AMENDMENT NO. 1 Dated as of May 16, 2008 to POOLING AND SERVICING AGREEMENT Dated as of December 1, 2005 among CWALT, INC., Depositor COUNTRYWIDE HOME LOANS, INC., Seller PARK GRANADA LLC, Seller PARK MONACO INC., Seller PARK SIENNA LLC, Seller...
Exhibit
4.1
AMENDMENT
NO. 1
Dated as
of May 16, 2008
to
Dated as
of December 1, 2005
among
CWALT,
INC.,
Depositor
COUNTRYWIDE
HOME LOANS, INC.,
Seller
PARK
GRANADA LLC,
Seller
PARK
MONACO INC.,
Seller
PARK
SIENNA LLC,
Seller
COUNTRYWIDE
HOME LOANS SERVICING LP,
Master
Servicer
and
THE BANK
OF NEW YORK,
Trustee
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2005-76
THIS
AMENDMENT NO. 1, dated as of May 16, 2008 (the “Amendment”),
to the Pooling and Servicing Agreement (as defined below), is among CWALT, INC.,
as depositor (the “Depositor”),
COUNTRYWIDE HOME LOANS, INC. (“Countrywide”),
as a seller (a “Seller”),
PARK GRANADA LLC (“Park
Granada”), as a seller (a “Seller”),
PARK MONACO INC. (“Park
Monaco”), as a seller (a “Seller”),
PARK SIENNA LLC (“Park
Sienna”), as a seller (a “Seller”),
COUNTRYWIDE HOME LOANS SERVICING LP, as master servicer (the “Master
Servicer”), and THE BANK OF NEW YORK, as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS,
the Depositor, Countrywide, as a Seller, Park Granada, as a Seller, Park Monaco,
as a Seller, Park Sienna, as a Seller, the Master Servicer, and
Trustee entered into a Pooling and Servicing Agreement, dated as of December 1,
2005 (the “Pooling and
Servicing Agreement”), providing for the issuance of the Alternative Loan
Trust 2005-76, Mortgage Pass-Through Certificates, Series 2005-76;
WHEREAS,
the transaction evidenced by the Pooling and Servicing Agreement closed on
December 30, 2005 (the “Closing
Date”);
WHEREAS,
the parties to the transaction wish to amend the Pooling and Servicing Agreement
as of the Closing Date by: (1) replacing the definition of “Certificate Balance”
in Article I with a definition that includes the concept of Net Deferred
Interest and (2) adding Section 4.03 (together, such amendments, the
“Amendment”) so as to provide for the allocation of Net Deferred Interest to the
Certificate Balances of the Certificates;
WHEREAS,
subject to the satisfaction of certain conditions provided therein, Section
10.01 of the Pooling and Servicing Agreement provides that the Pooling and
Servicing Agreement may be amended by the parties thereto without the consent of
any Certificateholders to conform to the Prospectus and Prospectus Supplement
provided to investors in connection with the initial offering of the
Certificates;
WHEREAS,
the parties to the Pooling and Servicing Agreement wish to amend the Pooling and
Servicing Agreement to conform to the Prospectus Supplement as described in the
third recital of this Amendment;
WHEREAS,
the Depositor and the Master Servicer have concluded that no consent of any
Class of Certificates is required for the adoption of the Amendment;
and
WHEREAS,
the Depositor has delivered to the Trustee an Opinion of Counsel in accordance
with the provisions of the Pooling and Servicing Agreement;
NOW,
THEREFORE, the parties hereto agree as follows:
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SECTION
1. Defined
terms.
For
purposes of this Amendment, unless the context clearly requires otherwise, all
capitalized terms which are used but not otherwise defined herein shall have the
respective meanings assigned to such terms in the Pooling and Servicing
Agreement.
SECTION
2. Amendment.
(1) As
of the Closing Date, the definition of “Certificate Balance” as set forth in
Article I of the Pooling and Servicing Agreement is hereby deleted and replaced
with the following:
Certificate
Balance: With respect to any Certificate (other than the Class
C Certificates) at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled under this Agreement, such amount being equal to
the Denomination of that Certificate (A) plus, (i) the amount of Net Deferred
Interest allocated to such Class of Certificates pursuant to Section 4.03 and
(ii) with respect to the Subordinated Certificates, any increase to the
Certificate Balance of such Certificate pursuant to Section 4.02 due to the
receipt of Subsequent Recoveries and (B) minus the sum of (i) all
distributions of principal previously made with respect to that Certificate and
(ii) with respect to the Subordinated Certificates, any Applied Realized
Loss Amounts allocated to such Certificate on previous Distribution Dates
pursuant to Section 4.02 without duplication.
(2) As
of the Closing Date, the following section is added as Section 4.03 to the
Pooling and Servicing Agreement:
Section
4.03. Allocation of Net Deferred
Interest
(a) For
any Distribution Date, the Net Deferred Interest allocated to a Class of
Certificates shall be an amount equal to the excess, if any, of (i) the amount
of interest that accrued on such Class of Certificates at the applicable
Pass-Through Rate during the Interest Accrual Period related to that
Distribution Date over (ii) the amount of interest that accrued on such Class of
Certificates at the related Adjusted Cap Rate during the Interest Accrual Period
related to that Distribution Date.
(b) Any
Net Deferred Interest allocated to a Class of Certificates will be added to the
Class Certificate Balance of such Class of Certificates.
SECTION
3. Effect Of
Amendment.
Upon
execution of this Amendment, the Pooling and Servicing Agreement shall be, and
be deemed to be, modified and amended in accordance herewith and the respective
rights, limitations, obligations, duties, liabilities and immunities of the
Depositor, the Sellers, the Master Servicer and the Trustee shall hereafter be
determined, exercised and enforced subject in all respects to such modifications
and amendments, and all the terms and conditions of this Amendment shall be and
be deemed to be part of the terms and conditions of the Pooling and Servicing
Agreement for any and all purposes. Except as modified and expressly
amended by
2
this
Amendment, the Pooling and Servicing Agreement is in all respects ratified and
confirmed, and all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
SECTION
4. Binding
Effect.
The
provisions of this Amendment shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Trustee and the related
Certificateholders.
SECTION
5. Governing
Law.
THIS
AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION
6. Severability of
Provisions.
If any
one or more of the provisions or terms of this Amendment shall be for any reason
whatsoever held invalid, then such provisions or terms shall be deemed severable
from the remaining provisions or terms of this Amendment and shall in no way
affect the validity or enforceability of the other provisions or terms of this
Amendment or of the Certificates or the rights of the Holders
thereof.
SECTION
7. Section
Headings.
The
section headings herein are for convenience of reference only, and shall not
limit or otherwise affect the meaning hereof.
SECTION
8. Counterparts.
This
Amendment may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
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IN
WITNESS WHEREOF, the Depositor, the Sellers, the Master Servicer and the Trustee
have caused this Amendment to be duly executed by their respective officers
thereunto duly authorized, all as of the day and year first above
written.
| CWALT, INC.,
as Depositor
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
|
THE
BANK OF NEW YORK,
as Trustee
|
|||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx Xxxxxx | |||
| Title: Vice President | |||
|
COUNTRYWIDE
HOME LOANS, INC.,
as a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
| PARK
GRANADA LLC,
as a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
|
PARK
MONACO INC.,
as a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
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|
PARK
SIENNA LLC,
as a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
|
COUNTRYWIDE
HOME LOANS SERVICING LP,
as Master Servicer
|
|||
| By: | COUNTRYWIDE GP, INC. | ||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
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