided, that the Trust
Administrator shall in no event be liable for any failure or delay in the
performance by the Interest Rate Cap Provider or any Guarantor of its
obligations hereunder or pursuant to the related Interest Rate Cap Agreement
and
the Guaranty, nor for any special, indirect or consequential loss or damage
of
any kind whatsoever (including but not limited to lost profits) in connection
therewith.
Upon
an
early termination of either of the Interest Rate Cap Agreements other than
in
connection with the optional termination of the Trust, the Trust Administrator,
at the direction of the Depositor, will use reasonable efforts to appoint a
successor interest rate cap provider to enter into a new interest rate cap
agreement on terms substantially similar to the related Interest Rate Cap
Agreement, with a successor interest rate cap provider meeting all applicable
eligibility requirements. If the Trust Administrator receives a termination
payment from the Interest Rate Cap Provider in connection with such early
termination, the Trust Administrator will apply such termination payment to
any
upfront payment required to appoint the successor interest rate cap provider.
If
the Trust Administrator is required to pay a termination payment to the Interest
Rate Cap Provider in connection with such early termination, the Trust
Administrator will apply any upfront payment received from the successor
interest rate cap provider to pay such termination payment.
If
the
Trust Administrator is unable to appoint a successor interest rate cap provider
within 30 days of the early termination, then the Trust Administrator will
deposit any termination payment received from the original Interest Rate Cap
Provider into a separate, non-interest bearing reserve account and will, on
each
subsequent Distribution Date, withdraw from the amount then remaining on deposit
in such reserve account an amount equal to the payment, if any, that would
have
been paid to the Trust Administrator by the original Interest Rate Cap Provider
calculated in accordance with the terms of the original Interest Rate Cap
Agreement, and distribute such amount in accordance with the terms of Section
4.01(h).
Upon
an
early termination of either of the Interest Rate Cap Agreements in connection
with the optional termination of the Trust, if the Trust Administrator receives
a termination payment from the Interest Rate Cap Provider, such termination
payment will be distributed in accordance with Section 4.01(h).
(b) In
the
event that the Swap Provider fails to perform any of its obligations under
the
Interest Rate Swap Agreement (including, without limitation, its obligation
to
make any payment or transfer collateral), or breaches any of its representations
and warranties thereunder, or in the event that any Event of Default,
Termination Event, or Additional Termination Event (each as defined in the
Interest Rate Swap Agreement) occurs with respect to the Interest Rate Swap
Agreement, the Trust Administrator (in its capacity as Supplemental Interest
Trust Trustee) shall, promptly following actual notice of such failure, breach
or event, notify the Depositor and send any notices and make any demands, on
behalf of the Supplemental Interest Trust, required to enforce the rights of
the
Supplemental Interest Trust under the Interest Rate Swap Agreement.
In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to the Interest Rate Swap Agreement (such guaranty the
“Guaranty” and such third party the “Guarantor”), then to the extent that the
Swap Provider fails to make any payment by the close of business on the day
it
is required to make payment under the terms of the Interest Rate Swap Agreement,
the Trust Administrator (in its capacity as Supplemental Interest Trust Trustee)
shall, promptly following actual knowledge of the Swap Provider’s failure to
pay, demand that the Guarantor make any and all payments then required to be
made by the Guarantor pursuant to such Guaranty; provided, that the Trust
Administrator (in its capacity as Supplemental Interest Trust Trustee) shall
in
no event be liable for any failure or delay in the performance by the Swap
Provider or any Guarantor of its obligations hereunder or pursuant to the
Interest Rate Swap Agreement and the Guaranty, nor for any special, indirect
or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits) in connection therewith.
Upon
an
early termination of the Interest Rate Swap Agreement other than in connection
with the optional termination of the Trust, the Trust Administrator (in its
capacity as Supplemental Interest Trust Trustee) will, at the direction of
the
Depositor, use reasonable efforts to appoint a successor swap provider to enter
into a new interest rate swap agreement on terms substantially similar to the
Interest Rate Swap Agreement, with a successor swap provider meeting all
applicable eligibility requirements. If the Trust Administrator (in its capacity
as Supplemental Interest Trust Trustee) receives a termination payment from
the
Swap Provider in connection with such early termination, the Trust Administrator
(in its capacity as Supplemental Interest Trust Trustee) will apply such
termination payment to any upfront payment required to appoint the successor
swap provider. If the Trust Administrator (in its capacity as Supplemental
Interest Trust Trustee) is required to pay a termination payment to the Swap
Provider in connection with such early termination, the Trust Administrator
(in
its capacity as Supplemental Interest Trust Trustee) will apply any upfront
payment received from the successor swap provider to pay such termination
payment.
If
the
Trust Administrator (in its capacity as Supplemental Interest Trust Trustee)
is
unable to appoint a successor swap provider within 30 days of the early
termination, then the Trust Administrator (in its capacity as Supplemental
Interest Trust Trustee) will deposit any termination payment received from
the
original Swap Provider into a separate, non-interest bearing reserve account
and
will, on each subsequent Distribution Date, withdraw from the amount then
remaining on deposit in such reserve account an amount equal to the Net Swap
Payment, if any, that would have been paid to the Trust Administrator (in its
capacity as Supplemental Interest Trust Trustee) by the original Swap Provider
calculated in accordance with the terms of the original Interest Rate Swap
Agreement, and distribute such amount in accordance with the terms of Section
4.01(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-20. The Certificates of each Class will be issuable in registered
form
only, in denominations of authorized Percentage Interests as described in the
definition thereof. Each Certificate will share ratably in all rights of the
related Class.
Upon
original issue, the Certificates shall be executed by the Trust Administrator
and authenticated and delivered by the Trust Administrator to or upon the order
of the Depositor. The Certificates shall be executed by manual or facsimile
signature on behalf of the Trust Administrator by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who
were
at any time the proper officers of the Trust Administrator shall bind the Trust
Administrator notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided herein executed by the Trust
Administrator by manual signature, and such certificate of authentication shall
be conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder. All Certificates shall be dated
the
date of their authentication.
(b) The
Class
A Certificates and the Mezzanine Certificates shall initially be issued as
one
or more Certificates held by the Book-Entry Custodian or, if appointed to hold
such Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below, registration
of
such Certificates may not be transferred by the Trust Administrator except
to
another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to definitive, fully registered Certificates
(“Definitive Certificates”) in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in
the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents
or
of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures. The Trust Administrator is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance herewith and in accordance with the agreement that it has with the
Depository authorizing it to act as such. The Book-Entry Custodian may, and,
if
it is no longer qualified to act as such, the Book-Entry Custodian shall,
appoint, by a written instrument delivered to the Depositor, the Master Servicer
and the Trust Administrator, any other transfer agent (including the Depository
or any successor Depository) to act as Book-Entry Custodian under such
conditions as the predecessor Book-Entry Custodian and the Depository or any
successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of any such appointment of other than the Depository. If the Trust
Administrator resigns or is removed in accordance with the terms hereof, the
successor trust administrator or, if it so elects, the Depository shall
immediately succeed to its predecessor’s duties as Book-Entry Custodian. The
Depositor shall have the right to inspect, and to obtain copies of, any
Certificates held as Book-Entry Certificates by the Book-Entry
Custodian.
The
Trustee, the Trust Administrator, the Master Servicer and the Depositor may
for
all purposes (including the making of payments due on the Book-Entry
Certificates) deal with the Depository as the authorized representative of
the
Certificate Owners with respect to the Book-Entry Certificates for the purposes
of exercising the rights of Certificateholders hereunder. The rights of
Certificate Owners with respect to the Book-Entry Certificates shall be limited
to those established by law and agreements between such Certificate Owners
and
the Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository
as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trust Administrator may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record
date.
If
(i)(A)
the Depositor advises the Trust Administrator in writing that the Depository
is
no longer willing or able to properly discharge its responsibilities as
Depository, and (B) the Depositor is unable to locate a qualified successor
or
(ii) after the occurrence of a Servicer Event of Default or a Master Servicer
Event of Default, Certificate Owners representing in the aggregate not less
than
51% of the Ownership Interests of the Book-Entry Certificates advise the Trust
Administrator through the Depository, in writing, that the continuation of
a
book-entry system through the Depository is no longer in the best interests
of
the Certificate Owners, the Trust Administrator shall notify all Certificate
Owners, through the Depository, of the occurrence of any such event and of
the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trust Administrator of the Book-Entry Certificates
by the Book-Entry Custodian or the Depository, as applicable, accompanied by
registration instructions from the Depository for registration of transfer,
the
Trust Administrator shall cause the Definitive Certificates to be issued. Such
Definitive Certificates will be issued in minimum denominations of $25,000,
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $25,000 immediately prior to the issuance
of
a Definitive Certificate shall be issued in a minimum denomination equal to
the
amount represented by such Book-Entry Certificate. None of the Depositor, the
Master Servicer, the Servicer, the Trustee or the Trust Administrator shall
be
liable for any delay in the delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon
and
performed by the Trust Administrator, to the extent applicable with respect
to
such Definitive Certificates, and the Trustee and the Trust Administrator shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
SECTION
5.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Trust
Administrator shall cause to be kept at one of the offices or agencies to be
appointed by the Trust Administrator in accordance with the provisions of
Section 8.11, a Certificate Register for the Certificates in which, subject
to such reasonable regulations as it may prescribe, the Trustee shall provide
for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided.
(b) No
transfer of any Class M-11 Certificate, Class CE Certificate, Class P
Certificate or Residual Certificate (collectively, the “Private Certificates”)
shall be made unless that transfer is made pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the “1933 Act”), and an
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification. In the event that such a transfer of a Private Certificate is
to
be made without registration or qualification (other than in connection with
(i)
the initial transfer of any such Certificate by the Depositor to an Affiliate
of
the Depositor or, in the case of the Class R-X Certificates, the first transfer
by an Affiliate of the Depositor or the first transfer by the initial transferee
of an Affiliate of the Depositor, (ii) the transfer of any such Class CE, Class
P or Residual Certificate to the issuer under the Indenture or the indenture
trustee under the Indenture or (iii) a transfer of any such Certificate from
the
issuer under the Indenture or the indenture trustee under the Indenture to
the
Depositor or an Affiliate of the Depositor), the Trustee and the Certificate
Registrar shall each require receipt of: (i) if such transfer is purportedly
being made in reliance upon Rule 144A under the 1933 Act, written certifications
from the Certificateholder desiring to effect the transfer and from such
Certificateholder’s prospective transferee, substantially in the forms attached
hereto as Exhibit F-1; and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
(which Opinion of Counsel shall not be an expense of the Depositor, the Trustee,
the Trust Administrator, the Master Servicer in its capacity as such, the
Servicer, any Sub-Servicer or the Trust Fund), together with copies of the
written certification(s) of the Certificateholder desiring to effect the
transfer and/or such Certificateholder’s prospective transferee upon which such
Opinion of Counsel is based, if any. None of the Depositor, the Master Servicer,
the Servicer, the Trust Administrator, the Certificate Registrar or the Trustee
is obligated to register or qualify the Private Certificates under the 1933
Act
or any other securities laws or to take any action not otherwise required under
this Agreement to permit the transfer of such Certificates without registration
or qualification.
Any
Certificateholder desiring to effect the transfer of any such Certificate shall,
and does hereby agree to, indemnify the Trustee, the Trust Administrator, the
Depositor and the Master Servicer against any liability that may result if
the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No
transfer of any Class CE Certificate shall be made unless the transferee of
such
Class CE Certificate provides to the Trust Administrator, the Swap Provider
and
the Interest Rate Cap Provider the appropriate tax certification form (i.e.,
IRS
Form W-9 or IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable (or
any
successor thereto))
as a
condition to such transfer and agrees to update
such forms (i) upon expiration of any such form, (ii) as required under then
applicable U.S. Treasury Regulations and (iii) promptly upon learning that
any
IRS Form W-9
or
IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable
(or any
successor thereto), has become obsolete or incorrect. In addition, no transfer
of any Class CE Certificate shall be made if such transfer would cause the
Supplemental Interest Trust or the Cap Account to be beneficially owned by
two
or more persons for federal income tax purposes, or continue to be so treated,
unless (a) each proposed transferee of such Class CE Certificate complies with
the foregoing conditions, (b) the proposed majority Holder of the Class CE
Certificates (or each Holder, if there is or would be no majority Holder) (A)
provides, or causes to be provided, on behalf of the Supplemental Interest
Trust
and the Cap Account, if applicable, the appropriate tax certification form
that
would be required from the Supplemental Interest Trust or the Cap Account,
as
applicable, to eliminate any withholding or deduction for taxes from amounts
payable by the Swap Provider or the Interest Rate Cap Provider, pursuant to
the
Interest Rate Swap Agreement or the Interest Rate Cap Agreement, to the Trust
Administrator, the Swap Provider and the Interest Rate Cap Provider on behalf
of
the Supplemental Interest Trust or the Cap Account (i.e., IRS Form W-9 or IRS
Form W-8BEN, W-8IMY or W-8ECI, as applicable (or any successor form thereto)
as
a condition to such transfer, together with any applicable attachments) and
(B)
agrees to update such form (x) upon expiration of any such form, (y) as required
under then applicable U.S. Treasury regulations and (z) promptly upon learning
that such form has become obsolete or incorrect. If, under applicable U.S.
Treasury regulations, such tax certification form may only be signed by a
trustee acting on behalf of the Supplemental Interest Trust or the Cap Account,
then the Supplemental Interest Trust Trustee or the Trust Administrator, as
applicable, shall sign such certification form if so requested by a Holder
of
the Class CE Certificates.
Upon
receipt of any such tax certification form from a transferee of any Class CE
Certificate pursuant to the immediately preceding paragraph, the Trust
Administrator shall provide a copy of any such tax certification form to the
Swap Provider and the Interest Rate Cap Provider, upon its request, solely
to
the extent the Swap Provider or the Interest Rate Cap Provider has not received
such IRS Form directly from the Holder of the Class CE Certificates. Each Holder
of a Class CE Certificate by its purchase of such Certificate is deemed to
consent to any such IRS Form being so forwarded. Upon the request of the Swap
Provider or the Interest Rate Cap Provider, the Trust Administrator shall be
required to forward any tax certification received by it to the Swap Provider
or
the Interest Rate Cap Provider at the last known address provided to it, and,
subject to Section 8.01, shall not be liable for the receipt of such tax
certification by the Swap Provider or the Interest Rate Cap Provider, nor any
action taken or not taken by the Swap Provider or the Interest Rate Cap Provider
with respect to such tax certification. Any purported sales or transfers of
any
Class CE Certificate to a transferee which does not comply with the requirements
of the preceding paragraph shall be deemed null and void under this Agreement.
The Trust Administrator shall have no duty to take any action to correct any
misstatement or omission in any tax certification provided to it by the Holder
of the Class CE Certificates and forwarded to the Swap Provider or the Interest
Rate Cap Provider.
(c) No
transfer of a Class CE Certficate, Class P Certificate, Residual Certificate
or
any interest therein shall be made to any Plan, any Person acting, directly
or
indirectly, on behalf of any such Plan or any Person acquiring such Certificates
with “Plan Assets” of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C. F. R. § 2510.3-101 (“Plan Assets”), as certified
by such transferee in the form of Exhibit G, unless the Trust Administrator
is
provided with an Opinion of Counsel for the benefit of the Trustee, the Trust
Administrator, the Depositor, the Master Servicer and the Servicer and on which
they may rely which establishes to the satisfaction of the Depositor, the
Trustee, the Trust Administrator, the Servicer and the Master Servicer that
the
purchase of such Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Master
Servicer, the Servicer, the NIMS Insurer, the Trust Administrator, the Trustee
or the Trust Fund to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Master Servicer, the Servicer, the Trust Administrator,
the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any
certification will be required in connection with (i) the initial transfer
of
any Class CE Certficate, Class P Certificate or Residual Certificate by the
Depositor to an Affiliate of the Depositor, (ii) the transfer of any Class
CE
Certficate, Class P Certificate or Residual Certificate to the issuer under
the
Indenture or the indenture trustee under the Indenture or (iii) a transfer
of
any Class CE Certficate, Class P Certificate or Residual Certificate from the
issuer under the Indenture or the indenture trustee under the Indenture to
the
Depositor or an Affiliate of the Depositor (in which case, the Transferee
thereof shall have deemed to have represented that it is not a Plan or a Person
investing Plan Assets) and the Trust Administrator shall be entitled to
conclusively rely upon a representation (which, upon the request of the Trust
Administrator, shall be a written representation) from the Transferor of the
status of such transferee as an affiliate of the Depositor.
Any
transferee of a Class A Certificate or Mezzanine Certificate acquired prior
to
the termination of the Supplemental Interest Trust shall be deemed to represent
that either (i) it is not a Plan or purchasing with assets of a Plan or (ii)(A)
such Plan is an accredited investor within the meaning of the Exemption and
(B)
such acquisition or holding is eligible for the exemptive relief available
under
Department of Labor Prohibited Transaction Class Exemption (“PTE”) 84-14, XXX
00-00, XXX 00-0, XXX 95-60 or PTE 96-23 or in the case of a Class M-11
Certificate, PTE 95-60.
Subsequent
to the termination of the Supplemental Interest Trust, each beneficial owner
of
such Mezzanine Certificate or any interest therein shall be deemed to have
represented, by virtue of its acquisition or holding of that certificate or
interest therein, that either (i) it is not a Plan or investing with “Plan
Assets,” (ii) other than in the case of a Class M-11 Certificate, it has
acquired and is holding such Mezzanine Certificate in reliance on the Exemption,
and that it understands that there are certain conditions to the availability
of
the Exemption, including that the Mezzanine Certificate must be rated, at the
time of purchase not lower than “BBB-” (or its equivalent) by S&P, Xxxxx’x
or Fitch or (iii)(1) it is an insurance company, (2) the source of funds used
to
acquire or hold the certificate or interest therein is an “insurance company
general account,” as such term is defined in PTE 95-60, and (3) the conditions
in Sections I and III of PTE 95-60 have been satisfied.
If
any
Certificate or any interest therein is acquired or held in violation of the
provisions of the preceding three paragraphs, the next preceding permitted
beneficial owner will be treated as the beneficial owner of that Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any such Certificate
or interest therein was effected in violation of the provisions of the preceding
three paragraphs shall indemnify and hold harmless the Depositor, the Master
Servicer, the Servicer, the NIMS Insurer, the Trust Administrator, the Trustee
and the Trust Fund from and against any and all liabilities, claims, costs
or
expenses incurred by those parties as a result of that acquisition or
holding.
(d) (i) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
authorized the Trust Administrator or its designee under clause (iii)(A) below
to deliver payments to a Person other than such Person and to negotiate the
terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of Transfer and to do all other things necessary in connection
with
any such sale. The rights of each Person acquiring any Ownership Interest in
a
Residual Certificate are expressly subject to the following
provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trust
Administrator of any change or impending change in its status as a Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Trust Administrator shall require delivery to it, and shall
not
register the Transfer of any Residual Certificate until its receipt of, an
affidavit and agreement (a “Transfer Affidavit and Agreement,” in the form
attached hereto as Exhibit F-2) from the proposed Transferee, in form and
substance satisfactory to the Trust Administrator, representing and warranting,
among other things, that such Transferee is a Permitted Transferee, that it
is
not acquiring its Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in a Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this Section 5.02(d)
and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if a Responsible Officer of the Trust Administrator
who
is assigned to this transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(ii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement in the form
attached hereto as Exhibit F-2 from any other Person to whom such Person
attempts to transfer its Ownership Interest in a Residual Certificate and (y)
not to transfer its Ownership Interest unless it provides a Transferor Affidavit
(in the form attached hereto as Exhibit F-2) to the Trust Administrator stating
that, among other things, it has no actual knowledge that such other Person
is
not a Permitted Transferee.
Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the Trust
Administrator written notice that it is a “pass-through interest holder” within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Residual Certificate,
if
it is, or is holding an Ownership Interest in a Residual Certificate on behalf
of, a “pass-through interest holder.”
(iii) The
Trust
Administrator will register the Transfer of any Residual Certificate only if
it
shall have received the Transfer Affidavit and Agreement and all of such other
documents as shall have been reasonably required by the Trust Administrator
as a
condition to such registration. In addition, no Transfer of a Residual
Certificate shall be made unless the Trust Administrator shall have received
a
representation letter from the Transferee of such Certificate to the effect
that
such Transferee is a Permitted Transferee.
(A) If
any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights as holder thereof retroactive to the date of registration
of
such Transfer of such Residual Certificate. The Trust Administrator shall be
under no liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.02(d) or for
making any payments due on such Certificate to the holder thereof or for taking
any other action with respect to such holder under the provisions of this
Agreement.
(B) If
any
purported Transferee shall become a holder of a Residual Certificate in
violation of the restrictions in this Section 5.02(d) and to the extent
that the retroactive restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Trust Administrator shall have the right, without notice
to the holder or any prior holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the Trust Administrator on
such
terms as the Trust Administrator may choose. Such purported Transferee shall
promptly endorse and deliver each Residual Certificate in accordance with the
instructions of the Trust Administrator. Such purchaser may be the Trust
Administrator itself or any Affiliate of the Trust Administrator. The proceeds
of such sale, net of the commissions (which may include commissions payable
to
the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted
by the Trust Administrator to such purported Transferee. The terms and
conditions of any sale under this clause (iii)(B) shall be determined in the
sole discretion of the Trust Administrator, and the Trust Administrator shall
not be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iv) The
Trust
Administrator shall make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in
a
Residual Certificate to any Person who is a Disqualified Organization, including
the information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common Trust, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is a Disqualified Organization. Reasonable compensation for providing
such
information may be accepted by the Trust Administrator.
(v) The
provisions of this Section 5.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Trust Administrator and the NIMS Insurer at the expense of
the
party seeking to modify, add to or eliminate any such provision the
following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Trust
Administrator and the NIMS Insurer, to the effect that such modification of,
addition to or elimination of such provisions will not cause any Trust REMIC
to
cease to qualify as a REMIC and will not cause any Trust REMIC to be subject
to
an entity-level tax caused by the Transfer of any Residual Certificate to a
Person that is not a Permitted Transferee or a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a Residual
Certificate to a Person that is not a Permitted Transferee.
The
Trust
Administrator shall forward to the NIMS Insurer a copy of the items delivered
to
it pursuant to (A) and (B) above.
(e) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Trust Administrator maintained for
such purpose pursuant to Section 8.11, the Trust Administrator shall
execute, authenticate and deliver, in the name of the designated Transferee
or
Transferees, one or more new Certificates of the same Class of a like aggregate
Percentage Interest.
(f) At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with authorized denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Trust Administrator maintained for
such
purpose pursuant to Section 8.11. Whenever any Certificates are so
surrendered for exchange, the Trust Administrator shall execute, authenticate
and deliver, the Certificates which the Certificateholder making the exchange
is
entitled to receive. Every Certificate presented or surrendered for transfer
or
exchange shall (if so required by the Trust Administrator) be duly endorsed
by,
or be accompanied by a written instrument of transfer in the form satisfactory
to the Trust Administrator duly executed by, the Holder thereof or his attorney
duly authorized in writing. In addition, (i) with respect to each Class R
Certificate, the holder thereof may exchange, in the manner described above,
such Class R Certificate for three separate certificates, each representing
such
holder’s respective Percentage Interest in the Class R-I Interest, the Class
R-II Interest and the Class R-III Interest, respectively, in each case that
was
evidenced by the Class R Certificate being exchanged and (ii) with respect
to
each Class R-X Certificate, the holder thereof may exchange, in the manner
described above, such Class R-X Certificate for 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 Servicer, the NIMS Insurer, the Trust
Administrator, the Trustee and any agent of any of them may treat the Person
in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.01 and for all
other purposes whatsoever, and none of the Depositor, the Master Servicer,
the
Servicer, the NIMS Insurer, the Trust Administrator, the Trustee or any agent
of
any of them shall be affected by notice to the contrary.
SECTION
5.05. Certain
Available Information.
On
or
prior to the date of the first sale of any Private Certificate to an Independent
third party, the Depositor shall provide to the Trust Administrator ten copies
of any private placement memorandum or other disclosure document used by the
Depositor in connection with the offer and sale of such Certificates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof
to
the Trust Administrator, the Depositor promptly shall inform the Trust
Administrator of such event and shall deliver to the Trust Administrator ten
copies of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Trust Administrator shall maintain at its Corporate
Trust Office and shall make available free of charge during normal business
hours for review by any Holder of a Certificate or any Person identified to
the
Trust Administrator as a prospective transferee of a Certificate, originals
or
copies of the following items: (i) in the case of a Holder or prospective
transferee of a Private Certificate, the related private placement memorandum
or
other disclosure document relating to such Class of Certificates, in the form
most recently provided to the Trust Administrator; and (ii) in all cases, (A)
this Agreement and any amendments hereof entered into pursuant to
Section 11.01, (B) all Monthly Statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trust Administrator since the Closing
Date, (D) any and all Officers’ Certificates delivered to the Trust
Administrator by the Servicer since the Closing Date to evidence the Servicer’s
determination that any Advance or Servicing Advance was, or if made, would
be a
Nonrecoverable Advance or Nonrecoverable Servicing Advance, respectively, and
(E) any and all Officers’ Certificates delivered to the Trust Administrator by
the Servicer since the Closing Date pursuant to Section 4.04(a). Copies and
mailing of any and all of the foregoing items will be available from the Trust
Administrator upon request at the expense of the Person requesting the
same.
ARTICLE
VI
THE
DEPOSITOR, THE SERVICER AND THE MASTER SERVICER
SECTION
6.01. Liability
of the Depositor, the Servicer and the Master Servicer.
The
Depositor, the Servicer and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement upon them in their respective capacities as Depositor,
Servicer and Master Servicer and undertaken hereunder by the Depositor, the
Servicer and the Master Servicer herein.
SECTION
6.02. Merger
or
Consolidation of the Depositor, the Servicer or the Master
Servicer.
Subject
to the following paragraph, the Depositor will keep in full effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation. Subject to the following paragraph, the
Servicer will keep in full effect its existence, rights and franchises as a
national banking association under the laws of the United States of America
or
as a limited liability company under the laws of the State of Delaware, as
the
case may be. Subject to the following paragraph, the Master Servicer will keep
in full effect its existence, rights and franchises as a national banking
association and shall ensure that it (or an Affiliate) maintains its
qualification as an approved conventional seller/servicer for Xxxxxx Xxx or
Xxxxxxx Mac in good standing. The Depositor, the Servicer and the Master
Servicer each will obtain and preserve its qualification to do business as
a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
the
Certificates or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
The
Depositor, the Servicer or the Master Servicer may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets
to
any Person, in which case any Person resulting from any merger or consolidation
to which the Depositor, the Servicer or the Master Servicer shall be a party,
or
any Person succeeding to the business of the Depositor, the Servicer or the
Master Servicer, shall be the successor of the Depositor or the Master Servicer,
as the case may be, hereunder, without the execution or filing of any paper
or
any further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding; provided, however, that the successor or surviving
Person to the Servicer shall be qualified to service mortgage loans on behalf
of
Xxxxxx Mae or Xxxxxxx Mac; and provided further that the Rating Agencies’
ratings of the Class A Certificates and the Mezzanine Certificates in effect
immediately prior to such merger or consolidation will not be qualified, reduced
or withdrawn as a result thereof (as evidenced by a letter to such effect from
the Rating Agencies).
SECTION
6.03. Limitation
on Liability of the Depositor, the Servicer, the Master Servicer and
Others.
(a) The
Servicer (but not the Trustee if it is required to succeed 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 the failure of the Servicer
to perform its duties and service the Mortgage Loans in compliance with the
terms of this Agreement.
The
Servicer shall immediately notify the NIMS Insurer, the Trustee, the Trust
Administrator, the Master Servicer and the Depositor if a claim is made that
may
result in such claims, losses, penalties, fines, forfeitures, legal fees or
related costs, judgments, or any other costs, fees and expenses, and the
Servicer shall assume (with the consent of the Trust Administrator, the
Depositor, the Master Servicer and the Trustee, as applicable) the defense
of
any such claim and pay all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered against the NIMS Insurer, the Trustee, the Trust
Administrator, the Master Servicer and/or the Depositor in respect of such
claim. The provisions of this Section 6.03 shall survive the termination of
this
Agreement and the payment of the outstanding Certificates.
(b) The
Master Servicer agrees to indemnify the Indemnified Persons (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, the Servicer,
the NIMS Insurer and their respective officers, directors, agents and employees
and, with respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
(c) None
of
the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator,
the Servicer or any of the directors, officers, employees or agents of the
Depositor, the Master Servicer, the Trust Administrator or the Servicer shall
be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant
to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Trust
Administrator, the Servicer or any such person against any breach of warranties,
representations or covenants made herein, or against any specific liability
imposed on the Master Servicer or Servicer pursuant hereto, or against any
liability which would otherwise be imposed by reason of willful misfeasance,
bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder, in the case of the Master
Servicer, a breach of the servicing standard set forth in Section 3A.01 or
in
the case of the Servicer, a breach of the servicing standard set forth in
Section 3.01. The Depositor, the NIMS Insurer, the Master Servicer, the Trust
Administrator and the Servicer and any director, officer, employee or agent
of
the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator
or
the Servicer may rely in good faith on any document of any kind which is, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the NIMS Insurer, the Master Servicer, the
Trust Administrator, or the Servicer and any director, officer, employee or
agent of the Depositor, the NIMS Insurer, the Master Servicer, the Trust
Administrator, or the Servicer shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
(i) any legal action relating to this Agreement or the Certificates, other
than
any loss, liability or expense relating to any specific Mortgage Loan or
Mortgage Loans (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) or any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of its reckless disregard of
obligations and duties hereunder or (ii) any breach of a representation or
warranty by the Originator or any other party regarding the Mortgage Loans.
None
of the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator
or the Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, in its opinion, does not involve it in any expense or
liability; provided, however, that each of the Depositor, the NIMS Insurer,
the
Master Servicer, the Trust Administrator and the Servicer may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom (except any
loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder) shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the NIMS Insurer, the Master
Servicer, the Trust Administrator and the Servicer shall be entitled to be
reimbursed therefor from the Collection Account or Distribution Account, as
applicable, as and to the extent provided in Section 3.11 or Section 3A.12,
any
such right of reimbursement being prior to the rights of the Certificateholders
to receive any amount in the Collection Account or Distribution Account. The
Master Servicer’s, the Trust Administrator’s or Servicer’s right to indemnity or
reimbursement pursuant to this Section shall survive any termination of this
Agreement, any resignation or termination of the Master Servicer, the Trust
Administrator or the Servicer pursuant to Section 6.04 or 7.01 with respect
to
any losses, expenses, costs or liabilities arising prior to such resignation
or
termination (or arising from events that occurred prior to such resignation
or
termination).
SECTION
6.04. Limitation
on Resignation of the Servicer; Assignment of Master Servicing.
(a) Except
as
otherwise provided herein, the Servicer shall not resign from the obligations
and duties hereby imposed on it except upon determination that its duties
hereunder are no longer permissible under applicable law. Any such determination
pursuant to the preceding sentence permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect obtained at the
expense of the resigning Servicer and delivered to the Trustee, the Trust
Administrator, the Master Servicer and the NIMS Insurer. No resignation of
the
Servicer shall become effective until the Master Servicer or (if the Master
Servicer is the Servicer) the Trustee or a successor servicer acceptable to
the
NIMS Insurer shall have assumed the 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 Servicer shall not assign or transfer any of
its
rights, benefits, privileges or obligations hereunder to any other Person,
or
delegate to or subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by the
Servicer hereunder. The foregoing prohibition on assignment shall not prohibit
the Servicer from designating a Sub-Servicer as payee of any indemnification
amount payable to the Servicer hereunder; provided, however, that as provided
in
Section 3.06 hereof, no Sub-Servicer shall be a third-party beneficiary
hereunder and the parties hereto shall not be required to recognize any
Sub-Servicer as an indemnitee under this Agreement. If, pursuant to any
provision hereof, the duties of the Servicer are transferred to a successor
servicer, the entire amount of the Servicing Fee and other compensation payable
to the Servicer pursuant hereto shall thereafter be payable to such successor
servicer.
(b) The
Master Servicer may sell, assign or delegate its rights, duties and obligations
as Master Servicer under this Agreement in their entirety; provided, however,
that: (i) the purchaser or transferee accepting such sale, assignment and
delegation (a) shall be a Person qualified to service mortgage loans for Xxxxxx
Xxx or Xxxxxxx Mac; (b) shall have a net worth of not less than $50,000,000
(unless otherwise approved by each Rating Agency pursuant to clause (ii) below);
(c) shall be reasonably satisfactory to the NIMS Insurer and the Trustee (as
evidenced in a writing signed by each of the NIMS Insurer and the Trustee);
and
(d) shall execute and deliver to the Trustee and the NIMS Insurer an agreement,
in form and substance reasonably satisfactory to the Trustee and the NIMS
Insurer, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by it as master servicer under this Agreement from and after the
effective date of such assumption agreement; (ii) each Rating Agency shall
be
given prior written notice of the identity of the proposed successor to the
Master Servicer and shall confirm in writing to the Master Servicer, the NIMS
Insurer and the Trustee that any such sale, assignment or delegation would
not
result in a withdrawal or a downgrading of the rating on any Class of
Certificates in effect immediately prior to such sale, assignment or delegation;
and (iii) the Master Servicer shall deliver to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to such action under this Agreement have been fulfilled and such
action is permitted by and complies with the terms of this Agreement. No such
sale, assignment or delegation shall affect any liability of the Master Servicer
arising prior to the effective date thereof.
SECTION
6.05. Successor
Master Servicer.
In
connection with the appointment of any successor Master Servicer or the
assumption of the duties of the Master Servicer, the Depositor, the NIMS
Insurer, the Trust Administrator or the Trustee may make such arrangements
for
the compensation of such successor Master Servicer out of payments on the
Mortgage Loans as the Depositor, the NIMS Insurer or the Trustee and such
successor Master Servicer shall agree. If the successor Master Servicer does
not
agree that such market value is a fair price, such successor Master Servicer
shall obtain two quotations of market value from third parties actively engaged
in the master servicing of single-family mortgage loans. Notwithstanding the
foregoing, the compensation payable to a successor Master Servicer may not
exceed the compensation which the Master Servicer would have been entitled
to
retain if the Master Servicer had continued to act as Master Servicer
hereunder.
SECTION
6.06. Rights
of
the Depositor in Respect of the Servicer.
The
Servicer shall afford (and any Sub-Servicing Agreement shall provide that each
Sub-Servicer shall afford) the Depositor, the NIMS Insurer, the Master Servicer,
the Trust Administrator and the Trustee, upon reasonable notice, during normal
business hours, reasonable access to all records maintained by the Servicer
(and
any such Sub-Servicer) in respect of the Servicer’s rights and obligations
hereunder and access to officers of the Servicer (and those of any such
Sub-Servicer) responsible for such obligations. Upon request, the Servicer
shall
furnish to the Depositor, the NIMS Insurer, the Master Servicer, the Trust
Administrator and the Trustee its (and any such Sub-Servicer’s) most recent
financial statements and such other information relating to the Servicer’s
capacity to perform its obligations under this Agreement as it possesses (and
that any such Sub-Servicer possesses). To the extent such information is not
otherwise available to the public, the Depositor, the NIMS Insurer, the Master
Servicer, the Trust Administrator and the Trustee shall not disseminate any
information obtained pursuant to the preceding two sentences without the
Servicer’s written consent, except as required pursuant to this Agreement or to
the extent that it is appropriate to do so (i) in working with legal counsel,
auditors, taxing authorities or other governmental agencies or (ii) pursuant
to
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Depositor and
the
Trustee or the Trust Fund, and in any case, the Depositor, the NIMS Insurer,
the
Master Servicer, the Trust Administrator or the Trustee, as the case may be,
shall use its best efforts to assure the confidentiality of any such
disseminated non-public information.
The
Depositor may, but is not obligated to, enforce the obligations of the Servicer
under this Agreement and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Servicer under this
Agreement or exercise the rights of the Servicer under this Agreement; provided
that the Servicer shall not be relieved of any of its obligations under this
Agreement by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Servicer and is not obligated to supervise the performance
of the Servicer under this Agreement or otherwise.
SECTION
6.07. [Reserved].
SECTION
6.08. Duties
of
the Credit Risk Manager.
The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Xxxxxxx Fixed Income Services Inc. as 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 Servicer and the Master Servicer. The Credit Risk Manager shall look solely
to the Servicer and the Master Servicer 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.
With
respect to each Distribution Date, on or about the 15th
calendar
day of the month following the month in which such Distribution Date occurs,
the
Credit Risk Manager shall make available to the Depositor, the Trustee, the
Trust Administrator, the Servicer, the Master Servicer, the Swap Provider and
the Cap Provider, the following reports:
(i) Watchlist
Report: A listing of individual Mortgage Loans that are of concern to the Credit
Risk Manager. Each Watchlist Report shall contain a listing of Mortgage Loans
in
any delinquency status, including current and paid-off loans, and may contain
the comments of the Credit Risk Manager in its sole discretion. The Watchlist
Report shall be presented in substantially the same format attached hereto
as
Exhibit S-1;
(ii) Loss
Severity Report: A compilation and summary of all losses, indicating the loan
loss severity for each Mortgage Pool. Each Loss Severity Report shall include
detail of all losses reported by the Servicer as Realized Losses, except those
for which the Servicer has not provided detail adequate for reporting purposes.
The Loss Severity Report shall be presented in substantially the same format
attached hereto as Exhibit S-2;
(iii) Prepayment
Report: A summary of Prepayment Charges assessed or waived by the Servicer.
The
Prepayment Report shall be presented in substantially the same format attached
hereto as Exhibit S-3; and
(iv) Analytics
Report: Analytics Reports shall include statistical and/or graphical portrayals
of (a) the delinquency trend, over time, of the Mortgage Loans; (b) the constant
prepayment rate “CPR” experience of the Mortgage Loans; and (c) the Standard
Default Assumption experience of the Mortgage Loans. The Analytics Report shall
be presented in substantially the same format attached hereto as Exhibit
S-4.
Upon
request of the Depositor, the Credit Risk Manager shall make such reports and
any additional information reasonably requested by the Depositor publicly
available each month to Certificateholders, the Trustee, the Trust
Administrator, the Master Servicer and the Rating Agencies via the Credit Risk
Manager’s internet website. The Credit Risk Manager’s internet website shall
initially be located at xxxxx://xxxxxxx.xxxxxxx.xxx.
The
user name for access to the website shall be the Certificateholder’s e-mail
address and the password shall be “MABS 2006-HE5”. The Master Servicer shall not
have any obligation to review such reports or otherwise monitor or supervise
the
activities of the Credit Risk Manager.
SECTION
6.09. Limitation
Upon Liability of the Credit Risk Manager.
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents shall be under any liability to the Trustee, the Certificateholders,
the
Trust Administrator, the Servicer, the Master Servicer or the Depositor for
any
action taken or for refraining from the taking of any action made in good faith
pursuant to this Agreement, in reliance upon information provided by the
Servicer or the Master Servicer under the related Credit Risk Management
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Credit Risk Manager or any such person against liability
that would otherwise be imposed by reason of willful malfeasance or bad faith
in
its performance of its duties. The Credit Risk Manager and any director,
officer, employee, or agent of the Credit Risk Manager may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder, and may rely in good faith
upon
the accuracy of information furnished by the Servicer or the Master Servicer
pursuant to the related Credit Risk Management Agreement in the performance
of
its duties thereunder and hereunder.
SECTION
6.10. Removal
of the Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66 2/3% of the Voting Rights in the Trust Fund, in the
exercise of its or their sole discretion. The Certificateholders shall provide
written notice of the Credit Risk Manager’s removal to the Trust Administrator.
Upon receipt of such notice, the Trust Administrator shall provide written
notice to the Credit Risk Manager of its removal, which shall be effective
upon
receipt of such notice by the Credit Risk Manager.
ARTICLE
VII
DEFAULT
SECTION
7.01. Servicer
Events of Default and Master Servicer Events of Termination.
(a) “Servicer
Event of Default,” wherever used herein, means any one of the following
events:
(i) any
failure by the Servicer to remit to the Trust Administrator for distribution
to
the Certificateholders any payment (other than an Advance required to be made
from its own funds on any Servicer Remittance Date pursuant to Section 4.03)
required to be made under the terms of the Certificates and this Agreement
which
continues unremedied for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Depositor or the Trust Administrator (in
which
case notice shall be provided by telecopy), or to the Servicer, the Depositor
and the Trust Administrator by the NIMS Insurer or the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(ii) other
than with respect to clause (vi) below, any failure on the part of the Servicer
duly to observe or perform in any material respect any other of the covenants
or
agreements on the part of the Servicer contained in this Agreement, or the
breach by the Servicer of any representation and warranty contained in Section
2.05, which continues unremedied for a period of 30 days (or if such failure
or
breach cannot be remedied within 30 days, then such remedy shall have been
commenced within 30 days and diligently pursued thereafter; provided, however,
that in no event shall such failure or breach be allowed to exist for a period
of greater than 90 days) after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given
to the Servicer by the Depositor or the Trust Administrator or to the Servicer,
the Depositor and the Trust Administrator by the NIMS Insurer or the Holders
of
Certificates entitled to at least 25% of the Voting Rights and (ii) actual
knowledge of such failure by a Servicing Officer of the Servicer;
or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed
for a
period of 90 days; or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
(v) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) any
failure by the Servicer to timely comply with its obligations pursuant to
Section 3.20, Section 3.21 or Section 4.06 hereof (in each case, taking into
account any applicable cure periods);
(vii) any
failure of the Servicer to make any Advance on any Servicer Remittance Date
required to be made from its own funds pursuant to Section 4.03 which continues
unremedied until 3:00 p.m. New York time on the Business Day following the
Servicer Remittance Date.
If
(a) a
Servicer Event of Default described in clauses (i) through (vi) of this Section
shall occur, then, and in each and every such case, so long as such Servicer
Event of Default shall not have been remedied, the Depositor, the Master
Servicer, the Trustee or the Trust Administrator may, and at the written
direction of the Holders of Certificates entitled to at least 51% of Voting
Rights, or at the direction of the NIMS Insurer, the Trustee shall or (b) a
Servicer Event of Default described in clause (vii) of this Section shall occur
and the Trustee or the Master Servicer has, at the direction of the Depositor,
determined to terminate the Servicer, then the Trustee, shall, by notice in
writing to the Servicer, the Master Servicer and the Depositor, terminate all
of
the rights and obligations of the Servicer in its capacity as Servicer under
this Agreement, to the extent permitted by law, and in and to the Mortgage
Loans
and the proceeds thereof. If a Servicer Event of Default described in clause
(vii) hereof shall occur, the Trustee shall, by notice in writing to the
Servicer, the Depositor, the Master Servicer and the NIMS Insurer, terminate
all
of the rights and obligations of the Servicer in its capacity as Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof.
Subject to Section 7.02 hereof, on or after the receipt by the Servicer of
such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested
in
the Master Servicer or if the Master Servicer is the 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 Servicer, any and all documents and other instruments and to
do
or accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Servicer agrees to promptly (and in any event no later than
ten
Business Days subsequent to such notice) provide the Master Servicer or the
Trustee, as applicable, with all documents and records requested by it to enable
it to assume the Servicer’s functions under this Agreement, and to cooperate
with the Master Servicer or the Trustee, as applicable, in effecting the
termination of the Servicer’s responsibilities and rights under this Agreement,
including, without limitation, the transfer within one Business Day to the
Master Servicer or the Trustee, as applicable, for administration by it of
all
cash amounts which at the time shall be or should have been credited by the
Servicer to the Collection Account held by or on behalf of the Servicer, the
Distribution Account or any REO Account or Servicing Account held by or on
behalf of the Servicer or thereafter be received with respect to the Mortgage
Loans or any REO Property serviced by the Servicer; provided, however, that
the
Servicer shall continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the date of such termination, whether
in respect of Advances or otherwise, and shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination, with respect
to
events occurring prior to such termination.
(b) “Master
Servicer Event of Default,” wherever used herein, means any one of the following
events:
(i) the
Master Servicer fails to cause to be deposited in the Distribution Account
any
amount so required to be deposited pursuant to this Agreement (other than an
Advance), and such failure continues unremedied for a period of 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 Master Servicer; or
(ii) the
Master Servicer fails to observe or perform in any material respect any other
material covenants and agreements set forth in this Agreement to be performed
by
it, which covenants and agreements materially affect the rights of
Certificateholders, and such failure continues unremedied for a period of 60
days after the date on which written notice of such failure, properly requiring
the same to be remedied, shall have been given to the Master Servicer by the
Trustee or the NIMS Insurer or to the Master Servicer and the Trustee by the
Holders of Certificates evidencing not less than 25% of the Voting Rights;
or
(iii) there
is
entered against the Master Servicer a decree or order by a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the winding
up or liquidation of its affairs, and the continuance of any such decree or
order is unstayed and in effect for a period of 60 consecutive days, or an
involuntary case is commenced against the Master Servicer under any applicable
insolvency or reorganization statute and the petition is not dismissed within
60
days after the commencement of the case; or
(iv) the
Master Servicer consents to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or
substantially all of its property; or the Master Servicer admits in writing
its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes
an
assignment for the benefit of its creditors, or voluntarily suspends payment
of
its obligations; or
(v) the
Master Servicer assigns or delegates its duties or rights under this Agreement
in contravention of the provisions permitting such assignment or delegation
under Section 6.05; or
(vi) any
failure of the Master Servicer to make any Advance (other than a Nonrecoverable
Advance) required to be made from its own funds pursuant to Section 4.03 by
5:00 p.m. New York time on the Business Day prior to the applicable Distribution
Date.
In
each
and every such case, so long as such Master Servicer Event of Default with
respect to the Master Servicer shall not have been remedied, either the Trustee,
the NIMS Insurer or the Holders of Certificates evidencing not less than 51%
of
the Voting Rights, by notice in writing to the Depositor, the Master Servicer
(and to the Trustee if given by such Certificateholders), with a copy to the
NIMS Insurer and the Rating Agencies, may terminate all of the rights and
obligations (but not the liabilities) of the Master Servicer under this
Agreement and in and to the Mortgage Loans and/or the REO Property master
serviced by the Master Servicer and the proceeds thereof. Upon the receipt
by
the Master Servicer of the written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates, the
Mortgage Loans, REO Property or under any other related agreements (but only
to
the extent that such other agreements relate to the Mortgage Loans or related
REO Property) shall, subject to Section 7.03, automatically and without
further action pass to and be vested in the Trustee pursuant to this
Section 7.01(b); and, without limitation, the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the Master Servicer as
attorney-in-fact or otherwise, any and all documents and other instruments
and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer agrees to cooperate with the Trustee in effecting
the termination of the Master Servicer’s rights and obligations hereunder,
including, without limitation, the transfer to the Trustee of (i) the property
and amounts which are then or should be part of the Trust Fund or which
thereafter become part of the Trust Fund; and (ii) originals or copies of all
documents of the Master Servicer reasonably requested by the Trustee to enable
it to assume the Master Servicer’s duties thereunder. In addition to any other
amounts which are then, or, notwithstanding the termination of its activities
under this Agreement, may become payable to the Master Servicer under this
Agreement, the Master Servicer shall be entitled to receive, out of any amount
received on account of a Mortgage Loan or related REO Property, that portion
of
such payments which it would have received as reimbursement under this Agreement
if notice of termination had not been given. The termination of the rights
and
obligations of the Master Servicer shall not affect any obligations incurred
by
the Master Servicer prior to such termination.
Notwithstanding
the foregoing, if a Master Servicer Event of Default described in clause (vi)
of
this Section 7.01(b) shall occur, the Trustee shall, by notice in writing
to the Master Servicer, which may be delivered by telecopy, immediately
terminate all of the rights and obligations of the Master Servicer thereafter
arising under this Agreement, but without prejudice to any rights it may have
as
a Certificateholder or to reimbursement of Advances and other advances of its
own funds, and the Trustee shall act as provided in Section 7.03 to carry
out the duties of the Master Servicer, including the obligation to make any
Advance the nonpayment of which was a Master Servicer Event of Default described
in clause (vi) of this Section 7.01(b). Any such action taken by the
Trustee must be prior to the distribution on the relevant Distribution
Date.
SECTION
7.02. Master
Servicer or Trustee to Act; Appointment of Successor Servicer.
(a) From
the
time the Servicer receives a notice of termination, the Master Servicer or
(if
the Master Servicer is the 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 Servicer in its capacity as Servicer under this Agreement
and the transactions set forth or provided for herein, and all the
responsibilities, duties and liabilities relating thereto and arising thereafter
shall be assumed by the Master Servicer or the Trustee, as applicable, (except
for any representations or warranties of the Servicer under this Agreement,
the
responsibilities, duties and liabilities contained in Section 2.05 and the
obligation to deposit amounts in respect of losses pursuant to Section 3.12)
by
the terms and provisions hereof; provided, however, the Master Servicer or
the
Trustee, as applicable, shall immediately assume the Servicer’s obligations to
make Advances pursuant to Section 4.03; provided, further, however, that if
the
Master Servicer or the Trustee, as applicable, is prohibited by law or
regulation from obligating itself to make advances regarding delinquent mortgage
loans, then the Master Servicer or the Trustee, as applicable, shall not be
obligated to make Advances pursuant to Section 4.03; and provided further,
that
any failure to perform such duties or responsibilities caused by the Servicer’s
failure to provide information required by Section 7.01(a) shall not be
considered a default by the Master Servicer or the Trustee, as applicable,
as
successor to the Servicer hereunder. It is understood and acknowledged by the
parties hereto that there will be a period of transition (not to exceed 90
days)
before the transition of servicing obligations is fully effective. As
compensation therefor, the Master Servicer or the Trustee, as applicable, shall
be entitled to the Servicing Fee and all funds relating to the Mortgage Loans
to
which the Servicer would have been entitled if it had continued to act
hereunder. Notwithstanding the above and subject to Section 7.02(b) below,
the
Master Servicer or the Trustee, as applicable, if it shall be unwilling to
so
act, or shall, if it is unable to so act or if it is prohibited by law from
making advances regarding delinquent mortgage loans or if the Holders of
Certificates entitled to at least 51% of the Voting Rights or the NIMS Insurer
so request in writing to the Trustee, promptly appoint or petition a court
of
competent jurisdiction to appoint, an established mortgage loan servicing
institution acceptable to each Rating Agency and the NIMS Insurer and having
a
net worth of not less than $15,000,000, as the successor to the Servicer under
this Agreement in the assumption of all or any part of the responsibilities,
duties or liabilities of the Servicer under this Agreement.
Pending
appointment of a successor to the 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 Servicer would otherwise
have received pursuant to Section 3.18 (or such other compensation as the Master
Servicer or the Trustee, as applicable, and such successor shall agree, not
to
exceed the Servicing Fee). The appointment of a successor servicer shall not
affect any liability of the predecessor Servicer which may have arisen under
this Agreement prior to its termination as Servicer to pay any deductible under
an insurance policy pursuant to Section 3.14 or to indemnify the NIMS Insurer
pursuant to Section 6.03, nor shall any successor servicer be liable for any
acts or omissions of the predecessor servicer or for any breach by such servicer
of any of its representations or warranties contained herein or in any related
document or agreement. The Master Servicer or the Trustee, as applicable, and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. All reasonable Servicing
Transfer Costs shall be paid by the predecessor servicer upon presentation
of
reasonable documentation of such costs, and if such predecessor servicer
defaults in its obligation to pay such costs, such costs shall be paid by the
successor servicer or the Master Servicer or the Trustee, as applicable (in
which case the successor servicer or the Master Servicer or the Trustee, as
applicable, shall be entitled to reimbursement therefor from the assets of
the
Trust Fund).
(b) No
appointment of a successor to the Servicer under this Agreement shall be
effective until the assumption by the successor of all of the Servicer’s
responsibilities, duties and liabilities hereunder. In connection with such
appointment and assumption described herein, the Master Servicer or the Trustee,
as applicable, may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the Servicer as such hereunder. The Depositor, the Trustee, the Trust
Administrator, the Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Pending appointment of a successor to the Servicer under this
Agreement the Master Servicer or the Trustee, as applicable, shall act in such
capacity as hereinabove provided.
Any
successor to the Servicer, including the Master Servicer or the Trustee, as
applicable, shall during the term of its service as servicer continue to service
and administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Servicer hereunder and a
fidelity bond in respect of its officers, employees and agents to the same
extent as the 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 the Servicer shall have received a notice of a
Servicer Event of Default pursuant to Section 7.01, or a default under a loan
agreement pursuant to Section 6.04 or 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 Servicer and to make all Advances that would otherwise be
made by the Master Servicer or the Trustee, as applicable, under Section 7.01
as
of the date of such appointment. Any proceeds received in connection with the
appointment of such successor servicer (after deduction of any expenses incurred
in connection with the servicing transfer) shall be the property of the
terminated Servicer or its designee. Notwithstanding the foregoing, in the
event
of a Servicer Event of Default pursuant to Section 7.01(a)(vii), either (i)
the
Servicer shall remit the amount of the required Advance by 3:00 p.m. New York
time on the Business Day following the Servicer Remittance Date or (ii) by
3:00
p.m. New York time on the Business Day following the Servicer Remittance Date,
the Servicer shall have appointed a successor servicer that satisfies the
eligibility criteria of a successor servicer set forth above and that has
remitted the amount of the required Advance to the Trust Administrator. If
the
Servicer fails to adhere to the requirements set forth in the immediately
preceding sentence, the Master Servicer or the Trustee, as applicable, shall
be
the successor in all respects to the Servicer in its capacity as Servicer under
this Agreement and shall immediately assume the Servicer’s obligations to make
Advances. In no event shall the termination of the Servicer under this Agreement
result in any diminution of the Servicer’s right to reimbursement for any
outstanding Advances or Servicing Advances or accrued and unpaid Servicing
Fees
due to the Servicer at the time of termination. Reimbursement of unreimbursed
Advances and Servicing Advances and accrued and unpaid Servicing Fees shall
be
made on a FIFO, loan-by-loan basis. The Servicer shall continue to be entitled
to the benefits of Section 6.03 hereof related to indemnification,
notwithstanding any termination hereunder.
(d) In
connection with the termination or resignation of the Servicer hereunder, either
(i) the successor servicer, including the Master Servicer or the Trustee, as
applicable, if the Master Servicer or the Trustee, as applicable, is acting
as
successor servicer, shall represent and warrant that it is a member of MERS
in
good standing and shall agree to comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS, in which case the predecessor servicer shall
cooperate with the successor servicer in causing MERS to revise its records
to
reflect the transfer of servicing to the successor servicer as necessary under
MERS’ rules and regulations, or (ii) the predecessor servicer shall cooperate
with the successor servicer in causing MERS to execute and deliver an assignment
of Mortgage in recordable form to transfer the Mortgage from MERS to the Master
Servicer or the Trustee, as applicable, and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan
on
the MERS® System to the successor servicer. The predecessor servicer shall file
or cause to be filed any such assignment in the appropriate recording office.
The predecessor servicer shall bear any and all fees of MERS, costs of preparing
any assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this Section 7.02(d).
SECTION
7.03. Trustee
to Act; Appointment of Successor Master Servicer.
(a) Upon
the
receipt by the Master Servicer of a notice of termination pursuant to
Section 7.01(b) or an Opinion of Counsel rendered by Independent counsel
pursuant to Section 6.05(b) to the effect that the Master Servicer is
legally unable to act or to delegate its duties to a Person which is legally
able to act, the Trustee shall automatically become the successor in all
respects to the Master Servicer in its capacity under this Agreement and the
transactions set forth or provided for herein and shall thereafter be subject
to
all the responsibilities, duties, liabilities and limitations on liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof; provided, however, that the Trustee (i) shall have no obligation
whatsoever with respect to any liability (other than Advances deemed recoverable
and not previously made) incurred by the Master Servicer at or prior to the
time
of termination and (ii) shall not be obligated to perform any obligation of
the
Master Servicer under Section 3.20 or 3.21 with respect to any period of time
during which the Trustee was not the Master Servicer. As compensation therefor,
but subject to Section 6.05, the Trustee shall be entitled to compensation
which the Master Servicer would have been entitled to retain if the Master
Servicer had continued to act hereunder, except for those amounts due the Master
Servicer as reimbursement permitted under this Agreement for advances previously
made or expenses previously incurred. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable
so to
act, appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved servicer, acceptable to the NIMS Insurer and with respect
to a successor to the Master Servicer only, having a net worth of not less
than
$50,000,000, as the successor to the Master Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the Master
Servicer hereunder; provided, that the Trustee shall obtain consent from the
NIMS Insurer and a letter or other evidence each Rating Agency that the ratings,
if any, on each of the Certificates will not be lowered as a result of the
selection of the successor to the Master Servicer. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that the provisions of Section 6.05 shall apply,
the compensation shall not be in excess of that which the Master Servicer would
have been entitled to if the Master Servicer had continued to act hereunder,
and
that such successor shall undertake and assume the obligations of the Trustee
to
pay compensation to any third Person acting as an agent or independent
contractor in the performance of master servicing responsibilities hereunder.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
If
the
Master Servicer and the Trust Administrator are the same entity, then at any
time the Master Servicer resigns or is removed as Master Servicer, the Trust
Administrator shall also be removed hereunder. All reasonable Master Servicing
Transfer Costs shall be paid by the predecessor Master Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Master Servicer defaults in its obligation to pay such costs, such costs shall
be paid by the successor Master Servicer or the Trustee (in which case the
successor Master Servicer or the Trustee, as applicable, shall be entitled
to
reimbursement therefor from the assets of the Trust Fund).
(b) If
the
Trustee shall succeed to any duties of the Master Servicer respecting the
Mortgage Loans as provided herein, it shall do so in a separate capacity and
not
in its capacity as Trustee and, accordingly, the provisions of Article VIII
shall be inapplicable to the Trustee in its duties as the successor to the
Master Servicer in the master servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VI, however, shall apply to it in its capacity as
successor Master Servicer.
SECTION
7.04. Notification
to Certificateholders.
(a) Upon
any
termination of the Servicer or the Master Servicer pursuant to Section 7.01
above or any appointment of a successor to the Servicer or Master Servicer
pursuant to Section 7.02 or Section 7.03 above, the Trust Administrator, or
in the event of the termination of the Master Servicer, the Trustee (or such
other successor Trust Administrator) shall give prompt written notice thereof
to
the Servicer, the Credit Risk Manager, the NIMS Insurer, the Master Servicer
and
the Certificateholders at their respective addresses appearing in the
Certificate Register.
(b) Not
later
than the later of 60 days after the occurrence of any event, which constitutes
or which, with notice or lapse of time or both, would constitute a Servicer
Event of Default or a Master Servicer Event of Default or five days after a
Responsible Officer of the Trust Administrator (in the case of a Servicer Event
of Default) or the Trustee (in the case of a Master Servicer Event of Default)
becomes aware of the occurrence of such an event, the Trust Administrator or
Trustee, as applicable, shall transmit by mail to the Credit Risk Manager,
the
NIMS Insurer and to all Holders of Certificates notice of each such occurrence,
unless such Servicer Event of Default or Master Servicer Event of Default shall
have been cured or waived.
SECTION
7.05. Waiver
of
Servicer Events of Default and Master Servicer Events of
Termination.
The
Holders representing at least 66% of the Voting Rights (with the consent of
the
NIMS Insurer) evidenced by all Classes of Certificates affected by any default,
Servicer Event of Default or Master Servicer Event of Default hereunder may
waive such default, Servicer Event of Default or Master Servicer Event of
Default; provided, however, that a Servicer Event of Default under clause (i)
or
(vii) of Section 7.01(a) or Master Servicer Event of Default under clause (i)
or
(vi) of Section 7.01(b) may be waived only by all of the Holders of the Regular
Certificates (with the consent of the NIMS Insurer). Upon any such waiver of
a
default, Servicer Event of Default or Master Servicer Event of Default, such
default, Servicer Event of Default or Master Servicer Event of Default shall
cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default,
Servicer Event of Default or Master Servicer Event of Default or impair any
right consequent thereon except to the extent expressly so waived. Notice of
any
such waiver shall be given by the Trust Administrator or the Trustee as
applicable, to the Rating Agencies and the NIMS Insurer.
SECTION
7.06. Survivability
of Servicer and Master Servicer Liabilities.
Notwithstanding
anything herein to the contrary, upon termination of the Servicer or the Master
Servicer hereunder, any liabilities
of
the 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, the Servicer or the Holders of
Certificates evidencing not less than 51% of the Voting Rights.
Neither
the Trustee nor the Trust Administrator shall be required to expend or risk
its
own funds or otherwise incur financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this Agreement, except
during such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Master Servicer
in
accordance with the terms of this Agreement.
SECTION
8.02. Certain
Matters Affecting the Trustee and the Trust Administrator.
(a) Except
as
otherwise provided in Section 8.01:
(i) Either
the Trustee or the Trust Administrator may request and rely upon, and shall
be
protected in acting or refraining from acting upon, any resolution, Officers’
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document reasonably believed by it to be genuine and to have
been
signed or presented by the proper party or parties, and the manner of obtaining
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee or the Trust Administrator may prescribe;
(ii) Either
the Trustee or the Trust Administrator may consult with counsel and any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) Neither
the Trustee nor the Trust Administrator shall be under any obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation hereto,
at
the request, order or direction of any of the Certificateholders or the NIMS
Insurer, pursuant to the provisions of this Agreement, unless such
Certificateholders or the NIMS Insurer, as applicable, shall have offered to
the
Trustee or the Trust Administrator, as applicable, reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the right of the Trustee or the Trust Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Trust Administrator shall
be answerable for other than its negligence or willful misconduct in the
performance of any such act; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of a Master Servicer Event
of
Default of which the Trustee has received written notice or of which a
Responsible Officer of the Trustee has actual knowledge (which has not been
cured or waived), to exercise such of the rights and powers vested in it by
this
Agreement, and to use the same degree of care and skill in their exercise,
as a
prudent person would exercise under the circumstances in the conduct of his
own
affairs;
(iv) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event of
Default hereunder and after the curing or waiver of all Servicer Events of
Default or Master Servicer Events of Termination which may have occurred,
neither the Trustee nor the Trust Administrator shall be personally liable
for
any action taken, suffered or omitted by it in good faith and believed by it
to
be authorized or within the discretion or rights or powers conferred upon it
by
this Agreement;
(v) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event of
Default and after the curing of all Servicer Events of Default or Master
Servicer Events of Termination which may have occurred, neither the Trustee
nor
the Trust Administrator shall be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or documents, unless requested in writing to do so by the NIMS Insurer or the
Holders of Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee or the
Trust Administrator, as applicable, of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of
the Trustee or the Trust Administrator, as applicable, not reasonably assured
to
the Trustee or the Trust Administrator, as applicable, by the security afforded
to it by the terms of this Agreement, the Trustee or the Trust Administrator,
as
applicable, may require reasonable indemnity against such cost, expense or
liability as a condition to such proceeding; and
(vi) Either
the Trustee or the Trust Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, custodians or nominees.
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by it without the possession of
any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in its name for the benefit of all the Holders of
such
Certificates, subject to the provisions of this Agreement.
SECTION
8.03. Neither
Trustee nor Trust Administrator Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Trust Administrator, the authentication of the Trust Administrator on the
Certificates, the acknowledgments of the Trustee contained in Article II and
the
representations and warranties of the Trustee and the Trust Administrator in
Section 8.13) shall be taken as the statements of the Depositor and neither
the Trustee nor the Trust Administrator assumes any responsibility for their
correctness. Neither the Trustee nor the Trust Administrator makes any
representations or warranties as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 8.12) or of the
Certificates (other than the signature of the Trust Administrator and
authentication of the Trust Administrator on the Certificates) or of any
Mortgage Loan or related document. Neither the Trustee nor the Trust
Administrator shall be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for
the
use or application of any funds paid to the Depositor, the Servicer or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account by the Servicer or the Distribution Account by
the
Master Servicer.
SECTION
8.04. Trustee
and Trust Administrator May Own Certificates.
Each
of
the Trustee and the Trust Administrator in its individual capacity or any other
capacity may become the owner or pledgee of Certificates with the same rights
it
would have if it were not Trustee or Trust Administrator, as applicable. Each
of
the Trustee and the Trust Administrator in its individual capacity or any other
capacity may transact any banking and trust business with the Originator, the
Servicer, the Depositor or their Affiliates.
SECTION
8.05. Trust
Administrator’s and Trustee’s Fees and Expenses.
On
each
Distribution Date, the Trust Administrator shall be entitled to compensation
as
separately agreed with the Master Servicer. The annual fees of the Trustee
hereunder and of the Custodian shall be paid in accordance with side letter
agreements with the Trust Administrator and at the sole expense of the Trust
Administrator. The Trustee, the Trust Administrator or any director, officer,
employee or agent of any of them, shall be indemnified by the Trust Fund and
held harmless against any loss, liability or expense (not including expenses
and
disbursements incurred or made by the Trustee or the Trust Administrator,
including the compensation and the expenses and disbursements of its agents
and
counsel, in the ordinary course of the Trustee’s or the Trust Administrator’s
performance in accordance with the provisions of this Agreement) incurred by
the
Trustee or by the Trust Administrator arising out of or in connection with
the
acceptance or administration of the obligations and duties of the Trustee or
the
Trust Administrator under this Agreement, other than any loss, liability or
expense (i) resulting from a breach of the Servicer’s or the Master Servicer’s
obligations and duties under this Agreement for which the Trustee or the Trust
Administrator, as applicable, is 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 Servicer, the Master Servicer, each Rating Agency and, if
the
Trustee is resigning, to the Trust Administrator, or, if the Trust Administrator
is resigning, to the Trustee. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Trustee or Trust Administrator,
(which may be the same Person in the event both the Trustee and the Trust
Administrator resign or are removed) acceptable to the NIMS Insurer by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the
resigning Trustee or Trust Administrator, as applicable, and one copy to the
successor Trustee or Trust Administrator. If no successor Trustee or Trust
Administrator, as applicable, shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or Trust Administrator may petition any court of competent
jurisdiction for the appointment of a successor Trustee or Trust Administrator,
as applicable.
If
the
Trust Administrator and the Master Servicer are the same entity, then at any
time the Trust Administrator resigns or is removed as Trust Administrator,
the
Master Servicer shall also be removed hereunder.
If
at any
time the Trustee or the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign
after written request therefor by the Depositor or the NIMS Insurer (or in
the
case of the Trust Administrator, the Trustee), or if at any time the Trustee
or
the Trust Administrator shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or the Trust Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or the Trust Administrator or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the
Depositor, the NIMS Insurer, the Servicer or the Master Servicer may remove
the
Trustee or the Trust Administrator, as applicable. If the Depositor, the
Servicer or the Master Servicer removes the Trustee or the Trust Administrator
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Trustee or Trust Administrator, as applicable,
acceptable to the NIMS Insurer, by written instrument, in duplicate, one copy
of
which instrument shall be delivered to the Trustee or Trust Administrator so
removed and one copy to the successor Trustee or Trust
Administrator.
The
Holders of Certificates entitled to at least 51% of the Voting Rights (or the
NIMS Insurer upon failure of the Trustee to perform its obligations hereunder)
may at any time remove the Trustee or the Trust Administrator and appoint a
successor trustee acceptable to the NIMS Insurer, by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to
the
Depositor, one complete set to the Trustee or Trust Administrator so removed
and
one complete set to the successor so appointed. A copy of such instrument shall
be delivered to the Certificateholders, the Servicer and the Master Servicer
by
the Depositor.
The
Trust
Administrator (i) may not be the Originator, the Servicer, the Depositor or
an
affiliate of the Depositor unless the Trust Administrator is an institutional
trust department, (ii) must be authorized to exercise corporate trust powers
under the laws of its jurisdiction of organization, and (iii) must be rated
at
least “A/F1” by Fitch Ratings Inc. (“Fitch”), if Fitch is a Rating Agency, or
the equivalent rating by S&P or 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 Servicer, the Master Servicer and to its predecessor Trustee
or Trust Administrator an instrument accepting such appointment hereunder,
and
thereupon the resignation or removal of the predecessor Trustee or Trust
Administrator shall become effective, and such successor Trustee or Trust
Administrator, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Trust
Administrator. The Depositor and the predecessor Trustee or Trust Administrator
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee or Trust Administrator all such rights, powers, duties and
obligations.
No
successor Trustee or Trust Administrator shall accept appointment as provided
in
this Section 8.08 unless at the time of such acceptance such successor
Trustee or Trust Administrator shall be eligible under the provisions of
Section 8.06 and the appointment of such successor Trustee or Trust
Administrator shall not result in a downgrading of the Regular Certificates
by
any Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon
acceptance of appointment by a successor Trustee or Trust Administrator as
provided in this Section 8.08, the successor Trustee or Trust Administrator
shall mail notice of the appointment of a successor Trustee or Trust
Administrator hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to each Rating Agency.
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 Servicer, the Master
Servicer and the NIMS Insurer, appoint a Custodian pursuant to this Agreement
or
the Custodial Agreement, as applicable, 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 pursuant to this Agreement or the Custodial Agreement, as
applicable, and a substitute Custodian appointed therefor upon the reasonable
request of the Servicer, the Master Servicer or the NIMS Insurer to the Trustee,
the consent to which shall not be unreasonably withheld. Xxxxx Fargo Bank,
N.A.,
in executing this Agreement as Trust Administrator and Master Servicer, is
hereby appointed and agrees to act as Custodian under the terms of this
Agreement with respect to the Mortgage Loans originated by EquiFirst
Corporation, Decision One Mortgage Company, LLC and First NLC Financial
Services, LLC. Deutsche Bank National Trust Company, pursuant to the Custodial
Agreement, is hereby appointed and agrees to act as Custodian with respect
to
the Mortgage Loans originated by New Century Mortgage Corporation. The
Depositor, the Servicer and the Master Servicer each hereby consent to such
appointments. 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
or
the Custodial Agreement, as applicable, diminish the obligations of the Trustee
hereunder.
SECTION
8.12. Representations
and Warranties.
Each
of
the Trustee, the Custodian and the Trust Administrator hereby represents and
warrants to the Servicer, the Master Servicer and the Depositor, as of the
Closing Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its articles
of association or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in
the
breach of, any material agreement or other instrument to which it is a party
or
which is applicable to it or any of its assets.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of it,
enforceable against it in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium
and
other laws affecting the enforcement of creditors’ rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) It
is not
in violation of, and its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in its good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of
it
to perform its obligations under this Agreement or its financial
condition.
(vi) No
litigation is pending or, to the best of its knowledge, threatened against
it,
which would prohibit it from entering into this Agreement or, in its good faith
reasonable judgment, is likely to materially and adversely affect either the
ability of it to perform its obligations under this Agreement or its financial
condition.
ARTICLE
IX
TERMINATION
SECTION
9.01. Termination
Upon Repurchase or Liquidation of All Mortgage Loans.
(a) Subject
to Section 9.02, the respective obligations and responsibilities under this
Agreement of the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee (other than the indemnification obligations of
the
Servicer and the Master Servicer pursuant to Section 6.03 and of the
Servicer to make remittances to the Trust Administrator and the Trust
Administrator to make payments in respect of the REMIC I Regular Interests
and
the Classes of Certificates as hereinafter set forth) shall terminate upon
payment to the Certificateholders and the deposit of all amounts held by or
on
behalf of the Trust Administrator and required hereunder to be so paid or
deposited on the Distribution Date coinciding with or following the earlier
to
occur of (i) the purchase by the Terminator (as defined below) on a servicing
retained basis of all Mortgage Loans and each REO Property remaining in REMIC
I
and (ii) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I;
provided, however, that in no event shall the trust created hereby continue
beyond the earlier of (i) the expiration of 21 years from the death of the
last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. 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 the Servicer, the Master Servicer,
the
Trust Administrator or the Trustee under this Agreement, any accrued and unpaid
Net WAC Rate Carryover Amount and any Swap Termination Payment payable to the
Swap Provider then remaining unpaid or which is due to the exercise of such
option; provided, however, such option may only be exercised if (i) the
Termination Price is sufficient to pay all interest accrued on, as well as
amounts necessary to retire the principal balance of, each class of notes issued
pursuant to the Indenture and any remaining amounts owed to the trustee under
the Indenture and the NIMS Insurer on the date such notes are retired and (ii)
the fair market value of the Mortgage Loans and REO Properties determined as
described above is at least equal to the Stated Principal Balance of the
Mortgage Loans (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties.
(b) The
majority holder of the Class CE Certificates (so long as such Holder is not
the
Seller or an affiliate of the Seller), or if such majority holder fails to
exercise such right, the 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 Servicer from such funds deposited in the
Distribution Account (i) any amounts which the Servicer would be permitted
to
withdraw and retain from the Collection Account pursuant to Section 3.11 and
(ii) any other amounts otherwise payable by the Trust Administrator to the
Servicer from amounts on deposit in the Distribution Account pursuant to the
terms of this Agreement, in each case prior to making any final distributions
pursuant to Section 9.01(d) below. Upon certification to the Trustee and the
Trust Administrator by the Terminator of the making of such final deposit,
the
Trust Administrator shall promptly release to the Terminator the Mortgage Files
for the remaining Mortgage Loans, and the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such
transfer.
(d) Upon
presentation of the Certificates by the Certificateholders on the final
Distribution Date, the Trust Administrator shall distribute to each
Certificateholder so presenting and surrendering its Certificates the amount
otherwise distributable on such Distribution Date in accordance with
Section 4.01 in respect of the Certificates so presented and surrendered.
Any funds not distributed to any Holder or Holders of Certificates being retired
on such Distribution Date because of the failure of such Holder or Holders
to
tender their Certificates shall, on such date, be set aside and held in trust
and credited to the account of the appropriate non-tendering Holder or Holders.
If any Certificates as to which notice has been given pursuant to this
Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trust Administrator shall
mail a second notice to the remaining non-tendering Certificateholders to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trust Administrator shall, directly or through an agent, mail a final notice
to the remaining non-tendering Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining the funds in trust and
of
contacting such Certificateholders shall be paid out of the assets remaining
in
the Trust Fund. If within one year after the final notice any such Certificates
shall not have been surrendered for cancellation, the Trust Administrator shall
pay to UBS Securities LLC all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trust Administrator as a result of such Certificateholder’s failure to
surrender its Certificate(s) for final payment thereof in accordance with this
Section 9.01. Any such amounts held in trust by the Trust Administrator
shall be held in an Eligible Account and the Trust Administrator may direct
any
depository institution maintaining such account to invest the funds in one
or
more Permitted Investments. All income and gain realized from the investment
of
funds deposited in such accounts held in trust by the Trust Administrator shall
be for the benefit of the Trust Administrator; provided, however, that the
Trust
Administrator shall deposit in such account the amount of any loss of principal
incurred in respect of any such Permitted Investment made with funds in such
accounts immediately upon the realization of such loss.
Immediately
following the deposit of funds in trust hereunder in respect of the
Certificates, the Trust Fund shall terminate.
SECTION
9.02. Additional
Termination Requirements.
(a) In
the
event that the Terminator purchases all the Mortgage Loans and each REO Property
or the final payment on or other liquidation of the last Mortgage Loan or REO
Property remaining in REMIC I pursuant to Section 9.01, the Trust Fund
shall be terminated in accordance with the following additional requirements,
unless the Trust Administrator and the Servicer have received an Opinion of
Counsel, which Opinion of Counsel shall be at the expense of the Terminator
(or
in connection with a termination resulting from the final payment on or other
liquidation of the last Mortgage Loan or REO Property remaining in REMIC I,
which Opinion of Counsel shall be at the expense of the person seeking
nonadherence to the following additional requirements but which in no event
shall be at the expense of the Trust Fund or, unless it is the person seeking
nonadherence to the following additional requirements, the Servicer or the
Trust
Administrator), to the effect that the failure of REMIC I to comply with such
additional requirements of this Section 9.02 will not (A) result in the
imposition on the Trust Fund of taxes on “prohibited transactions,” as described
in Section 860F of the Code, or (B) cause REMIC I to fail to qualify as a
REMIC at any time that any Certificate is outstanding:
(i) The
Trust
Administrator shall specify the first day in the 90-day liquidation period
in a
statement attached to each Trust REMIC’s final Tax Return pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder, as evidenced by an Opinion of Counsel obtained at the expense of
the
Terminator;
(ii) During
such 90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell all of the assets
of
REMIC I to the Terminator for cash; and
(iii) At
the
time of the making of the final payment on the Certificates, the Trust
Administrator shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Residual Certificates all cash on hand in the
Trust Fund (other than cash retained to meet claims), and the Trust Fund shall
terminate at that time.
(b) At
the
expense of the Terminator, the Depositor shall prepare or cause to be prepared
the documentation required in connection with the adoption of a plan of
liquidation of each Trust REMIC pursuant to this Section 9.02.
(c) By
their
acceptance of Certificates, the Holders thereof hereby agree to authorize the
Trust Administrator to specify the 90-day liquidation period for each Trust
REMIC, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE
X
REMIC
PROVISIONS
SECTION
10.01. REMIC
Administration.
(a) The
Trustee shall elect to treat each Trust REMIC as a REMIC under the Code and,
if
necessary, under applicable state law. Each such election will be made by the
Trustee on Form 1066 or other appropriate federal tax or information return
or
any appropriate state return for the taxable year ending on the last day of
the
calendar year in which the Certificates are issued. For the purposes of the
REMIC election in respect of REMIC I, the REMIC I Regular Interests shall be
designated as the Regular Interests in REMIC I and the Class R-I Interest shall
be designated as the Residual Interest in REMIC I. For the purposes of the
REMIC
election in respect of REMIC II, the REMIC II Regular Interests shall be
designated as the Regular Interests in REMIC II and the Class R-II Interest
shall be designated as the Residual Interest in REMIC II. The Class A
Certificates, the Mezzanine Certificates, the Class CE Interest, the Class
P
Interest and the Class Swap-IO Interest shall be designated as the Regular
Interests in REMIC III and the Class R-III Interest shall be designated as
the
Residual Interest in REMIC III. The CE Certificates shall be designated as
the
Regular Interests in REMIC IV and the Class R-IV Interest shall be designated
as
the Residual Interest in REMIC IV. The Class P Certificates shall be designated
as the Regular Interests in REMIC V and the Class R-V Interest shall be
designated as the Residual Interest in REMIC V. REMIC VI Regular Interest
SWAP-IO shall be designated as the Regular Interests in REMIC VI and the Class
R-VI Interest shall be designated as the Residual Interest in REMIC VI. The
Trustee shall not permit the creation of any “interests” in any Trust REMIC
(within the meaning of Section 860G of the Code) other than the interests
identified above as Regular Interests or Residual Interests in REMIC I, REMIC
II, REMIC III, REMIC IV, REMIC V and REMIC VI.
(b) The
Closing Date is hereby designated as the “Startup Day” of each Trust REMIC
within the meaning of Section 860G(a)(9) of the Code.
(c) The
Trust
Administrator shall be reimbursed for any and all expenses relating to any
tax
audit of the Trust Fund (including, but not limited to, any professional fees
or
any administrative or judicial proceedings with respect to any Trust REMIC
that
involve the Internal Revenue Service or state tax authorities), including the
expense of obtaining any tax related Opinion of Counsel except as specified
herein. The Trust Administrator, as agent for each Trust REMIC’s tax matters
person shall (i) act on behalf of the Trust Fund in relation to any tax matter
or controversy involving any Trust REMIC and (ii) represent the Trust Fund
in
any administrative or judicial proceeding relating to an examination or audit
by
any governmental taxing authority with respect thereto. The holder of the
largest Percentage Interest of the Residual Certificates shall be designated,
in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1, as the tax matters person of the related
REMIC created hereunder. By their acceptance thereof, the holder of the largest
Percentage Interest of the Residual Certificates hereby agrees to irrevocably
appoint the Trust Administrator or an Affiliate as its agent to perform all
of
the duties of the tax matters person for the Trust Fund.
(d) The
Trust
Administrator shall prepare, sign and file all of the Tax Returns (including
Form 8811, which must be filed within 30 days following the Closing Date) in
respect of each Trust REMIC. The expenses of preparing and filing such returns
shall be borne by the Trust Administrator without any right of reimbursement
therefor.
(e) The
Trust
Administrator shall perform on behalf of each Trust REMIC all reporting and
other tax compliance duties that are the responsibility of such REMIC under
the
Code, the REMIC Provisions or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
as required by the Code, the REMIC Provisions or other such compliance guidance,
the Trust Administrator shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any Person who is not
a
Permitted Transferee, (ii) to the Certificateholders such information or reports
as are required by the Code or the REMIC Provisions including reports relating
to interest, original issue discount and market discount or premium (using
the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service
the
name, title, address and telephone number of the person who will serve as the
representative of each Trust REMIC. The Depositor shall provide or cause to
be
provided to the Trust Administrator, within ten (10) days after the Closing
Date, all information or data that the Trust Administrator reasonably determines
to be relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The
Trust
Administrator shall take such action and shall cause each Trust REMIC to take
such action as shall be necessary to create or maintain the status thereof
as a
REMIC under the REMIC Provisions. Neither the Trust Administrator nor the
Trustee shall take any action or cause the Trust Fund to take any action or
fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of any Trust REMIC as a REMIC or (ii) result in the imposition of a
tax
upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an “Adverse REMIC Event”) unless the Trustee, the Trust
Administrator and the NIMS Insurer have received an Opinion of Counsel,
addressed to the Trustee, the NIMS Insurer and the Trust Administrator (at
the
expense of the party seeking to take such action but in no event at the expense
of the Trustee or the Trust Administrator) to the effect that the contemplated
action will not, with respect to any Trust REMIC, endanger such status or result
in the imposition of such a tax, nor shall the Servicer take or fail to take
any
action (whether or not authorized hereunder) as to which the Trustee, the Trust
Administrator or the NIMS Insurer has advised it in writing that it has received
an Opinion of Counsel to the effect that an Adverse REMIC Event could occur
with
respect to such action; provided that the Servicer may conclusively rely on
such
Opinion of Counsel and shall incur no liability for its action or failure to
act
in accordance with such Opinion of Counsel. In addition, prior to taking any
action with respect to any Trust REMIC or the respective assets of each, or
causing any Trust REMIC to take any action, which is not contemplated under
the
terms of this Agreement, the Servicer will consult with the Trustee, the Trust
Administrator, the Master Servicer, the NIMS Insurer or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any Trust REMIC and the Servicer
shall not take any such action or cause any Trust REMIC to take any such action
as to which the Trustee, the Trust Administrator, the Master Servicer or the
NIMS Insurer has advised it in writing that an Adverse REMIC Event could occur;
provided that the Servicer may conclusively rely on such writing and shall
incur
no liability for its action or failure to act in accordance with such writing.
The Trustee, the Trust Administrator, the Master Servicer or the NIMS Insurer
may consult with counsel to make such written advice, and the cost of same
shall
be borne by the party seeking to take the action not permitted by this
Agreement, but in no event shall such cost be an expense of the Trustee, the
Trust Administrator or the Master Servicer. At all times as may be required
by
the Code, the Trust Administrator will ensure that substantially all of the
assets of REMIC I will consist of “qualified mortgages” as defined in
Section 860G(a)(3) of the Code and “permitted investments” as defined in
Section 860G(a)(5) of the Code, to the extent such obligations are within
the Trust Administrator’s control and not otherwise inconsistent with the terms
of this Agreement.
(g) In
the
event that any tax is imposed on “prohibited transactions” of any REMIC created
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income
from foreclosure property” of such REMIC as defined in Section 860G(c) of
the Code, on any contributions to any such REMIC after the Startup Day therefor
pursuant to Section 860G(d) of the Code, or any other tax is imposed by the
Code or any applicable provisions of state or local tax laws, such tax shall
be
charged (i) to the Trust Administrator pursuant to Section 10.03 hereof, if
such tax arises out of or results from a breach by the Trust Administrator
of
any of its obligations under this Article X, (ii) to the Trustee pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under this Article X, (iii) to the Master
Servicer pursuant to Section 10.03 hereof, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations under
Article III or this Article X, (iv) to the Servicer pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X or (v) against amounts on deposit in the Distribution Account and shall be
paid by withdrawal therefrom.
(h) [Reserved].
(i) The
Trust
Administrator shall, for federal income tax purposes, maintain books and records
with respect to each Trust REMIC on a calendar year and on an accrual
basis.
(j) Following
the Startup Day, none of the Servicer, the Master Servicer, the Trust
Administrator or the Trustee shall accept any contributions of assets to any
Trust REMIC other than in connection with any Qualified Substitute Mortgage
Loan
delivered in accordance with Section 2.03 unless it shall have received an
Opinion of Counsel to the effect that the inclusion of such assets in the Trust
Fund will not cause the related REMIC to fail to qualify as a REMIC at any
time
that any Certificates are outstanding or subject such REMIC to any tax under
the
REMIC Provisions or other applicable provisions of federal, state and local
law
or ordinances.
(k) None
of
the Trustee, the Trust Administrator, the Servicer or the Master Servicer shall
enter into any arrangement by which any Trust REMIC will receive a fee or other
compensation for services nor permit either REMIC to receive any income from
assets other than “qualified mortgages” as defined in Section 860G(a)(3) of
the Code or “permitted investments” as defined in Section 860G(a)(5) of the
Code.
SECTION
10.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the foreclosure of a Mortgage Loan, including
but
not limited to, the acquisition or sale of a Mortgaged Property acquired by
deed
in lieu of foreclosure, (ii) the bankruptcy of REMIC I, (iii) the termination
of
REMIC I pursuant to Article IX of this Agreement, (iv) a substitution pursuant
to Article II of this Agreement or (v) a purchase of Mortgage Loans pursuant
to
Article II or III of this Agreement), nor acquire any assets for any Trust
REMIC
(other than REO Property acquired in respect of a defaulted Mortgage Loan),
nor
sell or dispose of any investments in the Collection Account or the Distribution
Account for gain, nor accept any contributions to any Trust REMIC after the
Closing Date (other than a Qualified Substitute Mortgage Loan delivered in
accordance with Section 2.03), unless it has received an Opinion of
Counsel, addressed to the Trustee, the Trust Administrator and the NIMS Insurer
(at the expense of the party seeking to cause such sale, disposition,
substitution, acquisition or contribution but in no event at the expense of
the
Trustee or the Trust Administrator) that such sale, disposition, substitution,
acquisition or contribution will not (a) affect adversely the status of any
Trust REMIC as a REMIC or (b) cause any Trust REMIC to be subject to a tax
on
“prohibited transactions” or “contributions” pursuant to the REMIC
Provisions.
SECTION
10.03. Servicer,
Master Servicer and Trustee Indemnification.
(a) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status as
a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to (i)
the
negligent performance by the Trustee or the Trust Administrator of its duties
and obligations set forth herein or (ii) any state, local or franchise taxes
imposed upon the Trust Fund as a result of the location of the Trustee or the
Trust Administrator or any co-trustee, the Trustee or the Trust Administrator,
as applicable, shall indemnify the NIMS Insurer, the Servicer, the Master
Servicer and the Trust Fund against any and all Losses resulting from such
negligence, including, without limitation, any reasonable attorneys’ fees
imposed on or incurred as a result of a breach of the Trustee’s or the Trust
Administrator’s, as applicable, or any co-trustee’s covenants; provided,
however,
that
the Trustee or the Trust Administrator, as applicable, shall not be liable
for
any such Losses attributable to the action or inaction of the Servicer, the
Master Servicer, the Depositor or the Holder of such Residual Certificate,
as
applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Trustee or the Trust
Administrator, as applicable, has relied. The foregoing shall not be deemed
to
limit or restrict the rights and remedies of the Holder of such Residual
Certificate now or hereafter existing at law or in equity. Notwithstanding
the
foregoing, however, in no event shall the Trustee or the Trust Administrator,
as
applicable, have any liability (1) for any action or omission that is taken
in
accordance with and in compliance with the express terms of, or which is
expressly permitted by the terms of, this Agreement, (2) for any Losses other
than arising out of a negligent performance by the Trustee or the Trust
Administrator, as applicable, of its duties and obligations set forth herein,
and (3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates).
(b) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status as
a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Master Servicer of its duties and obligations
set
forth herein, the Master Servicer shall indemnify the NIMS Insurer, the
Servicer, the Trustee, the Trust Administrator and the Trust Fund against any
and all losses, claims, damages, liabilities or expenses (“Losses”) resulting
from such negligence, including, without limitation, any reasonable attorneys’
fees imposed on or incurred as a result of a breach of the Master Servicer’s
covenants; provided,
however,
that
the Master Servicer shall not be liable for any such Losses attributable to
the
action or inaction of the Trustee, the Trust Administrator, the Servicer, the
Depositor or the Holder of such Residual Certificate, as applicable, nor for
any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Master Servicer has relied. The foregoing
shall not be deemed to limit or restrict the rights and remedies of the Holder
of such Residual Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Master Servicer
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Master Servicer of its duties and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (in addition to payment of principal and interest on
the
Certificates).
(c) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status as
a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to (i)
the
negligent performance by the Servicer of its duties and obligations set forth
herein or (ii) any state, local or franchise taxes imposed upon the Trust Fund
as a result of the location of the Servicer or any sub-servicer, the Servicer
shall indemnify the NIMS Insurer, the Master Servicer, the Trustee, the Trust
Administrator and the Trust Fund against any and all losses, claims, damages,
liabilities or expenses (“Losses”) resulting from such negligence, including,
without limitation, any reasonable attorneys’ fees imposed on or incurred as a
result of a breach of the Servicer’s or any sub-servicer’s covenants;
provided,
however,
that
the Servicer shall not be liable for any such Losses attributable to the action
or inaction of the Master Servicer, the Trustee, the Trust Administrator, the
Depositor or the Holder of such Residual Certificate, as applicable, nor for
any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Servicer has relied. The foregoing shall
not
be deemed to limit or restrict the rights and remedies of the Holder of such
Residual Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Servicer have
any
liability (1) for any action or omission that is taken in accordance with and
in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than arising out of a
negligent performance by the Servicer of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the
Certificates).
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
SECTION
11.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicer,
the
Master Servicer, the Trust Administrator and the Trustee with the consent of
the
NIMS Insurer and without the consent of any of the Certificateholders, (i)
to
cure any ambiguity or defect, (ii) to correct, modify or supplement any
provisions herein (including to give effect to the expectations of
Certificateholders), or (iii) to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement, provided that such action
shall not adversely affect in any material respect the interests of any
Certificateholder as evidenced by either (i) an Opinion of Counsel delivered
to
the Servicer, the Master Servicer, the Trustee, the Trust Administrator and
the
NIMS Insurer or (ii) confirmation from the Rating Agencies, delivered to the
Servicer, the Master Servicer, the Trustee, the Trust Administrator and the
NIMS
Insurer, that such amendment will not result in the reduction or withdrawal
of
the rating of any outstanding Class of Certificates. No amendment shall be
deemed to adversely affect in any material respect the interests of any
Certificateholder who shall have consented thereto, and no Opinion of Counsel
shall be required to address the effect of any such amendment on any such
consenting Certificateholder.
This
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Master Servicer, the Trust Administrator, the NIMS Insurer and the Trustee
with the consent of the NIMS Insurer and the Holders of Certificates entitled
to
at least 66% of the Voting Rights for the purpose of adding any provisions
to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Swap Provider or Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in
any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Swap Provider or Holders of any Class of
Certificates (as evidenced by either (i) an Opinion of Counsel delivered to
the
Trustee and the NIMS Insurer or (ii) confirmation from the Rating Agencies,
delivered to the Servicer, the Master Servicer, the Trustee and the NIMS
Insurer, that such action will not result in the reduction or withdrawal of
the
rating of any outstanding Class of Certificates) in a manner, other than as
described in (i), or (iii) modify the consents required by the immediately
preceding clauses (i) and (ii) without the consent of the Holders of all
Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor,
the Servicer or the Master Servicer or any Affiliate thereof shall be entitled
to Voting Rights with respect to matters affecting such
Certificates.
Notwithstanding
any contrary provision of this Agreement, none of the Trustee, the Trust
Administrator or the NIMS Insurer shall consent to any amendment to this
Agreement unless it shall have first received an Opinion of Counsel satisfactory
to the NIMS Insurer to the effect that such amendment will not result in the
imposition of any tax on any Trust REMIC pursuant to the REMIC Provisions or
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
Notwithstanding
any of the other provisions of this Section 11.01, none of the parties to this
Agreement shall enter into any amendment to this Agreement that could reasonably
be expected to have a material adverse effect on the interests of the Swap
Provider hereunder (excluding, for the avoidance of doubt, any amendment to
this
Agreement that is entered into solely for the purpose of appointing a successor
servicer, trust administrator, trustee or other service provider) without the
prior written consent of the Swap Provider, which consent shall not be
unreasonably withheld, conditioned or delayed.
Promptly
after the execution of any such amendment the Trust Administrator shall notify
each Certificateholder and make available to each Certificateholder and the
NIMS
Insurer a copy of such amendment.
It
shall
not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trust Administrator may prescribe.
The
cost
of any Opinion of Counsel to be delivered pursuant to this Section 11.01
shall be borne by the Person seeking the related amendment, but in no event
shall such Opinion of Counsel be an expense of the Trustee or the Trust
Administrator.
The
Trustee and the Trust Administrator may, but neither shall be obligated to
enter
into any amendment pursuant to this Section that affects its rights, duties
and immunities under this Agreement or otherwise.
SECTION
11.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer at the expense
of
the Certificateholders, but only upon direction of the Trustee or the Trust
Administrator accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
SECTION
11.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No
Certificateholder shall have any right to vote (except as expressly provided
for
herein) or in any manner otherwise control the operation and management of
the
Trust, or the obligations of the parties hereto, nor shall anything herein
set
forth, or contained in the terms of any of the Certificates, be construed so
as
to constitute the Certificateholders from time to time as partners or members
of
an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee, for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatsoever by virtue of any provision of
this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit
of
all Certificateholders. For the protection and enforcement of the provisions
of
this Section, each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION
11.04. Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
SECTION
11.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when received if personally delivered at or
mailed by first class mail, postage prepaid, or by express delivery service
or
delivered in any other manner specified herein, to (a) in the case of the
Depositor, 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 Servicer, the Master Servicer, the Trust
Administrator, the NIMS Insurer and the Trustee in writing by the Depositor,
(b)
in the case of the Servicer, HomEq Servicing, 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 the Master Servicer, Custodian
or the Trust Administrator, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Client Manager-MABS 2006-HE5 (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 2006-HE5 (telecopy
number (000) 000-0000), with a copy to Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx
xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Client Manager-MABS
2006-HE5, or such other address or telecopy number as may hereafter be furnished
to the Servicer, the Trustee, the NIMS Insurer and the Depositor in writing
by
the Master Servicer, (d) in the case of the Trustee, 00 Xxxxxxxxxx Xxxxxx,
XX-XX-XX0X, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance/MASTR
2006-HE5 (telecopy number (000) 000-0000), or such other address or telecopy
number as may hereafter be furnished to the Depositor, the Servicer, the NIMS
Insurer, the Trust Administrator and the Master Servicer in writing by the
Trustee, or such other address or telecopy number as may hereafter be furnished
to the Master Servicer, the NIMS Insurer and the Depositor in writing by the
Trustee, (e) 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 Servicer,
the Trustee and the NIMS Insurer and (f) in the case of the NIMS Insurer, if
any, the address set forth in the Indenture, or such other address or telecopy
number as may hereafter be furnished to the Master Servicer, the Trust
Administrator, the Depositor and the Trustee in writing by the NIMS Insurer.
Any
notice required or permitted to be given to a Certificateholder shall be given
by first class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given when
mailed, whether or not the Certificateholder receives such notice. A copy of
any
notice required to be telecopied hereunder also shall be mailed to the
appropriate party in the manner set forth above.
SECTION
11.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
11.07. Notice
to
Rating Agencies and the NIMS Insurer.
The
Trust
Administrator shall use its best efforts promptly to provide notice to the
Rating Agencies and the NIMS Insurer with respect to each of the following
of
which it has actual knowledge:
(1) Any
material change or amendment to this Agreement;
(2) The
occurrence of any Servicer Event of Default or Master Servicer Event of Default
that has not been cured or waived;
(3) The
resignation or termination of the Master Servicer, the Trust Administrator
or
the Trustee;
(4) The
repurchase or substitution of Mortgage Loans pursuant to or as contemplated
by
Section 2.03;
(5) The
final
payment to the Holders of any Class of Certificates;
(6) Any
change in the location of the Collection Account or the Distribution
Account;
(7) Any
event
that would result in the inability of the Master Servicer to make advances
regarding delinquent Mortgage Loans to the same extent the Servicer is required
to make such advances as provided in Section 4.03; and
(8) The
filing of any claim under the 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.
Each
of
the NIMS Insurer and the Swap Provider shall be deemed a third-party beneficiary
of this Agreement to the same extent as if it were a party hereto, and shall
have the right to enforce the provisions of this Agreement.
SECTION
11.11. Intention
of the Parties and Interpretation.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 3.20,
3.21 and 4.06 of this Agreement is to facilitate compliance by the Depositor
with the provisions of Regulation AB promulgated by the SEC under the Exchange
Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from time to time
and subject to clarification and interpretive advice as may be issued by the
staff of the Commission from time to time. Therefore, each of the parties hereto
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as reasonably necessary to be
consistent with any such amendments, interpretive advice or guidance, convention
or consensus among active participants in the asset-backed securities markets,
advice of counsel, or otherwise in respect of the requirements of Regulation
AB,
(c) the parties shall comply, to the extent practicable from a timing and
information systems perspective and to the extent that the Depositor will pay
any increased costs of the Trustee and Trust Administrator caused by such
request, with requests made by the Depositor for delivery of additional or
different information as the Depositor may determine in good faith is necessary
to comply with the provisions of Regulation AB, and (d) no amendment of this
Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
IN
WITNESS WHEREOF, the Depositor, the Servicer, the Master Servicer, the Trust
Administrator 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:
Executive Director
|
|
By:
/s/
Xxxxx Xxx Xxx
|
|
Name:
Xxxxx Xxx Xxx
|
|
Title:
Associate Director
|
|
XXXXX
FARGO BANK, N.A., as Master Servicer and Trust
Administrator
|
|
By:
/s/
Xxxxxxx Xxxxx Xxxxx
|
|
Name:
Xxxxxxx
Xxxxx Colli
|
|
Title:
Vice President
|
|
BARCLAYS
CAPITAL REAL ESTATE INC. D/B/A HOMEQ SERVICING, as
Servicer
|
|
By:
/s/
Xxxxx Xxxxxx
|
|
Name:
Xxxxx
Xxxxxx
|
|
Title:
Chief Operating Officer
|
|
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 December 2006, before me, a notary public in and for said State,
personally appeared ________________________ and ________________________,
known
to me to be a(n) ________________________ and ________________________,
respectively, of Mortgage Asset Securitization Transactions, Inc., one of the
corporations that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
On
the
____ day of December 2006, 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 national banking
associations 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 XXXXXX
|
)
|
On
the
____ day of December 2006, before me, a notary public in and for said State,
personally appeared ________________________ known to me to be a(n)
________________________ of Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, one of the corporations that executed the within instrument, and
also
known to me to be the person who executed it on behalf of said corporation,
and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
)
|
||
|
)
|
ss.:
|
|
|
COUNTY
OF XXXXXX
|
)
|
On
the
____ day of December 2006, before me, a notary public in and for said State,
personally appeared ________________________, known to me to be a(n)
________________________ of U.S. Bank National Association, one of the national
banking assocations that executed the within instrument, and also known to
me to
be the person who executed it on behalf of said corporation, and acknowledged
to
me that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
EXHIBIT
A-1
FORM
OF
CLASS A-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, THE HOLDER OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH IN SECTION
5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-1 Certificates as of
the
Issue Date: $384,500,000.00
Denomination:
$384,500,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AA 7
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE
MASTER SERVICER, THE
TRUST
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-1 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-1 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-1
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class A-1 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
A-1 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any of
the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, the holder of this
Certificate shall be deemed to have made the representation set forth in 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 and the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trust Administrator, the Trustee nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF
CLASS A-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, THE HOLDER OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH IN
SECTION
5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-2 Certificates as
of the
Issue Date: $91,300,000.00
Denomination:
$91,300,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AB 5
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-2 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
A-2 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-2
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class A-2 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
A-2 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, the holder of this
Certificate shall be deemed to have made the representation set forth in
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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF
CLASS A-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, THE HOLDER OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH IN
SECTION
5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-3 Certificates as
of the
Issue Date: $161,850,000.00
Denomination:
$161,850,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AC 3
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-3 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
A-3 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-3
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class A-3 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
A-3 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, the holder of this
Certificate shall be deemed to have made the representation set forth in
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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF
CLASS A-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, THE HOLDER OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH IN
SECTION
5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-4 Certificates as
of the
Issue Date: $67,727,000.00
Denomination:
$67,727,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AD 1
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-4 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
A-4 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-4
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class A-4 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
A-4 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
Custodian, the NIMS Insurer, if any, and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicer, the Trust Administrator, the Trustee and the NIMS Insurer, if any,
without the consent on the Certificateholders or with the consent of the
Holders
of Certificates entitled to at least 66% of the Voting Rights as further
set
forth in the Agreement. Any such consent by the Holder of this Certificate
shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, the holder of this
Certificate shall be deemed to have made the representation set forth in
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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF
CLASS M-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-1 Certificates as
of the
Issue Date: $33,890,000.00
Denomination:
$33,890,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AE 9
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-1 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-1 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-1
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-1 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-1 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
FORM
OF
CLASS M-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND THE CLASS M-1
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-2 Certificates as
of the
Issue Date: $43,380,000.00
Denomination:
$43,380,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AF 6
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-2 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-2 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-2
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-2 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-2 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-7
FORM
OF
CLASS M-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-3 Certificates as
of the
Issue Date: $14,460,000.00
Denomination:
$14,460,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AG 4
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-3 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-3 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-3
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-3 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-3 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-8
FORM
OF
CLASS M-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-4 Certificates as
of the
Issue Date: $14,911,000.00
Denomination:
$14,911,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AH 2
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-4 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-4 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-4
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-4 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-4 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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 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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-9
FORM
OF
CLASS M-5 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES AND
THE
CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-5 Certificates as
of the
Issue Date: $14,911,000.00
Denomination:
$14,911,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AJ 8
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-5 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-5 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-5
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-5 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-5 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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:
December ___, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-10
FORM
OF
CLASS M-6 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-6 Certificates as
of the
Issue Date: $10,393,000.00
Denomination:
$10,393,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AK 5
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-6 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-6 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-6
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-6 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-6 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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:
December ___, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-11
FORM
OF
CLASS M-7 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6 CERTIFICATES
TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-7 Certificates as
of the
Issue Date: $9,037,000.00
Denomination:
$9,037,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AL 3
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-7 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-7 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-7
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-7 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-7 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-12
FORM
OF
CLASS M-8 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES
AND THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-8 Certificates as
of the
Issue Date: $7,681,000.00
Denomination:
$7,681,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AM 1
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE
MASTER SERVICER, THE
TRUST
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-8 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-8 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-8
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-8 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-8 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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:
December ___, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-13
FORM
OF
CLASS M-9 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES AND THE CLASS M-8 CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-9 Certificates as
of the
Issue Date: $10,393,000.00
Denomination:
$10,393,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AN 9
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-9 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-9 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-9
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-9 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
M-9 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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 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:
December ___, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-14
FORM
OF
CLASS M-10 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES AND THE CLASS M-9
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-10 Certificates as
of the
Issue Date: $12,652,000.00
Denomination:
$12,652,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AP 4
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-10 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-10 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-10
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-10 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal
Balance of the Class M-10 Certificates, or otherwise by check mailed by first
class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
set
forth in 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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-15
FORM
OF
CLASS M-11 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE
CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS M-9 CERTIFICATES
AND THE CLASS M-10 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Series:
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-11 Certificates as
of the
Issue Date: $11,748,000.00
Denomination:
$11,748,000.00
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
CUSIP:
576455
AQ 2
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-11 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-11 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable sate securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made
in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act, and such laws, the Holder of this Certificate desiring
to effect such transfer and such Holder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to indemnify the Trustee and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-11
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class M-11 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal
Balance of the Class M-11 Certificates, or otherwise by check mailed by first
class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) the related Formula Rate for such Distribution Date
and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and
any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trust Administrator, the Trustee nor any such agent shall be affected
by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I
of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of
the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-16
FORM
OF
CLASS CE CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH
ACT AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE TRANSFEREE OF SUCH
CERTIFICATE PROVIDES TO THE TRUSTEE THE APPROPRIATE TAX CERTIFICATION FORM
(I.E., IRS FORM W-9 OR IRS FORM W-8BEN, W-8IMY, W-8EXP OR W-8ECI, AS APPLICABLE
(OR ANY SUCCESSOR FORM 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, W-8EXP OR W-8ECI, AS APPLICABLE
(OR
ANY SUCCESSOR FORM THERETO), HAS BECOME OBSOLETE OR INCORRECT.
|
Series
2006-HE5
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class CE Certificates as of
the Issue
Date: $14,917,591.09
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class CE Certificates as of
the
Issue Date) in that certain beneficial ownership interest evidenced by all
the
Class CE Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class CE
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class CE Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
CE Certificates, or otherwise by check mailed by first class mail to the
address
of the Person entitled thereto, as such name and address shall appear on
the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the Trust Administrator of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933,
as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the Trust
Administrator, the Custodian in their respective capacities as such), together
with copies of the written certification(s) of the Holder of the Certificate
desiring to effect the transfer and/or such Holder's prospective transferee
upon
which such Opinion of Counsel is based. None of the Depositor or the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law
or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any
Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor, the Servicer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
No
transfer of a Certificate of this Class shall be made unless the transferee
of
such Certificate provides to the Trustee the appropriate tax certification
form
(i.e., IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable
(or any successor form 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 X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable
(or
any successor form thereto), has become obsolete or incorrect.
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:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-17
FORM
OF
CLASS P CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH
ACT AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
|
Series:
2006-HE5
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 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 and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class P Certificates as of
the
Issue Date) in that certain beneficial ownership interest evidenced by all
the
Class P Certificates in REMIC V created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator, Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing, as servicer (the “Servicer”) and the Trustee, a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class P Certificates
on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class P Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class P
Certificates, or otherwise by check mailed by first class mail to the address
of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the Trust Administrator of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933,
as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the Trust
Administrator, the Custodian in their respective capacities as such), together
with copies of the written certification(s) of the Holder of the Certificate
desiring to effect the transfer and/or such Holder's prospective transferee
upon
which such Opinion of Counsel is based. None of the Depositor or the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law
or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor, the Servicer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and
any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trust Administrator, the Trustee nor any such agent shall be affected
by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I
of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of
the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-18
FORM
OF
CLASS R CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF
1986 AS AMENDED (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE 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 IN SECTION 5.02 (C) OF THE
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION
IS
PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS CERTIFICATE.
|
Series:
2006-HE5
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Percentage Interest of the Class R Certificates as of the Issue
Date:
100.00%
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
|
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (as specified above) in that certain beneficial ownership interest
evidenced by all the Certificates of the Class to which this Certificate
belongs
created pursuant to a Pooling and Servicing Agreement, dated as specified
above
(the “Agreement”), among Mortgage Asset Securitization Transactions, Inc.
(hereinafter called the “Depositor,” which term includes any successor entity
under the Agreement), the Master Servicer, the Trust Administrator, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing, as servicer (the “Servicer”) and
the Trustee, a summary of certain of the pertinent provisions of which is
set
forth hereafter. To the extent not defined herein, the capitalized terms
used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class R Certificates
on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class R Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class R
Certificates, or otherwise by check mailed by first class mail to the address
of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the Trust Administrator of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933,
as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the Trust
Administrator, the Custodian in their respective capacities as such), together
with copies of the written certification(s) of the Holder of the Certificate
desiring to effect the transfer and/or such Holder's prospective transferee
upon
which such Opinion of Counsel is based. Neither the Depositor nor the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law
or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any
Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor, the Servicer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trust Administrator (i) an affidavit
to
the effect that such transferee is any Person other than a Disqualified
Organization or the agent (including a broker, nominee or middleman) of a
Disqualified Organization, and (ii) a certificate that acknowledges that
(A) the
Class R Certificates have been designated as a residual interest in a REMIC,
(B)
it will include in its income a pro
rata share
of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including
those
relating to holding the Class R Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of
this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Person shall
not be
deemed to be a Certificateholder for any purpose, including, but not limited
to,
the receipt of distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to
have
consented to the provisions of Section 5.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the Trust Fund to
cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and
any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trust Administrator, the Trustee nor any such agent shall be affected
by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I
of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of
the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
December ___, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-19
FORM
OF
CLASS R-X CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF
1986 AS AMENDED (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE 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 IN SECTION 5.02 (C) OF THE
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION
IS
PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS CERTIFICATE.
|
Series:
2006-HE5
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Percentage Interest of the Class R-X Certificates as of the Issue
Date:
100.00%
Master
Servicer and Trust Administrator: Xxxxx Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: December 28, 2006
|
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (as specified above) in that certain beneficial ownership interest
evidenced by all the Certificates of the Class to which this Certificate
belongs
created pursuant to a Pooling and Servicing Agreement, dated as specified
above
(the “Agreement”), among Mortgage Asset Securitization Transactions, Inc.
(hereinafter called the “Depositor,” which term includes any successor entity
under the Agreement), the Master Servicer, the Trust Administrator, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing, as servicer (the “Servicer”) and
the Trustee, a summary of certain of the pertinent provisions of which is
set
forth hereafter. To the extent not defined herein, the capitalized terms
used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class R-X
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date
and is
the registered owner of Class R-X Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the
Class
R-X Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent
is
made upon this Certificate. The Agreement also permits the amendment thereof,
in
certain limited circumstances, without the consent of the Holders of any
of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933,
as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the Trust
Administrator, the Custodian in their respective capacities as such), together
with copies of the written certification(s) of the Holder of the Certificate
desiring to effect the transfer and/or such Holder's prospective transferee
upon
which such Opinion of Counsel is based. Neither the Depositor nor the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law
or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any
Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor, the Servicer
and the Master Servicer against any liability that may result if the transfer
is
not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trust Administrator (i) an affidavit
to
the effect that such transferee is any Person other than a Disqualified
Organization or the agent (including a broker, nominee or middleman) of a
Disqualified Organization, and (ii) a certificate that acknowledges that
(A) the
Class R-X Certificates have been designated as a residual interest in a REMIC,
(B) it will include in its income a pro
rata share
of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including
those
relating to holding the Class R-X Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of
this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Person shall
not be
deemed to be a Certificateholder for any purpose, including, but not limited
to,
the receipt of distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to
have
consented to the provisions of Section 5.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the Trust Fund to
cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee and
any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trust Administrator, the Trustee nor any such agent shall be affected
by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I
of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of
the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
December __, 2006
|
XXXXX
FARGO BANK, N.A., not in its individual capacity, but solely as
Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-HE5,
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 Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
B
[RESERVED]
EXHIBIT
C-1
FORM
OF
INITIAL CERTIFICATION
[Date]
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx.
Xxxx, XX 00000
Attn:
Structured Finance/MASTR 2006-HE5
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Client Manager: MABS 2006-HE5
|
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing
0000
Xxxx Xxxxxx
Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of December 1, 2006, among Mortgage
Asset Securitization Transactions, Inc., as Depositor, Xxxxx Fargo
Bank,
N.A. as Master Servicer and Trust Administrator, 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
2006-HE5
|
Ladies
and Gentlemen:
Attached
is the [Custodian’s] [Trustee’s] preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the “Pooling and Servicing Agreement”). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling
and
Servicing Agreement.
The
[Custodian] [Trustee] has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in
the
Pooling and Servicing Agreement. The [Custodian] [Trustee] makes no
representations as to (i) the validity, legality, sufficiency, enforceability
or
genuineness of any of the documents contained in the Mortgage File pertaining
to
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or (iii) whether any Mortgage File included any of the documents specified
in clause (vi) of Section 2.01 of the Pooling and Servicing
Agreement.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
[Custodian/
Trustee]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
C-2
FORM
OF
FINAL CERTIFICATION
[Date]
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx.
Xxxx, XX 00000
Attn:
Structured Finance/MASTR 2006-HE5
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Client Manager: MABS 2006-HE5
|
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing
0000
Xxxx Xxxxxx
Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of December 1, 2006, among Mortgage
Asset Securitization Transactions, Inc., as Depositor, Xxxxx Fargo
Bank,
N.A. as Master Servicer and Trust Administrator, 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
2006-HE5
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as [Custodian’s] [Trustee’s], hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
loan
paid in full or listed on Schedule I hereto) it (or its custodian) has received
the applicable documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is
correct.
The
[Custodian’s] [Trustee’s] has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in
the
Pooling and Servicing Agreement. The [Custodian’s] [Trustee’s] makes no
representations as to (i) the validity, legality, sufficiency, enforceability
or
genuineness of any of the documents contained in the Mortgage File pertaining
to
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or (iii) whether any Mortgage File included any of the documents specified
in clause (vi) of Section 2.01 of the Pooling and Servicing
Agreement.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
[CUSTODIAN/
TRUSTEE]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
C-3
FORM
OF
RECEIPT OF MORTGAGE NOTES
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
60
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx.
Xxxx, Xxxxxxxxx 00000
Xttn:
Structured Finance/ MASTR 2006-HE5
|
|
Xxxxx
Fargo Bank, N.A.
9000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Xttn:
Client Manager: MABS 2006-HE5
|
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing
4837
Watt Avenue
North
Highlands, California 95660
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of December 1, 2006, among Mortgage
Asset Securitization Transactions, Inc., as Depositor, Xxxxx Fargo
Bank,
N.A. as Master Servicer and Trust Administrator, 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
2006-HE5
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement, dated as of December
1,
2006, among Mortgage Asset Securitization Transactions, Inc. as Depositor,
Xxxxx
Fargo Bank, N.A. as Master Servicer and Trust Administrator (the “Master
Servicer” and the “Trust Administrator”), Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing
as
Servicer (the “Servicer”) and U.S. Bank National Association as Trustee, we
hereby acknowledge the receipt of the original Mortgage Notes (a copy of
which
is attached hereto as Exhibit 1) with any exceptions thereto listed on Exhibit
2.
|
[TRUSTEE/
CUSTODIAN]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
D
FORMS
OF
ASSIGNMENT AGREEMENTS
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated December 28, 2006, (“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
EquiFirst Corporation (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated as of May
1,
2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as initial purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates
to the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
MASTR Asset-Backed Securities Trust 2006-HE5 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of December 1, 2006 (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”), Barclays Capital Real Estate Inc. d/b/a HomEq Servicing as
servicer (the “Servicer”) and U.S. Bank National Association, as trustee
(including its successors in interest and any successor trustees under
the
Pooling Agreement, the “Trustee”). The Company hereby acknowledges and agrees
that from and after the date hereof (i) the Trust will be the owner of the
Mortgage Loans, (ii) the Company shall look solely to the Trust for
performance of any obligations of the Assignor insofar as they relate to
the
enforcement of the representations, warranties and covenants with respect
to the
Mortgage Loans, (iii) the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) shall have all the rights and remedies available
to the Assignor, insofar as they relate to the Mortgage Loans, under the
Purchase Agreement, including, without limitation, the enforcement of the
document delivery requirements and remedies with respect to breaches of
representations and warranties set forth in the Purchase Agreement, and
shall be
entitled to enforce all of the obligations of the Company thereunder insofar
as
they relate to the Mortgage Loans, and (iv) all references to the Purchaser
(insofar as they relate to the rights, title and interest and, with respect
to
obligations of the Purchaser, only insofar as they relate to the enforcement
of
the representations, warranties and covenants of the Company) or the Custodian
under the Purchase Agreement insofar as they relate to the Mortgage Loans,
shall
be deemed to refer to the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Neither the Company nor the Assignor shall amend or
agree to amend, modify, waiver, or otherwise alter any of the terms or
provisions of the Purchase Agreement which amendment, modification, waiver
or
other alteration would in any way affect the Mortgage Loans or the Company’s
performance under the Purchase Agreement with respect to the Mortgage Loans
without the prior written consent of the Trustee.
Representations
and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(b) The
Company has full corporate power and authority to execute, deliver and
perform
its obligations under this Agreement and has full corporate power and authority
to perform its obligations under the Purchase Agreement. The execution
by the
Company of this Agreement is in the ordinary course of the Company’s business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company’s charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company
is now
a party or by which it is bound, or result in the violation of any law,
rule,
regulation, order, judgment or decree to which the Company or its property
is
subject. The execution, delivery and performance by the Company of this
Agreement have been duly authorized by all necessary corporate action on
part of
the Company. This Agreement has been duly executed and delivered by the
Company,
and, upon the due authorization, execution and delivery by the Assignor
and the
Assignee, will constitute the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms except
as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or, to the best of
the
Company’s knowledge, threatened against the Company, before any court,
administrative agency or other tribunal, which would draw into question
the
validity of this Agreement or the Purchase Agreement, or which, either
in any
one instance or in the aggregate, would result in any material adverse
change in
the ability of the Company to perform its obligations under this Agreement
or
the Purchase Agreement, and the Company is solvent.
2. Pursuant
to Section 8 of the Purchase Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee and the Trust,
that the
representations and warranties set forth in Section 3.01 of the Purchase
Agreement (set forth on Schedule 1 hereto) are true and correct as of the
date
of this Agreement (the “Closing Date”) as if such representations and warranties
were made on such Closing Date, and that the representations and warranties
set
forth in Section 3.02 of the Purchase Agreement (set forth on Sechedule
1
hereto) are true and correct as of the related Servicing Transfer Date
(as
defined in the Purchase Agreement).
3. The
Assignor hereby makes the following representations and warranties as of
the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such
terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E);
(d) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act; and
(e) With
respect to the
representations and warranties set forth in Section
3.02, nothing has occurred in the period of time from the Servicing Transfer
Date (as defined in the Purchase Agreement) to the date hereof which would
cause
such representation and warranties to be untrue in any material respect
as of
the date hereof.
In
addition to the foregoing, within 60 days
of
the earlier of discovery by the Assignor or receipt of notice by the Assignor
of
(i) the breach of any representation or warranty of the Company set forth
in
Section 3.02 of the Purchase Agreement which materially and adversely affects
the interests of the Certificateholders in any of the Mortgage Loan and
for
which the Company has failed to cure such breach in accordance with the
terms of
the Purchase Agreement and (ii)(a) the fact that the Company is no longer
an
operating company or (b) an Officers’ Certificate certifying to the fact that
the Company is financially unable to cure such breach pursuant to the terms
of
the Purchase Agreement, the Assignor shall take such action 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 Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Section
2 hereof
shall be as set forth in Subsection 3.03 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 Sexxxxx 0.00 (x), (x), (xx),
(xx),
(xx), (xx), (xxx), (xxx), (xxx), (xxx) xr (ooo) of the Purchase Agreement
shall
be deemed to materially and adversely affect the value of the related mortgage
loans or the interests of the Trust in the related mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee and the Master Servicer acting
on
the Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 3 hereof shall be
as set
forth in Section 2.03 of the Pooling Agreement as if they were set forth
herein.
The
Assignor hereby acknowledges and agrees that a breach of any one of the
representations set forth in Section 3 above will be deemed to materially
adversely affect the interests of the certificateholders and shall require
a
repurchase of the affected Mortgage Loan(s).
Miscellaneous
4. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
5. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee.
6. This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
8. This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
9. In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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By:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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Name:
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Title:
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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 Xxxxxxx 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 Mae or Xxxxxxx 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 Xxxxxxx Mac. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(yy) Unless
otherwise set forth on the related Mortgage Loan Schedule, no Mortgage
Loan is a
Balloon Mortgage Loan;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the related Mortgage Loan Schedule. The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing is legally classified
as real property, is permanently affixed to a foundation, is the principal
residence of the Mortgagor, meets the characteristics of site built housing
and
is deemed to be "modular housing" as such term is defined by the Mortgage
Bankers Association;
(ccc) [Reserved];
(ddd) The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program as
required
by the Anti-Money Laundering Laws, has conducted the requisite due diligence
in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of
the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification pursuant
to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department of
the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage Loan if the
related first lien provides for negative amortization, the LTV was calculated
at
the maximum principal balance of such first lien that could result upon
application of such negative amortization feature;
(fff) No
predatory or deceptive lending practices, including but not limited to,
the
extension of credit to the applicable Mortgagor without regard for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Mortgagor, were employed
by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied manufactured
home located in the State of Georgia was originated (or modified) on or
after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgagor was encouraged or required to select a Mortgage Loan product
offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as, without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing through
the
Mortgage Loan originator’s higher priced subprime lending channel was directed
towards or offered the Mortgage Loan’s originator standard mortgage line if the
Borrower was able to qualify for one of the standard products. If, at the
time
of loan application, the Mortgagor may have qualified for a lower cost
credit
product then the Mortgagor was offered such lower cost credit product by
the
Mortgage Loan’s originator;
(iii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related to such facts as,
without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan;
(jjj) All
points, fees and charges (including finance charges) and whether or not
financed, assessed, collected or to be collected in connection with the
origination and servicing of each Mortgage Loan have been disclosed in
writing
to the Mortgagor in accordance with applicable state and federal law and
regulation;
(kkk) All
points and fees related to each Mortgage Loan were disclosed in writing
to the
Mortgagor in accordance with applicable state and federal law and
regulation;
(lll) [Reserved];
(mmm) [Reserved];
(nnn) No
Mortgage Loan is a "High-Cost Home Loan" under the New Jersey Home Ownership
Security Act of 2002 (the "NJ Act"); and each Mortgage Loan subject to
the NJ
Act is considered under the NJ Act as, either, a (1) purchase money Home
Loan,
(2) purchase money Covered Loan (with respect to Mortgage Loans which were
originated between November 26, 2003 and July 7, 2004), (3) a rate/term
refinance Home Loan, or (4) a cash-out refinance Home Loan for which the
related
Mortgage File contains a statement signed by the Mortgagor stating that
the
proceeds of the loan will not be used for the purpose of home
improvement;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made or caused to be made any payment in the nature of
an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth
of
Massachusetts was made to pay off or refinance an existing loan or other
debt of
the related borrower (as the term "borrower" is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
the
Massachusetts General Laws Chapter 183, Section 28C (the “Mass AF Law”) unless
(a) the related Mortgage Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Mortgage Loans)
did
or would not exceed by more than 2.50% the yield on United States Treasury
securities having comparable periods of maturity to the maturity of the
related
Mortgage Loan as of the fifteenth day of the month immediately preceding
the
month in which the application for the extension of credit was received
by the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Mass AF Law or the regulations promulgated in connection
therewith) and the related Mortgage Note provides that the related Mortgage
Interest Rate may not exceed at any time the Prime rate index as published
in
the Wall
Street Journal
plus a
margin of one percent,
or if
(i) the refinancing transaction was in the “borrower’s interest” as determined
in accordance with the Mass AF Law and (ii) the related Servicing File
contains
evidence of the Company’s determination of “borrower’s interest” in accordance
with the Mass AF Law; and
(rrr) No
Mortgage Loan is a Convertible Mortgage Loan.
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated December 28, 2006, (“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
Decision One Mortgage Company, LLC (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
I.
Assignment and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated as of August
1, 2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates
to the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
II.
Recognition of the Company
From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
MASTR Asset-Backed Securities Trust 2006-HE5 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of December 1, 2006 (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”), Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing as servicer (the “Servicer”) and
U.S. Bank National Association, as trustee (including its successors in
interest
and any successor trustees under the Pooling Agreement, the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer and
the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage Loans,
under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches of
representations and warranties set forth in the Purchase Agreement, and
shall be
entitled to enforce all of the obligations of the Company thereunder insofar
as
they relate to the Mortgage Loans, and (iii) all references to the
Purchaser (insofar as they relate to the rights, title and interest and,
with
respect to obligations of the Purchaser, only insofar as they relate to
the
enforcement of the representations, warranties and covenants of the Company)
or
the Custodian under the Purchase Agreement insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the Trust (including the Trustee,
the Trust Administrator, the Master Servicer and the Servicer acting on
the
Trust’s behalf). Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions
of the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
III.
Representations and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) Attached
hereto as Exhibit
B
is a
true and accurate copy of the representations and warranties set forth
in
Sections 3.01 and 3.02 of the Purchase Agreement, which Purchase Agreement
is in
full force and effect as of the date hereof and the provisions of which
have not
been waived, amended or modified in any respect, nor has any notice of
termination been given thereunder;
(b) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(c) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company
of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or
by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee,
will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(d) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(e) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in
any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
2. Pursuant
to Section 8.01(b)(iii) of the Purchase Agreement, the Company hereby represents
and warrants, for the benefit of the Assignor, the Assignee and the Trust,
that
the representations and warranties set forth in Sections 3.01 and 3.02
of the
Purchase Agreement (set forth on Schedule 1 hereto), are true and correct
as of
the date hereof, as if such representations and warranties were made on
such
date.
3. The
Assignor hereby makes the following representations and warranties as of
the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such
terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E); and
(d) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act;
IV.
Remedies for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Section
3 hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement as if
they
were set forth herein (including without limitation the repurchase and
indemnity
obligations set forth therein). It is understood by the parties hereto
that a
breach of the representations and warranties made in Sections 3.02 (h),
(n),
(ee), (pp), (uu), (vv), (ccc), (ggg), (hhh), (iii), (jjj), (ooo), (rrr)
or (sss)
of the Purchase Agreement shall be deemed to materially and adversely affect
the
value of the related mortgage loan or the interests of the Trust in the
related
mortgage loans.
The
Company shall repurchase any Mortgage Loan sold to the Assignor for which
the
first monthly payment due in October 2006 or November 2006 becomes 30 days
past
due (each, a “Delinquent Loan”) or, in lieu of repurchase of a Delinquent Loan
by the Company, the Assignor and the Company may agree to a substitution
of
another Mortgage Loan for any Delinquent Loan. Any such substituted Mortgage
Loan will be subject to the Assignor’s acceptability. Such repurchase will be
made at the Repurchase Price (as defined in the Purchase
Agreement).
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee and the Master Servicer acting
on
the Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 3 hereof shall be
as set
forth in Section 2.03 of the Pooling and Servicing Agreement as if they
were set
forth herein (including without limitation the repurchase obligations set
forth
therein). The
Assignor hereby acknowledges and agrees that a breach of any one of the
representations set forth in Section 5 above will be deemed to materially
adversely affect the interests of the certificateholders and shall require
a
repurchase of the affected Mortgage Loan(s).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation
of the
Company with respect to any breach of representation and warranty made
by the
Company regarding the Mortgage Loans.
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee, the Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor, Assignee
or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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DECISION
ONE MORTGAGE COMPANY, LLC
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By:
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Name:
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EXHIBIT
A
Mortgage
Loan Schedule
Available
Upon Request
SCHEDULE
1
Capitalized
terms used herein but not defined in this Schedule 1 shall have the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that as of
each
Closing Date and as of each Servicing Transfer Date or as of such date
specifically provided herein:
(a) The
Company is a limited liability company duly organized and validly existing
under
the laws of 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 Mae 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 Xxxxxxx 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 Mae or Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx Mac. The Company is currently selling
loans
to Xxxxxx Mae and/or Xxxxxxx 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 Mae or Xxxxxxx 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 Mae
or
Xxxxxxx 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 Mae and
Xxxxxxx
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 Xxxxxxx 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 Mae and Xxxxxxx Mac, including without limitation
the
requirement that such manufactured housing will be the principal residence
of
the Mortgagor upon origination of the Mortgage Loan;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately furnished
complete information (e.g., favorable and unfavorable) on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company
(three of the credit repositories), in accordance with the Fair Credit
Reporting
Act and its implementing regulations, on a monthly basis and the Company
will
fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union
Credit Information Company (three of the credit repositories), on a monthly
basis;
(ddd) The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program as
required
by the Anti-Money Laundering Laws, has conducted the requisite due diligence
in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of
the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification pursuant
to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department of
the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage Loan the
related
first lien does not contain any term that could result in negative
amortization;
(fff) No
predatory or deceptive lending practices, including but not limited to,
the
extension of credit to the applicable Mortgagor without regard for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Mortgagor, were employed
by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of Xxxxxx 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 Xxxxxx Mae’s requirements
as set forth in the Xxxxxx Mae 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.
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated December 28, 2006, (“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
First NLC Financial Services, LLC (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
I.
Assignment and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated as of July
1, 2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates
to the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
II.
Recognition of the Company
From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
MASTR Asset-Backed Securities Trust 2006-HE5 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of December 1, 2006 (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”), Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing as servicer (the “Servicer”) and
U.S. Bank National Association, as trustee (including its successors in
interest
and any successor trustees under the Pooling Agreement, the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer and
the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage Loans,
under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches of
representations and warranties set forth in the Purchase Agreement, and
shall be
entitled to enforce all of the obligations of the Company thereunder insofar
as
they relate to the Mortgage Loans, and (iii) all references to the
Purchaser (insofar as they relate to the rights, title and interest and,
with
respect to obligations of the Purchaser, only insofar as they relate to
the
enforcement of the representations, warranties and covenants of the Company)
or
the Custodian under the Purchase Agreement insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the Trust (including the Trustee,
the Trust Administrator, the Master Servicer and the Servicer acting on
the
Trust’s behalf). Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions
of the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
III.
Representations and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) Attached
hereto as Exhibit
B
is a
true and accurate copy of the representations and warranties set forth
in
Sections 3.01 and 3.02 of the Purchase Agreement, which Purchase Agreement
is in
full force and effect as of the date hereof and the provisions of which
have not
been waived, amended or modified in any respect, nor has any notice of
termination been given thereunder;
(b) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(c) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company
of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or
by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee,
will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(d) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(e) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in
any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
2. Pursuant
to Section 8.01(b)(iii) of the Purchase Agreement, the Company hereby represents
and warrants, for the benefit of the Assignor, the Assignee and the Trust,
that
the representations and warranties set forth in Sections 3.01 and 3.02
of the
Purchase Agreement (set forth on Schedule 1 hereto), are true and correct
as of
the date hereof, as if such representations and warranties were made on
such
date.
3. The
Assignor hereby makes the following representations and warranties as of
the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such
terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E); and
(d) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act;
IV.
Remedies for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Section
3 hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement as if
they
were set forth herein (including without limitation the repurchase and
indemnity
obligations set forth therein). It is understood by the parties hereto
that a
breach of the representations and warranties made in Sections 3.02 (h),
(n),
(ee), (pp), (uu), (vv), (ccc), (ggg), (hhh), (iii), (jjj), (ooo), (rrr)
or (sss)
of the Purchase Agreement shall be deemed to materially and adversely affect
the
value of the related mortgage loan or the interests of the Trust in the
related
mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee and the Master Servicer acting
on
the Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 3 hereof shall be
as set
forth in Section 2.03 of the Pooling and Servicing Agreement as if they
were set
forth herein (including without limitation the repurchase obligations set
forth
therein). The
Assignor hereby acknowledges and agrees that a breach of any one of the
representations set forth in Section 5 above will be deemed to materially
adversely affect the interests of the certificateholders and shall require
a
repurchase of the affected Mortgage Loan(s).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation
of the
Company with respect to any breach of representation and warranty made
by the
Company regarding the Mortgage Loans.
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee, the Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor, Assignee
or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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FIRST
NLC FINANCIAL SERVICES, LLC
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By:
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Name:
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Title:
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EXHIBIT
A
Mortgage
Loan Schedule
Available
Upon Request
SCHEDULE
1
Capitalized
terms used herein but not defined in this Schedule 1 shall have the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that as of
each
Closing Date and as of each Servicing Transfer Date or as of such date
specifically provided herein:
(a) The
Company is a limited liability company duly organized and validly existing
under
the laws of Florida. The Company has all licenses necessary to carry out
its
business as now being conducted, and is licensed and qualified to transact
business in and is in good standing under the laws of each state in which
any
Mortgaged Property is located or is otherwise exempt under applicable law
from
such licensing or qualification or is otherwise not required under applicable
law to effect such licensing or qualification and no demand for such licensing
or qualification has been made upon the Company by any such state, and
in any
event the Company is in compliance with the laws of any such state to the
extent
necessary to ensure the enforceability of each Mortgage Loan and the interim
servicing of the Mortgage Loans in accordance with the terms of this Agreement.
No licenses or approvals obtained by the Company have been suspended or
revoked
by any court, administrative agency, arbitrator or governmental body and
no
proceedings are pending which might result in such suspension or
revocation;
(b) The
Company has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and the related Confirmation and to conduct its business
as
presently conducted; the Company has duly authorized the execution, delivery
and
performance of this Agreement and any agreements contemplated hereby, has
duly
executed and delivered this Agreement and the related Confirmation, and
any
agreements contemplated hereby, and this Agreement and the related Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements contemplated
hereby, constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their respective terms, except
as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting
the
enforceability of the rights of creditors; and all requisite corporate
action
has been taken by the Company to make this Agreement, the related Confirmation
and all agreements contemplated hereby valid and binding upon the Company
in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms
and
conditions of this Agreement and the related Confirmation will conflict
with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the Company is now a party or by which it is bound, or constitute
a
default or result in an acceleration under any of the foregoing, or result
in
the material violation of any law, rule, regulation, order, judgment or
decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have a material
adverse effect on the sale of the Mortgage Loans, the execution, delivery,
performance or enforceability of this Agreement or the related Confirmation,
or
which is reasonably likely to have a material adverse effect on the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement and the related Confirmation,
except for consents, approvals, authorizations and orders which have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement and the
related
Confirmation are in the ordinary course of business of the Company, and
the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Company pursuant to this Agreement and the related Confirmation are
not
subject to bulk transfer or any similar statutory provisions in effect
in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect to each Mortgage
Note and Mortgage have been legal and in accordance with applicable laws
and
regulations, and in all material respects in accordance with Accepted Servicing
Practices. The Company further represents and warrants that: with respect
to
escrow deposits and payments that the Company is entitled to collect, all
such
payments are in the possession of, or under the control of, the Company
or its
delegate, and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made; all escrow
payments have been collected and are being maintained in full compliance
with
applicable state and federal law and the provisions of the related Mortgage
Note
and Mortgage; as to any Mortgage Loan that is the subject of an escrow,
escrow
of funds is not prohibited by applicable law and has been established in
an
amount sufficient to pay for every escrowed item that remains unpaid and
has
been assessed but is not yet due and payable; no escrow deposits or other
charges or payments due under the Mortgage Note have been capitalized under
any
Mortgage or the related Mortgage Note; all Mortgage Interest Rate adjustments
have been made in strict compliance with state and federal law and the
terms of
the related Mortgage Note; and any interest required to be paid pursuant
to
state and local law has been properly paid and credited;
(h) The
Company has not used selection procedures that identified the Mortgage
Loans as
being less desirable or valuable than other comparable mortgage loans in
the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the Purchaser
as a sale
for reporting and accounting purposes and, to the extent appropriate, for
federal income tax purposes. The Company shall maintain a complete set
of books
and records for each Mortgage Loan which shall be clearly marked to reflect
the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage loans for
HUD,
with such facilities, procedures and personnel necessary for the sound
servicing
of such mortgage loans. The Company is duly qualified, licensed, registered
and
otherwise authorized under all applicable federal, state and local laws
and
regulations and is in good standing to sell mortgage loans to and service
mortgage loans for Xxxxxx Xxx or Xxxxxxx 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 Mae or Xxxxxxx Mac;
(k) The
Company does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every covenant contained in this Agreement and
the
related Confirmation applicable to it. The Company is solvent and the sale
of
the Mortgage Loans will not cause the Company to become insolvent. The
sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared by,
or on
behalf of, the Company pursuant to this Agreement, the related Confirmation
or
in connection with the transactions contemplated hereby, contains or will
contain any statement that is or will be inaccurate or misleading in any
material respect. The Company has prudently originated and underwritten
each
Mortgage Loan;
(m) The
consideration received by the Company upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such
Mortgage
Loans;
(n) The
Company has delivered to the Initial Purchaser financial statements as
to its
last two complete fiscal years. All such financial statements fairly present
the
pertinent results of operations and changes in financial position for each
of
such periods and the financial position at the end of each such period
of the
Company and its subsidiaries and have been prepared in accordance with
GAAP
consistently applied throughout the periods involved, except as set forth
in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Company since the date of the Company’s
financial statements that would have a material adverse effect on its ability
to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent or other
person
that may be entitled to any commission or compensation in connection with
the
sale of the Mortgage Loans; and
(p) The
Company is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date and as of the related Servicing Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Initial Purchaser, is
complete,
true and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security interest
with
respect to each Mortgage Loan which is indicated by the Company to be a
First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second lien and
second
priority security interest with respect to each Mortgage Loan which is
indicated
by the Company to be a Second Lien (as reflected on the Mortgage Loan Schedule),
in either case, in the related Mortgaged Property securing the related
Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such Mortgage
Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
in
payment more than 30 days and has not been dishonored; there are no material
defaults under the terms of the Mortgage Loan; the Company has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been delinquent
during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been
recorded
to the extent any such recordation is required by law. No instrument of
waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been approved
by the issuer has been approved by the issuer of any related title insurance
policy, to the extent required by the related policy.
(f) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note
or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any
state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the Xxxxxx Mae Guides, against
loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Mae Guides or by the Xxxxxxx 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 Mae and
Xxxxxxx
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 Mae or Xxxxxxx 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 Mae. With respect to each inter-vivos trust, holding title to the
Mortgaged Property in such trust will not diminish any rights as a creditor
including the right to full title to the Mortgaged Property in the event
foreclosure proceedings are initiated;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to Xxxxxx Xxx or Xxxxxxx 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 Xxxxxxx Mac. The Company is currently selling
loans
to Xxxxxx Mae and/or Xxxxxxx 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 Mae or Xxxxxxx 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 Mae
or
Xxxxxxx Mac;
(v) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(w) The
related Mortgage Note is not and has not been secured by any collateral
except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in (j) above
and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent and the
Company has no knowledge of any circumstances or condition with respect
to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors to regard
the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to
become
delinquent, or materially adversely affect the value or marketability of
the
Mortgage Loan;
(aa) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
funds were disbursed in connection with the Mortgage Loan. The Mortgage
Loans
have an original term to maturity of not more than 30 years, with interest
payable in arrears on the first day of each month. Each Mortgage Note requires
a
monthly payment which is sufficient to fully amortize the original principal
balance over the original term thereof (other than during the interest-only
period with respect to a Mortgage Loan identified on the related Mortgage
Loan
Schedule as an interest-only Mortgage Loan) and to pay interest at the
related
Mortgage Interest Rate. With respect to each Mortgage Loan identified on
the
Mortgage Loan Schedule as an interest-only Mortgage Loan, the interest-only
period does not exceed ten (10) years (or such lesser period specified
on the
Mortgage Loan Schedule) and following the expiration of such interest-only
period, the remaining Monthly Payments shall be sufficient to fully amortize
the
original principal balance over the remaining term of the Mortgage Loan.
No
Mortgage Loan contains terms or provisions which would result in negative
amortization. No Mortgage Loan provides for the capitalization or forbearance
of
interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project, or
an
individual unit in a planned unit development or a de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon,
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination no
portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a Prepayment Penalty. For any Mortgage Loan originated prior
to
October 1, 2002 that is subject to a Prepayment Penalty, such prepayment
penalty
does not extend beyond five years after the date of origination. For any
Mortgage Loan originated on or following October 1, 2002 that is subject
to a
Prepayment Penalty, such prepayment penalty does not extend beyond three
years
after the date of origination. Any such prepayment penalty is permissible
and
enforceable in accordance with its terms upon the Mortgagor’s full and voluntary
principal prepayment under applicable law. With respect to any Mortgage
Loan
that contains a provision permitting imposition of a penalty upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such a prepayment
penalty; (ii) the Mortgage Loan’s originator had a written policy of offering
the Mortgagor, or requiring third-party brokers to offer the Mortgagor,
the
option of obtaining a Mortgage Loan that did not require payment of such
a
prepayment penalty and the Mortgagor was offer such a product by the Mortgage
Loan’s originator; (iii) the prepayment penalty was adequately disclosed to
the
Mortgagor in the loan documents pursuant to applicable state and federal
law;
and (iv) such prepayment penalty shall not be imposed in any instance where
the
Mortgage Loan is accelerated or paid off in connection with the workout
of a
delinquent mortgage or due to the Mortgagor’s default, notwithstanding that the
terms of the Mortgage Loan or state or federal law might permit the imposition
of such a prepayment penalty;
(ff) The
Mortgaged Property is lawfully occupied under applicable law, and all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect
to
the use and occupancy of the same, including but not limited to certificates
of
occupancy and fire underwriting certificates, have been made or obtained
from
the appropriate authorities;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium or planned
unit
development project meets the eligibility requirements of Xxxxxx Mae and
Xxxxxxx
Mac;
(hh)
There is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgaged Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(ii) The
Mortgagor has not notified the Company requesting relief under the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act, and
the Company has no knowledge of any relief requested or allowed to the
Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related Closing
Date
which has resulted or will result in an exclusion from, denial of, or defense
to
coverage under any insurance policy related to a Mortgage Loan (including,
without limitation, any exclusions, denials or defenses which would limit
or
reduce the availability of the timely payment of the full amount of the
loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud, or for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association, a savings
bank,
a commercial bank, a credit union, an insurance company, or similar institution
which is supervised and examined by a federal or state authority, or by
a
mortgagee approved by the Secretary of HUD pursuant to Sections 203 and
211 of
the National Housing Act;
(mm) No
Mortgaged Property is subject to a ground lease;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the Mortgagor and no claims
will
arise as to broker fees that are double charged and for which the Mortgagor
would be entitled to reimbursement;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
this Agreement. With respect to each Mortgage Loan, the Company is in possession
of a complete Mortgage File and Servicing File except for such documents
as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor is true,
accurate and complete and does not contain any statement that is or will
be
inaccurate or misleading in any material respect;
(ss)
To the
best of the Company’s knowledge, there does not exist on the related Mortgaged
Property any hazardous substances, hazardous wastes or solid wastes, as
such
terms are defined in the Comprehensive Environmental Response Compensation
and
Liability Act, the Resource Conservation and Recovery Act of 1976, or other
federal, state or local environmental legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than
95% and no Mortgage Loan had a Combined Loan-to-Value Ratio at the time
of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
law, including any predatory or abusive lending laws (or a similarly classified
loan using different terminology under a law imposing heightened regulatory
scrutiny or additional legal liability for a residential mortgage loan
having
high interest rates, points and/or fees), (c) a High Cost Loan or Covered
Loan,
as applicable (as such terms are defined in the current version of Standard
& Poor’s LEVELS® Glossary, Appendix E) or (d) in violation of any state law
or ordinance comparable to HOEPA. No Mortgage Loan (including purchase
money
loans or refinance transactions) has an “annual percentage rate” or “total
points and fees” payable by the Mortgagor (as each such term is defined under
HOEPA) that equal or exceed the applicable thresholds defined under HOEPA
(Section 32 of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i) and
(ii));
(vv) No
Mortgagor was required to purchase any credit life, disability, accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit. No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection with
the
origination of the Mortgage Loan; No proceeds from any Mortgage Loan were
used
to purchase or finance single-premium insurance policies or debt cancellation
agreements as part of the origination of or as a condition to closing,
such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related Closing Date
have
been consolidated with the outstanding principal amount secured by the
Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having (A) first lien priority
with
respect to each Mortgage Loan which is indicated by the Company to be a
First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second lien priority
with respect to each Mortgage Loan which is indicated by the Company to
be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan Data Transmission),
in either case, by a title insurance policy, an endorsement to the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(yy) No
Mortgage Loan is a Balloon Mortgage Loan;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the related Mortgage Loan Schedule. The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing shall be legally
classified as real property, is permanently affixed to a foundation and
must
assume the characteristics of site-built housing and must otherwise conform
to
the requirements of Xxxxxx Mae and Xxxxxxx Mac, including without limitation
the
requirement that such manufactured housing will be the principal residence
of
the Mortgagor upon origination of the Mortgage Loan;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately furnished
complete information (e.g., favorable and unfavorable) on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company
(three of the credit repositories), in accordance with the Fair Credit
Reporting
Act and its implementing regulations, on a monthly basis and the Company
will
fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union
Credit Information Company (three of the credit repositories), on a monthly
basis;
(ddd) The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program as
required
by the Anti-Money Laundering Laws, has conducted the requisite due diligence
in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of
the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification pursuant
to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department of
the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage Loan the
related
first lien does not contain any term that could result in negative
amortization;
(fff) No
predatory or deceptive lending practices, including but not limited to,
the
extension of credit to the applicable Mortgagor without regard for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Mortgagor, were employed
by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of Xxxxxx Mae’s Selling Guide;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied manufactured
home located in the State of Georgia was originated (or modified) on or
after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgagor was encouraged or required to select a Mortgage Loan product
offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as, without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing through
the
Mortgage Loan originator’s higher priced sup prime lending channel was directed
towards or offered the Mortgage Loan’s originator standard mortgage line if the
Borrower was able to qualify for one of the standard products. If, at the
time
of loan application, the Mortgagor may have qualified for a lower cost
credit
product then offered by any mortgage lending affiliate of the Mortgage
Loan’s
originator, the Mortgage Loan’s originator referred the Mortgagor’s application
to such affiliate for underwriting consideration;
(iii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension of credit.
The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of the origination the Mortgagor had the ability to make timely
payments on the Mortgage Loan;
(jjj) All
points, fees and charges (including finance charges) and whether or not
financed, assessed, collected or to be collected in connection with the
origination and servicing of each Mortgage Loan have been disclosed in
writing
to the Mortgagor in accordance with applicable state and federal law and
regulation;
(kkk) All
Points and Fees related to each Loan were disclosed in writing to the Mortgagor
in accordance with applicable state and federal law and regulation. Except
as
otherwise disclosed in the Mortgage Loan Schedule, no Mortgagor was charged
Points and Fees (whether or not financed) in an amount that exceeds the
greater
of (1) 5% of the principal amount of such Mortgage Loan or (2)
$1,000;
(lll) The
Company will transmit full-file credit reporting data for each Mortgage
Loan
pursuant to Xxxxxx Mae Guide Announcement 95-19 and for each Mortgage Loan,
Company agrees it shall report one of the following statuses each month
as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(mmm) Each
Mortgage Loan is eligible for sale in the secondary mortgage market or
for
securitization without unreasonable credit enhancement;
(nnn) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase money Home
Loan,
(2) purchase money Covered Loan (with
respect to Mortgage Loans which were originated between November 26, 2003
and
July 7, 2004),
or (3)
a rate/term refinance Home Loan;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made or caused to be made any payment in the nature of
an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth
of
Massachusetts was made to pay off or refinance an existing loan or other
debt of
the related borrower (as the term "borrower" is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
the
Massachusetts General Laws Chapter 183, Section 28C) unless (a) the related
Mortgage Interest Rate (that would be effective once the introductory rate
expires, with respect to Adjustable Rate Mortgage Loans) did or would not
exceed
by more than 2.50% the yield on United States Treasury securities having
comparable periods of maturity to the maturity of the related Mortgage
Loan as
of the fifteenth day of the month immediately preceding the month in which
the
application for the extension of credit was received by the related lender
or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage Note provides
that
the related Mortgage Interest Rate may not exceed at any time the Prime
rate
index as published in the Wall
Street Journal
plus a
margin of one percent;
(rrr) [Reserved];
and
(sss) With
respect to each Mortgage Loan, the related residential dwelling is not
a
manufactured housing unit.
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated December 28, 2006, (“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
New Century 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 Master Seller’s Purchase, Warranties
and Interim Servicing Agreement dated as of May 1, 2004 as amended (the
“Purchase
Agreement”),
among
the Assignor, as initial purchaser (the “Purchaser”),
New
Century Mortgage Corporation, as seller and the Company, as originator
and
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 2006-HE5 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of December 1, 2006 (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”), Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing as servicer (the “Servicer”) and
U.S. Bank National Association, as trustee (including its successors
in interest
and any successor trustees under the Pooling Agreement, the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer
and the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage Loans,
under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches
of
representations and warranties set forth in the Purchase Agreement, and
shall be
entitled to enforce all of the obligations of the Company thereunder
insofar as
they relate to the Mortgage Loans and (iii) all references to the Purchaser
(insofar as they relate to the rights, title and interest and, with respect
to
obligations of the Purchaser, only insofar as they relate to the enforcement
of
the representations, warranties and covenants of the Company) or the
Custodian
under the Purchase Agreement insofar as they relate to the Mortgage Loans,
shall
be deemed to refer to the Trust (including the Trustee, the Trust Administrator,
the Master Servicer and the Servicer acting on the Trust’s behalf). Neither the
Company nor the Assignor shall amend or agree to amend, modify, waiver,
or
otherwise alter any of the terms or provisions of the Purchase Agreement
which
amendment, modification, waiver or other alteration would in any way
affect the
Mortgage Loans or the Company’s performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent of the
Trustee.
III.
Representations, Warranties and Covenants
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 except as has already been obtained; 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 11 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 7.01 and 7.02 of
the
Purchase Agreement (set forth on Schedule 1), are true and correct as
of the
Closing Date (as defined in the Pooling and Servicing Agreement) as if
such
representations and warranties were made on such date, except that the
representation and warranty set forth in Section 7.02(a) shall, for the
purposes
of this Agreement, relate to the Mortgage Loan Schedule attached
hereto.
3. In
the
event that the first Monthly Payment on any Mortgage Loan due on August
1, 2006
is not made by October 1, 2006, then such Mortgage Loan will be repurchased
by
the Company at the Purchase Price (as defined in the Pooling and Servicing
Agreement), provided such default has not been cured prior to the date
of such
repurchase. Notwithstanding the foregoing, the Company’s obligation to
repurchase any such Mortgage Loan pursuant to this paragraph shall expire
120
days following the Closing Date (as defined in the Pooling and Servicing
Agreement).
4. The
Assignor hereby makes the following representation and warranty 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 Sections
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).
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee and the Master Servicer
acting on
the Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 3 hereof shall be
as set
forth in Section 2.03 of the Pooling and Servicing Agreement as if they
were set
forth herein (including without limitation the repurchase obligations
set forth
therein). The Assignor hereby acknowledges and agrees that a breach of
any one
of the representations set forth in Sections 3 above will be deemed to
materially adversely affect the interests of the certificateholders and
shall
require a repurchase of the affected Mortgage Loan(s).
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the State
of New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
No
term
or provision of this Agreement may be waived or modified unless such
waiver or
modification is in writing and signed by the party against whom such
waiver or
modification is sought to be enforced, with the prior written consent
of the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee, the Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor,
Assignee or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto) but not
defined in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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Name:
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Title:
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Name:
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Title:
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NEW
CENTURY MORTGAGE CORPORATION
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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 Regarding the Seller.
The
Seller and the Servicer represent, warrant and covenant to the Purchaser
that as
of the date hereof and as of the related Closing Date:
(a) Due
Organization and Authority.
Each of
the Seller and the Servicer is a corporation duly organized, validly
existing
and in good standing under the laws of the state of California and has
all
licenses necessary to carry on its business as now being conducted and
is
licensed, qualified and in good standing in each state wherein it owns
or leases
any material properties or where a Mortgaged Property is located, if
the laws of
such state require licensing or qualification in order to conduct business
of
the type conducted by the Seller or the Servicer, as applicable, and
in any
event the Seller and the Servicer are in compliance with the laws of
any such
state to the extent necessary to ensure the enforceability of the related
Mortgage Loan in accordance with the terms of this Agreement and the
related
Purchase Price and Terms Letter; the Seller has the full corporate power,
authority and legal right to hold, transfer and convey the Mortgage Loans
and
the Seller and the Servicer have the full corporate power, authority
and legal
right to execute and deliver this Agreement and, as applicable, the related
Purchase Price and Terms Letter and to perform their obligations hereunder;
the
execution, delivery and performance of this Agreement (including all
instruments
of transfer to be delivered pursuant to this Agreement and the related
Purchase
Price and Terms Letter) by the Seller and the Servicer, and the consummation
of
the transactions contemplated hereby have been duly and validly authorized
by
each of the Seller and the Servicer; this Agreement, the related Purchase
Price
and Terms Letter and all agreements contemplated hereby have been duly
executed
and delivered and constitute the valid, legal, binding and enforceable
obligations of the Seller and the Servicer, regardless of whether such
enforcement is sought in a proceeding in equity or at law; and all requisite
corporate action has been taken by the Seller and the Servicer to make
this
Agreement, the related Purchase Price and Terms Letter and all agreements
contemplated hereby valid and binding upon the Seller and the Servicer
in
accordance with their terms;
(b) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement and the
related
Purchase Price and Terms Letter are in the ordinary course of business
of the
Seller and the Servicer, and the transfer, assignment and conveyance
of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement
and
the related Purchase Price and Terms Letter are not subject to the bulk
transfer
or any similar statutory provisions in effect in any applicable
jurisdiction;
(c) No
Conflicts.
Neither
the execution and delivery of this Agreement, the related Purchase Price
and
Terms Letter, the acquisition or origination of the Mortgage Loans by
the Seller
or the Servicer, as applicable, the sale of the Mortgage Loans by the
Seller to
the Purchaser, the consummation of the transactions contemplated hereby,
nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions
or
provisions of the Seller’s or the Servicer’s charter or by-laws or any legal
restriction or, in any material respects, any agreement or instrument
to which
the Seller or the Servicer 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 violation of any law, rule, regulation, order, judgment or decree
to which
the Seller or the Servicer or its property is subject, or result in the
creation
or imposition of any lien, charge or encumbrance that would have an adverse
effect upon any of its properties pursuant to the terms of any mortgage,
contract, deed of trust or other instrument, or impair the ability of
the
Purchaser to realize on the Mortgage Loans, impair the value of the Mortgage
Loans, or impair the ability of the Purchaser to realize the full amount
of any
insurance benefits accruing pursuant to this Agreement;
(d) Ability
to Perform; Solvency.
Neither
the Seller nor the Servicer believes, nor does it have any reason or
cause to
believe, that it cannot perform each and every covenant contained in
this
Agreement and the related Purchase Price and Terms Letter. The Seller
is solvent
and the sale of the Mortgage Loans will not cause the Seller to become
insolvent. The sale of the Mortgage Loans is not undertaken with the
intent to
hinder, delay or defraud any of Seller’s creditors;
(e) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or threatened
against
the Seller or the Servicer, before any court, administrative agency or
other
tribunal asserting the invalidity of this Agreement, seeking to void
the sale of
the Mortgage Loans by the Servicer or Seller or prevent the consummation
of any
of the transactions contemplated by this Agreement or which, either in
any one
instance or in the aggregate, may result in any material adverse change
in the
business, operations, financial condition, properties or assets of the
Seller or
the Servicer, or in any material impairment of the right or ability of
the
Seller or the Servicer to carry on its business substantially as now
conducted,
or in any material liability on the part of the Seller or the Servicer,
or which
would draw into question the validity of this Agreement, the related
Purchase
Price and Terms Letter or the Mortgage Loans or of any action taken or
to be
taken in connection with the obligations of the Seller or the Servicer
contemplated herein, or which would be likely to impair materially the
ability
of the Seller or the Servicer to perform under the terms of this
Agreement;
(f) No
Consent Required.
No
consent, approval, authorization or order of, or registration or filing
with, or
notice to any court or governmental agency or body including HUD, the
FHA or the
VA is required for the execution, delivery and performance by the Seller
or the
Servicer of or compliance by the Seller or the Servicer with this Agreement
or
the Mortgage Loans, the delivery of a portion of the Mortgage Files to
the
Custodian or the sale of the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has
been obtained prior to the related Closing Date;
(g) Selection
Process.
The
Mortgage Loans were selected from among the outstanding one- to four-family
mortgage loans in the Seller’s portfolio at the related Closing Date as to which
the representations and warranties set forth in Subsection
7.02
could be
made and such selection was not made in a manner so as to affect adversely
the
interests of the Purchaser;
(h) Delivery
to the Custodian.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other
documents
required to be delivered with respect to each Mortgage Loan pursuant
to this
Agreement and the related Purchase Price and Terms Letter, shall be delivered
to
the Custodian all in compliance with the specific requirements of this
Agreement. With respect to each Mortgage Loan, the Seller will be in
possession
of a complete Mortgage File in compliance with Exhibit A
hereto,
except for such documents as will be delivered to the Custodian;
(i) Mortgage
Loan Characteristics.
The
characteristics of the Mortgage Loans are as set forth on the description
of the
pool characteristics for the Mortgage Loans delivered pursuant to Section 9
on the
related Closing Date in the form attached as Exhibit
G
hereto;
(j) No
Untrue Information.
Neither
this Agreement, the related Purchase Price and Terms Letter nor any information,
statement, tape, diskette, report, form, or other document furnished
or to be
furnished pursuant to this Agreement or any Reconstitution Agreement
or in
connection with the transactions contemplated hereby (including any
Securitization Transfer or Whole Loan Transfer) contains or will contain
any
untrue statement of fact or omits or will omit to state a fact necessary
to make
the statements contained herein or therein not misleading;
(k) Financial
Statements.
Each of
the Seller and the Servicer have delivered to the Purchaser financial
statements
as to its last three complete fiscal years and any later quarter ended
more than
60 days prior to the execution of this Agreement. 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 Seller or the Servicer, as applicable, and its subsidiaries
and have been prepared in accordance with generally accepted accounting
principles 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 Seller or
the
Servicer since the date of the Seller’s or the Servicer’s financial statements
that would have a material adverse effect on its ability to perform its
obligations under this Agreement. The Seller and the Servicer have completed
any
forms requested by the Purchaser in a timely manner and in accordance
with the
provided instructions;
(l) No
Brokers.
Neither
the Seller nor the Servicer have 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;
(m) Sale
Treatment.
The
Seller intends to reflect the transfer of the Mortgage Loans as a sale
on the
books and records of the Seller and the Seller has determined that the
disposition of the Mortgage Loans pursuant to this Agreement and the
related
Purchase Price and Terms Letter will be afforded sale treatment for tax
and
accounting purposes;
(n) Owner
of Record.
The
Seller is the owner of record of each Mortgage and the indebtedness evidenced
by
each Mortgage Note, except for an intervening assignments of Mortgage
which have
been sent for recording, upon recordation of which, the Seller will be
the owner
of record of each Mortgage and the indebtedness evidenced by each Mortgage
Note;
and
(o) HUD/Xxxxxxx
Mac.
The
Servicer is an approved seller/servicer for Xxxxxxx 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 Servicer unable to comply with Xxxxxxx Mac or HUD
eligibility requirements or which would require notification to Xxxxxxx
Mac or
HUD.
(p) Subsection
7.02Representations
and Warranties Regarding Individual Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that, as to each
Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage
Loans as Described.
The
information set forth in the Mortgage Loan Schedule is complete, true
and
correct;
(b) Payments
Current.
All
payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note, other than payments for which
the
related due date was not thirty or more days prior to the related Closing
Date,
have been made and credited. No Mortgage Loan has a Thirty-day Delinquency
nor
has the Mortgage Loan had a Thirty-day Delinquency at any time since
the
origination of the Mortgage Loan. The first Monthly Payment shall be
made with
respect to the Mortgage Loan on its Due Date or during the month in which
it is
due, all in accordance with the terms of the related Mortgage Note;
(c) No
Outstanding Charges.
There
are no defaults in complying with the terms of the Mortgage, and 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 an escrow of funds has been established in an
amount
sufficient to pay for every such item which remains unpaid and which
has been
assessed but is not yet due and payable. Neither the Seller nor the Servicer
has
advanced funds, or induced, solicited or knowingly received any advance
of funds
by a party other than the Mortgagor, directly or indirectly, for the
payment of
any amount required under the Mortgage Loan, except for interest accruing
from
the date of the Mortgage Note or date of disbursement of the Mortgage
Loan
proceeds, whichever is earlier, to the day which precedes by one month
the Due
Date of the first installment of principal and interest;
(d) Original
Terms Unmodified.
The
terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered
or modified in any respect, from the date of origination except by a
written
instrument which has been recorded, if necessary to protect the interests
of the
Purchaser, and which has been delivered to the Custodian or to such other
Person
as the Purchaser shall designate in writing, and the terms of which are
reflected in the Mortgage Loan Schedule. The substance of any such waiver,
alteration or modification has been approved by any related insurer to
the
extent required by the policy, and its terms are reflected on the Mortgage
Loan
Schedule, if applicable. No Mortgagor has been released, in whole or
in part,
except in connection with an assumption agreement, approved by any related
insurer, to the extent required by the policy, and which assumption agreement
is
part of the Mortgage Loan File delivered to the Custodian or to such
other
Person as the Purchaser shall designate in writing and the terms of which
are
reflected in the Mortgage Loan Schedule;
(e) No
Defenses.
The
Mortgage Loan is 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 either the Mortgage Note or
the
Mortgage unenforceable, in whole or in part, or subject to any right
of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto, and no Mortgagor was
a debtor in
any state or Federal bankruptcy or insolvency proceeding at the time
the
Mortgage Loan was originated or as of the related Closing Date;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other 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 provided for
in the
Xxxxxx Mae Guides or by Xxxxxxx Mac 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) the outstanding principal
balance of the 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. If required by the National Flood Insurance Act of 1968,
as
amended, each Mortgage Loan is covered by a flood insurance policy meeting
the
requirements of the current guidelines of the Federal Insurance Administration
is in effect which policy is in an amount not less than the amount required
by
the Flood Disaster Protection Act of 1973, as amended, conforms to Xxxxxx
Mae
and Xxxxxxx Mac and is insured by a Qualified Insurer. All individual
insurance
policies contain a standard mortgagee clause naming the Servicer and
its
successors and assigns as mortgagee, and all premiums thereon have been
paid.
The Mortgage obligates the Mortgagor thereunder to maintain the hazard
insurance
policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance
at such Mortgagor’s cost and expense, and to seek reimbursement therefor from
the Mortgagor. Where required by state law or regulation, the Mortgagor
has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a “master”
or
“blanket”
hazard
insurance policy covering a condominium, or any hazard insurance policy
covering
the common facilities of a planned unit development. The hazard insurance
policy
is the valid and binding obligation of the insurer, is in full force
and effect,
and will be in full force and effect and inure to the benefit of the
Purchaser
upon the consummation of the transactions contemplated by this Agreement.
Neither the Seller nor the Servicer has engaged in, and has no knowledge
of the
Mortgagor’s or any servicer’s having engaged in, any act or omission which would
impair the coverage of any such policy, the benefits of the endorsement
provided
for herein, or the validity and binding effect of such policy, without
limitation. No unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized
by any
attorney, firm or other person or entity, and no such unlawful items
have been
received, retained or realized by the Seller or the Servicer;
(g) Compliance
with Applicable Laws.
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, all predatory, abusive and
fair
lending laws and disclosure laws or unfair and deceptive practices laws
applicable to the Mortgage Loan or any related Prepayment Penalty have
been
complied with, the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws or regulations, and the Seller
shall
maintain in its possession, available for the Purchaser’s inspection, and shall
deliver to the Purchaser upon demand, evidence of compliance with all
such
requirements;
(h) No
Satisfaction of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated or rescinded,
in whole
or in part, 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.
Neither the Seller nor the Servicer has 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 Seller or the Servicer waived
any
default resulting from any action or inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property.
The
Mortgaged Property is located in the state identified in the Mortgage
Loan
Schedule and consists of real property with a detached single family
residence
erected thereon, or a two- to four-family dwelling, or an individual
condominium
unit in a low-rise condominium project, or an individual unit in a planned
unit
development or a de minimis planned unit development which is in each
case four
stories or less, provided, however, that any manufactured dwelling shall
conform
with the applicable Xxxxxx Mae and Xxxxxxx Mac requirements regarding
such
dwellings and that no Mortgage Loan is secured by a single parcel of
real
property with a cooperative housing corporation, a log home or a mobile
home
erected thereon or by a mixed-use property, a property in excess of 10
acres, or
other unique property types. As of the date of origination, no portion
of the
Mortgaged Property was used for commercial purposes, and since the date
of
origination, no portion of the Mortgaged Property has been used for commercial
purposes; 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 commercial purposes and is not storing
any
chemicals or raw materials other than those commonly used for homeowner
repair,
maintenance and/or household purposes. With respect to any Mortgage Loan
secured
by a Mortgaged Property improved by manufactured housing, (i) the related
manufactured housing unit is permanently affixed to the land, and (ii) the
related manufactured housing unit and the related land are subject to
a Mortgage
properly filed in the appropriate public recording office and naming
the
Originator as mortgagee;
(j) Valid
First Lien.
The
Mortgage is a valid, subsisting, enforceable and perfected, first lien
on the
Mortgaged Property, including all buildings and improvements on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and
air conditioning systems located in or annexed to such buildings, and
all
additions, alterations and replacements made at any time with respect
to the
foregoing. The lien of the Mortgage is subject only to:
| (i) |
the
lien of current real property taxes and assessments not yet
due and
payable;
|
| (ii) |
covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording acceptable to
prudent
mortgage lending institutions generally and specifically referred
to in
the lender’s title insurance policy delivered to the originator of the
Mortgage Loan and (a) specifically 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 set forth in such appraisal;
and
|
| (iii) |
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.
|
(q) 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 first lien and first priority security
interest on the property described therein and the Originator had full
right to
sell and assign the same to Seller and Seller had full right to sell
and assign
the same to the Purchaser;
(k) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan are genuine, and each
is the
legal, valid and binding obligation of the maker thereof enforceable
in
accordance with its terms. All parties to the Mortgage Note, the Mortgage
and
any other such related agreement had legal capacity to enter into the
Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any
such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other such related
parties. No
fraud, error, omission, misrepresentation, negligence or similar occurrence
with
respect to a Mortgage Loan has taken place on the part of any Person,
including
without limitation, the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination or servicing of the Mortgage
Loan.
The Seller has reviewed all of the documents constituting the Servicing
File and
has made such inquiries as it deems necessary to make and confirm the
accuracy
of the representations set forth herein;
(l) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and 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
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 Mortgage
Loan and
the recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) Ownership.
The
Seller is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by each Mortgage Note. The Mortgage Loan is not
assigned
or pledged, and the Seller has good, indefeasible and marketable title
thereto,
and has full right to transfer and sell the Mortgage Loan to the Purchaser
free
and clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and has full right and authority
subject to
no interest or participation of, or agreement with, any other party,
to sell and
assign each Mortgage Loan pursuant to this Agreement and the related
Purchase
Price and Terms Letter and following the sale of each 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
Seller intends to relinquish all rights to possess, control and monitor
the
Mortgage Loan. After the related Closing Date, the Seller will have no
right to
modify or alter the terms of the sale of the Mortgage Loan and the Seller
will
have no obligation or right to repurchase the Mortgage Loan or substitute
another Mortgage Loan, except as provided in this Agreement;
(n) Doing
Business.
All
parties which have had any interest in the Mortgage Loan, whether as
mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (2) either (i) organized under the laws of
such state, or (ii) qualified to do business in such state, or (iii) a
federal savings and loan association, a savings bank or a national bank
having a
principal office in such state, or (3) not doing business in such
state;
(o) LTV.
No
Mortgage Loan has an LTV greater than 95%. No Mortgage Loan had a Combined
Loan-to-Value Ratio at the time of origination of more than 100%;
(p) Title
Insurance.
The
Mortgage Loan is covered by an ALTA lender’s title insurance policy, or with
respect to any Mortgage 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 acceptable to Xxxxxx Xxx or Xxxxxxx
Mac
and each such title insurance policy is issued by a Qualified Insurer,
insuring
the Seller, its successors and assigns, or the Originator, its successors
and
assigns, as to the first priority lien of the Mortgage in the original
principal
amount of the Mortgage Loan, subject only to the exceptions contained
in clauses
(1) and (2) of paragraph (j) of this Subsection
7.02,
and in
the case of adjustable rate Mortgage Loans, against any loss by reason
of the
invalidity or unenforceability of the lien resulting from the provisions
of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment;
(q) No
Defaults.
Other
than payments due but not yet delinquent, there is no default, breach,
violation
or event which would permit acceleration existing under the Mortgage
or the
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 which would permit acceleration, and neither the Seller
nor
the Originator, nor any of their affiliates nor any of their respective
predecessors, have waived any default, breach, violation or event which
would
permit acceleration. With respect to each Mortgage Loan which is indicated
by
the Seller 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) 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;
(r) No
Mechanics’ Liens.
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 or coordinate with, the lien of the related
Mortgage;
(s) Location
of Improvements; No Encroachments.
All
improvements which were considered in determining the Appraised Value
of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being
part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms.
Each
Mortgage Loan was either originated by the Originator or acquired by
the
Originator from a Third Party Originator or Qualified Correspondent and,
subsequent to the Originator’s origination or acquisition of such Mortgage Loan,
the Originator conveyed the Mortgage Loan to the Seller. Either (a) the
Mortgage
Loan was originated by a mortgagee approved by the Secretary of Housing
and
Urban Development pursuant to Sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or other similar institution which is supervised
and
examined by a federal or state authority, or (b) the following requirements
have
been met with respect to the Mortgage Loan: the Seller and the Originator
meet
the requirements set forth in clause (a), and (i) such Mortgage Loan
was
underwritten in accordance with standards established by the Seller and
the
Originator, using application forms and related credit documents approved
by the
Seller and the Originator, (ii) the Seller and the Originator approved
each
application and the related credit documents before a commitment by the
correspondent was issued, and no such commitment was issued until the
Seller and
the Originator agreed to fund such Mortgage Loan, (iii) the closing documents
for such Mortgage Loan were prepared on forms approved by the Seller
and the
Originator, and (iv) such Mortgage Loan was actually funded by the Seller
and
the Originator and was purchased by the Seller and the Originator at
closing or
soon thereafter. The documents, instruments and agreements submitted
for loan
underwriting were not falsified and contain no untrue statement of material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the information and statements therein not misleading. No Mortgage
Loan
contains terms or provisions which would result in negative amortization.
Except
with respect to IO Mortgage Loans, principal payments on the Mortgage
Loan
commenced no more than sixty days after funds were disbursed in connection
with
the Mortgage Loan. The Mortgage Interest Rate as well as the Lifetime
Rate Cap,
the Initial Rate Cape and the Periodic Cap, are as set forth on Exhibit
G
hereto.
The Mortgage Note is payable in equal monthly installments of principal
and
interest, which installments of interest, with respect to Adjustable
Rate
Mortgage Loans, are subject to change due to the adjustments to the Mortgage
Interest Rate on each Interest Rate Adjustment Date, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully
by the
stated maturity date, over an original term of not more than thirty years
from
commencement of amortization; provided that
with
respect to IO Mortgage Loans, The Mortgage Note is initially payable
in equal
monthly installments of interest, with interest calculated and payable
in
arrears, for such period set forth in the related Mortgage Note and then
the
Mortgage Note is payable in equal monthly installments of principal and
interest, with interest calculated and payable in arrears, sufficient
to
amortize the Mortgage Loan fully by the stated maturity date, over the
remaining
term of the IO Mortgage Loan. The Mortgage Loan is payable on the first
day of
each month. There are no Mortgage Loans which contain a provision allowing
the
Mortgagor to convert the Mortgage Note from an adjustable interest rate
Mortgage
Note to a fixed interest rate Mortgage Note;
(u) Customary
Provisions.
The
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,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by
a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the
Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a 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 or similar law;
(v) Conformance
with Agency and Underwriting Standards.
The
Mortgage Loan was underwritten in accordance with the Underwriting Standards
(a
copy of which is attached hereto as Exhibit
H).
The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or
Xxxxxx Mae
and neither the Seller nor the Originator has made any representations
to a
Mortgagor that are inconsistent with the mortgage instruments used;
(w) Occupancy
of the Mortgaged Property.
As of
the related Closing Date 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;
(x) No
Additional Collateral.
The
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 clause (j)
above;
(y) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, authorized
and 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
Mortgagor;
(z) Delivery
of Mortgage Documents.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other
documents
required to be delivered under this Agreement and the related Purchase
Price and
Terms Letter for each Mortgage Loan have been delivered to the Custodian.
The
Seller is in possession of a complete, true and accurate Mortgage File
in
compliance with Exhibit A
hereto,
except for such documents the originals of which have been delivered
to the
Custodian;
(aa) Condominiums/Planned
Unit Developments.
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 such Mortgage Loan was originated in accordance with,
and
the Mortgaged Property meets the guidelines set forth in the Originator’s
Underwriting Guidelines;
(bb) Transfer
of Mortgage Loans.
The
Assignment of Mortgage with respect to each Mortgage Loan is in recordable
form
and is acceptable for recording under the laws of the jurisdiction in
which the
Mortgaged Property is located. The transfer, assignment and conveyance
of the
Mortgage Notes and the Mortgages by the Seller are not subject to the
bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
(cc) Due-On-Sale.
With
respect to each Fixed Rate Mortgage Loan, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal
balance of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee thereunder,
and
to the best of the Seller’s knowledge, such provision is
enforceable;
(dd) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Seller, the Originator, the Mortgagor, or anyone on behalf of
the
Mortgagor, or paid by any source other than the Mortgagor nor does it
contain
any other similar provisions which may constitute a “buydown” provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage
Loan
does not have a shared appreciation or other contingent interest
feature;
(ee) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the related 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 Mortgage Loan which is indicated by the Seller to be
a First
Lien (as reflected on the Mortgage Loan Schedule), 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 Xxxxxxx Mac. The
consolidated principal amount does not exceed the original principal
amount of
the Mortgage Loan;
(ff) Mortgaged
Property Undamaged; No Condemnation Proceedings.
There
is no proceeding pending or threatened for the total or partial condemnation
of
the Mortgaged Property. The Mortgaged Property is undamaged by waste,
fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty
so as
to affect adversely the value of the Mortgaged Property as security for
the
Mortgage Loan or the use for which the premises were intended and each
Mortgaged
Property is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property neither the Seller nor the Originator
have knowledge of any such proceedings in the future;
(gg) Collection
Practices; Escrow Deposits; Interest Rate Adjustments.
The
origination, servicing and collection practices used by the Servicer,
the
Seller, the Originator and any prior servicer with respect to the Mortgage
Loan
have been in all respects in compliance with Accepted Servicing Practices,
applicable laws and regulations, and have been in all respects legal
and proper
and prudent in the mortgage origination and servicing business. With
respect to
escrow deposits and Escrow Payments (other than with respect to each
Mortgage
Loan which is indicated by the Seller to be a Second Lien Mortgage Loan
and for
which the mortgagee under the First Lien is collecting Escrow Payments
(as
reflected on the Mortgage Loan Schedule), all such payments are in the
possession of, or under the control of, the Servicer, the Seller or the
Originator 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 in full compliance with state and federal
law and
the provisions of the related Mortgage Note and Mortgage. An escrow of
funds is
not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed
but
is not yet due and payable. No escrow deposits or Escrow Payments or
other
charges or payments due the Seller have been capitalized under the Mortgage
or
the 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 and Mortgage Note on the related Interest Rate Adjustment Date.
If,
pursuant to the terms of the Mortgage Note, another index was selected
for
determining the Mortgage Interest Rate, the same index was used with
respect to
each Mortgage Note which required a new index to be selected, and such
selection
did not conflict with the terms of the related Mortgage Note. The Seller
or the
Originator executed and delivered any and all notices required under
applicable
law and the terms of the related Mortgage Note and Mortgage regarding
the
Mortgage Interest Rate and the Monthly Payment adjustments. Any interest
required to be paid pursuant to state, federal and local law has been
properly
paid and credited;
(hh) Other
Insurance Policies.
No
action, inaction or event has occurred and no state of facts exists or
has
existed that has resulted or will result in the exclusion from, denial
of, or
defense to coverage under any applicable, special hazard insurance policy,
or
bankruptcy bond, irrespective of the cause of such failure of coverage.
In
connection with the placement of any such insurance, no commission, fee,
or
other compensation has been or will be received by the Seller or the
Originator
or by any officer, director, or employee of the Seller or the Originator
or any
designee of the Seller or the Originator or any corporation in which
the Seller
or the Originator or any officer, director, or employee had a financial
interest
at the time of placement of such insurance;
(ii) No
Violation of Environmental Laws.
The
Mortgaged Property is free from any and all toxic or hazardous substances
and
there exists no violation of any local, state or federal environmental
law, rule
or regulation. 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 Mortgage 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;
(jj) Servicemembers
Civil Relief Act.
The
Mortgagor has not notified the Seller or Servicer requesting relief under
the
Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil
Relief Act, and the Seller or Servicer 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;
(kk) Appraisal.
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 made and signed, prior
to the
approval of the Mortgage Loan application, by a qualified appraiser,
duly
appointed by the Seller, who had no interest, direct or indirect in the
Mortgaged Property or in any loan made on the security thereof, whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan
and who met the minimum qualifications of Xxxxxx Xxx and Xxxxxxx Mac.
Each
appraisal of the Mortgage Loan was made in accordance with the relevant
provisions of the Financial Institutions Reform, Recovery, and Enforcement
Act
of 1989;
(ll) Disclosure
Materials.
The
Mortgagor has executed a statement to the effect that the Mortgagor has
received
all disclosure materials required by, and the Originator has complied
with, all
applicable law with respect to the making of the Mortgage Loans. The
Seller
shall cause the Originator to maintain such statement in the Mortgage
File;
(mm) Construction
or Rehabilitation of Mortgaged Property.
No
Mortgage Loan was made in connection with the construction or rehabilitation
of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(nn) Value
of Mortgaged Property.
The
Seller has no knowledge of any circumstances existing that could reasonably
be
expected to adversely affect the value or the marketability of any Mortgaged
Property or Mortgage Loan or to cause the Mortgage Loans to prepay during
any
period materially faster or slower than similar mortgage loans held by
the
Seller generally secured by properties in the same geographic area as
the
related Mortgaged Property;
(oo) No
Defense to Insurance Coverage.
The
Seller has caused or will cause to be performed any and all acts required
to
preserve the rights and remedies of the Purchaser in any insurance policies
applicable to the Mortgage Loans including, without limitation, any necessary
notifications of insurers, assignments of policies or interests therein,
and
establishments of coinsured, joint loss payee and mortgagee rights in
favor of
the Purchaser. No action has been taken or failed to be taken, no event
has
occurred and no state of facts exists or has existed on or prior to the
related
Closing Date (whether or not known to the Seller on or prior to such
date) which
has resulted or will result in an exclusion from, denial of, or defense
to
coverage under any primary mortgage insurance (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 of the Seller, the Originator, the related Mortgagor
or any
party involved in the application for such coverage, including the appraisal,
plans and specifications and other exhibits or documents submitted therewith
to
the insurer under such insurance policy, or for any other reason under
such
coverage, but not including the failure of such insurer to pay by reason
of such
insurer’s breach of such insurance policy or such insurer’s financial inability
to pay;
(pp) Escrow
Analysis.
With
respect to each Mortgage, the Seller or the Originator has within the
last
twelve months (unless such Mortgage was originated within such twelve
month
period) analyzed the required Escrow Payments for each Mortgage and adjusted
the
amount of such payments so that, assuming all required payments are timely
made,
any deficiency will be eliminated on or before the first anniversary
of such
analysis, or any overage will be refunded to the Mortgagor, in accordance
with
RESPA and any other applicable law;
(qq) Prior
Servicing.
Each
Mortgage Loan has been serviced in all material respects in strict compliance
with Accepted Servicing Practices and the Servicer has reported the Mortgagor
credit files to each of the three credit repositories in a timely
manner;
(rr) Credit
Information.
As to
each consumer report (as defined in the Fair Credit Reporting Act, Public
Law
91-508) or other credit information furnished by the Seller or the Originator
to
the Purchaser, that Seller or the Originator, as applicable, has full
right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from
furnishing
the same to any subsequent or prospective purchaser of such Mortgage.
The Seller
and the Originator shall hold the Purchaser harmless from any and all
damages,
losses, costs and expenses (including attorney’s fees) arising from disclosure
of credit information in connection with the Purchaser’s secondary marketing
operations and the purchase and sale of mortgages or Servicing Rights
thereto;
(ss) Leaseholds.
Except
with respect to Mortgage Loans secured by property located in the state
of
Hawaii, none of the Mortgage Loans are secured by mortgaged properties
that are
located on leaseholds. With respect to each Mortgage Loan secured by
property
located on leaseholds: (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without
the
lessor’s consent and the acquisition by the holder of the Mortgage of the rights
of the lessee upon foreclosure or assignment in lieu of foreclosure or
provide
the holder of the Mortgage with substantially similar protections; (3) the
terms of such lease do not (a) allow the termination thereof upon the
lessee’s default without the holder of the Mortgage being entitled to receive
written notice of, and opportunity to cure, such default, (b) allow the
termination of the lease in the event of damage or destruction as long
as the
Mortgage is in existence, (c) prohibit the holder of the Mortgage from
being insured (or receiving proceeds of insurance) under the hazard insurance
policy or policies relating to the Mortgaged Property or (d) permit any
increase in rent other than pre-established increases set forth in the
lease;
(4) the original term of such lease is not less than 15 years; (5) the
term of such lease does not terminate earlier than ten years after the
maturity
date of the Mortgage Note; (6) the Mortgaged Property is located in a
jurisdiction in which the use of leasehold estates in transferring ownership
in
residential properties is a widely accepted practice; (7) the lease is
in full
force and effect, unmodified and not supplemented by any writing or otherwise;
(8) 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; (9) the lessor
under the
lease is not in default under any of the terms or provisions thereof
on the part
of the lessor to be observed or performed; (10) the lease or a memorandum
thereof has been recorded and by its terms permits the leasehold estate
to be
mortgaged; and (11) such Mortgage Loan conforms to the Xxxxxx Mae Selling
Guide
in connection ground leases;
(tt) Prepayment
Penalty.
Each
Mortgage Loan is subject to a Prepayment Penalty as provided in the related
Mortgage Note unless otherwise indicated on the Mortgage Loan Schedule
hereof.
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 and
no Mortgage
Loan has a Prepayment Penalty period in excess of five years; Each Prepayment
Penalty is permissible and enforceable in accordance with its terms upon
the
Mortgagor's full and voluntary principal prepayment under applicable
law, except
to the extent that: (1) the enforceability thereof may be limited by
bankruptcy,
insolvency, moratorium, receivership and other similar laws relating
to
creditors' rights; (2) the collectability thereof may be limited due
to
acceleration in connection with a foreclosure or other involuntary prepayment;
or (3) subsequent changes in applicable law may limit or prohibit enforceability
thereof under applicable law. With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a premium upon a prepayment prior to maturity: (i) prior to the loan’s
origination, the Mortgagor agreed to such premium in exchange for a monetary
benefit, including but not limited to a rate or fee reduction, (ii) prior
to the
loan’s origination, the Mortgagor was offered the option of obtaining a Mortgage
Loan that did not require payment of such a premium, (iii) the prepayment
premium is disclosed to the Mortgagor in the loan documents pursuant
to
applicable state and federal law, and (iv) notwithstanding any state
or federal
law to the contrary, the Company shall not impose such prepayment premium
in any
instance when the mortgage debt is accelerated as the result of the Mortgagor’s
default in making the loan payments;
(uu) Predatory
Lending Regulations.
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 scrutiny
or
additional legal liability for a residential mortgage loan having high
interest
rates, points and/or fees) (c) a High Cost Loan or Covered Loan, as applicable
(as such terms are defined in the current Standard & Poor’s LEVELS® Glossary
Revised, Appendix E) or (d) in violation of any state law or ordinance
comparable to HOEPA;
(vv) Single-premium
Credit Life Insurance Policy.
In
connection with the origination of any Mortgage Loan, no proceeds from
any
Mortgage Loan were used to finance a single-premium credit life insurance
policy. With respect to each Mortgage Loan, no Mortgagor obtained a prepaid
single-premium credit-life, credit-disability, credit unemployment or
credit
property insurance policy in connection with the origination of the Mortgage
Loan;;
(ww) Tax
Service Contract; Flood Certification Contract.
Each
Mortgage Loan is covered by a paid in full, life of loan tax service
contract
and a paid in full, life of loan flood certification contract and each
of these
contracts is assignable to the Purchaser;
(xx) Qualified
Mortgage.
The
Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3)
of the Code;
(yy) Regarding
the Mortgagor.
The
Mortgagor is one or more natural persons and/or trustees for an Illinois
land
trust or a trustee under a “living trust” and such “living trust” is in
compliance with Xxxxxx Xxx guidelines for such trusts;
(zz) Recordation.
Each
original Mortgage was recorded and all subsequent assignments of the
original
Mortgage (other than the assignment to the Purchaser) have been recorded
in the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, the Originator, or is
in the
process of being recorded. The Assignment of Mortgage is in recordable
form and
is acceptable for recording in the jurisdiction in which the Mortgaged
Property
is located;
(aaa) FICO
Scores.
Each
Mortgagor has a non-zero FICO score;
(bbb) Compliance
with Anti-Money Laundering Laws.
The
Seller and the Servicer have 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 or the Servicer has established an anti-money laundering compliance
program as required by the Anti-Money Laundering Laws, has conducted
the
requisite due diligence in connection with the origination of each Mortgage
Loan
for purposes of the Anti-Money Laundering Laws, including with respect
to the
legitimacy of the applicable Mortgagor and the origin of the assets used
by the
said Mortgagor to purchase the property in question, and maintains, and
will
maintain, sufficient information to identify the applicable Mortgagor
for
purposes of the Anti-Money Laundering Laws. No Mortgage Loan is subject
to
nullification pursuant to Executive Order 13224 (the “Executive Order”) or the
regulations promulgated by the Office of Foreign Assets Control of the
United
States Department of the Treasury (the “OFAC Regulations”) or in violation of
the Executive Order or the OFAC Regulations, and no Mortgagor is subject
to the
provisions of such Executive Order or the OFAC Regulations nor listed
as a
“blocked person” for purposes of the OFAC Regulations;
(ccc) Interest
Calculation.
Interest on each Mortgage Loan is calculated on the basis of a 360-day
year
consisting of twelve 30-day months;
(ddd) No
Balloon Loans.
No
Mortgage Loan is a balloon loan;
(eee) Credit
Reporting.
With
respect to each Mortgage Loan, the Servicer 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;
(fff) 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;
(ggg) No
Mortgage Loan is a “High-Cost Home Loan,” as defined in Section 6-1 of the New
York State Banking Law;
(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, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit
history
and debt to income ratios for a lower cost credit product then offered
by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s originator.
If, at the time of loan application, the Mortgagor may have qualified
for a 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
employs objective mathematical principles which relate the Mortgagor’s income,
assets and liabilities to the proposed payment and such underwriting
methodology
does not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable 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 Loan have been disclosed in writing to the Mortgagor
in
accordance with applicable state and federal law and regulation;
(kkk)
[Reserved];
(lll) The
Servicer will transmit full-file credit reporting data for each Mortgage
Loan
pursuant to Xxxxxx Mae Guide Announcement 95-19 and for each Mortgage
Loan,
Servicer 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) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
(nnn) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 24, 2003 (Ky. Rev. Stat. Section
360.100);
(ooo) No
Mortgage Loan secured by property located in the State of Nevada is a
“home
loan” as defined in the Nevada Assembly Xxxx No. 284;
(ppp) No
Mortgage Loan originated in the City of Oakland is subject to the City
of
Oakland, California Ordinance 12361, as a home loan;
(qqq) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity Protection Act;
(rrr) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(sss) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(ttt) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase money Home
Loan,
(2) purchase money Covered Loan, or (3) a rate/term refinance Home
Loan;
(uuu) No
Mortgage Loan originated in the city of Los Angeles, California on or
after the
effective date of the Los Angeles, California anti-predatory lending
ordinance
is a “home loan” under such ordinance;
(vvv) No
Mortgage Loan that is secured by property located within the State of
Maine
meets the definition of a (i) “high-rate, high-fee” mortgage loan under Article
VIII, Title 9-A of the Maine Consumer Credit Code No Mortgage Loan or
(ii)
“High-Cost Home Loan” as defined under the Maine House Xxxx 383 X.X. 494,
effective as of September 13, 2003;
(www) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction;
(xxx) 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;
(yyy) 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;
(zzz) With
respect to each MERS Mortgage Loan, neither the Seller nor the Servicer
has
received any notice of liens or legal actions with respect to such Mortgage
Loan
and no such notices have been electronically posted by MERS;
(aaaa) Each
Loan
is eligible for sale in the secondary mortgage market or for securitization
without unreasonable credit enhancement; and
(bbbb) With
respect to each Mortgage Loan which is a Second Lien, (i) the related
first lien
does not provide for negative amortization, and (ii) either no consent
for the
Mortgage Loan is required by the holder of the first lien or such consent
has
been obtained and is contained in the Mortgage File;
(cccc) With
respect to any Mortgage Loan for which a mortgage loan application was
submitted
by the Mortgagor after April 1, 2004, no such Mortgage Loan secured by
Mortgaged
Property in the State of Illinois which has a Mortgage Interest Rate
in excess
of 8.0% per annum has lender-imposed fees (or other charges) in excess
of 3.0%
of the original principal balance of the Mortgage Loan;
(dddd) 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;
(eeee) No
Mortgage Loan is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 6,
2004
(Mass. Xxx. Laws Ch. 183C);
(ffff) No
predatory or deceptive lending practices, including but not limited to,
the
extension of credit to the applicable Mortgagor without regard for said
Mortgagor's ability to repay the Mortgage Loan and the extension of credit
to
said Mortgagor which has no apparent benefit to said Mortgagor, were
employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan;
(gggg) 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.
Other than with respect to each Points and Fees Excess Loan, as identified
on
the related Points and Fees Schedule, no Mortgagor was charged Points
and Fees
in
an
amount greater than (a) $1,000 or (b) 5% of the principal amount of such
Mortgage Loan, whichever is greater;
(hhhh) No
Mortgage Loan is secured by property considered to be manufactured
housing;
(iiii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related such facts as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Seller
made a
reasonable determination that at the time of origination the Mortgagor
had the
ability to make timely payments on the Mortgage Loan;
(jjjj) The
information set forth in the Points and Fees Schedule is complete, true
and
correct;
(kkkk) With
respect to each Mortgage Loan which is indicated by the Seller 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) 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, (iv) 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, and (v) such Second Lien
Mortgage Loan is secured by a one- to four-family residence that was
(or would
be) the principal residence of the Mortgagor upon the origination of
the Second
Lien Mortgage Loan;
EXHIBIT
E
REQUEST
FOR RELEASE
|
To:
|
Xxxxx
Fargo Bank, N.A.
|
Attn:
Inventory Control
0000
00xx
Xxxxxx XX
Xxxxxxxxxxx,
XX 00000
|
Re:
|
Pooling
and Servicing Agreement, dated as of December 1, 2006, among Mortgage
Asset Securitization Transactions, Inc., as Depositor, Xxxxx Fargo
Bank,
N.A. as Master Servicer and Trust Administrator, 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
2006-HE5
|
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 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 Mortgage File:
|
By:
|
||
|
(authorized
signer)
|
||
|
Issuer:
|
||
|
Address:
|
||
|
Date:
|
||
Custodian
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: | ||
| Custodian | Date |
EXHIBIT
F-1
FORM
OF
TRANSFEROR REPRESENTATION LETTER
[Date]
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Transfer Unit / MABS 2006-HE5
|
Re:
|
MASTR
Asset Backed Securities Trust 2006-HE5, 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 December 1, 2006, among
Mortgage Asset Securitization Transactions, Inc. as Depositor, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing,
as
Servicer, Xxxxx Fargo Bank, N.A. as Master Servicer and Trust Administrator
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.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attn:
Transfer Unit / MABS 2006-HE5
|
Re:
|
MASTR
Asset Backed Securities Trust 2006-HE5, Mortgage Pass-Through
Certificates, Series 2006-HE5, 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.
With
respect to a transfer of the Class CE Certificates, the Transferee agrees
to
provide to the Trust Administrator the appropriate tax certification form
(i.e.,
IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX 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 X-0XXX,
X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto),
has
become obsolete or incorrect. The Transferee hereby authorizes the Trust
Administrator to provide such tax certification form to the Supplemental
Interest Trust Trustee and 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
December 1, 2006, among Mortgage Asset Securitization Transactions, Inc.
as
Depositor, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing,
as
Servicer, Xxxxx Fargo Bank, N.A. as Master Servicer and Trust Administrator
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 December 1, 2006 (the “Agreement”),
among
Mortgage Asset Securitization Transactions, Inc., as depositor (the
“Depositor”),
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing (“HomEq Servicing”),
as
servicer (the “Servicer”),
Xxxxx
Fargo Bank, N.A., master servicer (“the Master
Servicer”)
and
trust administrator (the “Trust Administrator”) 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 F-2 to the Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends
to pay
its debts as they come due in the future, and understands that the taxes
payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is [_____________].
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable
to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
o The
present
value of the anticipated tax liabilities associated with holding the
Certificate, as applicable, does not exceed the sum of:
|
(i)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at
the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject
to the
alternative minimum tax under Section 55 of the Code in the preceding two
years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using
a
discount rate equal to the short-term Federal rate prescribed by Section
1274(d)
of the Code for the month of the transfer and the compounding period used
by the
Transferee.
o The
transfer of the
Certificate complies with U.S. Treasury Regulations Sections 1.860E-1(c)(5)
and
(6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from
the
Certificate will only be taxed in the United
States;
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a
person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in
excess of $10 million;
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of
the U.S. Treasury Regulations;
and
|
|
(iv)
|
the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including,
but not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
o None
of the
above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of
ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I
of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of __________,
20__.
|
[OWNER]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
[Vice]
President
|
ATTEST:
|
By:
|
|
|
Name:
|
|
|
Title:
|
[Assistant]
Secretary
|
Personally
appeared before me the above-named , known or proved to me to be the same
person
who executed the foregoing instrument and to be a [Vice] President of the
Owner,
and acknowledged to me that [he/she] executed the same as [his/her] free
act and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, 20___.
|
Notary
Public
|
|
|
County
of __________________
State
of ___________________
My
Commission expires:
|
FORM
OF TRANSFEROR AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
__________________________,
being duly sworn, deposes, represents and warrants as follows:
1.
I
am a
____________________ of ____________________________ (the “Owner”), a
corporation duly organized and existing under the laws of ______________,
on
behalf of whom I make this affidavit.
2.
The
Owner
is not transferring the Residual Certificates (the “Residual Certificates”) to
impede the assessment or collection of any tax.
3.
The
Owner
has no actual knowledge that the Person that is the proposed transferee (the
“Purchaser”) of the Residual Certificates: (i) has insufficient assets to pay
any taxes owed by such proposed transferee as holder of the Residual
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding
for so long as the Residual Certificates remain outstanding; and (iii) is
not a
Permitted Transferee.
4.
The
Owner
understands that the Purchaser has delivered to the Trust Administrator a
transfer affidavit and agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit F-2. The Owner does not know or believe that
any
representation contained therein is false.
5.
At
the
time of transfer, the Owner has conducted a reasonable investigation of the
financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Owner
has
determined that the Purchaser has historically paid its debts as they became
due
and has found no significant evidence to indicate that the Purchaser will
not
continue to pay its debts as they become due in the future. The Owner
understands that the transfer of a Residual Certificate may not be respected
for
United States income tax purposes (and the Owner may continue to be liable
for
United States income taxes associated therewith) unless the Owner has conducted
such an investigation.
6.
Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them
in
the Pooling and Servicing Agreement.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of ___________,
20__.
|
[OWNER]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
[Vice]
President
|
|
ATTEST:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
[Assistant]
Secretary
|
Personally
appeared before me the above-named , known or proved to me to be the same
person
who executed the foregoing instrument and to be a [Vice] President of the
Owner,
and acknowledged to me that [he/she] executed the same as [his/her] free
act and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, 20___.
|
Notary
Public
|
|
|
County
of __________________
State
of ___________________
My
Commission expires:
|
EXHIBIT
G
FORM
OF
CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________,
[2006]
Mortgage
Asset Securitization Transactions, Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, N.A.
Sixth
Street and Marquette Avenue
Minneapolis,
Minnesota 55479
U.S.
Bank
National Association
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx.
Xxxx,
XX 00000
Attn:
Structured Finance/ MASTR 2006-HE5
|
Re:
|
MASTR
Asset Backed Securities Trust 2006-HE5, Mortgage
Pass-Through Certificates, Class
|
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance of MASTR Asset
Backed Securities Trust 2006-HE5, Mortgage Pass-Through Certificates, Series
2006-HE5, Class [CE] [P] [R](the “Certificates”), issued pursuant to a Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”) dated as of
December 1, 2006, among Mortgage Asset Securitization Transactions, Inc.
as
depositor (the “Depositor”), Xxxxx Fargo Bank, N.A. as master servicer and trust
administrator (the “Master Servicer” and the “Trust Administrator”),
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing
as a
servicer (the “Servicer”) and U.S. Bank National Association as trustee (the
“Trustee”). Capitalized terms used herein and not otherwise defined shall have
the meanings assigned thereto in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to, and covenants with
the
Depositor, the Trust Administrator, the Trustee and the Master Servicer that:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
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. § 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. § 2510.3-101.
|
Very
truly yours,
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
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:
|
2.
|
The
Seller previously delivered to the Purchaser a signed Initial
Certification with respect to such Mortgage and/or Assignment of
Mortgage;
|
| 3. |
Such
Mortgage Note and/or Assignment of Mortgage was assigned or sold
to the
Purchaser by ________________________, a ____________ corporation
pursuant
to the terms and provisions of a Mortgage Loan Purchase Agreement
dated as
of __________ __, _____;
|
|
4.
|
Such
Mortgage Note and/or Assignment of Mortgage is not outstanding
pursuant to
a request for release of Documents;
|
|
5.
|
Aforesaid
Mortgage Note and/or Assignment of Mortgage (the “Original”) has been
lost;
|
|
6.
|
Deponent
has made or caused to be made a diligent search for the Original
and has
been unable to find or recover
same;
|
|
7.
|
The
Seller was the Seller of the Original at the time of the loss;
and
|
|
8.
|
Deponent
agrees that, if said Original should ever come into Seller's possession,
custody or power, Seller will immediately and without consideration
surrender the Original to the
Purchaser.
|
|
9.
|
Attached
hereto is a true and correct copy of (i) the Note, endorsed in
blank by
the Mortgagee and (ii) the Mortgage or Deed of Trust (strike one)
which
secures the Note, which Mortgage or Deed of Trust is recorded in
the
county where the property is
located.
|
10. Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless the
Purchaser, its successors and assigns, against any loss, liability or damage,
including reasonable attorney's fees, resulting from the unavailability of
any
Notes, including but not limited to any loss, liability or damage arising
from
(i) any false statement contained in this Affidavit, (ii) any claim of any
party
that has already purchased a mortgage loan evidenced by the Lost Note or
any
interest in such mortgage loan, (iii) any claim of any borrower with respect
to
the existence of terms of a mortgage loan evidenced by the Lost Note on the
related property to the fact that the mortgage loan is not evidenced by an
original note and (iv) the issuance of a new instrument in lieu thereof (items
(i) through (iv) above hereinafter referred to as the “Losses”) and (b) if
required by any Rating Agency in connection with placing such Lost Note into
a
Pass-Through Transfer, shall obtain a surety from an insurer acceptable to
the
applicable Rating Agency to cover any Losses with respect to such Lost
Note.
11. This
Affidavit is intended to be relied upon by the Purchaser, its successors
and
assigns. _____________________, a ______________ corporation represents and
warrants that is has the authority to perform its obligations under this
Affidavit of Lost Note.
Executed
this ____ day, of ___________ ______.
|
SELLER
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
On
this
_____ day of ________, _____, before me appeared _________________ to me
personally known, who being duly sworn did say that he is the
_____________________ of ____________________ a ______________ corporation
and
that said Affidavit of Lost Note was signed and sealed on behalf of such
corporation and said acknowledged this instrument to be the free act and
deed of
said corporation.
Signature:
[Seal]
EXHIBIT
J-1
FORM
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 BY THE SERVICER TO THE MASTER SERVICER
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager - MABS 2006-HE5
|
Re:
|
Pooling
and Servicing Agreement, dated as of December 1, 2006, among Mortgage
Asset Securitization Transactions, Inc., as Depositor, Xxxxx Fargo
Bank,
N.A. as Master Servicer and Trust Administrator, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing, as Servicer and
U.S. Bank
National Association, as Trustee
(the “Agreement”)
|
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 Master Servicer 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 Master
Servicer;
(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 Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
|
Date:
_________________________
|
|
|
By: _______________________________
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
K
FORMS
OF
INTEREST RATE CAP AGREEMENTS
ASSIGNMENT
AGREEMENT
UBS
AG
has entered into the transaction listed on Attachment 1 hereto with Reference
Number 37533995 (the “Old Transaction”) with UBS Real Estate Securities, Inc.
(“UBS Real Estate”).
For
valuable consideration, receipt of which is hereby acknowledged, UBS
Real Estate
hereby assigns, transfers and sets over effective 28 December 2006 unto
Mortgage
Asset Securitization Transactions Inc. (“MASTR”), without recourse all of its
rights, title and interest in and to the Old Transaction and UBS Real
Estate
hereby gives MASTR and its assigns full power and authority for its or
their own
uses and benefit, but at its or their own cost, to demand, collect, receive
and
give acquittance for the same or any part of thereof, and to prosecute
or
withdraw any suits or proceedings therefore. UBS AG hereby consents to
the
assignment of the Old Transaction to MASTR as herein provided.
Upon
the
effectiveness of such assignment, for valuable consideration, receipt
of which
is hereby acknowledged, MASTR hereby assigns, transfers and sets over
effective
28 December 2006 unto Xxxxx Fargo Bank, N.A., not individually, but solely
as
trust administrator with respect to the MASTR Asset Backed Securities
Trust
2006-HE5, Mortgage Pass Through Certificates, Series 2006-HE5 (the “Trust”),
without recourse, all of its rights, title and interest in and to the
Old
Transaction (as so assigned and transferred, referenced by UBS AG as
a new
transaction with Reference Number 37536048 as listed on Attachment 2
hereto and
referred to as the “New Transaction”) and MASTR hereby gives the Trust and its
assigns full power and authority for its or their own uses and benefit,
but at
its or their own cost, to demand, collect, receive and give acquittance
for the
same or any part of thereof, and to prosecute or withdraw any suits or
proceedings therefor. UBS AG hereby consents to the assignment of the
New
Transaction to the Trust as herein provided, with the understanding that
the
provisions labeled “Additional Provisions” in the confirmation relating to the
New Transaction shall become effective upon the assignment to the
Trust.
Each
party hereby represents and warrants to the other that the execution,
delivery
and performance of this Assignment Agreement by it are within its powers,
and
have been duly authorized by all necessary corporate or other action
and that
this Assignment Agreement constitutes its legal, valid and binding
obligation.
This
Assignment Agreement shall be governed by and construed and interpreted
in
accordance with the laws of the State of New York without regard the
conflict of
law provisions thereof other than New York General Obligations Law Sections
5-1401 and 5-1402.
IN
WITNESS WHEREOF, the parties have duly executed this Assignment Agreement
as of
the date first written above.\
|
UBS
AG
|
UBS
REAL ESTATE SECURITIES, INC.
|
|
By:
|
By:
___________________________________
|
|
Name:
Xxxxxxxxxxx Xxxxxx
|
Name:
|
|
Title:
Director
|
Title:
|
|
By:
|
By:
__________________________________
|
|
Name:
Xxxxxxxx XxXxxxxx
|
Name:
|
|
Title:
Associate Director
|
Title:
|
|
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS INC.
|
Xxxxx
Fargo Bank, N.A., not individually, but solely as trust administrator
with
respect to the MASTR Asset Backed Securities Trust 2006-HE5,
Mortgage Pass
Through Certificates, Series
2006-HE5
|
|
By:
|
By:
___________________________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Attachment
1
|
Date:
|
28
December 2006
|
|
To:
|
UBS
Real Estate Securities, Inc. (“Counterparty”)
|
|
Attention:
|
Swaps
Administration
|
|
From:
|
UBS
AG, London Branch (“UBS AG”)
|
|
Subject:
|
Interest
Rate Cap Transaction
|
|
UBS
AG Ref: 37533995
|
Dear
Sirs
The
purpose of this communication is to confirm the terms and conditions
of the
Transaction entered into between us on the Trade Date specified below.
This
Confirmation constitutes a “Confirmation” as referred to in the Master Agreement
or Agreement specified below.
The
definitions contained in the 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc., are incorporated
into
this Confirmation. In the event of any inconsistency between any of the
definitions listed above and this Confirmation, this Confirmation will
govern.
If
you
and we are parties to a master agreement that governs transactions of
this type
(whether in the form of the ISDA Master Agreement (Multicurrency-Cross
Border)(the "ISDA Form") or any other form (a "Master Agreement"), then
this
Confirmation will supplement, form a part of, and be subject to that
Master
Agreement. If you and we are not parties to such a Master Agreement,
then you
and we agree to use all reasonable efforts promptly to negotiate, execute
and
deliver an agreement in the form of the ISDA Form, with such modifications
as
you and we will in good faith agree. Upon the execution by you and us
of such an
agreement, this Confirmation will supplement, form a part of and be subject
to
and governed by that agreement, except as expressly modified below. Until
we
execute and deliver that agreement, this Confirmation, together with
all other
documents referring to the ISDA Form (each a "Confirmation") confirming
transactions (each a "Transaction") entered into between us (notwithstanding
anything to the contrary in a confirmation), shall supplement, form a
part of,
and be subject to an agreement in the form of the ISDA Form as if we
had
executed an agreement in such form (but without any Schedule except for
the
election of the laws of New York as the Governing Law and U.S. Dollars
as the
Termination Currency) on the Trade Date of the first Transaction between
us
(hereinafter the "Agreement"). In the event of any inconsistency between
the
provisions of any such Agreement and this Confirmation, this Confirmation
will
prevail for the purposes of this Transaction.
The
terms
of the particular Cap Transaction to which this Confirmation relates
are as
follows:
|
Trade
Date:
|
28
December 2006
|
||
|
Effective
Date
|
25
January 2007
|
||
|
Termination
Date:
|
25
December 2013,
subject to adjustment in accordance with the Modified Following
Business
Day Convention.
|
||
|
Calculation
Amount:
|
Initially
USD 891,000.00, amortizing as per Amortizing Schedule
below
|
|
Amortization
Schedule:
|
||||
|
Period
From (and including)
|
Period
To (but excluding)
|
Calculation
Amount (USD)
|
||
|
Effective
Date
|
25-Feb-07
|
891,000.00
|
||
|
25-Feb-07
|
25-Mar-07
|
1,996,000.00
|
||
|
25-Mar-07
|
25-Apr-07
|
3,313,000.00
|
||
|
25-Apr-07
|
25-May-07
|
4,836,000.00
|
||
|
25-May-07
|
25-Jun-07
|
6,556,000.00
|
||
|
25-Jun-07
|
25-Jul-07
|
8,458,000.00
|
||
|
25-Jul-07
|
25-Aug-07
|
10,527,000.00
|
||
|
25-Aug-07
|
25-Sep-07
|
12,739,000.00
|
||
|
25-Sep-07
|
25-Oct-07
|
14,994,000.00
|
||
|
25-Oct-07
|
25-Nov-07
|
17,025,000.00
|
||
|
25-Nov-07
|
25-Dec-07
|
18,845,000.00
|
||
|
25-Dec-07
|
25-Jan-08
|
20,470,000.00
|
||
|
25-Jan-08
|
25-Feb-08
|
21,914,000.00
|
||
|
25-Feb-08
|
25-Mar-08
|
23,190,000.00
|
||
|
25-Mar-08
|
25-Apr-08
|
24,310,000.00
|
||
|
25-Apr-08
|
25-May-08
|
25,286,000.00
|
||
|
25-May-08
|
25-Jun-08
|
26,128,000.00
|
||
|
25-Jun-08
|
25-Jul-08
|
26,846,000.00
|
||
|
25-Jul-08
|
25-Aug-08
|
27,600,000.00
|
||
|
25-Aug-08
|
25-Sep-08
|
29,535,000.00
|
||
|
25-Sep-08
|
25-Oct-08
|
30,902,000.00
|
||
|
25-Oct-08
|
25-Nov-08
|
31,799,000.00
|
||
|
25-Nov-08
|
25-Dec-08
|
32,303,000.00
|
||
|
25-Dec-08
|
25-Jan-09
|
32,457,000.00
|
||
|
25-Jan-09
|
25-Feb-09
|
32,135,000.00
|
||
|
25-Feb-09
|
25-Mar-09
|
31,766,000.00
|
||
|
25-Mar-09
|
25-Apr-09
|
31,354,000.00
|
||
|
25-Apr-09
|
25-May-09
|
30,908,000.00
|
||
|
25-May-09
|
25-Jun-09
|
30,429,000.00
|
||
|
25-Jun-09
|
25-Jul-09
|
29,923,000.00
|
||
|
25-Jul-09
|
25-Aug-09
|
29,440,000.00
|
||
|
25-Aug-09
|
25-Sep-09
|
28,973,000.00
|
||
|
25-Sep-09
|
25-Oct-09
|
28,442,000.00
|
||
|
25-Oct-09
|
25-Nov-09
|
27,862,000.00
|
||
|
25-Nov-09
|
25-Dec-09
|
27,243,000.00
|
||
|
25-Dec-09
|
25-Jan-10
|
26,599,000.00
|
||
|
25-Jan-10
|
25-Feb-10
|
25,950,000.00
|
||
|
25-Feb-10
|
25-Mar-10
|
25,299,000.00
|
||
|
25-Mar-10
|
25-Apr-10
|
24,651,000.00
|
||
|
25-Apr-10
|
25-May-10
|
24,006,000.00
|
||
|
25-May-10
|
25-Jun-10
|
23,365,000.00
|
||
|
25-Jun-10
|
25-Jul-10
|
22,731,000.00
|
||
|
25-Jul-10
|
25-Aug-10
|
22,103,000.00
|
||
|
25-Aug-10
|
25-Sep-10
|
21,483,000.00
|
||
|
25-Sep-10
|
25-Oct-10
|
20,872,000.00
|
||
|
25-Oct-10
|
25-Nov-10
|
20,271,000.00
|
||
|
25-Nov-10
|
25-Dec-10
|
19,680,000.00
|
||
|
25-Dec-10
|
25-Jan-11
|
19,100,000.00
|
||
|
25-Jan-11
|
25-Feb-11
|
18,531,000.00
|
||
|
25-Feb-11
|
25-Mar-11
|
17,974,000.00
|
||
|
25-Mar-11
|
25-Apr-11
|
17,428,000.00
|
||
|
25-Apr-11
|
25-May-11
|
16,895,000.00
|
||
|
25-May-11
|
25-Jun-11
|
16,373,000.00
|
||
|
25-Jun-11
|
25-Jul-11
|
15,865,000.00
|
||
|
25-Jul-11
|
25-Aug-11
|
15,368,000.00
|
||
|
25-Aug-11
|
25-Sep-11
|
14,885,000.00
|
||
|
25-Sep-11
|
25-Oct-11
|
14,413,000.00
|
||
|
25-Oct-11
|
25-Nov-11
|
13,953,000.00
|
||
|
25-Nov-11
|
25-Dec-11
|
13,506,000.00
|
||
|
25-Dec-11
|
25-Jan-12
|
59,993,000.00
|
||
|
25-Jan-12
|
25-Feb-12
|
57,427,000.00
|
||
|
25-Feb-12
|
25-Mar-12
|
54,977,000.00
|
||
|
25-Mar-12
|
25-Apr-12
|
52,639,000.00
|
||
|
25-Apr-12
|
25-May-12
|
50,406,000.00
|
||
|
25-May-12
|
25-Jun-12
|
48,274,000.00
|
||
|
25-Jun-12
|
25-Jul-12
|
46,238,000.00
|
||
|
25-Jul-12
|
25-Aug-12
|
44,293,000.00
|
||
|
25-Aug-12
|
25-Sep-12
|
42,435,000.00
|
||
|
25-Sep-12
|
25-Oct-12
|
40,661,000.00
|
||
|
25-Oct-12
|
25-Nov-12
|
38,965,000.00
|
||
|
25-Nov-12
|
25-Dec-12
|
37,344,000.00
|
||
|
25-Dec-12
|
25-Jan-13
|
35,795,000.00
|
||
|
25-Jan-13
|
25-Feb-13
|
34,315,000.00
|
||
|
25-Feb-13
|
25-Mar-13
|
32,899,000.00
|
||
|
25-Mar-13
|
25-Apr-13
|
31,546,000.00
|
||
|
25-Apr-13
|
25-May-13
|
30,252,000.00
|
||
|
25-May-13
|
25-Jun-13
|
29,014,000.00
|
||
|
25-Jun-13
|
25-Jul-13
|
27,830,000.00
|
||
|
25-Jul-13
|
25-Aug-13
|
26,698,000.00
|
||
|
25-Aug-13
|
25-Sep-13
|
25,614,000.00
|
||
|
25-Sep-13
|
25-Oct-13
|
24,577,000.00
|
||
|
25-Oct-13
|
25-Nov-13
|
23,585,000.00
|
||
|
00-Xxx-00
|
Xxxxxxxxxxx
Date
|
22,635,000.00
|
||
The
dates
in the above schedule with the exception of the Effective Date will be
subject
to adjustment in accordance with the Modified Following Business Day
Convention.
|
Seller
of the Cap:
|
UBS
AG
|
|
Buyer
of the Cap:
|
Counterparty
|
|
Calculation
Agent:
|
UBS
AG, unless otherwise specified in the schedule to the Master
Agreement
|
|
Business
Days:
|
New
York
|
|
Broker:
|
None
|
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Amount:
|
USD
770,000.00
|
|
Fixed
Rate Payer Payment Date:
|
22
December 2006
|
|
Business
Day Convention:
|
Not
Applicable
|
Floating
Amounts
|
Floating
Rate Payer:
|
UBS
AG
|
||
|
Cap
Rate:
|
As
per the Cap Rate Schedule below
|
||
|
Cap
Rate Schedule:
|
||
|
Period
From (and including)
|
Period
To (but excluding)
|
Cap
Rate
|
|
Effective
Date
|
25
November 2008
|
5.35%
|
|
25
November 2008
|
Termination
Date
|
5.55%
|
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
Greater
of
(1)
Calculation Amount * Floating Rate Day Count Fraction * (Floating
Rate
Option - Cap Rate) and
|
||
|
(2)
0
|
|||
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
||
|
Designated
Maturity:
|
One
Month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Floating
Rate Payer End Dates:
|
25
January, 25 February, 25 March, 25 April, 25 May, 25 June,
25 July, 25
August, 25 September, 25 October, 25 November and 25 December,
in each
year, from and including 25 February 2007, up to and including
the
Termination Date, subject to adjustment in accordance with
the Business
Day Convention specified immediately below.
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment
Dates shall
be two Business Days prior to each Floating Rate Payer Period
End
Date.
|
|
Business
Day Convention:
|
Modified
Following
|
Relationship
Between Parties
Each
party will be deemed to represent to the other party on the date on which
it
enters into this Transaction that (in the absence of a written Agreement
between
the parties which expressly imposes affirmative obligations to the contrary
for
this Transaction):
(a)
Non-Reliance. Each party is acting for its own account, and has made
its own
independent decisions to enter into this Transaction and this such Transaction
is appropriate or proper for it based upon its own judgement and upon
advice
from such advisers as it has deemed necessary. Each party 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 explanation relating to the terms and conditions of this
Transaction shall not be considered investment advice or a recommendation
to
enter into this Transaction. No communication (written or oral) received
from
the other party shall be deemed to be an assurance or guarantee as to
the
expected results of this Transaction.
(b)
Assessment and Understanding. Each party is capable of assessing the
merits of
and understands (on its own behalf or through independent professional
advice),
and accepts, the terms, conditions and risks of this Transaction. Each
party is
also capable of assuming and assumes, the risks of this
Transaction.
(c)
Status of the Parties. Neither party is acting as a fiduciary for or
as an
adviser to the other in respect of this Transaction.
References
in this clause to "a party" shall, in the case of UBS AG and where the
context
so allows, include references to any affiliate of UBS AG.
|
Currency:
|
USD
|
|
|
Correspondent
Bank:
|
UBS
AG,
XXXXXXXX
BRANCH
|
|
|
Swift
Address:
|
XXXXXX00XXX
|
|
|
Favour:
|
UBS
AG LONDON
BRANCH
|
|
|
Swift
Address:
|
XXXXXX0XXXX
|
|
|
Account
No:
|
101-wa-140007-000
|
|
|
Further
Credit To:
|
|
|
|
Swift
Address:
|
||
|
Account
No:
|
||
Offices
| (a) |
The
office of UBS AG for the Interest Rate Cap Transaction is London;
and
|
| (b) |
The
office of Counterparty for the Interest Rate Cap Transaction
is New
York.
|
|
Contact
Names at UBS AG:
|
||
|
Payment
Inquiries
|
Elisa
Doctor
|
Email:
XX-XXXXXXXXXX-XXXXX@xxx.xxx
|
|
Pre
Value Payments:
|
Pre
Value Payment Investigations:
|
203.719-1110
|
|
Post
Value Payments:
|
Post
Value Payment Investigations:
|
203.719.1110
|
|
Confirmation
Queries:
|
Confirmation
Control:
|
203.719.3733
|
|
ISDA
Documentation:
|
Legal
|
203.719.4747
|
|
Swift:
|
UBSWGB2L
|
|
|
Fax:
|
(00)
00 0000 0000/2990
|
|
|
Address:
|
UBS
AG
|
|
|
000
Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
|
||
Please
confirm that the foregoing correctly sets forth the terms and conditions
of our
agreement by executing a copy of this Confirmation and returning it to
us or by
sending to us a letter or facsimile substantially similar to this letter,
which
letter or facsimile sets forth the material terms of the Transaction
to which
this Confirmation relates and indicates your agreement to those terms
or by
sending to us a return letter or facsimile in the form attached.
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.
|
For
and on Behalf of
|
|
UBS
AG, London Branch
|
|
By:
|
By:
|
|||
|
Name:
|
Xxxxxxxxxxx
Xxxxxx
|
Name:
|
Xxxxxxxx
XxXxxxxx
|
|
|
Title:
|
Associate
Director
|
Title:
|
Associate
Director
|
Acknowledged
and Agreed by UBS Real Estate Securities, Inc. as of the date first written
above:
|
By:
|
|||
|
Name
:
|
|||
|
Title
:
|
|||
UBS
AG
London Branch, 0 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
UBS
AG is
a member of the London Stock Exchange and is regulated in the UK by the
Financial Services Authority.
Representatives
of UBS Limited introduce trades to UBS AG via UBS Limited.
Attachment
2
|
Date:
|
28
December 2006
|
|
To:
|
Xxxxx
Fargo Bank, N.A., not individually, but solely as trust administrator
with
respect to the MASTR Asset Backed Securities Trust 2006-HE5,
Mortgage Pass
Through Certificates, Series 2006-HE5 (“Counterparty”)
|
|
Attention:
|
Swaps
Administration
|
|
From:
|
UBS
AG, London Branch (“UBS AG”)
|
|
Subject:
|
Interest
Rate Cap Transaction
|
|
UBS
AG Ref: 37536048
|
Dear
Sirs
The
purpose of this communication is to confirm the terms and conditions
of the
Transaction entered into between us on the Trade Date specified below.
This
Confirmation constitutes a “Confirmation” as referred to in the Master Agreement
or Agreement specified below.
The
definitions contained in the 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc., are incorporated
into
this Confirmation. In the event of any inconsistency between any of the
definitions listed above and this Confirmation, this Confirmation will
govern.
This
Confirmation supplements, forms part of, and is subject to, the ISDA
Master
Agreement dated as of 28 December 2006 as amended and supplemented from
time to
time (the "Agreement"), between Counterparty and UBS AG. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified
below.
The
terms
of the particular Cap Transaction to which this Confirmation relates
are as
follows:
|
General
Terms
|
|||
|
Trade
Date:
|
28
December 2006
|
||
|
Effective
Date
|
25
January 2007
|
||
|
Termination
Date:
|
25
December 2013,
subject to adjustment in accordance with the Modified Following
Business
Day Convention.
|
||
|
Calculation
Amount:
|
Initially
3,564.00 amortizing as per Amortizing Schedule
below
|
|
Amortization
Schedule:
|
||
|
Period
From (and including)
|
Period
To (but excluding)
|
Calculation
Amount (USD)
|
|
Effective
Date
|
25-Feb-07
|
3,564.00
|
|
25-Feb-07
|
25-Mar-07
|
7,984.00
|
|
25-Mar-07
|
25-Apr-07
|
13,252.00
|
|
25-Apr-07
|
25-May-07
|
19,344.00
|
|
25-May-07
|
25-Jun-07
|
26,224.00
|
|
25-Jun-07
|
25-Jul-07
|
33,832.00
|
|
25-Jul-07
|
25-Aug-07
|
42,108.00
|
|
25-Aug-07
|
25-Sep-07
|
50,956.00
|
|
25-Sep-07
|
25-Oct-07
|
59,976.00
|
|
25-Oct-07
|
25-Nov-07
|
68,100.00
|
|
25-Nov-07
|
25-Dec-07
|
75,380.00
|
|
25-Dec-07
|
25-Jan-08
|
81,880.00
|
|
25-Jan-08
|
25-Feb-08
|
87,656.00
|
|
25-Feb-08
|
25-Mar-08
|
92,760.00
|
|
25-Mar-08
|
25-Apr-08
|
97,240.00
|
|
25-Apr-08
|
25-May-08
|
101,144.00
|
|
25-May-08
|
25-Jun-08
|
104,512.00
|
|
25-Jun-08
|
25-Jul-08
|
107,384.00
|
|
25-Jul-08
|
25-Aug-08
|
110,400.00
|
|
25-Aug-08
|
25-Sep-08
|
118,140.00
|
|
25-Sep-08
|
25-Oct-08
|
123,608.00
|
|
25-Oct-08
|
25-Nov-08
|
127,196.00
|
|
25-Nov-08
|
25-Dec-08
|
129,212.00
|
|
25-Dec-08
|
25-Jan-09
|
129,828.00
|
|
25-Jan-09
|
25-Feb-09
|
128,540.00
|
|
25-Feb-09
|
25-Mar-09
|
127,064.00
|
|
25-Mar-09
|
25-Apr-09
|
125,416.00
|
|
25-Apr-09
|
25-May-09
|
123,632.00
|
|
25-May-09
|
25-Jun-09
|
121,716.00
|
|
25-Jun-09
|
25-Jul-09
|
119,692.00
|
|
25-Jul-09
|
25-Aug-09
|
117,760.00
|
|
25-Aug-09
|
25-Sep-09
|
115,892.00
|
|
25-Sep-09
|
25-Oct-09
|
113,768.00
|
|
25-Oct-09
|
25-Nov-09
|
111,448.00
|
|
25-Nov-09
|
25-Dec-09
|
108,972.00
|
|
25-Dec-09
|
25-Jan-10
|
106,396.00
|
|
25-Jan-10
|
25-Feb-10
|
103,800.00
|
|
25-Feb-10
|
25-Mar-10
|
101,196.00
|
|
25-Mar-10
|
25-Apr-10
|
98,604.00
|
|
25-Apr-10
|
25-May-10
|
96,024.00
|
|
25-May-10
|
25-Jun-10
|
93,460.00
|
|
25-Jun-10
|
25-Jul-10
|
90,924.00
|
|
25-Jul-10
|
25-Aug-10
|
88,412.00
|
|
25-Aug-10
|
25-Sep-10
|
85,932.00
|
|
25-Sep-10
|
25-Oct-10
|
83,488.00
|
|
25-Oct-10
|
25-Nov-10
|
81,084.00
|
|
25-Nov-10
|
25-Dec-10
|
78,720.00
|
|
25-Dec-10
|
25-Jan-11
|
76,400.00
|
|
25-Jan-11
|
25-Feb-11
|
74,124.00
|
|
25-Feb-11
|
25-Mar-11
|
71,896.00
|
|
25-Mar-11
|
25-Apr-11
|
69,712.00
|
|
25-Apr-11
|
25-May-11
|
67,580.00
|
|
25-May-11
|
25-Jun-11
|
65,492.00
|
|
25-Jun-11
|
25-Jul-11
|
63,460.00
|
|
25-Jul-11
|
25-Aug-11
|
61,472.00
|
|
25-Aug-11
|
25-Sep-11
|
59,540.00
|
|
25-Sep-11
|
25-Oct-11
|
57,652.00
|
|
25-Oct-11
|
25-Nov-11
|
55,812.00
|
|
25-Nov-11
|
25-Dec-11
|
54,024.00
|
|
25-Dec-11
|
25-Jan-12
|
239,972.00
|
|
25-Jan-12
|
25-Feb-12
|
229,708.00
|
|
25-Feb-12
|
25-Mar-12
|
219,908.00
|
|
25-Mar-12
|
25-Apr-12
|
210,556.00
|
|
25-Apr-12
|
25-May-12
|
201,624.00
|
|
25-May-12
|
25-Jun-12
|
193,096.00
|
|
25-Jun-12
|
25-Jul-12
|
184,952.00
|
|
25-Jul-12
|
25-Aug-12
|
177,172.00
|
|
25-Aug-12
|
25-Sep-12
|
169,740.00
|
|
25-Sep-12
|
25-Oct-12
|
162,644.00
|
|
25-Oct-12
|
25-Nov-12
|
155,860.00
|
|
25-Nov-12
|
25-Dec-12
|
149,376.00
|
|
25-Dec-12
|
25-Jan-13
|
143,180.00
|
|
25-Jan-13
|
25-Feb-13
|
137,260.00
|
|
25-Feb-13
|
25-Mar-13
|
131,596.00
|
|
25-Mar-13
|
25-Apr-13
|
126,184.00
|
|
25-Apr-13
|
25-May-13
|
121,008.00
|
|
25-May-13
|
25-Jun-13
|
116,056.00
|
|
25-Jun-13
|
25-Jul-13
|
111,320.00
|
|
25-Jul-13
|
25-Aug-13
|
106,792.00
|
|
25-Aug-13
|
25-Sep-13
|
102,456.00
|
|
25-Sep-13
|
25-Oct-13
|
98,308.00
|
|
25-Oct-13
|
25-Nov-13
|
94,340.00
|
|
00-Xxx-00
|
Xxxxxxxxxxx
Date
|
90,540.00
|
The
dates
in the above schedule with the exception of the Effective Date will be
subject
to adjustment in accordance with the Modified Following Business Day
Convention.
|
Seller
of the Cap:
|
UBS
AG
|
|
Buyer
of the Cap:
|
Counterparty
|
|
Calculation
Agent:
|
UBS
AG, unless otherwise specified in the schedule to the Master
Agreement
|
|
Business
Days:
|
New
York
|
|
Broker:
|
None
|
|
Fixed
Amounts
|
|
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Amount:
|
Not
Applicable
|
|
Fixed
Rate Payer Payment Date:
|
Not
Applicable
|
|
Business
Day Convention:
|
Not
Applicable
|
Floating
Amounts
|
Floating
Rate Payer:
|
UBS
AG
|
|
Cap
Rate:
|
As
per the Cap Rate Schedule below
|
|
Cap
Rate Schedule:
|
||
|
Period
From (and including)
|
Period
To (but excluding)
|
Cap
Rate
|
|
Effective
Date
|
25
November 2008
|
5.35%
|
|
25
November 2008
|
Termination
Date
|
5.55%
|
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
Greater
of
(1)
250 * Calculation Amount * Floating Rate Day Count Fraction
* (Floating
Rate Option - Cap Rate) and
|
||
|
(2)
0
|
|||
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
||
|
Designated
Maturity:
|
One
Month
|
||
|
Spread:
|
None
|
||
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
||
|
Floating
Rate Payer End Dates:
|
25
January, 25 February, 25 March, 25 April, 25 May, 25 June,
25 July, 25
August, 25 September, 25 October, 25 November and 25 December,
in each
year, from and including 25 February 2007, up to and including
the
Termination Date, subject to adjustment in accordance with
the Business
Day Convention specified immediately below.
|
||
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment
Dates shall
be two Business Days prior to each Floating Rate Payer Period
End
Date.
|
||
|
Business
Day Convention:
|
Modified
Following
|
Relationship
Between Parties
Each
party will be deemed to represent to the other party on the date on which
it
enters into this Transaction that (in the absence of a written Agreement
between
the parties which expressly imposes affirmative obligations to the contrary
for
this Transaction):
(a)
Non-Reliance. Each party is acting for its own account, and has made
its own
independent decisions to enter into this Transaction and this such Transaction
is appropriate or proper for it based upon its own judgement and upon
advice
from such advisers as it has deemed necessary. Each party 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 explanation relating to the terms and conditions of this
Transaction shall not be considered investment advice or a recommendation
to
enter into this Transaction. No communication (written or oral) received
from
the other party shall be deemed to be an assurance or guarantee as to
the
expected results of this Transaction.
(b)
Assessment and Understanding. Each party is capable of assessing the
merits of
and understands (on its own behalf or through independent professional
advice),
and accepts, the terms, conditions and risks of this Transaction. Each
party is
also capable of assuming and assumes, the risks of this
Transaction.
(c)
Status of the Parties. Neither party is acting as a fiduciary for or
as an
adviser to the other in respect of this Transaction.
(d)
Eligible
Contract Participant.
Each
party constitutes an “eligible contract participant” as such term is defined in
Section 1(a)12 of the Commodity Exchange Act, as amended.
Fully-Paid
Transactions
Notwithstanding the terms of Sections 5 and 6 of the ISDA Master Agreement,
(a)
the occurrence of an event described in Section 5(a) of the Form Master
Agreement with respect to Counterparty shall not constitute an Event
of Default
or Potential Event of Default with respect to Counterparty as the Defaulting
Party and (b) UBS AG shall be entitled to designate an Early Termination
Date
pursuant to Section 6 of the ISDA Master Agreement only as a result of
a
Termination Event set forth in either Section 5(b)(i) or Section 5(b)(ii)
of the
ISDA Master Agreement with respect to UBS AG as the Affected Party or
Section
5(b)(iii) of the ISDA Master Agreement with respect to UBS AG as the
Burdened
Party.
References
in this clause to "a party" shall, in the case of UBS AG and where the
context
so allows, include references to any affiliate of UBS AG.
|
Account
Details for UBS AG:
|
||
|
Currency:
|
USD
|
|
|
Correspondent
Bank:
|
UBS
AG,
XXXXXXXX
BRANCH
|
|
|
Swift
Address:
|
XXXXXX00XXX
|
|
|
Favour:
|
UBS
AG LONDON
BRANCH
|
|
|
Swift
Address:
|
XXXXXX0XXXX
|
|
|
Account
No:
|
101-wa-140007-000
|
|
|
Further
Credit To:
|
|
|
|
Swift
Address:
|
||
|
Account
No:
|
||
Offices
| (a) |
The
office of UBS AG for the Interest Rate Cap Transaction is London;
and
|
| (b) |
The
office of Counterparty for the Interest Rate Cap Transaction
is New
York
|
|
Contact
Names at UBS AG:
|
||
|
Payment
Inquiries
|
Elisa
Doctor
|
Email:
XX-XXXXXXXXXX-XXXXX@xxx.xxx
|
|
Pre
Value Payments:
|
Pre
Value Payment Investigations:
|
203.719-1110
|
|
Post
Value Payments:
|
Post
Value Payment Investigations:
|
203.719.1110
|
|
Confirmation
Queries:
|
Confirmation
Control:
|
203.719.3733
|
|
ISDA
Documentation:
|
Legal
|
203.719.4747
|
|
Swift:
|
UBSWGB2L
|
|
|
Fax:
|
(00)
00 0000 0000/2990
|
|
|
Address:
|
UBS
AG
|
|
|
000
Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
|
||
Contact
Info:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000-0000
Attn:
Client Manager MABS 2006-HE5
(p)
410.884.2000
(f)
410.715.2380
Wiring
Instructions:
XXXXX
XXXXX XXXX, XX
XXX#
000000000
FOR
CREDIT TO: CORPORATE TRUST CLEARING
ACCT:
0000000000
FFC
TO:
Cap
Account,
Account #
00000000
Please
confirm that the foregoing correctly sets forth the terms and conditions
of our
agreement by executing a copy of this Confirmation and returning it to
us or by
sending to us a letter or facsimile substantially similar to this letter,
which
letter or facsimile sets forth the material terms of the Transaction
to which
this Confirmation relates and indicates your agreement to those terms
or by
sending to us a return letter or facsimile in the form attached.
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.
|
Yours
Faithfully
|
|
For
and on Behalf of
|
|
UBS
AG, London Branch
|
|
By:
|
By:
|
|||
|
Name:
|
Xxxxxxxxxxx
Xxxxxx
|
Name:
|
Xxxxxxxx
XxXxxxxx
|
|
|
Title:
|
Associate
Director
|
Title:
|
Associate
Director
|
Acknowledged
and Agreed by Xxxxx Fargo Bank, N.A., not individually, but solely as
trust
administrator with respect to the MASTR Asset Backed Securities Trust
2006-HE5,
Mortgage Pass Through Certificates, Series 2006-HE5 as of the date first
written
above:
|
By:
|
|||
|
Name
:
|
|||
|
Title
:
|
|||
UBS
AG
London Branch, 0 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
UBS
AG is
a member of the London Stock Exchange and is regulated in the UK by the
Financial Services Authority.
Representatives
of UBS Limited introduce trades to UBS AG via UBS Limited.
ASSIGNMENT
AGREEMENT
UBS
AG has entered into the transaction listed on Attachment 1 hereto with
Reference
Number 37533987 (the “Old Transaction”) with UBS Real Estate Securities, Inc.
(“UBS Real Estate”).
For
valuable consideration, receipt of which is hereby acknowledged, UBS Real
Estate
hereby assigns, transfers and sets over effective 28 December 2006 unto
Mortgage
Asset Securitization Transactions Inc. (“MASTR”), without recourse all of its
rights, title and interest in and to the Old Transaction and UBS Real Estate
hereby gives MASTR and its assigns full power and authority for its or
their own
uses and benefit, but at its or their own cost, to demand, collect, receive
and
give acquittance for the same or any part of thereof, and to prosecute
or
withdraw any suits or proceedings therefore. UBS AG hereby consents to
the
assignment of the Old Transaction to MASTR as herein provided.
Upon
the
effectiveness of such assignment, for valuable consideration, receipt of
which
is hereby acknowledged, MASTR hereby assigns, transfers and sets over effective
28 December 2006 unto Xxxxx Fargo Bank, N. A. not individually, but solely
as
trust administrator with respect to the MASTR Asset Backed Securities Trust,
2006-HE5, Mortgage Pass Through Certificates, Series 2006-HE5 (the “Trust”),
without recourse, all of its rights, title and interest in and to the Old
Transaction (as so assigned and transferred, referenced by UBS AG as a
new
transaction with Reference Number 37536074 as listed on Attachment 2 hereto
and
referred to as the “New Transaction”) and MASTR hereby gives the Trust and its
assigns full power and authority for its or their own uses and benefit,
but at
its or their own cost, to demand, collect, receive and give acquittance
for the
same or any part of thereof, and to prosecute or withdraw any suits or
proceedings therefor. UBS AG hereby consents to the assignment of the New
Transaction to the Trust as herein provided, with the understanding that
the
provisions labeled “Additional Provisions” in the confirmation relating to the
New Transaction shall become effective upon the assignment to the
Trust.
Each
party hereby represents and warrants to the other that the execution, delivery
and performance of this Assignment Agreement by it are within its powers,
and
have been duly authorized by all necessary corporate or other action and
that
this Assignment Agreement constitutes its legal, valid and binding
obligation.
This
Assignment Agreement shall be governed by and construed and interpreted
in
accordance with the laws of the State of New York without regard the conflict
of
law provisions thereof other than New York General Obligations Law Sections
5-1401 and 5-1402.
IN
WITNESS WHEREOF, the parties have duly executed this Assignment Agreement
as of
the date first written above.
|
UBS
AG
|
UBS
REAL ESTATE SECURITIES, INC.
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Xxxxxxxxxxx
Xxxxxx
|
Name:
|
||
|
Title:
|
Director
|
Title:
|
||
|
By:
|
By:
|
|||
|
Name:
|
Xxxxxxxx
XxXxxxxx
|
Name:
|
||
|
Title:
|
Associate
Director
|
Title:
|
||
|
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS INC.
|
Xxxxx
Fargo Bank, N. A. not individually, but solely as trust administrator
with
respect to the MASTR Asset Backed Securities Trust, 2006-HE5,
Mortgage
Pass Through Certificates, Series
2006-HE5
|
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
Attachment
1
Date:
28
December 2006
To:
UBS
Real
Estate Securities, Inc. (“Counterparty”)
Attention:
Swaps
Administration
From:
UBS
AG,
London Branch
(“UBS
AG”)
Subject: Interest
Rate Cap Transaction
UBS AG Ref: 37533987
Dear
Sirs
The
purpose of this communication is to confirm the terms and conditions of
the
Transaction entered into between us on the Trade Date specified below.
This
Confirmation constitutes a “Confirmation” as referred to in the Master Agreement
or Agreement specified below.
The
definitions contained in the 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc., are incorporated
into
this Confirmation. In the event of any inconsistency between any of the
definitions listed above and this Confirmation, this Confirmation will
govern.
If
you
and we are parties to a master agreement that governs transactions of this
type
(whether in the form of the ISDA Master Agreement (Multicurrency-Cross
Border)(the "ISDA Form") or any other form (a "Master Agreement"), then
this
Confirmation will supplement, form a part of, and be subject to that Master
Agreement. If you and we are not parties to such a Master Agreement, then
you
and we agree to use all reasonable efforts promptly to negotiate, execute
and
deliver an agreement in the form of the ISDA Form, with such modifications
as
you and we will in good faith agree. Upon the execution by you and us of
such an
agreement, this Confirmation will supplement, form a part of and be subject
to
and governed by that agreement, except as expressly modified below. Until
we
execute and deliver that agreement, this Confirmation, together with all
other
documents referring to the ISDA Form (each a "Confirmation") confirming
transactions (each a "Transaction") entered into between us (notwithstanding
anything to the contrary in a confirmation), shall supplement, form a part
of,
and be subject to an agreement in the form of the ISDA Form as if we had
executed an agreement in such form (but without any Schedule except for
the
election of the laws of New York as the Governing Law and U.S. Dollars
as the
Termination Currency) on the Trade Date of the first Transaction between
us
(hereinafter the "Agreement"). In the event of any inconsistency between
the
provisions of any such Agreement and this Confirmation, this Confirmation
will
prevail for the purposes of this Transaction.
The
terms
of the particular Cap Transaction to which this Confirmation relates are
as
follows:
|
Trade
Date:
|
28
December 2006
|
|
Effective
Date
|
25
January 2007
|
|
Termination
Date:
|
25
December 2013,
subject to adjustment in accordance with the Modified Following
Business
Day Convention.
|
|
Calculation
Amount:
|
Initially
USD 1,318,000.00, amortizing as per Amortizing Schedule
below
|
|
Amortization
Schedule:
|
|||
|
Period
From (and including)
|
Period
To (but excluding)
|
Calculation
Amount (USD)
|
|
Effective
Date
|
25-Feb-07
|
1,318,000.00
|
|
25-Feb-07
|
25-Mar-07
|
2,951,000.00
|
|
25-Mar-07
|
25-Apr-07
|
4,895,000.00
|
|
25-Apr-07
|
25-May-07
|
7,142,000.00
|
|
25-May-07
|
25-Jun-07
|
9,679,000.00
|
|
25-Jun-07
|
25-Jul-07
|
12,486,000.00
|
|
25-Jul-07
|
25-Aug-07
|
15,539,000.00
|
|
25-Aug-07
|
25-Sep-07
|
18,809,000.00
|
|
25-Sep-07
|
25-Oct-07
|
22,156,000.00
|
|
25-Oct-07
|
25-Nov-07
|
25,209,000.00
|
|
25-Nov-07
|
25-Dec-07
|
27,985,000.00
|
|
25-Dec-07
|
25-Jan-08
|
30,501,000.00
|
|
25-Jan-08
|
25-Feb-08
|
32,775,000.00
|
|
25-Feb-08
|
25-Mar-08
|
34,821,000.00
|
|
25-Mar-08
|
25-Apr-08
|
36,655,000.00
|
|
25-Apr-08
|
25-May-08
|
38,290,000.00
|
|
25-May-08
|
25-Jun-08
|
39,738,000.00
|
|
25-Jun-08
|
25-Jul-08
|
41,014,000.00
|
|
25-Jul-08
|
25-Aug-08
|
42,318,000.00
|
|
25-Aug-08
|
25-Sep-08
|
45,120,000.00
|
|
25-Sep-08
|
25-Oct-08
|
47,252,000.00
|
|
25-Oct-08
|
25-Nov-08
|
48,814,000.00
|
|
25-Nov-08
|
25-Dec-08
|
49,883,000.00
|
|
25-Dec-08
|
25-Jan-09
|
50,485,000.00
|
|
25-Jan-09
|
25-Feb-09
|
50,355,000.00
|
|
25-Feb-09
|
25-Mar-09
|
50,137,000.00
|
|
25-Mar-09
|
25-Apr-09
|
49,841,000.00
|
|
25-Apr-09
|
25-May-09
|
49,474,000.00
|
|
25-May-09
|
25-Jun-09
|
49,044,000.00
|
|
25-Jun-09
|
25-Jul-09
|
48,556,000.00
|
|
25-Jul-09
|
25-Aug-09
|
48,080,000.00
|
|
25-Aug-09
|
25-Sep-09
|
47,613,000.00
|
|
25-Sep-09
|
25-Oct-09
|
47,048,000.00
|
|
25-Oct-09
|
25-Nov-09
|
46,402,000.00
|
|
25-Nov-09
|
25-Dec-09
|
45,686,000.00
|
|
25-Dec-09
|
25-Jan-10
|
44,914,000.00
|
|
25-Jan-10
|
25-Feb-10
|
44,108,000.00
|
|
25-Feb-10
|
25-Mar-10
|
43,286,000.00
|
|
25-Mar-10
|
25-Apr-10
|
42,450,000.00
|
|
25-Apr-10
|
25-May-10
|
41,605,000.00
|
|
25-May-10
|
25-Jun-10
|
40,753,000.00
|
|
25-Jun-10
|
25-Jul-10
|
39,896,000.00
|
|
25-Jul-10
|
25-Aug-10
|
39,036,000.00
|
|
25-Aug-10
|
25-Sep-10
|
38,175,000.00
|
|
25-Sep-10
|
25-Oct-10
|
37,316,000.00
|
|
25-Oct-10
|
25-Nov-10
|
36,461,000.00
|
|
25-Nov-10
|
25-Dec-10
|
35,610,000.00
|
|
25-Dec-10
|
25-Jan-11
|
34,765,000.00
|
|
25-Jan-11
|
25-Feb-11
|
33,927,000.00
|
|
25-Feb-11
|
25-Mar-11
|
33,098,000.00
|
|
25-Mar-11
|
25-Apr-11
|
32,278,000.00
|
|
25-Apr-11
|
25-May-11
|
31,469,000.00
|
|
25-May-11
|
25-Jun-11
|
30,670,000.00
|
|
25-Jun-11
|
25-Jul-11
|
29,884,000.00
|
|
25-Jul-11
|
25-Aug-11
|
29,109,000.00
|
|
25-Aug-11
|
25-Sep-11
|
28,348,000.00
|
|
25-Sep-11
|
25-Oct-11
|
27,599,000.00
|
|
25-Oct-11
|
25-Nov-11
|
26,863,000.00
|
|
25-Nov-11
|
25-Dec-11
|
26,141,000.00
|
|
25-Dec-11
|
25-Jan-12
|
25,433,000.00
|
|
25-Jan-12
|
25-Feb-12
|
24,739,000.00
|
|
25-Feb-12
|
25-Mar-12
|
24,060,000.00
|
|
25-Mar-12
|
25-Apr-12
|
23,396,000.00
|
|
25-Apr-12
|
25-May-12
|
22,746,000.00
|
|
25-May-12
|
25-Jun-12
|
22,110,000.00
|
|
25-Jun-12
|
25-Jul-12
|
21,489,000.00
|
|
25-Jul-12
|
25-Aug-12
|
20,883,000.00
|
|
25-Aug-12
|
25-Sep-12
|
20,291,000.00
|
|
25-Sep-12
|
25-Oct-12
|
19,713,000.00
|
|
25-Oct-12
|
25-Nov-12
|
19,149,000.00
|
|
25-Nov-12
|
25-Dec-12
|
18,600,000.00
|
|
25-Dec-12
|
25-Jan-13
|
18,064,000.00
|
|
25-Jan-13
|
25-Feb-13
|
17,542,000.00
|
|
25-Feb-13
|
25-Mar-13
|
17,033,000.00
|
|
25-Mar-13
|
25-Apr-13
|
16,538,000.00
|
|
25-Apr-13
|
25-May-13
|
16,055,000.00
|
|
25-May-13
|
25-Jun-13
|
15,586,000.00
|
|
25-Jun-13
|
25-Jul-13
|
15,129,000.00
|
|
25-Jul-13
|
25-Aug-13
|
14,685,000.00
|
|
25-Aug-13
|
25-Sep-13
|
14,252,000.00
|
|
25-Sep-13
|
25-Oct-13
|
13,832,000.00
|
|
25-Oct-13
|
25-Nov-13
|
13,423,000.00
|
|
00-Xxx-00
|
Xxxxxxxxxxx
Date
|
13,026,000.00
|
The
dates
in the above schedule with the exception of the Effective Date will be
subject
to adjustment in accordance with the Modified Following Business Day
Convention.
|
Seller
of the Cap:
|
UBS
AG
|
|
Buyer
of the Cap:
|
Counterparty
|
|
Calculation
Agent:
|
UBS
AG, unless otherwise specified in the schedule to the Master
Agreement
|
|
Business
Days:
|
New
York
|
|
Broker:
|
None
|
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Amount:
|
Not
Applicable
|
|
Fixed
Rate Payer Payment Date:
|
Not
Applicable
|
|
Business
Day Convention:
|
Not
Applicable
|
Floating
Amounts
|
Floating
Rate Payer:
|
UBS
AG
|
|
Cap
Rate:
|
7.00%
per annum
|
|
To
be determined in accordance with the following formula:
Greater
of
(1)
Calculation Amount * Floating Rate Day Count Fraction * (Floating
Rate
Option - Cap Rate) and
|
|
|
(2)
0
|
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
Month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Floating
Rate Payer End Dates:
|
25
January, 25 February, 25 March, 25 April, 25 May, 25 June, 25
July, 25
August, 25 September, 25 October, 25 November and 25 December,
in each
year, from and including 25 February 2007, up to and including
the
Termination Date, subject to adjustment in accordance with the
Business
Day Convention specified immediately below.
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment
Dates shall
be two Business Days prior to each Floating Rate Payer Period
End
Date.
|
|
Business
Day Convention:
|
Modified
Following
|
Relationship
Between Parties
Each
party will be deemed to represent to the other party on the date on which
it
enters into this Transaction that (in the absence of a written Agreement
between
the parties which expressly imposes affirmative obligations to the contrary
for
this Transaction):
(a)
Non-Reliance. Each party is acting for its own account, and has made its
own
independent decisions to enter into this Transaction and this such Transaction
is appropriate or proper for it based upon its own judgement and upon advice
from such advisers as it has deemed necessary. Each party 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 explanation relating to the terms and conditions of this
Transaction shall not be considered investment advice or a recommendation
to
enter into this Transaction. No communication (written or oral) received
from
the other party shall be deemed to be an assurance or guarantee as to the
expected results of this Transaction.
(b)
Assessment and Understanding. Each party is capable of assessing the merits
of
and understands (on its own behalf or through independent professional
advice),
and accepts, the terms, conditions and risks of this Transaction. Each
party is
also capable of assuming and assumes, the risks of this
Transaction.
(c)
Status of the Parties. Neither party is acting as a fiduciary for or as
an
adviser to the other in respect of this Transaction.
References
in this clause to "a party" shall, in the case of UBS AG and where the
context
so allows, include references to any affiliate of UBS AG.
|
Currency:
|
USD
|
|
Correspondent
Bank:
|
UBS
AG,
XXXXXXXX
BRANCH
|
|
Swift
Address:
|
XXXXXX00XXX
|
|
Favour:
|
UBS
AG LONDON
BRANCH
|
|
Swift
Address:
|
XXXXXX0XXXX
|
|
Account
No:
|
101-wa-140007-000
|
|
Further
Credit To:
|
|
|
Swift
Address:
|
|
|
Account
No:
|
Offices
| (a) |
The
office of UBS AG for the Interest Rate Cap Transaction is London;
and
|
| (b) |
The
office of Counterparty for the Interest Rate Cap Transaction
is New
York.
|
|
Contact
Names at UBS AG:
|
||
|
Payment
Inquiries
|
Elisa
Doctor
|
Email:
XX-XXXXXXXXXX-XXXXX@xxx.xxx
|
|
Pre
Value Payments:
|
Pre
Value Payment Investigations:
|
203.719-1110
|
|
Post
Value Payments:
|
Post
Value Payment Investigations:
|
203.719.1110
|
|
Confirmation
Queries:
|
Confirmation
Control:
|
203.719.3733
|
|
ISDA
Documentation:
|
Legal
|
203.719.4747
|
|
Swift:
|
UBSWGB2L
|
|
|
Fax:
|
(00)
00 0000 0000/2990
|
|
|
Address:
|
UBS
AG
|
|
|
000
Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
|
||
Please
confirm that the foregoing correctly sets forth the terms and conditions
of our
agreement by executing a copy of this Confirmation and returning it to
us or by
sending to us a letter or facsimile substantially similar to this letter,
which
letter or facsimile sets forth the material terms of the Transaction to
which
this Confirmation relates and indicates your agreement to those terms or
by
sending to us a return letter or facsimile in the form attached.
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.
For
and
on Behalf of
UBS
AG,
London Branch
|
By:
|
By:
|
|||
|
Name:
|
Xxxxxxxxxxx
Xxxxxx
|
Name:
|
Xxxxxxxx
XxXxxxxx
|
|
|
Title:
|
Associate
Director
|
Title:
|
Associate
Director
|
Acknowledged
and Agreed by UBS Real Estate Securities, Inc. as of the date first written
above:
|
By:
|
|
|
Name
:
|
|
|
Title
:
|
|
UBS
AG
London Branch, 0 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
UBS
AG is
a member of the London Stock Exchange and is regulated in the UK by the
Financial Services Authority.
Representatives
of UBS Limited introduce trades to UBS AG via UBS Limited.
Attachment
2
|
|
Date:
28
December 2006
|
To:
|
Xxxxx
Fargo Bank, N. A. not individually, but solely as trust administrator
with
respect to the MASTR Asset Backed Securities Trust, 2006-HE5,
Mortgage
Pass Through Certificates, Series 2006-HE5
(“Counterparty”)
|
Attention:
From:
UBS
AG,
London Branch
(“UBS
AG”)
Subject:
Interest
Rate Cap Transaction
UBS
AG Ref: 37536074
Dear
Sirs
The
purpose of this communication is to confirm the terms and conditions of
the
Transaction entered into between us on the Trade Date specified below.
This
Confirmation constitutes a “Confirmation” as referred to in the Master Agreement
or Agreement specified below.
The
definitions contained in the 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc., are incorporated
into
this Confirmation. In the event of any inconsistency between any of the
definitions listed above and this Confirmation, this Confirmation will
govern.
This
Confirmation supplements, forms part of, and is subject to, the ISDA Master
Agreement dated as of 28 December 2006 as amended and supplemented from
time to
time (the "Agreement"), between Counterparty and UBS AG. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified
below.
The
terms
of the particular Cap Transaction to which this Confirmation relates are
as
follows:
|
General
Terms
|
|
|
Trade
Date:
|
28
December 2006
|
|
Effective
Date
|
25
January 2007
|
|
Termination
Date:
|
25
December 2013,
subject to adjustment in accordance with the Modified Following
Business
Day Convention.
|
|
Calculation
Amount:
|
Initially
5,272.00 amortizing as per Amortizing Schedule
below
|
|
Amortization
Schedule:
|
||
|
Period
From (and including)
|
Period
To (but excluding)
|
Calculation
Amount (USD)
|
|
Effective
Date
|
25-Feb-07
|
5,272.00
|
|
25-Feb-07
|
25-Mar-07
|
11,804.00
|
|
25-Mar-07
|
25-Apr-07
|
19,580.00
|
|
25-Apr-07
|
25-May-07
|
28,568.00
|
|
25-May-07
|
25-Jun-07
|
38,716.00
|
|
25-Jun-07
|
25-Jul-07
|
49,944.00
|
|
25-Jul-07
|
25-Aug-07
|
62,156.00
|
|
25-Aug-07
|
25-Sep-07
|
75,236.00
|
|
25-Sep-07
|
25-Oct-07
|
88,624.00
|
|
25-Oct-07
|
25-Nov-07
|
100,836.00
|
|
25-Nov-07
|
25-Dec-07
|
111,940.00
|
|
25-Dec-07
|
25-Jan-08
|
122,004.00
|
|
25-Jan-08
|
25-Feb-08
|
131,100.00
|
|
25-Feb-08
|
25-Mar-08
|
139,284.00
|
|
25-Mar-08
|
25-Apr-08
|
146,620.00
|
|
25-Apr-08
|
25-May-08
|
153,160.00
|
|
25-May-08
|
25-Jun-08
|
158,952.00
|
|
25-Jun-08
|
25-Jul-08
|
164,056.00
|
|
25-Jul-08
|
25-Aug-08
|
169,272.00
|
|
25-Aug-08
|
25-Sep-08
|
180,480.00
|
|
25-Sep-08
|
25-Oct-08
|
189,008.00
|
|
25-Oct-08
|
25-Nov-08
|
195,256.00
|
|
25-Nov-08
|
25-Dec-08
|
199,532.00
|
|
25-Dec-08
|
25-Jan-09
|
201,940.00
|
|
25-Jan-09
|
25-Feb-09
|
201,420.00
|
|
25-Feb-09
|
25-Mar-09
|
200,548.00
|
|
25-Mar-09
|
25-Apr-09
|
199,364.00
|
|
25-Apr-09
|
25-May-09
|
197,896.00
|
|
25-May-09
|
25-Jun-09
|
196,176.00
|
|
25-Jun-09
|
25-Jul-09
|
194,224.00
|
|
25-Jul-09
|
25-Aug-09
|
192,320.00
|
|
25-Aug-09
|
25-Sep-09
|
190,452.00
|
|
25-Sep-09
|
25-Oct-09
|
188,192.00
|
|
25-Oct-09
|
25-Nov-09
|
185,608.00
|
|
25-Nov-09
|
25-Dec-09
|
182,744.00
|
|
25-Dec-09
|
25-Jan-10
|
179,656.00
|
|
25-Jan-10
|
25-Feb-10
|
176,432.00
|
|
25-Feb-10
|
25-Mar-10
|
173,144.00
|
|
25-Mar-10
|
25-Apr-10
|
169,800.00
|
|
25-Apr-10
|
25-May-10
|
166,420.00
|
|
25-May-10
|
25-Jun-10
|
163,012.00
|
|
25-Jun-10
|
25-Jul-10
|
159,584.00
|
|
25-Jul-10
|
25-Aug-10
|
156,144.00
|
|
25-Aug-10
|
25-Sep-10
|
152,700.00
|
|
25-Sep-10
|
25-Oct-10
|
149,264.00
|
|
25-Oct-10
|
25-Nov-10
|
145,844.00
|
|
25-Nov-10
|
25-Dec-10
|
142,440.00
|
|
25-Dec-10
|
25-Jan-11
|
139,060.00
|
|
25-Jan-11
|
25-Feb-11
|
135,708.00
|
|
25-Feb-11
|
25-Mar-11
|
132,392.00
|
|
25-Mar-11
|
25-Apr-11
|
129,112.00
|
|
25-Apr-11
|
25-May-11
|
125,876.00
|
|
25-May-11
|
25-Jun-11
|
122,680.00
|
|
25-Jun-11
|
25-Jul-11
|
119,536.00
|
|
25-Jul-11
|
25-Aug-11
|
116,436.00
|
|
25-Aug-11
|
25-Sep-11
|
113,392.00
|
|
25-Sep-11
|
25-Oct-11
|
110,396.00
|
|
25-Oct-11
|
25-Nov-11
|
107,452.00
|
|
25-Nov-11
|
25-Dec-11
|
104,564.00
|
|
25-Dec-11
|
25-Jan-12
|
101,732.00
|
|
25-Jan-12
|
25-Feb-12
|
98,956.00
|
|
25-Feb-12
|
25-Mar-12
|
96,240.00
|
|
25-Mar-12
|
25-Apr-12
|
93,584.00
|
|
25-Apr-12
|
25-May-12
|
90,984.00
|
|
25-May-12
|
25-Jun-12
|
88,440.00
|
|
25-Jun-12
|
25-Jul-12
|
85,956.00
|
|
25-Jul-12
|
25-Aug-12
|
83,532.00
|
|
25-Aug-12
|
25-Sep-12
|
81,164.00
|
|
25-Sep-12
|
25-Oct-12
|
78,852.00
|
|
25-Oct-12
|
25-Nov-12
|
76,596.00
|
|
25-Nov-12
|
25-Dec-12
|
74,400.00
|
|
25-Dec-12
|
25-Jan-13
|
72,256.00
|
|
25-Jan-13
|
25-Feb-13
|
70,168.00
|
|
25-Feb-13
|
25-Mar-13
|
68,132.00
|
|
25-Mar-13
|
25-Apr-13
|
66,152.00
|
|
25-Apr-13
|
25-May-13
|
64,220.00
|
|
25-May-13
|
25-Jun-13
|
62,344.00
|
|
25-Jun-13
|
25-Jul-13
|
60,516.00
|
|
25-Jul-13
|
25-Aug-13
|
58,740.00
|
|
25-Aug-13
|
25-Sep-13
|
57,008.00
|
|
25-Sep-13
|
25-Oct-13
|
55,328.00
|
|
25-Oct-13
|
25-Nov-13
|
53,692.00
|
|
00-Xxx-00
|
Xxxxxxxxxxx
Date
|
52,104.00
|
The
dates
in the above schedule with the exception of the Effective Date will be
subject
to adjustment in accordance with the Modified Following Business Day
Convention.
|
Seller
of the Cap:
|
UBS
AG
|
|
Buyer
of the Cap:
|
Counterparty
|
|
Calculation
Agent:
|
UBS
AG, unless otherwise specified in the schedule to the Master
Agreement
|
|
Business
Days:
|
New
York
|
|
Broker:
|
None
|
|
Fixed
Amounts
|
|
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Amount:
|
Not
Applicable
|
|
Fixed
Rate Payer Payment Date:
|
Not
Applicable
|
|
Business
Day Convention:
|
Not
Applicable
|
Floating
Amounts
|
Floating
Rate Payer:
|
UBS
AG
|
|
Cap
Rate:
|
7.00%
per annum
|
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
Greater
of
(1)
250 * Calculation Amount * Floating Rate Day Count Fraction *
(Floating
Rate Option - Cap Rate) and
|
|
(2)
0
|
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
Month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Floating
Rate Payer End Dates:
|
25
January, 25 February, 25 March, 25 April, 25 May, 25 June, 25
July, 25
August, 25 September, 25 October, 25 November and 25 December,
in each
year, from and including 25 February 2007, up to and including
the
Termination Date, subject to adjustment in accordance with the
Business
Day Convention specified immediately below.
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment
Dates shall
be two Business Days prior to each Floating Rate Payer Period
End
Date.
|
|
Business
Day Convention:
|
Modified
Following
|
Relationship
Between Parties
Each
party will be deemed to represent to the other party on the date on which
it
enters into this Transaction that (in the absence of a written Agreement
between
the parties which expressly imposes affirmative obligations to the contrary
for
this Transaction):
(a)
Non-Reliance. Each party is acting for its own account, and has made its
own
independent decisions to enter into this Transaction and this such Transaction
is appropriate or proper for it based upon its own judgement and upon advice
from such advisers as it has deemed necessary. Each party 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 explanation relating to the terms and conditions of this
Transaction shall not be considered investment advice or a recommendation
to
enter into this Transaction. No communication (written or oral) received
from
the other party shall be deemed to be an assurance or guarantee as to the
expected results of this Transaction.
(b)
Assessment and Understanding. Each party is capable of assessing the merits
of
and understands (on its own behalf or through independent professional
advice),
and accepts, the terms, conditions and risks of this Transaction. Each
party is
also capable of assuming and assumes, the risks of this
Transaction.
(c)
Status of the Parties. Neither party is acting as a fiduciary for or as
an
adviser to the other in respect of this Transaction.
(d)
Eligible
Contract Participant.
Each
party constitutes an “eligible contract participant” as such term is defined in
Section 1(a)12 of the Commodity Exchange Act, as amended.
Fully-Paid
Transactions
Notwithstanding the terms of Sections 5 and 6 of the ISDA Master Agreement,
(a)
the occurrence of an event described in Section 5(a) of the Form Master
Agreement with respect to Counterparty shall not constitute an Event of
Default
or Potential Event of Default with respect to Counterparty as the Defaulting
Party and (b) UBS AG shall be entitled to designate an Early Termination
Date
pursuant to Section 6 of the ISDA Master Agreement only as a result of
a
Termination Event set forth in either Section 5(b)(i) or Section 5(b)(ii)
of the
ISDA Master Agreement with respect to UBS AG as the Affected Party or Section
5(b)(iii) of the ISDA Master Agreement with respect to UBS AG as the Burdened
Party.
References
in this clause to "a party" shall, in the case of UBS AG and where the
context
so allows, include references to any affiliate of UBS AG.
|
Account
Details for UBS AG:
|
|
Currency:
|
USD
|
|
Correspondent
Bank:
|
UBS
AG,
XXXXXXXX
BRANCH
|
|
Swift
Address:
|
XXXXXX00XXX
|
|
Favour:
|
UBS
AG LONDON
BRANCH
|
|
Swift
Address:
|
XXXXXX0XXXX
|
|
Account
No:
|
101-wa-140007-000
|
|
Further
Credit To:
|
|
|
Swift
Address:
|
|
|
Account
No:
|
Offices
| (a) |
The
office of UBS AG for the Interest Rate Cap Transaction is London;
and
|
| (b) |
The
office of Counterparty for the Interest Rate Cap Transaction
is New
York
|
|
Contact
Names at UBS AG:
|
||
|
Payment
Inquiries
|
Elisa
Doctor
|
Email:
XX-XXXXXXXXXX-XXXXX@xxx.xxx
|
|
Pre
Value Payments:
|
Pre
Value Payment Investigations:
|
203.719-1110
|
|
Post
Value Payments:
|
Post
Value Payment Investigations:
|
203.719.1110
|
|
Confirmation
Queries:
|
Confirmation
Control:
|
203.719.3733
|
|
ISDA
Documentation:
|
Legal
|
203.719.4747
|
|
Swift:
|
UBSWGB2L
|
|
|
Fax:
|
(00)
00 0000 0000/2990
|
|
|
Address:
|
UBS
AG
|
|
|
000
Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
|
||
Contact
Info:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000-0000
Attn:
Client Manager MABS 2006-HE5
(p)
410.884.2000
(f)
410.715.2380
Wiring
Instructions:
XXXXX
XXXXX XXXX, XX
XXX#
000000000
FOR
CREDIT TO: CORPORATE TRUST CLEARING
ACCT:
0000000000
FFC
TO:
Cap
Account,
Account #
00000000
Please
confirm that the foregoing correctly sets forth the terms and conditions
of our
agreement by executing a copy of this Confirmation and returning it to
us or by
sending to us a letter or facsimile substantially similar to this letter,
which
letter or facsimile sets forth the material terms of the Transaction to
which
this Confirmation relates and indicates your agreement to those terms or
by
sending to us a return letter or facsimile in the form attached.
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.
Yours
Faithfully
For
and
on Behalf of
UBS
AG,
London Branch
|
By:
|
By:
|
|||
|
Name:
|
Xxxxxxxxxxx
Xxxxxx
|
Name:
|
Xxxxxxxx
XxXxxxxx
|
|
|
Title:
|
Associate
Director
|
Title:
|
Associate
Director
|
Acknowledged
and Agreed by Xxxxx Fargo Bank, N. A. not individually, but solely as trust
administrator with respect to the MASTR Asset Backed Securities Trust,
2006-HE5,
Mortgage Pass Through Certificates, Series 2006-HE5 as of the date first
written
above:
|
By:
|
|
|
Name
:
|
|
|
Title
:
|
|
UBS
AG
London Branch, 0 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
UBS
AG is
a member of the London Stock Exchange and is regulated in the UK by the
Financial Services Authority.
Representatives
of UBS Limited introduce trades to UBS AG via UBS Limited.
(Multicurrency-Cross
Border)
ISDAâ
International
Swap Dealers Association, Inc.
MASTER
AGREEMENT
dated
as
of December 28, 2006
|
UBS
AG
(“Party
A”)
|
and
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not individually, but solely
as trust
administrator with respect to the MASTR Asset Backed Securities
Trust
2006-HE5, Mortgage Pass Through Certificates, Series
2006-HE5
(“Party
B”)
|
have
entered and/or anticipate entering into one or more transactions (each
a
“Transaction”) that are or will be governed by this Master Agreement, which
includes the schedule (the “Schedule”), and the documents and other confirming
evidence (each a “Confirmation”) exchanged between the parties confirming those
Transactions.
Accordingly,
the parties agree as follows:¾
1. Interpretation
(a) Definitions.
The
terms defined in Section 14 and in the Schedule will have the meanings
therein
specified for the purpose of this Master Agreement.
(b) Inconsistency.
In the
event of any inconsistency between the provisions of the Schedule and the
other
provisions of this Master Agreement, the Schedule will prevail. In the
event of
any inconsistency between the provisions of any Confirmation and this Master
Agreement (including the Schedule), such Confirmation will prevail for
the
purposes of the relevant Transaction.
(c) Single
Agreement.
All
Transactions are entered into in reliance on the fact that this Master
Agreement
and all Confirmations form a single agreement between the parties (collectively
referred to as this “Agreement”), and the parties would not otherwise enter into
any Transactions.
2. Obligations
(a) General
Conditions.
(i)
Each
party will make each payment or delivery specified in each Confirmation
to be
made by it, subject to the other provisions of this Agreement.
(ii)
Payments under this Agreement will be made on the due date for value on
that
date in the place of the account specified in the relevant Confirmation
or
otherwise pursuant to this Agreement, in freely transferable funds and
in
the manner customary for
payments in the required currency.
Where settlement is by delivery (that is, other than by payment), such
delivery
will be made for receipt on the due date in the manner customary for the
relevant obligation unless otherwise specified in the relevant Confirmation
or
elsewhere in this Agreement.
(iii)
Each obligation of each party under Section 2(a)(i) is subject to (1) the
condition precedent that no Event of Default or Potential Event of Default
with
respect to the other party has occurred and is continuing, (2) the condition
precedent that no Early Termination Date in respect of the relevant Transaction
has occurred or been effectively designated and (3) each other applicable
condition precedent specified in this Agreement.
value
of
that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to
the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date
such
amounts or obligations were or
would
have been
required to have been paid or performed to (but excluding) such
Early Termination Date, at the Applicable Rate. Such amounts of interest
will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause
(b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average
of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN
WITNESS WHEREOF the parties have executed this document on the respective
dates
specified below with effect from the date specified on the first page of
this
document.
|
UBS
AG
(“Party
A”)
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not individually, but solely
as trust
administrator with respect to the MASTR Asset Backed Securities
Trust
2006-HE5, Mortgage Pass Through Certificates, Series
2006-HE5
(“Party
B”)
|
|||
|
(Name
of Party)
|
(Name
of Party)
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Date:
|
Date:
|
|||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
Date:
|
||||
Execution
Copy
(Multicurrency-Cross
Border)
Cap
Schedule
SCHEDULE
to
the
Master
Agreement
dated
as
of December 28, 2006
between
UBS
AG (“Party
A”),
a
banking
corporation organized under the laws of Switzerland
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not individually, but solely as trust
administrator with respect to the MASTR Asset Backed Securities Trust 2006-HE5,
Mortgage Pass Through Certificates, Series 2006-HE5 (“Party B”)
Part
1.
Termination
Provisions
In
this
Agreement:
|
(a)
|
“Specified
Entity” means
in relation to Party A for the purpose
of:-
|
Section
5(a)(v), Not
applicable.
Section
5(a)(vi), Not
applicable.
Section
5(a)(vii), Not
applicable.
Section
5(b)(iv), Not
applicable.
and
in
relation to Party B for the purpose of:
Section
5(a)(v), Not
applicable.
Section
5(a)(vi), Not
applicable.
Section
5(a)(vii), Not
applicable.
Section
5(b)(iv), Not
applicable.
|
(b)
|
“Specified
Transaction” will
have the meaning specified in Section 14 of this Agreement.
|
|
(c)
|
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) of this Agreement will apply to
Party A and
will apply to Party B.
|
|
(d)
|
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) of this Agreement will apply to
Party A and
will not apply to Party B.
|
|
(e)
|
The
“Credit
Support Default”
provisions of Section 5(a)(iii) of this Agreement will apply
to Party A
and will not apply to Party B except that Section 5(a)(iii)(1)
of this
Agreement will apply to Party B only with respect to the Transfer
of any
Return Amount required to be made by Party B pursuant to the
Credit
Support Annex.
|
|
(f)
|
The
“Misrepresentation”
provisions of Section 5(a)(iv) of this Agreement will not apply
to either
Party A or Party B.
|
|
(g)
|
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) of this Agreement will apply to
Party A and
will not apply to Party B.
|
|
(h)
|
The
“Cross
Default” provisions
of Section 5(a)(vi) of this Agreement, as modified below, will
apply to
Party A and will not apply to Party B. Section 5(a)(vi) of this
Agreement
is hereby amended by the addition of the following at the end
thereof:
|
|
“provided,
however, that notwithstanding the foregoing, an Event of Default
shall not
occur under either (1) or (2) above if, as demonstrated to the
reasonable
satisfaction of the other party, (a) the event or condition referred
to in
(1) or the failure to pay referred to in (2) is a failure to
pay caused by
an error or omission of an administrative or operational nature;
(b) funds
were available to such party to enable it to make the relevant
payment
when due; and (c) such relevant payment is made within three
Local
Business Days following receipt of written notice from an interested
party
of such failure to pay.”
|
|
For
purposes of this provision:
|
|
“Specified
Indebtedness”
will have the meaning specified in Section 14 of this
Agreement.
|
|
“Threshold
Amount”
means with respect to Party A, an amount equal to three percent
(3%) of
the shareholders’ equity (howsoever described) of Party A as shown on the
most recent annual audited financial statements of Party
A.
|
|
(i)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) of this Agreement will not apply
to either
Party A or Party B.
|
|
(j)
|
The
“Automatic
Early Termination”
provisions of Section 6(a) of this Agreement will not apply to
Party A and
will not apply to Party B; provided that, if the Event of Default
specified in Section 5(a)(vii) (except for Section 5(a)(vii)(2))
is
governed by a system of law that does not permit termination
to take place
after the occurrence of the relevant Event of Default with respect
to a
party, then the Automatic Early Termination provision of Section
6(a) will
apply to such party.
|
|
(k)
|
The
“Bankruptcy”
provisions of Section 5(a)(vii) of this Agreement will apply
to both Party
A and Party B; provided, however, that with respect to Party
B the
following modifications shall apply: (i) clause (2) shall not
apply; (ii)
clause (4) shall exclude proceedings or petitions instituted
or presented
by Party A or any of Party A’s Affiliates; (iii) the words “seeks or”
shall be deleted from clause (6); (iv) clause (6) shall not apply
in
connection with any appointment that is contemplated by the [Transaction
Documents] (as such term is defined in the Indenture); (v) clauses
(7) and
(9) shall not apply; and (vi) clause (8) shall apply only to
the extent
that any of the events specified in clauses (1) through (7) are
applicable.
|
(l)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
(i) Market
Quotation will apply.
(ii) The
Second Method will apply.
|
(m)
|
Calculations.
Notwithstanding Section 6 of this Agreement, so long as Party
A is (A) the
Affected Party in respect of an Additional Termination Event,
Illegality,
Tax Event or a Tax Event Upon Merger or (B) the Defaulting Party
in
respect of any Event of Default, paragraphs (i) to (vi) below
shall
apply:
|
(i) The
definition of “Market Quotation” shall be deleted in its entirety and replaced
with the following:
“Market
Quotation”
means,
with respect to one or more Terminated Transactions, a Firm Offer which
is (1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for
an
amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a transaction
(the
“Replacement
Transaction”)
that
would have the effect of preserving for such 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 Transactions
or group of Terminated Transactions that would, but for the occurrence
of the
relevant Early Termination Date, have been required after that Date, (3)
made on
the basis that Unpaid Amounts in respect of the Terminated Transaction
or group
of Transactions are to be excluded but, without limitation, any payment
or
delivery that would, but for the relevant Early Termination Date, have
been
required (assuming satisfaction of each applicable condition precedent)
after
that Early Termination Date is to be included and (4) made in respect of
a
Replacement Transaction with terms substantially the same as those of this
Agreement (save for the exclusion of provisions relating to Transactions
that
are not Terminated Transactions).”
(ii) The
definition of “Settlement Amount” shall be deleted in its entirety and replaced
with the following:
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by
Party B)
equal to the Termination Currency Equivalent of the amount (whether positive
or
negative) of any Market Quotation for the relevant Terminated Transaction
or
group of Terminated Transactions that is accepted by Party B so as to become
legally binding, Provided that:
(1) If,
no
Automatic Early Termination has occurred and, on the Early Termination
Date, (x)
no Market Quotation for the relevant Terminated Transaction or group of
Terminated Transactions has been accepted by Party B so as to become legally
binding and (y) one or more Market Quotations have been made and remain
capable
of becoming legally binding upon acceptance, the Settlement Amount shall
equal
the Termination Currency Equivalent of the amount (whether positive or
negative)
of the lowest of such Market Quotations; and
(2) If
no
Automatic Early Termination has occurred and, on the Early Termination
Date, (x)
no Market Quotation for the relevant Terminated Transaction or group of
Terminated Transactions is accepted by Party B so as to become legally
binding
and (y) no Market Quotations have been made and remain capable of becoming
legally binding upon acceptance, the Settlement Amount shall equal Party
B’s
Loss (whether positive or negative and without reference to any Unpaid
Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
(3) If
an
Automatic Early Termination has occurred and, on the Early Termination
Date, no
Market Quotation for the relevant Terminated Transaction or group of Terminated
Transactions is accepted by Party B so as to become legally binding, the
Settlement Amount shall equal Party B’s Loss (whether positive or negative and
without reference to any Unpaid Amounts) for the relevant Terminated Transaction
or group of Terminated Transactions.
|
(iii)
|
For
the purpose of paragraph (4) of the definition of Market Quotation,
Party
B shall determine in its sole discretion, acting in a commercially
reasonable manner, whether a Firm Offer is made in respect
of a
Replacement Transaction with commercial terms substantially
the same as
those of this Agreement (save for the exclusion of provisions
relating to
Transactions that are not Terminated
Transactions).
|
|
(iv)
|
At
any time on or before the Early Termination Date at which two
or more
Market Quotations remain capable of becoming legally binding
upon
acceptance, Party B shall be entitled to accept only the lowest
of such
Market Quotations.
|
|
(v)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Early Termination
Date.
|
|
(vi)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
of this
Agreement shall be deleted in its entirety and replaced with
the
following:
|
“Second
Method and Market Quotation.
If
Second Method and Market Quotation apply, (1) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (2) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (3) Party
A shall
pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing
to Party B, provided that, (i) the amounts payable under (2) and (3) shall
be
subject to netting in accordance with Section 2(c) of this Agreement and
(ii)
notwithstanding any other provision of this Agreement, any amount payable
by
Party A under (3) shall not be netted-off against any amount payable by
Party B
under (1).”
(n) “Termination
Currency”
means
United States Dollars (“USD”).
(o) Additional
Termination Event
will
apply to Party A and Party B as set forth below:
| (i) |
Each
of the following events shall be an Additional Termination Event
for which
Party B shall be the sole Affected Party and all Transactions shall
be
Affected Transactions:
|
(A)
The
trust created pursuant to the Pooling and Servicing Agreement (as defined
below)
is unable to pay, or fails or admits in writing its inability, to pay,
on any
Distribution Date, any Uncertificated Interest with respect to the Class
A
Certificates, to the extent required pursuant to the terms of the Pooling
and
Servicing Agreement to be paid to the Class A Certificates on such Distribution
Date;
(B)
The
Pooling and Servicing Agreement dated as of December 1, 2006 among Mortgage
Asset Securitization Transactions, Inc. as depositor, Xxxxx Fargo Bank,
National
Association as master servicer and trust administrator, Barclays Capital
Real
Estate Inc. d/b/a HomeEq Servicing as servicer and U.S. Bank National
Association as trustee (the “Pooling and Servicing Agreement”) is amended or
modified 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, conditioned or delayed), if such amendment or
modification adversely affects, in any material respect, the interests
of Party
A; and
(C)
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
[IX] of the Pooling and Servicing Agreement. Party B shall be the sole
Affected
Party with respect to this Additional Termination Event and the cap transactions
with reference numbers 37536063 and 37536083 shall be the sole Affected
Transactions; provided, however, that notwithstanding anything to the contrary
in Section 6(b)(iv), only Party B may designate an Early Termination Date
in
respect of this Additional Termination Event.
|
(ii)
|
Each
of the following events shall be an Additional Termination Event
for which
Party A shall be the sole Affected Party and all Transactions
shall be
Affected Transactions:
|
(A) If
(x)
within 30 Local Business Days after the date on which the Moody’s First Trigger
Event applies or (y) within 30 calendar days after the date on which the
S&P
First Trigger Event applies,
Party A
fails to comply with or perform any obligation to be complied with or performed
under the CSA (including any obligation to Transfer Eligible Collateral
thereunder).
(B) On
any
Local Business Day that is (1) at least 30 Local Business Days after the
occurrence of (x) a Moody’s Second Trigger Event (which is continuing) or that
is (2) at least 10 Local Business Days after the occurrence of (y) an S&P
Second Trigger Event (which is continuing), and in the case of both (x)
and (y),
a Firm Offer that remains capable of being accepted is either (i) made
by an
Eligible Replacement that satisfies the
Moody’s Ratings Requirement (Second Trigger)
and
S&P Ratings Requirement (First Trigger) to accept transfer of Party A’s
obligations hereunder or (ii) made by a guarantor that satisfies the Moody’s
Ratings Requirement (Second Trigger) and S&P Ratings Requirement (First
Trigger) to provide an Eligible Guarantee in respect of Party A’s present and
future payment and delivery obligations under this Agreement and the CSA
and
such a Firm Offer is not accepted by Party A within one (1) Local Business
Day
of being made. During any period prior to the acceptance of such offer,
Party A
will continue to comply with its obligations under the CSA.
(C) If,
upon
the occurrence of a Swap Disclosure Event (as defined below in Part 5(aa)
of
this Schedule) Party A has not, within the lesser of 15 calendar days and
10
Local Business Days (after giving effect to any grace period applicable
to the
relevant filing) after such Swap Disclosure Event, complied with any of
the
provisions set forth in Part 5(aa) below.
For
the
purposes hereof:
“Cap
Rating Agency” means each of S&P and Moody’s, to the extent that each such
rating agency is then providing a rating for any of the MASTR Asset Backed
Securities Trust 2006-HE5, Mortgage Pass Through Certificates, Series 2006-HE5
(the “Certificates”) or any notes backed by the Certificates (the “Notes”).
“Eligible
Guarantee” means an unconditional and irrevocable guarantee that is provided by
a guarantor as principal debtor rather than surety and is directly enforceable
by Party B, where (A) either (x) a law firm has given a legal opinion confirming
that none of the guarantor’s payments to Party B under such guarantee will be
subject to withholding for Tax or (y) such guarantee provides that, in
the event
that any of such guarantor’s payments to Party B are subject to withholding for
Tax, such guarantor is required to pay such additional amount as is necessary
to
ensure that the net amount actually received by Party B (free and clear
of any
withholding tax) will equal the full amount Party B would have received
had no
such withholding been required and (B) the Rating Agency Condition with
respect
to S&P is satisfied.
“Eligible
Replacement” means an entity satisfying (or whose present and future payment and
delivery obligations owing to Party B are guaranteed pursuant to an Eligible
Guarantee provided by a guarantor satisfying) the Moody’s
Ratings Requirement (Second Trigger) and S&P Ratings Requirement (First
Trigger).
Where
the Eligible Replacement will enter into documentation substantively similar
to
this Agreement, Party A must provide written notice to each Cap Rating
Agency of
such transfer and such transfer must be in connection with the assignment
and
assumption of this Agreement without modification of its terms, other than
party
names, dates relevant to the effective date of such transfer, tax
representations and any other representations regarding the status of the
substitute counterparty. In all other cases, the Rating Agency Condition
must be
satisfied with respect to S&P.
“Firm
Offer” means an offer which, when made, was capable of becoming legally binding
upon acceptance by the offeree.
“Long
Term Rating” means the long-term unsecured and unsubordinated debt or
counterparty rating assigned to a party by a Cap Rating Agency.
“Moody’s”
shall mean Xxxxx’x Investors Service, Inc., or any successor
thereto.
“Moody’s
First Trigger Event” means no Relevant Entity satisfies the Moody’s Ratings
Requirement (First Trigger).
“Moody’s
Ratings Requirement (First Trigger)” means, with respect to a party:
(x)
such
party’s Short Term Rating from Xxxxx’x is at least “P-1” and its Long Term
Rating from Xxxxx’x is at least “A2”; or (y) if such party does
not
have a Short Term Rating from Moody’s,
its
Long Term Rating from Xxxxx’x is at least “A1.
“Moody’s
Ratings Requirement (Second Trigger)” means, (x) with respect to a Relevant
Entity, its Short
Term Rating from Xxxxx’x is at least “P-2” and its Long Term Rating from Xxxxx’x
is at least “A3” or (y) if such Relevant Entity does
not
have a Short Term Rating,
its
Long Term Rating from Xxxxx’x is at least “A3”.
“Moody’s
Second Trigger Event” means no
Relevant Entity satisfies the Moody’s Ratings
Requirement (Second Trigger).
“Relevant
Entity” means Party A and any guarantor under an Eligible Guarantee in respect
of all of Party A’s present and future obligations hereunder.
“S&P”
means Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor thereto.
“S&P
First Trigger Event” means no Relevant Entity satisfies the S&P Ratings
Requirement (First Trigger).
“S&P
Ratings Requirement (First Trigger)” means: (x) the Relevant Entity’s Short Term
Rating from S&P is at least “A-1” or (y) if such Relevant Entity does not
have a Short Term Rating from S&P, its Long Term Rating from S&P is at
least “A+”.
“S&P
Ratings Requirement (Second Trigger)” means the Relevant Entity’s Long Term
Rating is at least “BBB-”.
“S&P
Second Trigger Event”
means
that no Relevant Entity’s Long Term Rating satisfies the S&P Ratings
Requirement (Second Trigger).
“Second
Trigger Collateralization Level” applies at any time a Moody’s Second Trigger
Event has occurred and has been continuing for thirty (30) or more Local
Business Days. For the avoidance of doubt, the Second Trigger Collateralization
Level shall cease to apply at any time a Relevant Entity satisfies the
Moody’s
Ratings Requirement (Second Trigger).
“Short
Term Rating” means the short-term unsecured and unsubordinated debt rating
assigned to a party by a
Cap
Rating Agency.
(p) Second
Trigger Event Additional Obligations. For
so
long as Party A does not satisfy the Moody’s Ratings Requirement (Second
Trigger) or the S&P Ratings Requirement (Second Trigger), Party
A
shall use commercially reasonable efforts to obtain a Firm
Offer to, as soon as is reasonably practicable, either (1) transfer
its obligations under this Agreement to an Eligible Replacement that satisfies
the
Moody’s Ratings Requirement (Second Trigger) and the S&P Ratings Requirement
(First Trigger) or (2), to the extent consistent with its then-current
internal
policies and practices, guaranty its present and future payment and delivery
obligations under this Agreement and the CSA through an Eligible Guarantee
from
a guarantor that satisfies the Moody’s Ratings Requirement (Second Trigger) and
the S&P Ratings Requirement (First Trigger).
Part
2.
Tax
Representations
|
(a)
|
Payer
Tax Representations.
For the purpose of Section 3(e) of this Agreement, Party A and
Party B
will each make the following representation:
None.
|
|
(b)
|
Payee
Representations.
|
|
(i)
|
For
the purpose of Section 3(f) of this Agreement, Party A makes
the following
representations to Party B: None.
|
|
(ii)
|
For
the purpose of Section 3(f) of this Agreement, Party B makes
the following
representations to Party A: None
|
Part
3.
Agreement
to Deliver Documents.
For
the
purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees
to
deliver the following documents, as applicable:
(a) 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-8BEN (or any successor thereto), as appropriate,
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 and delivery of this Agreement, with such form
to be
updated at the beginning of each succeeding three calendar year
period
beginning after execution of this Agreement, or as otherwise
required
under then applicable U.S. Treasury Regulations; (ii) promptly
upon
reasonable demand by Party B; and (iii) promptly upon learning
that any
information on any previously delivered form (or any successor
thereto)
has become obsolete or incorrect.
|
|
Party
B
|
(i)
Upon execution of this Agreement, 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 the
initial beneficial owner of payments to Party B under this Agreement,
and
(ii) thereafter, the appropriate tax certification from (i.e.,
IRS Form
W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable
(or any
successor thereto) with respect to any payments received or to
be received
by the beneficial owner of payments to Party B under this Agreement
from
time to time.
|
(i)
Prior to the First Floating Rate Payer Payment Date, (ii) promptly
upon
reasonable demand by Party A, (iii) promptly upon learning that
any such
form previously provided by Party B has become obsolete or incorrect
and
(iv) in the case of a tax certification form other than a Form
W-9, before
December 31 of each third succeeding calendar
year.
|
|
(b)
|
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)
|
|
|
|
|
|
|
Party
A
|
Evidence
of authority of signatories to this Agreement
|
Upon
execution of this Agreement
|
Yes
|
|
|
|
|
|
|
Party
B
|
Certified
copy of the Board of Directors resolution (or equivalent authorizing
documentation) which sets forth the authority of each signatory
to the
Agreement signing on its behalf and the authority of such party
to enter
into Transactions contemplated and performance of its obligations
hereunder
|
Upon
execution of this Agreement
|
Yes
|
|
|
|
|
|
|
Party
A
|
Any
publicly available annual audited financial statements prepared
in
accordance with generally accepted accounting principles in the
country in
which Party A is organized
|
As
such statements are made publicly available on Party A’s website
(xxxx://xxx.xxx.xxx/0/x/xxxxxxxxx/xxxxxxxxxxxxxxx.xxxx)
or on the U.S. Securities Exchange Commission XXXXX information
retrieval
system
|
Yes
|
|
|
|
|
|
|
Party
A
|
Any
publicly available interim unaudited financial statements prepared
in
accordance with generally accepted accounting principles in the
country in
which Party A is organized
|
As
such statements are made publicly available on Party A’s website
(xxxx://xxx.xxx.xxx/0/x/xxxxxxxxx/xxxxxxxxx_xxxxxxxxx.xxxx
or
on the U.S. Securities Exchange Commission XXXXX information
retrieval
system
|
Yes
|
|
|
|
|
|
|
Party
B
|
A
duly executed copy of the Pooling and Servicing Agreement
(“PSA”)
|
Promptly
upon being finalized
|
No
|
|
|
|
|
|
|
Party
B
|
(1)
Monthly statements to certificateholders pursuant to Section
4.02 of the
PSA and (2) Notice of any amendment to the PSA pursuant to Section
11.01
that would adversely
affect in any material respect the interests of Party A.
|
(i)
Available monthly via Party B’s website at: xxx.xxxxxxx.xxx
(2)At
the time specified for such notice to parties in the applicable
Section of
the PSA
|
No
|
|
|
|
|
|
|
Party
A and Party B
|
Legal
opinions reasonably satisfactory in form and substance to each
party
|
Promptly
following execution of this Agreement
|
No
|
Part
4.
Miscellaneous.
(a) Addresses
for Notices.
For the
purpose of Section 12(a):-
Address
for notices or communications to Party A (for all purposes):-
Address:
UBS
AG,
Stamford Branch
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention:
Legal
Affairs
Facsimile
No.: (000)
000-0000
Address
for notices or communications to Party B (for all purposes):
Address:
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000-0000
Attention:
Client
Manager - MABS HE5
Tel
No.:
410-884-2000
Facsimile
No.: 000-000-0000
|
(b)
|
Process
Agent.
For the purpose of Section 13(c):-
|
Party
A
appoints as its Process Agent, [Please advise].
Party
B
appoints as its Process Agent, Not applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:-
|
Party
A
is a Multibranch Party and may act through its branches in any of the following
territories or countries: Australia, England and Wales, Hong Kong, Singapore,
Switzerland and United States of America.
Party
B
is not a Multibranch Party.
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A, unless otherwise specified
in a
Confirmation in relation to the relevant Transaction; provided,
however,
that if Party A is the Defaulting Party, Party B shall select
a Reference
Market Maker to act as Calculation Agent, the cost of which shall
be borne
by Party A. All calculations by the Calculation Agent shall be
made in
good faith and through the exercise of its commercially reasonable
judgment.
|
|
(f)
|
Credit
Support Document.
Details of any Credit Support
Document:-
|
(i) The
ISDA
Credit Support Annex entered into between Party A and Party B and dated
as of
the date hereof (the “CSA”) shall be a Credit Support Document with respect to
Party A and Party B.
(ii) Any
Eligible Guarantee provided by a guarantor in support of Party A’s obligations
hereunder shall be a Credit Support Document with respect to Party
A.
|
(g)
|
Credit
Support Provider.
|
In
relation to Party A: Any
guarantor providing an Eligible Guarantee in support of Party A’s obligations
hereunder.
In
relation to Party B: Not applicable.
|
(h)
|
Governing
Law.
This Agreement will be governed by and construed in accordance
with the
laws of the State of New York without reference to choice of
law doctrine
(other than NY General Obligations law Sections 5-1401 and
5-1402).
|
|
(i)
|
Jurisdiction.
Section 13(b) of this Agreement is hereby amended by: (i) deleting
in the
second line of subparagraph (i) thereof the word “non-” and (ii) deleting
the final paragraph thereof.
|
|
(j)
|
Netting
of Payments.
Subparagraph (ii) of Section 2(c) of this Agreement will apply
to the
Transactions under this Agreement.
|
|
(k)
|
“Affiliate”
will have the meaning specified in Section 14 of this Agreement;
provided
that with respect to Party B, Party B shall be deemed to not
have any
Affiliates for purposes of this Agreement, including for purposes
of
Section 6(b)(ii).
|
Part
5.
Other
Provisions.
|
(a)
|
WAIVER
OF TRIAL BY JURY. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY
JURY IN ANY
LEGAL PROCEEDING IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
THEREUNDER, AND ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO
THE OTHER PARTY’S ENTERING INTO THIS AGREEMENT AND EACH TRANSACTION
HEREUNDER.
|
|
(b)
|
Definitions.
This Agreement, each Confirmation, and each Transaction are subject
to the
2000 ISDA Definitions as published by the International Swaps
and
Derivatives Association, Inc. as amended, supplemented, updated,
restated,
and superseded from time to time (collectively the “Definitions”), and
will be governed in all respects by the Definitions. The Definitions,
as
so modified are incorporated by reference in, and made part of,
this
Agreement and each Confirmation as if set forth in full in this
Agreement
and such Confirmations. Subject to Section 1(b) of this Agreement,
in the
event of any inconsistency between the provisions of this Agreement
and
the Definitions, this Agreement will prevail. Also, subject to
Section
1(b) of this Agreement, in the event of any inconsistency between
the
provisions of any Confirmation and this Agreement, or the Definitions,
such Confirmation will prevail for the purpose of the relevant
Transaction. 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 or the Definitions shall have the
meaning
assigned thereto in the Pooling and Servicing
Agreement.
|
|
(c)
|
Notices.
For the purposes of subsections (iii) and (v) of Section 12(a),
the date
of receipt shall be presumed to be the date sent if sent on a
Local
Business Day or, if not sent on a Local Business Day, the date
of receipt
shall be presumed to be the first Local Business Day following
the date
sent.
|
(d)
Reserved.
|
(e)
|
No
Setoff. Notwithstanding
any provision of this Agreement or any other existing or future
agreement,
each party irrevocably waives any and all rights it may have
to set off,
net, recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party
hereunder
against any obligation between it and the other party under any
other
agreements. The provisions for Set-off set forth in Section 6(e)
of the
Agreement shall not apply; provided, however, that upon the designation
of
any Early Termination Date, in addition to, and not in limitation
of any
other right or remedy under applicable law, Party A may, by notice
to
Party B, require Party B to set off any sum or obligation that
Party A
owed to Party B against any collateral currently held by Party
B that
Party A has posted to Party B, and Party B shall effect such
set-off
promptly, if and to the extent permitted to do so under applicable
law.
|
|
(f)
|
Non-Petition.
Party A hereby irrevocably and unconditionally agrees that it
will not
institute against, or join any other person in instituting against,
Party
B or the trust created pursuant to the Pooling and Servicing
Agreement,
any bankruptcy, reorganization, arrangement, insolvency, or similar
proceeding under the laws of the United States, the Cayman Islands
or any
other jurisdiction for the non-payment of any amount due hereunder
or any
other reason until the payment in full of the Notes and the expiration
of
a period of one year plus one day (or, if longer, the applicable
preference period) following such payment. Pursuant to Section
9(c) of
this Agreement, the provisions of this Part 5(f) will survive
the
termination of this Agreement so long as any amounts due hereunder
remain
outstanding.
|
|
(g)
|
Severability.
If any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) for any reason,
the
remaining terms, provisions, covenants, and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long
as this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations
of the
parties; provided, however, that this severability provision
will not be
applicable if any provision of Section 2, 5, 6 or 13 of this
Agreement (or
any definition or provision in Section 14 of this Agreement to
the extent
it relates to, or is used in or in connection with, such section)
is held
to be invalid or unenforceable, provided, further, that the parties
agree
to first use reasonable efforts to amend the affected provisions
of
Section 2, 5, 6 or 13 of this Agreement (or any definition or
provision in
Section 14 of this Agreement to the extent it relates to, or
is used in or
in connection with, such section) so as to preserve the original
intention
of the parties. It shall in particular be understood that this
severability clause shall not affect the single agreement concept
of
Section 1(c) of this Agreement.
|
|
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.
|
(h)
Recording
of Conversations.
Each
Party: (i) consents to the recording of all telephone conversations between
trading, operations and marketing personnel of the parties and their Affiliates
in connection with this Agreement or any potential Transaction; (ii) agrees
to
give notice to such personnel that their calls will be recorded; and (iii)
agrees that in any Proceedings, it will not object to the introduction
of such
recordings in evidence on grounds that consent was not properly given.
|
(i)
|
Amendment;
Consent.
Section 9(b) of the Agreement is amended by adding the following
at the
end of such Section:
|
“No
amendment, modification or waiver in respect of this Agreement will be
effective
unless the Rating Agency Condition is satisfied.”
For
the
purposes of this Agreement, “Rating Agency Condition” means, with respect to any
particular proposed act or omission to act hereunder, and each Cap Rating
Agency
specified in connection with such proposed act or omission, that the party
acting or failing to act must consult with each of the specified Swap Rating
Agencies and receive from each Cap Rating Agency a 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.
|
(j)
|
Third
Party Beneficiary.
Party B hereby acknowledges and agrees that Party A has been
made a
third-party beneficiary of the provisions under the Pooling and
Servicing
Agreement and shall be entitled to rights and benefits (including
the
priority of payments) according to the terms of the Pooling and
Servicing
Agreement.
|
|
(k)
|
Limitation
of Liability.
It
is expressly understood and agreed by the parties hereto that
insofar as
this Agreement is executed by Xxxxx Fargo Bank, National Association
(“Xxxxx Fargo”) not in its individual capacity, but solely as Trust
Administrator under the Pooling and Servicing Agreement in the
exercise of
the powers and authority conferred and invested in it thereunder;
(i)
Xxxxx Fargo has been directed pursuant to the Pooling and Servicing
Agreement to enter into this Agreement and to perform its obligations
hereunder; (ii) each of the representations, undertakings and
agreements
herein made on behalf of Party B is made and intended not as
personal
representations of Xxxxx Fargo but is made and intended for the
purpose of
binding only the Trust; and (iii) nothing herein shall be construed
as
imposing any liability on Xxxxx Fargo, individually or personally,
to
perform any covenant either express or implied contained herein,
all such
liability, being expressly waived by the parties hereto and by
any person
claiming by, through or under the parties hereto and under no
circumstances shall Xxxxx
Fargo in its individual capacity be personally liable for any
payment of
any indebtedness or expenses or be personally liable for the
breach or
failure of any obligation, representation, warranty or covenant
made or
undertaken under this Agreement.
|
|
(l)
|
Representations.
Section 3 of this Agreement is hereby amended by adding at the
end thereof
the following subsection (g):
|
“(g)
Relationship Between Parties.
(1)
Non
Reliance - Evaluation and Understanding.
(i)
It is
not relying upon any communications (whether written or oral) from the
other
party as investment advice or as a recommendation to enter into this Agreement,
any Credit Support Document to which it is a party and each Transaction
hereunder (other than the representations expressly set forth in this Agreement
and in such Credit Support Document), it being understood that information
and
explanations related to the terms and conditions of a Transaction shall
not be
considered investment advice or a recommendation to enter into that Transaction;
(ii) it has not received from the other party any assurance or guarantee
as to
the expected results of any Transaction; (iii) 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 independent
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 and (iv) it understands and accepts the terms,
conditions and risks of that Transaction.
(2)
Purpose.
It is entering into this Agreement, any Credit Support Document to which
it is a
party and each Transaction hereunder for the purposes of managing its borrowings
or investments, hedging its underlying assets or liabilities or in connection
with a line of business.
(3)
Status
of
Parties. The other party is not acting as agent, fiduciary or advisor for
it in
respect of any Transaction entered into hereunder.
|
(4)
Eligible Contract Participant. It is an “eligible contract participant” as
that term is defined in Section 1a(12) of the U.S. Commodity
Exchange Act
(7 U.S.C. 1a) as amended by the Commodities Futures Modernization
Act of
2000.
|
|
(m)
|
Additional
Representations.
|
(1)
Party
A Representation. Party A is entering into this Agreement and each Transaction
as principal (and not as agent or in any other capacity, fiduciary or
otherwise).
(2)
Party
B Representation. Party B is entering into this Agreement as Trust Administrator
pursuant to the Pooling and Servicing Agreement.
|
(n)
|
Non-Recourse
Obligations of Party B.
Party A acknowledges and agrees that, notwithstanding any other
provision
herein, the obligations of Party B under this Agreement and any
confirmations hereto are limited recourse obligations of Party
B, payable
solely from the Trust Fund 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, 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 Trust Fund and the proceeds thereof should
be
insufficient to satisfy all claims outstanding, any claims against
or
obligations of Party B under this Agreement or any confirmation
hereunder
still outstanding shall be extinguished and thereafter not revive.
The
provisions of this Part 5(n) shall survive the termination of
this
Agreement.
|
|
(o)
|
Change
of Account.
Section 2(b) of this Agreement is hereby amended by adding the
following
after the word “delivery” in the first line of the existing text: “to
another account in the same legal and tax jurisdiction as the
original
account”.
|
|
(p)
|
Right
to Terminate Following Termination Event.
Section 6(b) of this Agreement is hereby amended by inserting
the
following before the period at the end of the last sentence of
the
existing text: “; provided, however, that any election by Party A to
designate an Early Termination Date arising in respect of a Change
in Tax
Law shall not be effective if, within 30 days following Party
B’s receipt
of notice from Party A of Party A’s designation of an Early Termination
Date in respect of any event described in Section 5(b)(ii) of
this
Agreement, Party B notifies Party A that it waives its right
to receive
additional amounts from Party A under Section 2(d)(i)(4) of this
Agreement
that would not otherwise be payable but for such Change in Tax
Law”.
|
(q)
Transfer.
Section
7 of this Agreement is hereby amended to read in its entirety as follows:
Except
as
stated under Section 6(b)(ii) of this Agreement, in this Section 7 of this
Agreement and Part 5 of the Schedule, neither Party A nor Party B is permitted
to assign, novate or transfer (whether by way of security or otherwise)
as a
whole or in part any of its rights, obligations or interests under this
Agreement without (1) the prior written consent of the other party and
(2)
satisfaction of the Rating Agency Condition with respect to S&P.
Notwithstanding the immediately foregoing sentence, Party A may transfer
this
Agreement to another of Party A’s offices or branches (“Transferee”) on five
Local Business Days prior written notice to Party B and the Swap Rating
Agencies
(so long as the Certificates are outstanding); provided that, (i) a Termination
Event or Event of Default does not occur under this Agreement as a result
of
such transfer; (ii) and both Party A and the Transferee are at the time
of
transfer “dealers in notional principal contracts” within the meaning of United
States Treasury Regulation Section 1.1001-4 and (iii) the Rating Agency
Condition is satisfied with respect to S&P.
|
(r)
|
Confirmations.
Each Confirmation supplements, forms part of, and will be read
and
construed as one with this
Agreement.
|
|
(s)
|
Agent
for Party B. Party
A acknowledges that Party B has appointed the Trust Administrator
as its
agent under the Pooling and Servicing Agreement to carry out
certain
functions on behalf of Party B, and that the Trust Administratorshall
be
entitled to give notices and to perform and satisfy the obligations
of
Party B hereunder on behalf of Party
B.
|
|
(t)
|
Interpretation.
References in this Agreement to the parties hereto, Party A and
Party B,
shall (for the avoidance of doubt) include, where appropriate,
any
permitted successors or assigns
thereof.
|
|
(u)
|
Gross
Up.
The third line of Section 2(d)(i) of this Agreement is hereby
amended by
the insertion before the phrase “of any relevant governmental revenue
authority” of the words “, application or official interpretation” and the
insertion of the words “(either generally or with respect to a party of
the Agreement)” after such phrase.
|
|
(v)
|
Scope
of Agreement. Upon
the effectiveness of this Agreement, unless otherwise agreed
to in writing
by the parties to this Agreement with respect to specific Specified
Transactions, all Specified Transactions then outstanding or
any future
Specified Transactions between Offices of the parties listed
in Part 4(d)
of this Schedule shall be subject to the terms hereof and each
such
Specified Transaction shall be a “Transaction” for purposes of this
Agreement.
|
|
(w)
|
Deduction
or Withholding for Tax.
Notwithstanding the definition of “Indemnifiable Tax” in Section 14 of
this Agreement, in relation to payments by Party A, any Tax shall
be an
Indemnifiable Tax and, in relation to payments by Party B, no
Tax shall be
an Indemnifiable Tax.
|
|
(x)
|
Failure
to Deliver Collateral. Notwithstanding
Sections 5(a)(i) and 5(a)(iii) or anything in the CSA to the
contrary, any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the CSA shall not be an Event
of
Default unless (A) the Second
Trigger Collateralization Level
applies, and (B) such failure is not remedied on or before the
third
(3rd)
Local Business Day after notice of such failure is given to Party
A.
|
(y)
Tax
Event and Tax
Event Upon Merger.
Section
5(b)(ii) will apply, provided that the words “(x) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on or after
the date
on which a Transaction is entered into (regardless of whether such action
is
taken or brought with respect to a party to this Agreement) or (y)” shall be
deleted.
Section
5(b)(iii) will apply, 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.
Section
6(b)(ii) will apply, provided that the words “or if a Tax Event Upon Merger
occurs and the Burdened Party is the Affected Party” shall be deleted.
|
(z)
|
Cap Rating
Agency Notifications.
|
|
Notwithstanding
any other provision of this Agreement, this Agreement shall not
be
amended, no Early Termination Date shall be effectively designated
by
Party B, and no transfer of any rights or obligations under this
Agreement
shall be made (other than a transfer of all of Party A’s rights and
obligations with respect to this Agreement in accordance with
Part 5(q)
above) unless the Cap Rating Agencies have been given prior written
notice
of such amendment, designation or transfer.
|
(aa)
Compliance
with Regulation AB
|
Party
A agrees and acknowledges that Mortgage Asset Securitization
Transactions,
Inc. (“Depositor”) is required under Regulation AB under the Securities
Act of 1933, as amended, and the Securities Exchange Act of 1934,
as
amended (the “Exchange Act”) (“Regulation AB”), to disclose certain
financial information regarding Party A, depending on the aggregate
“Significance Percentage” of all Transactions under this Agreement,
together with any other transactions that fall within the meaning
of
“derivative contracts” for the purposes of Item 1115 of Regulation AB
between Party A and Party B, as calculated from time to time
in accordance
with the Calculation Methodology (as defined
below).
|
(ii)
It
shall be a swap disclosure event (“Swap Disclosure Event”) if, on any Business
Day after the date hereof, Depositor notifies Party A that the Significance
Percentage has reached one of the thresholds for significance of derivative
contracts set forth in Item 1115 of Regulation AB (based on a reasonable
determination by Depositor, in good faith and using the Calculation Methodology,
of such Significance Percentage).
(iii) Upon
the
occurrence of a Swap Disclosure Event, Party A, at its own expense, shall
provide to Depositor the applicable Swap Financial Disclosure (as defined
below).
(iv) In
the
alternative to subparagraph (iii) above, upon the occurrence of a Swap
Disclosure Event or at any time after complying with subparagraph (iii)
above,
Party A may, at its option and at its own expense, (a) secure another entity
to
replace Party A as party to this Agreement on terms substantially similar
to
this Agreement and subject to prior notification to the Swap Rating Agencies,
which entity (or a guarantor therefor) meets or exceeds the S&P Ratings
Requirement (First Trigger) and Moody’s Ratings Requirement (Second Trigger)
(and which satisfies the Rating Agency Condition) and which entity is able
to
comply with the requirements of Item 1115 of Regulation AB or (b) obtain
a
guaranty of the Party A’s obligations under this Agreement from an affiliate of
the Party A that is able to comply with the financial information disclosure
requirements of Item 1115 of Regulation AB, such that disclosure provided
in
respect of the affiliate will satisfy any disclosure requirements applicable
to
the Swap Provider, and cause such affiliate to provide Swap Financial
Disclosure. If permitted by Regulation AB, any required Swap Financial
Disclosure may be provided by reference to or incorporation by reference
from
reports filed pursuant to the Exchange Act.
(v) Party
A
agrees that, in the event that Party A provides Swap Financial Disclosure
to
Depositor in accordance with paragraph (iii) above or causes its affiliate
to
provide Swap Financial Disclosure to Depositor in accordance with paragraph
(iv)(b) above, it will indemnify and hold harmless Depositor, its respective
directors or officers and any person controlling Depositor, from and against
any
and all losses, claims, damages and liabilities (any “Damage”) 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; provided, however
that
the foregoing shall not apply to any Damage caused by the negligence or
any
willful action of Depositor or any other party (other than Party A or any
of its
affiliates or any of their respective agents), including without limitation
any
failure to calculate the Significance Percentage according to the terms
of this
Agreement or to make any filing as and when required under Regulation
AB.
(vi) Depositor
shall be an express third party beneficiary of this Agreement as if it
were a
party hereto to the extent of Depositor’s rights explicitly specified
herein.
(vii) In
the
event that Party A provides the information referred to above, such information
shall be provided on the date that is the later of (i) five (5) Business
Days
after the Swap Disclosure Event or (ii) five (5) Business Days after the
relevant Distribution Date for which the Trust Administrator will be required
to
file a Form 10-D.
For
the
purposes hereof:
“Calculation
Methodology”
means
such method for determining maximum probable exposure of a derivative contract
as mutually agreed to by Depositor and Party A.
“Swap
Financial Disclosure”
means
the financial information specified in Item 1115 of Regulation AB relating
to
the applicable Significance Percentage.
|
(bb)
|
Limitation
on Events of Default.
Notwithstanding the provisions of Sections 5 and 6 of this Agreement,
if
at any time and so long as Party B has satisfied in full all
its payment
obligations under Section 2(a)(i) of this Agreement in respect
of the
transaction with the reference numbers 37536063 and 37536083
(each, a “Cap
Transaction”) and has at the time no future payment obligations, whether
absolute or contingent, under such Section in respect of such
Cap
Transaction, then unless Party A is required pursuant to appropriate
proceedings to return to Party B or otherwise returns to Party
B upon
demand of Party B any portion of any such payment in respect
of such Cap
Transaction, (a) the occurrence of an event described in Section
5(a) of
this Agreement with respect to Party B shall not constitute an
Event of
Default or Potential Event of Default with respect to Party B
as
Defaulting Party in respect of such Cap Transaction and (b) Party
A shall
be entitled to designate an Early Termination Date pursuant to
Section 6
in respect of such Cap Transaction only as a result of the occurrence
of a
Termination Event set forth in either Section 5(b)(i) or 5(b)(ii)
of this
Agreement with respect to Party A as the Affected Party, or Section
5(b)(iii) of this Agreement with respect to Party A as the Burdened
Party.
For purposes of each Transaction identified by the reference
numbers
37536063 and 37536083, Party A acknowledges and agrees that Party
B’s only
obligation under Section 2(a)(i) of this Agreement in respect
of each Cap
Transaction is to pay the related Fixed Amount on the related
Fixed Amount
Payer Payment Date.
|
[signatures
follow]
The
parties executing this Schedule have executed the Master Agreement and
have
agreed as to the contents of this Schedule.
|
UBS
XX
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
|
|
|
not
individually, but solely as trust administrator with respect
to the MASTR
Asset Backed Securities Trust 2006-HE5, Mortgage Pass Through
Certificates, Series 2006-HE5
|
||
|
By:______________________________
|
By:______________________________
|
|
|
Name:
|
Name:
|
|
|
Title:
|
Title:
|
|
|
By:________________________________
|
||
|
Name:
|
||
|
Title:
|
Execution
Copy (Cap)
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of December 28, 2006 between
UBS
AG
(hereinafter referred to as “Party
A”
or
“Pledgor”)
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
not
individually, but solely as trust administrator with respect to the MASTR
Asset
Backed Securities Trust 2006-HE5, Mortgage Pass Through Certificates, Series
2006-HE5 (“Party B”)
(hereinafter
referred to as “Party
B”
or
“Secured
Party”).
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) as amended (I) by
deleting the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety 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.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest
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,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party,
and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the
Secured
Party.
|
| (B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
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,
|
|
(2)
|
the
amount by which (a) the Moody’s First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s First Trigger Credit Support Amount for such Valuation Date,
and
|
|
(3)
|
the
amount by which (a) the Moody’s Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s Second Trigger Credit Support Amount for such Valuation
Date.
|
| (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 Moody’s First Trigger Credit Support Amount, or
the Moody’s Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
|
| (ii) |
Eligible
Collateral.
|
On
any
date, the following items will qualify as “Eligible
Collateral”:
|
Collateral
|
S&P
Valuation
Percentage
|
Moody’s
First
Trigger Valuation
Percentage
|
Moody’s
Second
Trigger Valuation
Percentage
|
|
(A) Cash
in the form of USD
|
100%
|
100%
|
100%
|
|
(B) Fixed-rate
negotiable USD denominated debt obligations issued by the U.S.
Treasury
Department having a remaining maturity on such date of not more
than one
year
|
98.5%
|
100%
|
100%
|
|
(C) Fixed-rate
negotiable USD denominated debt obligations issued by the U.S.
Treasury
Department having a remaining maturity on such date of more than
one year
but not more than ten years
|
89.9%
|
100%
|
94%
|
|
(D) Fixed-rate
negotiable USD denominated debt obligations issued by the U.S.
Treasury
Department having a remaining maturity on such date of more than
ten
years
|
83.9%
|
100%
|
87%
|
| (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) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero if
a
Collateral Event has occurred and has been continuing (i) (x)for
at least
30 daysor (y) since this Annex was executed, or (ii) an S&P Second
Trigger Event has occurred and is continuing; 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 and note principal
balance
of Certificates and Notes rated by S&P ceases to be more 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 1,000.
|
| (c) |
Valuation
and Timing.
|
| (i) |
“Valuation
Agent”
means Party A; provided, however, that if an Event of Default
shall have
occurred with respect to which Party A is the Defaulting Party,
Party B
shall have the right to designate as Valuation Agent an independent
party,
reasonably acceptable to Party A, the cost for which shall be
borne by
Party A. All calculations by the Valuation Agent must be made
in
accordance with standard market practice, including, in the event
of a
dispute as to the Value of any Eligible Credit Support or Posted
Credit
Support, by making reference to quotations received by the Valuation
Agent
from one or more Pricing Sources.
|
| (ii) |
“Valuation
Date” means
each Local Business Xxxxx which any of the S&P Credit Support Amount,
the Moody’s First Trigger Credit Support Amount or the Moody’s Second
Trigger Credit Support Amount is greater than
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.
|
| (iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
| (v) |
External
Verification.
Notwithstanding anything to the contrary in the definitions of
Valuation
Agent or Valuation Date, at any time at which Party A (or, to
the extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value of Posted Credit Suppport on each Valuation Date based
on internal marks and (B) verify such calculations with external
marks
monthly by obtaining on the last Local Business Day of each calendar
month
two external marks for each Transaction to which this Annex relates
and
for all Posted Credit Suport; such verification of the Secured
Party’s
Exposure shall be based on the higher of the two external marks.
Each
external xxxx in respect of a Transaction shall be obtained from
an
independent Reference Market-maker that would be eligible and
willing to
enter into such Transaction in the absence of the current derivative
provider, provided that an external xxxx xxx not be obtained
from the same
Reference Market-maker more than four times in any 12-month period.
The
Valuation Agent shall obtain these external marks directly or
through an
independent third party, in either case at no cost to Party B.
The
Valuation Agent shall calculate on each Valuation Date (for purposes
of
this paragraph, the last Local Business Day in each calendar
month
referred to above shall be considered a Valuation Date) the Secured
Party’s Exposure based on the greater of the Valuation Agent’s internal
marks and the external marks received. If the S&P Value on any such
Valuation Date of all Posted Credit Support then held by the
Secured Party
is less than the S&P Credit Support Amount on such Valuation Date (in
each case as determined pursuant to this paragraph), Party A
shall, within
three Local Business Days of such Valuation Date, Transfer to
the Secured
Party Eligible Credit Support having an S&P Value as of the date of
Transfer at least equal to such deficiency.
|
| (vi) |
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its
Credit
Support Provider) does not have a long-term unsubordinated and
unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations of
the Secured
Party’s Exposure and the S&P Value of any Eligible Credit Support or
Posted Credit Support for that Valuation Date. The Valuation
Agent shall
also provide to S&P any external marks received pursuant to the
preceding paragraph.
|
| (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: any Additional Termination Event with respect to which
Party A is
the sole Affected Party. With respect to 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, Moody’s First Trigger
Value, and Moody’s Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
sum of (A) the product of (1)(x) the bid price 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 bid price for such securities quoted at the Valuation
Time by any principal market maker for such securities selected by the
Valuation
Agent, 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.
| (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 any Custodian) will be entitled to hold Posted Collateral
pursuant
to Paragraph 6(b).
|
Party
B
may appoint as Custodian (A) the entity then serving as Trust Administrator
or
(B) any entity other than the entity then serving as Trust Administrator
if such
other entity (or, to the extent applicable, its parent company or credit
support
provider) shall then have a short-term unsecured and unsubordinated debt
rating
from S&P of at least “A-1.”
Initially,
the Custodian
for
Party B is: Xxxxx Fargo Bank, N.A.
| (ii) |
Use
of Posted Collateral. The
provisions of Paragraph 6(c)(i) will not apply to Party B, but
the
provisions of Paragraph 6(c)(ii) will apply to Party B.
|
| (h) |
Distributions
and Interest Amount.
|
| (i) |
Interest
Rate.
The “Interest
Rate”
will be the interest rate per annum equal to the overnight Federal
Funds
Rate (as reported in Federal Reserve Publication H.15-519) for
each day
Posted Collateral in the form of Cash is held by Party B’s Custodian
according to Paragraph 13(l) of this Annex.
|
| (ii) |
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on
any other
Local Business Day on which Posted Collateral in the form of
Cash is
Transferred to the Pledgor pursuant to Paragraph 3(b); provided,
however,
that the obligation of Party B to Transfer any Interest Amount
to Party A
shall be limited to the extent that Party B has earned and received
such
funds as interest in respect of Posted Collateral in the form
of Cash and
such funds are available to Party B.
|
| (iii) |
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will
apply.
|
| (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:
UBS
AG,
Stamford Branch / Collateral Management/ 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx,
XX
00000 / Attention: Margin Specialist / Telephone 000-000-0000 /
XX-Xxxx-XXX@xxx.xxx.xxx
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: Same address as if to Party B pursuant to the Notices
Section of this Agreement.
| (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:-
To be provided
Party
B
account details:
Xxxxx
Fargo Bank, N.A./ San Francisco, CA/ ABA# 000-000-000 / Acct # 0000000000
/ For
Credit to: Corporate Trust Clearing / FFC: Cap Posted Collateral Account,
Account # 00000000
| (m) |
Other
Provisions.
|
| (i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which shall
be an
Eligible 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, Moody’s First Trigger Value,
Moody’s Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting the
word
“Value” and inserting in lieu thereof “S&P Value, Moody’s First
Trigger Value, or Moody’s Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Moody’s First Trigger Value, and Moody’s
Second Trigger 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, Moody’s First Trigger Value, or Moody’s Second Trigger
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, Moody’s First Trigger Value, or Moody’s
Second Trigger Value” and (2) deleting the second instance of the words
“the Value” and inserting in lieu thereof “such disputed S&P Value,
Moody’s First Trigger Value, or Moody’s Second Trigger 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, Moody’s First Trigger Value, and Moody’s Second Trigger 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.
Paragraph 7 will not apply to cause any Event of Default to exist
with
respect to Party B except that Paragraph 7(i) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex. Notwithstanding anything to the contrary 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
only be an Event of Default if (A) a Moody’s Second Trigger Event or an
S&P Second Trigger Event has occurred and been continuing for 30
or
more Local Business Days and (B) such failure is not remedied
on or before
the third Local Business Day after notice of such failure is
given to
Party A.
|
| (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 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.”
|
| (viii) |
Notice
of Failure to Post Collateral. Upon
any failure by Party A to post collateral as required under this
Agreement, Party B shall, no later than the next Business Day
after the
date such collateral was required to be posted, give a written
notice of
such failure to Party A and to Depositor. For the avoidance of
doubt,
notwithstanding anything in this Agreement to the contrary, the
failure of
Party B to comply with the requirements of this paragraph shall
not
constitute an Event of Default or Termination Event.
|
(ix)
Additional
Definitions.
As used
in this Annex:
“Approved
Ratings Threshold” means
each of the Moody’s Ratings Requirement (First Trigger) and S&P Ratings
Requirement (First Trigger).
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“DV01”
means,
with respect to a Transaction and any date of determination, the sum of
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. 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 after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Fitch
Rating Threshold Event” means,
on
any date, no Relevant Entity has credit ratings from Fitch which exceed
the
Fitch Approved Ratings Threshold.
“Local
Business Day”
means:
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.
“Moody’s
First Trigger Event” means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s First Trigger Ratings Threshold.
“Moody’s
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which (I) a Moody’s First Trigger Event has occurred
and has been continuing (x) for at least 30 Local Business Days
or (y)
since this Annex was executed and (II) it is not the case that
a Moody’s
Second Trigger Event has occurred and been continuing for at
least 30
Local Business Days, the sum, for each Transaction to which this
Annex
relates, of an amount equal to the
following:
|
the
greater of (a) zero and (b) the sum of (i) the Secured Party’s Transaction
Exposure for such Transaction and such Valuation Date and (ii) the lesser
of (x)
the product of the Moody’s First Trigger DV01 Multiplier and DV01 for such
Transaction and such Valuation Date and (y) the product of Moody’s First Trigger
Notional Amount Multiplier and the Notional Amount for such Transaction
for the
Calculation Period which includes such Valuation Date;
or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A such Valuation Date.
“Moody’s
First Trigger DV01 Multiplier”
means
15.
“Moody’s
First Trigger Value”
means,
on any date and with respect to (i) any Eligible Collateral in the form
of Cash,
the amount thereof and (ii) any Eligible Collateral other than Cash, the
bid
price obtained by the Valuation Agent multiplied by the Moody’s First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Moody’s
First Trigger Notional Amount Multiplier”
means
2%.
“Moody’s
Second Trigger Event” means
that no Relevant Entity has credit ratings from Moody’s at least equal to the
Moody’s Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a Moody’s Second Trigger
Event has occurred and been continuing for at least 30 Local
Business
Days, the sum, for each Transaction to which this Annex relates,
of an
amount equal to the following:
|
| (1) |
if
such Transaction is not a Transaction-Specific Hedge,
|
the
greatest of (a) zero, (b) the amount of the next payment due to be paid
by Party
A under such Transaction, and (c) the sum of (x) the Secured Party’s Transaction
Exposure for such Transaction and such Valuation Date and (y) the lesser
of (i)
the product of the Moody’s Second Trigger DV01 Multiplier and DV01 for such
Transaction and such Valuation Date and (ii) the product of the Moody’s Second
Trigger Notional Amount Multiplier and the Notional Amount for such Transaction
for the Calculation Period which includes such Valuation Date;
or
| (2) |
if
such Transaction is a Transaction-Specific Hedge,
|
the
greatest of (a) zero, (b) the amount of the next payment due to be paid
by Party
A under such Transaction, and (c) the sum of (x) the Secured Party’s Transaction
Exposure for such Transaction and such Valuation Date and (y) the lesser
of (i)
the product of the Moody’s Second Trigger Transaction-Specific Hedge DV01
Multiplier and DV01 for such Transaction and such Valuation Date and (ii)
the
product of the Moody’s Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier and the Notional Amount for such Transaction for the Calculation
Period which includes such Valuation Date; or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“Moody’s
Second Trigger DV01 Multiplier”
means,
50
“Moody’s
Second Trigger Transaction-Specific Hedge DV01
Multiplier”
means
65
“Moody’s
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier”
means
10%.
“Moody’s
Second Trigger Value”
means,
on any date and with respect to (i) any Eligible Collateral in the form
of Cash,
the amount thereof and (ii) any Eligible Collateral other than Cash, the
bid
price obtained by the Valuation Agent multiplied by the Moody’s Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Moody’s
Second Trigger Notional Amount Multiplier”
means
8%.
“Pricing
Sources”
means
the sources of financial information commonly known as Bloomberg, Bridge
Information Services, Data Resources Inc., Interactive Data Services,
International Securities Market Association, Xxxxxxx Xxxxx Securities Pricing
Service, Xxxxxx Data Corporation, Reuters, Wood Gundy, Trepp Pricing, XX
Xxxxx,
S&P and Telerate.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
|
(I)
|
(A)
|
(i)
for any Valuation Date on which an S&P First Trigger Event has
occurred and been continuing for at least 30 days, or (ii) a
S&P
Second Trigger Event has occurred and is continuing, an amount
equal to
the sum, for each Transaction to which this Annex relates, of
the sum of
(1) 100.0% of the Secured Party’s Transaction Exposure for such Valuation
Date and (2) the product of the Volatility Buffer for such Transaction
and
the Notional Amount of such Transaction for the Calculation Period
of such
Transaction which includes such Valuation Date, or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“S&PFirst
Trigger
Event”
means,
on any date, no Relevant Entity has credit ratings from S&P which exceed the
S&P
Ratings
Requirement (First Trigger).
“S&P
Value”
means,
on any date and with respect to (i) any Eligible Collateral in the form
of Cash,
the amount thereof and (ii) any Eligible Collateral other than Cash, the
product
of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P
Valuation Percentage for such Eligible Collateral set forth in paragraph
13(b)(ii).
“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 an interest rate cap, interest rate floor or interest
rate
swaption, or an interest rate swap if (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 otherwise is not a specific dollar
amount
that is fixed at the inception of the Transaction.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Moody’s First Trigger
Value, or Moody’s Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Moody’s First
Trigger Valuation Percentage, or Moody’s Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each case
as set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Moody’s
First Trigger Value, and the related Moody’s Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following
table.
|
The
higher of the S&P credit rating of (i) Party A and (ii) the Credit
Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity
up
to 3 years
|
Remaining
Weighted Average Maturity
up
to 5 years
|
Remaining
Weighted Average Maturity
up
to 10 years
|
Remaining
Weighted Average Maturity
up
to 30 years
|
|
At
least “A-2”
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
|
“BB+”
or lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
|
UBS
XX
|
Xxxxx
Fargo Bank, National Association,
|
|
|
not
individually, but solely as trust administrator with respect
to the MASTR
Asset Backed Securities Trust 2006-HE5, Mortgage Pass Through
Certificates, Series 2006-HE5
|
||
|
By:______________________________
|
By:______________________________
|
|
|
Name:
|
Name:
|
|
|
Title:
|
Title:
|
|
|
By:________________________________
|
||
|
Name:
|
||
|
Title:
|
EXHIBIT
L
ANNUAL
STATEMENT OF COMPLIANCE PURSUANT TO SECTION 3.20
MASTR
ASSET BACKED SECURITIES TRUST 2006-HE5,
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 December 1, 2006 (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc., as depositor, Xxxxx Fargo Bank, N.A.,
as
master servicer and trust administrator, 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:
_____________, 2006
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
_____________.
|
By:
|
|
|
Name:
|
|
|
Title:
|
I,
_________________________, a (an) __________________ of the Servicer, hereby
certify that _________________ is a duly elected, qualified, and acting
_______________________ of the Servicer and that the signature appearing
above
is his/her genuine signature.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________.
|
By:
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
M
FORM
OF
INTEREST RATE SWAP AGREEMENT
ASSIGNMENT
AGREEMENT
UBS
AG
has entered into the transaction listed on Attachment 1 hereto with Reference
Number 37533991 (the “Old Transaction”) with UBS Real Estate Securities, Inc.
(“UBS Real Estate”).
For
valuable consideration, receipt of which is hereby acknowledged, UBS Real
Estate
hereby assigns, transfers and sets over effective 28 December 2006 unto
Mortgage
Asset Securitization Transactions Inc. (“MASTR”), without recourse all of its
rights, title and interest in and to the Old Transaction and UBS Real Estate
hereby gives MASTR and its assigns full power and authority for its or
their own
uses and benefit, but at its or their own cost, to demand, collect, receive
and
give acquittance for the same or any part thereof, and to prosecute or
withdraw
any suits or proceedings therefore. UBS AG hereby consents to the assignment
of
the Old Transaction to MASTR as herein provided.
Upon
the
effectiveness of such assignment, for valuable consideration, receipt of
which
is hereby acknowledged, MASTR hereby assigns, transfers and sets over effective
28 December 2006 unto Xxxxx Fargo Bank, N.A., not individually, but solely
as
trustee on behalf of the Supplemental Interest Trust for the MASTR Asset
Backed
Securities Trust, 2006-HE5 Mortgage Pass Through Certificates, Series 2006-HE5
(the “Trust”) without recourse, all of its rights, title and interest in and to
the Old Transaction (as so assigned and transferred, referenced by UBS
AG as a
new transaction with Reference Number 37536097, as listed on Attachment
2 hereto
and referred to as the “New Transaction”) and MASTR hereby gives the Trust and
its assigns full power and authority for its or their own uses and benefit,
but
at its or their own cost, to demand, collect, receive and give acquittance
for
the same or any part of thereof, and to prosecute or withdraw any suits
or
proceedings therefor. UBS AG hereby consents to the assignment of the New
Transaction to the Trust as herein provided, with the understanding that
the
provisions labeled “Additional Provisions” in the confirmation relating to the
New Transaction shall become effective upon the assignment to the
Trust.
Each
party hereby represents and warrants to the other that the execution, delivery
and performance of this Assignment Agreement by it are within its powers,
and
have been duly authorized by all necessary corporate or other action and
that
this Assignment Agreement constitutes its legal, valid and binding
obligation.
This
Assignment Agreement shall be governed by and construed and interpreted
in
accordance with the laws of the State of New York without regards to the
conflict of law provisions thereof, other than New York General Obligations
Law
Section 5-1401 and 5-1402.
IN
WITNESS WHEREOF, the parties have duly executed this Assignment Agreement
as of
the date first written above.
UBS
AG
|
By:
|
UBS
REAL ESTATE SECURITIES, INC.
|
|
|
Name:
|
Xxxxxxxxxxx
Xxxxxx
|
By: ___________________________________ |
|
Title:
|
Associate
Director
|
Name: |
|
By:
|
||
|
Name:
|
Xxxxxxxx
XxXxxxxx
|
By: ___________________________________ |
|
Title:
|
Associate
Director
|
Name: |
|
MORTAGE
ASSET SECURITIZATION TRANSACTIONS INC.
|
Xxxxx
Fargo Bank, N.A., not individually, but solely as trustee on
behalf of the
Supplemental Interest Trust for the MASTR Asset Backed Securities
Trust
2006-HE5, Mortgage Pass Through Certificates, Series 2006-HE5
|
|
By:_________________________________
|
By: ___________________________________ | |
|
Name:
|
Name: | |
| Title: | Title: | |
|
By:_________________________________
|
By: ___________________________________ | |
|
Name:
|
Name: | |
| Title: | Title: | |
Attachment
1
|
|
|
Date:
|
28
December 2006
|
|
To:
|
UBS
Real Estate Securities, Inc. (“Counterparty”)
|
|
Attn:
|
Swaps
Administration
|
|
From:
|
UBS
AG, London Branch (“UBS AG”)
|
|
Subject:
|
Interest
Rate Swap Transaction
|
|
UBS
AG Ref:
37533991
|
Dear
Sirs,
The
purpose of this communication is to confirm the terms and conditions of
the
Transaction entered into between us on the Trade Date specified below.
This
Confirmation constitutes a “Confirmation” as referred to in the Master Agreement
or Agreement specified below.
The
definitions contained in the 2000
ISDA
Definitions as published by the International Swaps and Derivatives Association,
Inc., are incorporated into this Confirmation. In the event of any inconsistency
between any of the definitions listed above and this Confirmation, this
Confirmation will govern.
If
you
and we are parties to a master agreement that governs transactions of this
type
(whether in the form of the ISDA Master Agreement (Multicurrency-Cross
Border)(the "ISDA Form") or any other form (a "Master Agreement"), then
this
Confirmation will supplement, form a part of, and be subject to that Master
Agreement. If you and we are not parties to such a Master Agreement, then
you
and we agree to use all reasonable efforts promptly to negotiate, execute
and
deliver an agreement in the form of the ISDA Form, with such modifications
as
you and we will in good faith agree. Upon the execution by you and us of
such an
agreement, this Confirmation will supplement, form a part of and be subject
to
and governed by that agreement, except as expressly modified below. Until
we
execute and deliver that agreement, this Confirmation, together with all
other
documents referring to the ISDA Form (each a "Confirmation") confirming
transactions (each a "Transaction") entered into between us (notwithstanding
anything to the contrary in a confirmation), shall supplement, form a part
of,
and be subject to an agreement in the form of the ISDA Form as if we had
executed an agreement in such form (but without any Schedule except for
the
election of the laws of New York as the Governing Law and U.S. Dollars
as the
Termination Currency) on the Trade Date of the first Transaction between
us
(hereinafter the "Agreement"). In the event of any inconsistency between
the
provisions of any such Agreement and this Confirmation, this Confirmation
will
prevail for the purposes of this Transaction.
The
terms
of the particular Swap Transaction to which this Confirmation relates are
as
follows:
|
General
Terms
|
|||
|
|
|||
|
Trade
Date:
|
28
December 2006
|
||
|
|
|||
|
Effective
Date:
|
28
December 2006
|
||
|
|
|||
|
Termination
Date:
|
25
December 2011
|
||
|
|
|||
|
Calculation
Agent:
|
UBS
AG, unless otherwise stated in the Schedule to the Master
Agreement.
|
||
|
|
|||
|
Business
Days:
|
New
York
|
||
|
|
|||
|
Calculation
Amount:
|
Initially
USD 903,750,000.00, amortizing as per Amortizing Schedule
below
|
||
|
|
|||
|
Broker:
|
None
|
|
Amortization
Schedule
|
||||||
|
Period
From
|
Period
To
|
Calculation
Amount (USD)
|
||||
|
Effective
Date
|
25-Jan-07
|
903,750,000.00
|
||||
|
25-Jan-07
|
25-Feb-07
|
890,961,000.00
|
||||
|
25-Feb-07
|
25-Mar-07
|
875,271,000.00
|
||||
|
25-Mar-07
|
25-Apr-07
|
856,697,000.00
|
||||
|
25-Apr-07
|
25-May-07
|
835,297,000.00
|
||||
|
25-May-07
|
25-Jun-07
|
811,144,000.00
|
||||
|
25-Jun-07
|
25-Jul-07
|
784,354,000.00
|
||||
|
25-Jul-07
|
25-Aug-07
|
755,057,000.00
|
||||
|
25-Aug-07
|
25-Sep-07
|
723,433,000.00
|
||||
|
25-Sep-07
|
25-Oct-07
|
690,492,000.00
|
||||
|
25-Oct-07
|
25-Nov-07
|
659,074,000.00
|
||||
|
25-Nov-07
|
25-Dec-07
|
629,108,000.00
|
||||
|
25-Dec-07
|
25-Jan-08
|
600,526,000.00
|
||||
|
25-Jan-08
|
25-Feb-08
|
573,263,000.00
|
||||
|
25-Feb-08
|
25-Mar-08
|
547,258,000.00
|
||||
|
25-Mar-08
|
25-Apr-08
|
522,451,000.00
|
||||
|
25-Apr-08
|
25-May-08
|
498,788,000.00
|
||||
|
25-May-08
|
25-Jun-08
|
476,214,000.00
|
||||
|
25-Jun-08
|
25-Jul-08
|
454,678,000.00
|
||||
|
25-Jul-08
|
25-Aug-08
|
432,608,000.00
|
||||
|
25-Aug-08
|
25-Sep-08
|
398,058,000.00
|
||||
|
25-Sep-08
|
25-Oct-08
|
366,786,000.00
|
||||
|
25-Oct-08
|
25-Nov-08
|
338,485,000.00
|
||||
|
25-Nov-08
|
25-Dec-08
|
312,814,000.00
|
||||
|
25-Dec-08
|
25-Jan-09
|
290,196,000.00
|
||||
|
25-Jan-09
|
25-Feb-09
|
275,776,000.00
|
||||
|
25-Feb-09
|
25-Mar-09
|
262,110,000.00
|
||||
|
25-Mar-09
|
25-Apr-09
|
249,155,000.00
|
||||
|
25-Apr-09
|
25-May-09
|
236,880,000.00
|
||||
|
25-May-09
|
25-Jun-09
|
225,241,000.00
|
||||
|
25-Jun-09
|
25-Jul-09
|
214,204,000.00
|
||||
|
25-Jul-09
|
25-Aug-09
|
202,824,000.00
|
||||
|
25-Aug-09
|
25-Sep-09
|
190,910,000.00
|
||||
|
25-Sep-09
|
25-Oct-09
|
179,826,000.00
|
||||
|
25-Oct-09
|
25-Nov-09
|
169,509,000.00
|
||||
|
25-Nov-09
|
25-Dec-09
|
159,892,000.00
|
||||
|
25-Dec-09
|
25-Jan-10
|
151,333,000.00
|
||||
|
25-Jan-10
|
25-Feb-10
|
143,848,000.00
|
||||
|
25-Feb-10
|
25-Mar-10
|
136,756,000.00
|
||||
|
25-Mar-10
|
25-Apr-10
|
130,036,000.00
|
||||
|
25-Apr-10
|
25-May-10
|
123,669,000.00
|
||||
|
25-May-10
|
25-Jun-10
|
117,634,000.00
|
||||
|
25-Jun-10
|
25-Jul-10
|
111,912,000.00
|
||||
|
25-Jul-10
|
25-Aug-10
|
106,485,000.00
|
||||
|
25-Aug-10
|
25-Sep-10
|
101,339,000.00
|
||||
|
25-Sep-10
|
25-Oct-10
|
96,458,000.00
|
||||
|
25-Oct-10
|
25-Nov-10
|
91,828,000.00
|
||||
|
25-Nov-10
|
25-Dec-10
|
87,435,000.00
|
||||
|
25-Dec-10
|
25-Jan-11
|
83,265,000.00
|
||||
|
25-Jan-11
|
25-Feb-11
|
79,308,000.00
|
||||
|
25-Feb-11
|
25-Mar-11
|
75,551,000.00
|
||||
|
25-Mar-11
|
25-Apr-11
|
71,984,000.00
|
||||
|
25-Apr-11
|
25-May-11
|
68,598,000.00
|
||||
|
25-May-11
|
25-Jun-11
|
65,381,000.00
|
||||
|
25-Jun-11
|
25-Jul-11
|
62,325,000.00
|
||||
|
25-Jul-11
|
25-Aug-11
|
59,422,000.00
|
||||
|
25-Aug-11
|
25-Sep-11
|
56,663,000.00
|
||||
|
25-Sep-11
|
25-Oct-11
|
54,040,000.00
|
||||
|
25-Oct-11
|
25-Nov-11
|
51,547,000.00
|
||||
|
00-Xxx-00
|
Xxxxxxxxxxx
Date
|
49,176,000.00
|
||||
With
respect to the Floating Rate Payer Calculation Periods, the dates in the
above
schedule with the exception of the Effective Date will be subject to adjustment
in accordance with the Modified Following Business Day Convention. With
respect
to the Fixed Rate Payer Calculation Periods, the dates in the above schedule
will be subject to No Adjustment.
|
Fixed
Amounts
|
|
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate:
Fixed
Rate Day Count Fraction:
|
5.35
percent per annum
30/360
|
|
Fixed
Rate Payer Payment Dates:
|
25
January, 25 February, 25 March, 25 April, 25 May, 25 June, 25
July, 25
August, 25 September, 25 October, 25 November and 25 December,
in each
year, from and including 25 January 2007, up to and including
the
Termination Date, subject to adjustment in accordance with the
Business
Day Convention specified immediately below
and there shall be No Adjustment to the Calculation
Period
|
|
Business
Day Convention:
|
Modified
Following
|
|
Floating
Amounts
|
|
|
Floating
Rate Payer:
|
UBS
AG
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Spread:
|
None
|
|
Floating
Rate Payer Period End Dates:
|
25
January, 25 February, 25 March, 25 April, 25 May, 25 June, 25
July, 25
August, 25 September, 25 October, 25 November and 25 December,
in each
year, from and including 25 January 2007, up to and including
the
Termination Date, subject to adjustment in accordance with the
Business
Day Convention specified immediately below
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment
Dates shall
be two Business Days prior to each Floating Rate Payer Period
End
Date.
|
|
Reset
Dates:
|
First
day of each Calculation Period
|
|
Business
Day Convention:
|
Modified
Following
|
|
Compounding:
|
