AMENDMENT NO. 1
EXHIBIT
4.1
AMENDMENT NO. 1
Dated as of May 16,
2008
to
Dated as of February 1, 2006
among
CWMBS, 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
CHL MORTGAGE PASS-THROUGH TRUST
2006-OA4
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-OA4
THIS AMENDMENT
NO. 1, dated as of May 16, 2008 (the “Amendment”), to the
Pooling and Servicing Agreement (as defined below), is among CWMBS, 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 February 1,
2006 (the “Pooling and Servicing
Agreement”), providing for the issuance of the CHL Mortgage
Pass-Through Trust 2006-OA4, Mortgage Pass-Through Certificates, Series
2006-OA4;
WHEREAS, the
transaction evidenced by the Pooling and Servicing Agreement closed on February
28, 2006 (the “Closing
Date”);
WHEREAS, the parties
to the transaction wish to amend the Pooling and Servicing Agreement as of the
Closing Date by: (1) adding the definition of “Adjusted Cap Rate” to Article I,
(2) replacing the definitions of “Certificate Balance,” “Current Interest” and
“Stated Principal Balance” in Article I with definitions that include the
concept of Net Deferred Interest and (3) adding Section 4.03 (collectively, 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 following definition is added to Article I of the Pooling and Servicing
Agreement:
Adjusted Cap
Rate: For any Distribution Date and any
Class of Certificates, the excess of (A) the weighted average Adjusted Net
Mortgage Rate for the Mortgage Loans for that Distribution Date over (B) a
fraction (expressed as a percentage) the numerator of which is the product of
(i) the Net Deferred Interest, if any, on the Mortgage Loans for that
Distribution Date and (ii) 12, and the denominator of which is the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date occurring in
the month of that Distribution Date (after giving effect to Principal
Prepayments, the principal portion of Liquidation Proceeds and Subsequent
Recoveries received in the related Prepayment Period). With respect to the
LIBOR Certificates, the Adjusted Cap Rate will be multiplied by a fraction, the
numerator of which is 30, and the denominator of which is the actual number of
days that elapsed in the Interest Accrual Period.
(2) As
of the Closing Date, the definitions of “Certificate Balance,” “Current
Interest” and “Stated Principal Balance” as set forth in Article I of the
Pooling and Servicing Agreement are hereby deleted and replaced with the
following, respectively:
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.
Current Interest:
With respect to each Class of Offered Certificates and each Distribution Date,
(x) the interest accrued at the applicable Pass-Through Rate for the applicable
Interest Accrual Period on the Class Certificate Balance of such Class
immediately prior to such Distribution Date minus (y) the Net Deferred Interest,
if any, allocated to that Class for such Distribution Date.
Stated Principal
Balance: As to any Mortgage Loan and Due Date, the unpaid principal
balance of such Mortgage Loan as of such Due Date, as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any
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moratorium or similar waiver or grace period) after giving effect to the
sum of: (i) any previous partial Principal Prepayments and the payment of
principal due on such Due Date, irrespective of any delinquency in payment by
the related Mortgagor, (ii) Liquidation Proceeds allocable to principal (other
than with respect to any Liquidated Mortgage Loan) received in the prior
calendar month and Principal Prepayments received through the last day of the
related Prepayment Period, in each case, with respect to that Mortgage Loan and
(iii) any Deferred Interest added to the principal balance of that Mortgage Loan
pursuant to the terms of the related Mortgage Note on or prior to that Due
Date.
(3) 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 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
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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.
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CWMBS,
INC.,
as
Depositor
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By:
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/s/
Xxxxxx Xxxxx
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Name: Xxxxxx
Xxxxx
Title: Executive
Vice President
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THE
BANK OF NEW YORK,
as
Trustee
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By:
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/s/
Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx
Xxxxxx
Title: Vice
President
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COUNTRYWIDE
HOME LOANS, INC.,
as
a Seller
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By:
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/s/
Xxxxxx Xxxxx
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Name: Xxxxxx
Xxxxx
Title: Executive
Vice President
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PARK
GRANADA LLC,
as
a Seller
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By:
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/s/
Xxxxxx Xxxxx
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Name: Xxxxxx
Xxxxx
Title: Executive
Vice President
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PARK
MONACO INC.,
as
a Seller
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By:
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/s/
Xxxxxx Xxxxx
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Name: Xxxxxx
Xxxxx
Title: Executive
Vice President
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PARK
SIENNA LLC,
as
a Seller
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By:
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/s/
Xxxxxx Xxxxx
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Name: Xxxxxx
Xxxxx
Title: Executive
Vice President
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COUNTRYWIDE
HOME LOANS SERVICING LP,
as
Master Servicer
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By: COUNTRYWIDE
GP, INC.
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By:
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/s/
Xxxxxx Xxxxx
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Name: Xxxxxx
Xxxxx
Title: Executive
Vice President
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