Pooling and Servicing Agreement
Exhibit
99.1
EXECUTION
COPY
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
___________________________________
Dated
as
of June 1, 2007
___________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-HY7C
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
||
|
SECTION
1.01.
|
Defined
Terms.
|
1
|
|
SECTION
1.02.
|
Certain
Interpretive Provisions.
|
36
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES
|
||
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans
|
38
|
|
SECTION
2.02.
|
Acceptance
by Trustee of the Mortgage Loans.
|
42
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Sellers and Master
Servicer.
|
44
|
|
SECTION
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
46
|
|
SECTION
2.05.
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
47
|
|
SECTION
2.06.
|
Execution
and Delivery of Certificates.
|
47
|
|
SECTION
2.07.
|
REMIC
Matters.
|
48
|
|
SECTION
2.08.
|
Covenants
of the Master Servicer.
|
48
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
||
|
SECTION
3.01.
|
Master
Servicer to Service Mortgage Loans.
|
49
|
|
SECTION
3.02.
|
Subservicing;
Enforcement of the Obligations of Subservicers.
|
50
|
|
SECTION
3.03.
|
Rights
of the Depositor, the NIM Insurer and the Trustee in Respect of
the Master
Servicer.
|
50
|
|
SECTION
3.04.
|
Trustee
to Act as Master Servicer.
|
51
|
|
SECTION
3.05.
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Carryover Reserve Fund; Principal Reserve Fund and Supplemental
Interest
Trust.
|
51
|
|
SECTION
3.06.
|
Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
|
56
|
|
SECTION
3.07.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
57
|
|
SECTION
3.08.
|
Permitted
Withdrawals from the Certificate Account, the Distribution Account,
the
Carryover Reserve Fund; the Principal Reserve Fund and the Derivative
Accounts.
|
57
|
|
SECTION
3.09.
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
61
|
|
SECTION
3.10.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
|
62
|
|
SECTION
3.11.
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
64
|
|
SECTION
3.12.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
64
|
i
|
SECTION
3.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
the
Trustee.
|
68
|
|
SECTION
3.14.
|
Servicing
Compensation.
|
68
|
|
SECTION
3.15.
|
Access
to Certain Documentation.
|
69
|
|
SECTION
3.16.
|
Annual
Statement as to Compliance.
|
69
|
|
SECTION
3.17.
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
70
|
|
SECTION
3.18.
|
Notification
of Adjustments.
|
70
|
|
SECTION
3.19.
|
The
Derivative Agreements.
|
70
|
|
SECTION
3.20.
|
Prepayment
Charges.
|
72
|
|
ARTICLE
IV DISTRIBUTIONS AND ADVANCES BY THE MASTER
SERVICER
|
||
|
SECTION
4.01.
|
Advances.
|
74
|
|
SECTION
4.02.
|
Priorities
of Distribution.
|
75
|
|
SECTION
4.03.
|
[Reserved].
|
83
|
|
SECTION
4.04.
|
[Reserved].
|
83
|
|
SECTION
4.05.
|
[Reserved].
|
83
|
|
SECTION
4.06.
|
Monthly
Statements to Certificateholders.
|
83
|
|
SECTION
4.07.
|
Determination
of Pass-Through Rates for COFI Certificates.
|
84
|
|
SECTION
4.08.
|
Determination
of Pass-Through Rates for LIBOR Certificates.
|
85
|
|
SECTION
4.09.
|
Determination
of MTA.
|
86
|
|
SECTION
4.10.
|
[Reserved].
|
87
|
|
ARTICLE
V THE CERTIFICATES
|
||
|
SECTION
5.01.
|
The
Certificates.
|
88
|
|
SECTION
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
89
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
94
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
94
|
|
SECTION
5.05.
|
Access
to List of Certificateholders’ Names and Addresses.
|
94
|
|
SECTION
5.06.
|
Maintenance
of Office or Agency.
|
95
|
|
ARTICLE
VI THE DEPOSITOR AND THE MASTER SERVICER
|
||
|
SECTION
6.01.
|
Respective
Liabilities of the Depositor and the Master Servicer.
|
96
|
|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor or the Master Servicer.
|
96
|
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Sellers, the Master Servicer,
the NIM
Insurer and Others.
|
96
|
|
SECTION
6.04.
|
Limitation
on Resignation of Master Servicer.
|
97
|
|
ARTICLE
VII DEFAULT
|
||
|
SECTION
7.01.
|
Events
of Default.
|
98
|
|
SECTION
7.02.
|
Trustee
to Act; Appointment of Successor.
|
100
|
|
SECTION
7.03.
|
Notification
to Certificateholders.
|
101
|
ii
|
ARTICLE
VIII CONCERNING THE TRUSTEE
|
||
|
SECTION
8.01.
|
Duties
of Trustee.
|
102
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
103
|
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
104
|
|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
104
|
|
SECTION
8.05.
|
Trustee’s
Fees and Expenses.
|
104
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
105
|
|
SECTION
8.07.
|
Resignation
and Removal of Trustee.
|
105
|
|
SECTION
8.08.
|
Successor
Trustee.
|
106
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
107
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
107
|
|
SECTION
8.11.
|
Tax
Matters.
|
109
|
|
SECTION
8.12.
|
Monitoring
of Significance Percentage.
|
111
|
|
ARTICLE
IX TERMINATION
|
||
|
SECTION
9.01.
|
Termination
upon Liquidation or Purchase of all Mortgage Loans.
|
112
|
|
SECTION
9.02.
|
Final
Distribution on the Certificates.
|
113
|
|
SECTION
9.03.
|
Additional
Termination Requirements.
|
114
|
|
ARTICLE
X MISCELLANEOUS PROVISIONS
|
||
|
SECTION
10.01.
|
Amendment.
|
115
|
|
SECTION
10.02.
|
Recordation
of Agreement; Counterparts.
|
116
|
|
SECTION
10.03.
|
Governing
Law.
|
117
|
|
SECTION
10.04.
|
Intention
of Parties.
|
117
|
|
SECTION
10.05.
|
Notices.
|
118
|
|
SECTION
10.06.
|
Severability
of Provisions.
|
120
|
|
SECTION
10.07.
|
Assignment.
|
120
|
|
SECTION
10.08.
|
Limitation
on Rights of Certificateholders.
|
120
|
|
SECTION
10.09.
|
Inspection
and Audit Rights.
|
121
|
|
SECTION
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
121
|
|
SECTION
10.11.
|
[Reserved].
|
121
|
|
SECTION
10.12.
|
Protection
of Assets.
|
121
|
|
SECTION
10.13.
|
Rights
of the NIM Insurer.
|
121
|
|
ARTICLE
XI EXCHANGE ACT REPORTING
|
||
|
SECTION
11.01.
|
Filing
Obligations.
|
123
|
|
SECTION
11.02.
|
Form
10-D Filings.
|
123
|
|
SECTION
11.03.
|
Form
8-K Filings.
|
124
|
|
SECTION
11.04.
|
Form
10-K Filings.
|
124
|
|
SECTION
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
125
|
|
SECTION
11.06.
|
Form
15 Filing.
|
125
|
|
SECTION
11.07.
|
Report
on Assessment of Compliance and Attestation.
|
125
|
|
SECTION
11.08.
|
Use
of Subservicers and Subcontractors.
|
127
|
iii
|
SECTION
11.09.
|
Amendments.
|
128
|
|
SECTION
11.10.
|
Reconciliation
of Accounts.
|
128
|
|
SCHEDULES
|
||
|
Schedule
I:
|
Mortgage
Loan Schedule
|
S-I-1
|
|
Schedule
II-A:
|
Representations
and Warranties of Countrywide
|
S-II-A-1
|
|
Schedule
II-B:
|
Representations
and Warranties of Park Granada
|
S-II-B-1
|
|
Schedule
II-C:
|
Representations
and Warranties of Park Monaco
|
S-II-C-1
|
|
Schedule
II-D:
|
Representations
and Warranties of Park Sienna
|
S-II-D-1
|
|
Schedule
III-A:
|
Representations
and Warranties of Countrywide as to all of the Mortgage
Loans
|
S-III-A-1
|
|
Schedule
III-B:
|
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
|
S-III-B-1
|
|
Schedule
III-C:
|
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
|
S-III-C-1
|
|
Schedule
III-D:
|
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
|
S-III-D-1
|
|
Schedule
III-E:
|
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
|
S-III-E-1
|
|
Schedule
IV:
|
Representations
and Warranties of the Master Servicer
|
S-IV-1
|
|
Schedule
V:
|
Principal
Balance Schedules [if applicable]
|
S-V-1
|
|
Schedule
VI:
|
Form
of Monthly Master Servicer Report
|
S-VI-1
|
|
EXHIBITS
|
||
|
Exhibit
A:
|
Form
of Senior Certificate (excluding Class A-R and Notional Amount
Certificates)
|
A-1
|
|
Exhibit
B:
|
Form
of Subordinated Certificate
|
B-1
|
|
Exhibit
C-1:
|
Form
of Class A-R Certificate
|
C-1-1
|
|
Exhibit
C-2:
|
Form
of Class P Certificate
|
C-2-1
|
|
Exhibit
C-3:
|
Form
of Class C Certificate
|
C-3-1
|
|
Exhibit
C-4:
|
[Reserved]
|
C-4-1
|
|
Exhibit
D:
|
Form
of Notional Amount Certificate
|
D-1
|
|
Exhibit
E:
|
Form
of Reverse of Certificates
|
E-1
|
|
Exhibit
F:
|
Form
of Initial Certification of Trustee
|
F-1
|
|
Exhibit
G:
|
Form
of Delay Delivery Certification of Trustee
|
G-1
|
|
Exhibit
H:
|
Form
of Final Certification of Trustee
|
H-1
|
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
I-1
|
|
Exhibit
J-1:
|
Form
of Transferor Certificate (Residual)
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Transferor Certificate (Private)
|
J-2-1
|
|
Exhibit
K:
|
Form
of Investment Letter (Non-Rule 144A)
|
K-1
|
|
Exhibit
L-1:
|
Form
of Rule 000X Xxxxxx
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of ERISA Letter (Covered Certificates)
|
L-2-1
|
|
Exhibit
M:
|
Form
of Request for Release (for Trustee)
|
M-1
|
|
Exhibit
N:
|
Form
of Request for Release of Documents (Mortgage Loan) Paid in Full,
Repurchased and Replaced)
|
N-1
|
iv
|
Exhibit
O:
|
[Reserved]
|
O-1
|
|
Exhibit
P:
|
[Reserved]
|
P-1
|
|
Exhibit
Q:
|
Standard
& Poor’s LEVELS® Version 6.0 Glossary Revised, Appendix
E
|
Q-1
|
|
Exhibit
R-1:
|
Form
of Class X-0 Xxxx Xxxxxxxx
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Class X-0 Xxxx Xxxxxxxx
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Class X-0 Xxxx Xxxxxxxx
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Certificate Swap Contract
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Class X-0 Xxxxxxxx Xxxxxxxx
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Subordinated Certificates Corridor Contract
|
R-6-1
|
|
Exhibit
S-1:
|
[Reserved]
|
S-1-1
|
|
Exhibit
S-2:
|
[Reserved]
|
S-2-1
|
|
Exhibit
T:
|
Form
of Officer’s Certificate with respect to Prepayments.
|
T-1
|
|
Exhibit
U:
|
Form
of Monthly Statement
|
U-1
|
|
Exhibit
V-1:
|
Form
of Performance Certification (Subservicer)
|
V-1-1
|
|
Exhibit
V-2:
|
Form
of Performance Certification (Trustee)
|
V-2-1
|
|
Exhibit
W:
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
W-1
|
|
Exhibit
X:
|
List
of Item 1119 Parties
|
X-1
|
|
Exhibit
Y:
|
Form
of Xxxxxxxx-Xxxxx Certification (Replacement of Master
Servicer)
|
Y-1
|
v
THIS
POOLING AND SERVICING AGREEMENT, dated as of June 1, 2007, among CWALT, INC.,
a
Delaware corporation, as depositor (the “Depositor”), COUNTRYWIDE HOME LOANS,
INC. (“Countrywide”), a New York corporation, as a seller (a “Seller”), PARK
GRANADA LLC (“Park Granada”), a Delaware limited liability company, as a seller
(a “Seller”), PARK MONACO INC. (“Park Monaco”), a Delaware corporation, as a
seller (a “Seller”), PARK SIENNA LLC (“Park Sienna”), a Delaware limited
liability company, as a seller (a “Seller”), COUNTRYWIDE HOME LOANS SERVICING
LP, a Texas limited partnership, as master servicer (the “Master Servicer”), and
THE BANK OF NEW YORK, a banking corporation organized under the laws of the
State of New York, as trustee (the “Trustee”).
WITNESSETH
THAT
In
consideration of the mutual agreements contained in this Agreement, the parties
to this Agreement agree as follows:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. The Trust Fund (excluding the Carryover Reserve
Fund) for federal income tax purposes will consist of three REMICs (the “Swap-IO
REMIC,” the “ Strip REMIC” and the “Master REMIC”). Each Certificate,
other than the Class A-R Certificate, will represent ownership of one or
more
regular interests in the Master REMIC for purposes of the REMIC Provisions.
The
Class A-R Certificate will represent ownership of the sole class of residual
interest in each of the Swap-IO REMIC, the Strip REMIC and the Master
REMIC. The Master REMIC will hold as assets the several classes of
uncertificated Strip REMIC Interests (other than the STR-A-R
Interest). Each Strip REMIC Interest (other than the STR-A-R
Interest) is hereby designated as a regular interest in the Strip
REMIC. The Strip REMIC will hold as assets the several classes of
uncertificated Swap-IO REMIC Interests (other than the SWR-A-R Interest).
Each
Swap-IO REMIC Interest (other than the SWR-A-R Interest) is hereby designated
as
a regular interest in the Swap-IO REMIC. The Swap-IO REMIC will hold
as assets all property of the Trust Fund (excluding the Carryover Reserve
Fund). The latest possible maturity date of all REMIC regular
interests created in this Agreement shall be the Latest Possible Maturity
Date.
The
Supplemental Interest Trust, the Derivative Agreements and the Derivative
Accounts will not constitute any part of any REMIC.
SWAP-IO
REMIC:
The
Swap-IO REMIC Interests will have the principal balances and pass-through
rates
as set forth below:
|
SWAP-IO
REMIC Interests
|
Initial
Principal Balance(1)
|
Pass-Through
Rate
|
||
|
SWR-2A
|
$3,560,533.46
|
(2)
|
||
|
SWR-2B
|
$3,560,533.46
|
(3)
|
||
|
SWR-3A
|
$3,855,029.21
|
(2)
|
||
|
SWR-3B
|
$3,855,029.21
|
(3)
|
||
|
SWR-4A
|
$4,141,576.24
|
(2)
|
||
|
SWR-4B
|
$4,141,576.24
|
(3)
|
||
|
SWR-5A
|
$4,419,232.24
|
(2)
|
||
|
SWR-5B
|
$4,419,232.24
|
(3)
|
||
|
SWR-6A
|
$4,687,079.98
|
(2)
|
||
|
SWR-6B
|
$4,687,079.98
|
(3)
|
||
|
SWR-7A
|
$4,944,232.46
|
(2)
|
||
|
SWR-7B
|
$4,944,232.46
|
(3)
|
||
|
SWR-8A
|
$5,189,837.98
|
(2)
|
||
|
SWR-8B
|
$5,189,837.98
|
(3)
|
||
|
SWR-9A
|
$5,423,085.07
|
(2)
|
||
|
SWR-9B
|
$5,423,085.07
|
(3)
|
||
|
SWR-10A
|
$5,643,207.35
|
(2)
|
||
|
SWR-10B
|
$5,643,207.35
|
(3)
|
||
|
SWR-11A
|
$5,849,488.18
|
(2)
|
||
|
SWR-11B
|
$5,849,488.18
|
(3)
|
||
|
SWR-12A
|
$6,041,265.08
|
(2)
|
||
|
SWR-12B
|
$6,041,265.08
|
(3)
|
||
|
SWR-13A
|
$5,897,720.49
|
(2)
|
||
|
SWR-13B
|
$5,897,720.49
|
(3)
|
||
|
SWR-14A
|
$5,757,584.25
|
(2)
|
||
|
SWR-14B
|
$5,757,584.25
|
(3)
|
||
|
SWR-15A
|
$5,620,775.50
|
(2)
|
||
|
SWR-15B
|
$5,620,775.50
|
(3)
|
||
|
SWR-16A
|
$5,487,215.26
|
(2)
|
||
|
SWR-16B
|
$5,487,215.26
|
(3)
|
||
|
SWR-17A
|
$5,356,826.46
|
(2)
|
||
|
SWR-17B
|
$5,356,826.46
|
(3)
|
||
|
SWR-18A
|
$5,229,533.79
|
(2)
|
||
|
SWR-18B
|
$5,229,533.79
|
(3)
|
||
|
SWR-19A
|
$5,105,263.82
|
(2)
|
||
|
SWR-19B
|
$5,105,263.82
|
(3)
|
||
|
SWR-20A
|
$4,983,944.77
|
(2)
|
||
|
SWR-20B
|
$4,983,944.77
|
(3)
|
||
|
SWR-21A
|
$4,865,506.64
|
(2)
|
||
|
SWR-21B
|
$4,865,506.64
|
(3)
|
||
|
SWR-22A
|
$4,749,881.03
|
(2)
|
||
|
SWR-22B
|
$4,749,881.03
|
(3)
|
||
|
SWR-23A
|
$4,637,001.20
|
(2)
|
||
|
SWR-23B
|
$4,637,001.20
|
(3)
|
||
|
SWR-24A
|
$4,526,801.98
|
(2)
|
||
|
SWR-24B
|
$4,526,801.98
|
(3)
|
||
|
SWR-25A
|
$4,419,219.76
|
(2)
|
||
|
SWR-25B
|
$4,419,219.76
|
(3)
|
||
|
SWR-26A
|
$4,314,192.41
|
(2)
|
||
|
SWR-26B
|
$4,314,192.41
|
(3)
|
||
|
SWR-27A
|
$4,211,659.29
|
(2)
|
||
|
SWR-27B
|
$4,211,659.29
|
(3)
|
||
|
SWR-28A
|
$4,111,561.20
|
(2)
|
||
|
SWR-28B
|
$4,111,561.20
|
(3)
|
||
|
SWR-29A
|
$4,013,840.37
|
(2)
|
||
|
SWR-29B
|
$4,013,840.37
|
(3)
|
||
|
SWR-30A
|
$3,918,440.35
|
(2)
|
||
|
SWR-30B
|
$3,918,440.35
|
(3)
|
||
|
SWR-31A
|
$3,825,306.06
|
(2)
|
||
|
SWR-31B
|
$3,825,306.06
|
(3)
|
||
|
SWR-32A
|
$3,734,383.72
|
(2)
|
||
|
SWR-32B
|
$3,734,383.72
|
(3)
|
||
|
SWR-33A
|
$3,645,620.82
|
(2)
|
||
|
SWR-33B
|
$3,645,620.82
|
(3)
|
||
|
SWR-34A
|
$3,558,966.12
|
(2)
|
||
|
SWR-34B
|
$3,558,966.12
|
(3)
|
||
|
SWR-35A
|
$3,474,369.56
|
(2)
|
||
|
SWR-35B
|
$3,474,369.56
|
(3)
|
||
|
SWR-36A
|
$3,391,782.30
|
(2)
|
||
|
SWR-36B
|
$3,391,782.30
|
(3)
|
||
|
SWR-37A
|
$3,318,816.93
|
(2)
|
||
|
SWR-37B
|
$3,318,816.93
|
(3)
|
||
|
SWR-38A
|
$3,239,793.18
|
(2)
|
||
|
SWR-38B
|
$3,239,793.18
|
(3)
|
||
|
SWR-39A
|
$3,162,648.69
|
(2)
|
||
|
SWR-39B
|
$3,162,648.69
|
(3)
|
||
|
SWR-40A
|
$3,087,338.80
|
(2)
|
||
|
SWR-40B
|
$3,087,338.80
|
(3)
|
||
|
SWR-41A
|
$3,013,819.93
|
(2)
|
||
|
SWR-41B
|
$3,013,819.93
|
(3)
|
||
|
SWR-42A
|
$2,942,049.52
|
(2)
|
||
|
SWR-42B
|
$2,942,049.52
|
(3)
|
||
|
SWR-43A
|
$2,871,986.05
|
(2)
|
||
|
SWR-43B
|
$2,871,986.05
|
(3)
|
||
|
SWR-44A
|
$2,803,588.94
|
(2)
|
||
|
SWR-44B
|
$2,803,588.94
|
(3)
|
||
|
SWR-45A
|
$2,736,818.60
|
(2)
|
||
|
SWR-45B
|
$2,736,818.60
|
(3)
|
||
|
SWR-46A
|
$2,671,636.37
|
(2)
|
||
|
SWR-46B
|
$2,671,636.37
|
(3)
|
||
|
SWR-47A
|
$2,608,004.54
|
(2)
|
||
|
SWR-47B
|
$2,608,004.54
|
(3)
|
||
|
SWR-48A
|
$2,545,886.24
|
(2)
|
||
|
SWR-48B
|
$2,545,886.24
|
(3)
|
||
|
SWR-49A
|
$2,485,151.63
|
(2)
|
||
|
SWR-49B
|
$2,485,151.63
|
(3)
|
||
|
SWR-50A
|
$2,425,957.69
|
(2)
|
||
|
SWR-50B
|
$2,425,957.69
|
(3)
|
||
|
SWR-51A
|
$2,368,171.78
|
(2)
|
||
|
SWR-51B
|
$2,368,171.78
|
(3)
|
||
|
SWR-52A
|
$2,311,760.47
|
(2)
|
||
|
SWR-52B
|
$2,311,760.47
|
(3)
|
||
|
SWR-53A
|
$2,256,691.07
|
(2)
|
||
|
SWR-53B
|
$2,256,691.07
|
(3)
|
||
|
SWR-54A
|
$2,202,931.71
|
(2)
|
||
|
SWR-54B
|
$2,202,931.71
|
(3)
|
||
|
SWR-55A
|
$2,150,451.23
|
(2)
|
||
|
SWR-55B
|
$2,150,451.23
|
(3)
|
||
|
SWR-56A
|
$2,099,219.28
|
(2)
|
||
|
SWR-56B
|
$2,099,219.28
|
(3)
|
||
|
SWR-57A
|
$2,049,206.15
|
(2)
|
||
|
SWR-57B
|
$2,049,206.15
|
(3)
|
||
|
SWR-58A
|
$2,000,382.89
|
(2)
|
||
|
SWR-58B
|
$2,000,382.89
|
(3)
|
||
|
SWR-59A
|
$1,952,721.22
|
(2)
|
||
|
SWR-59B
|
$1,952,721.22
|
(3)
|
||
|
SWR-60A
|
$79,843,951.60
|
(2)
|
||
|
SWR-60B
|
$79,843,951.60
|
(3)
|
||
|
SWR-Support
|
(4)
|
(5)
|
||
|
SWR-P
|
$100.00
|
(6)
|
||
|
SWR-X-IO
|
(7)
|
(7)
|
||
|
SW-A-R
|
(8)
|
(8)
|
2
_______________
|
(1)
|
Scheduled
principal, prepayments and Realized Losses will be allocated first,
to the
SWR-Support Interest and second, to the numbered classes sequentially
(from lowest to highest). Amounts so allocated to a numbered
class shall be further allocated among the “A” and “B” components of such
numbered class pro-rata until the entire class is reduced to
zero.
|
|
(2)
|
On
and after the 2nd Distribution Date and on and until the 60th Distribution
Date, a rate equal to twice the Pool Tax Cap less 10.46% per annum
but not
less 0%. On the first Distribution Date and on and after the
61st Distribution Date, a rate equal to the Pool Tax Cap. The
“Pool Tax Cap” means the weighted average of the Adjusted Net Mortgage
Rates of all the Mortgage Loans. For this purpose, the Adjusted
Net Mortgage Rate shall be determined by first reducing the interest
payable on each Sub-Group X Mortgage Loan by (i) 0.65% per annum
on any
Distribution Date on or prior to the Distribution Date in June
2017 and
(ii) 1.65% per annum on any Distribution Date after the Distribution
Date
in June 2017.
|
|
(3)
|
On
and after the 2nd Distribution Date and on and until the 60th Distribution
Date, a rate equal to the lesser of (i) 10.46% per annum and (ii)
twice
the Pool Tax Cap. On the first Distribution Date and on and
after the 61st Distribution Date, a rate equal to the Pool Tax
Cap.
|
|
(4)
|
On
the Closing Date and on each Distribution Date, following the allocation
of Principal Amounts and Realized Losses, the principal balance
in respect
of the SWR-Support Interest will equal the excess of the principal
balance
of the Mortgage Loans (as of the end of the Due Period, reduced
by
principal prepayments received after the Due Period that are to
be
distributed on the Distribution Date related to the Due Period)
over the
principal balance in respect of the remaining Swap-IO REMIC Interests
other than the SWR-P and the SWR-A-R
Interests.
|
|
(5)
|
A
rate equal to the Pool Tax Cap.
|
|
(6)
|
On
each Distribution Date the Class SWR-P Interest is entitled to
all
Prepayment Charges collected with respect to the Mortgage
Loans. It pays no
interest.
|
|
(7)
|
The
SWR-X-IO Interest shall be entitled to a specific portion of the
interest
payable on each Sub-Group X Mortgage Loan. Specifically, the
SWR-X-IO Interest shall be entitled to a specific portion of the
interest
payable on the Stated Principal Balance of each Sub-Group X Mortgage
Loan
as of the Due Date in the month preceding the month of that Distribution
Date (after giving effect to Principal Prepayments in the Prepayment
Period related to that prior Due Date) at a per annum rate equal
to (i)
0.65% on any Distribution Date on or prior to the Distribution
Date in
June 2017 and (ii) 1.65% on any Distribution Date after the Distribution
Date in June 2017.
|
|
(8)
|
The
Class SW-A-R Interest is the sole class of residual interest in
the
Swap-IO REMIC. It has no principal and pays no principal or
interest.
|
3
On
each
Distribution Date, the Available Funds shall be payable with respect to the
Swap-IO REMIC Interests in the following manner:
(1) Interest. Interest
is to be distributed with respect to each Swap-IO REMIC Interest at the rate,
or
according to the formulas, described above.
(2) Principal. Principal
Distribution Amounts shall be allocated among the Swap-IO REMIC Interests
as
described above.
(3) Prepayment
Penalties. All Prepayment Charges are allocated to the SWR-P
Interest.
STRIP
REMIC:
The
Strip
REMIC Regular Interests will have the principal balances, pass-through rates
and
corresponding Classes of Certificates as set forth in the following
table:
|
STRIP
REMIC Interests
|
Initial
Principal Balance
|
Pass-Through
Rate
|
Corresponding
Class of Certificates
|
|
STR-A-1
|
(1)
|
(2)
|
Class
X-0
|
|
XXX-X-0
|
(1)
|
(2)
|
Class
X-0
|
|
XXX-X-0
|
(1)
|
(2)
|
Class
X-0
|
|
XXX-X-0
|
(1)
|
(2)
|
Class
A-4
|
|
STR-M-1
|
(1)
|
(2)
|
Class
M-1
|
|
STR-M-2
|
(1)
|
(2)
|
Class
M-2
|
|
STR-M-3
|
(1)
|
(2)
|
Class
M-3
|
|
STR-M-4
|
(1)
|
(2)
|
Class
M-4
|
|
STR-M-5
|
(1)
|
(2)
|
Class
M-5
|
|
STR-M-6
|
(1)
|
(2)
|
Class
M-6
|
|
STR-M-7
|
(1)
|
(2)
|
Class
M-7
|
|
STR-M-8
|
(1)
|
(2)
|
Class
M-8
|
|
STR-M-9
|
(1)
|
(2)
|
Class
M-9
|
|
STR-$100
|
$100
|
(3)
|
Class
A-R
|
|
STR-C-OC
|
(4)
|
(2)
|
N/A
|
|
STR-C-Swap-IO
|
(5)
|
(5)
|
N/A
|
|
STR-X-IO
|
(6)
|
(6)
|
N/A
|
|
STR-P
|
$100
|
(7)
|
P
|
|
STR-A-R
|
(8)
|
(8)
|
N/A
|
_______________
|
(1)
|
This
Strip REMIC Interest has a principal balance that is initially
equal to
100% of its corresponding Certificate Class issued by the Master
REMIC. Principal payments, both scheduled and prepaid, Realized
Losses and Subsequent Recoveries attributable to the SWAP-IO REMIC
Interests held by the Strip REMIC will be allocated to this class
to
maintain its size relative to its corresponding Certificate
Class.
|
|
(2)
|
On
each Distribution Date, the pass through rate will equal the “Strip REMIC
Cap.” The Strip REMIC Cap will equal the weighted average of
the pass through rates of the Swap-IO REMIC Interests (other than
the
Class SWR-P, Class SWR-X-IO and Class SWR-A-R Interests) treating
each “B”
Interest the cardinal number of which (for example, XXX-0X, XXX-0X,
XXX-0X, etc.) is not less than the ordinal number of the Distribution
Date
(second Distribution Date, third Distribution Date, fourth Distribution
Date, etc.) as capped at a rate equal to the product of (i) 2 and
(ii)
LIBOR.
|
4
|
(3)
|
This
Strip REMIC Interest pays no
interest.
|
|
(4)
|
This
Strip REMIC Interest has a principal balance that is initially
equal to
100% of the Overcollateralized Amount. Principal payments, both
scheduled and prepaid, Realized Losses and Subsequent Recoveries
attributable to the Swap-IO REMIC Interests held by the Strip REMIC
will
be allocated to this class to maintain its size relative to the
Overcollateralized Amount.
|
|
(5)
|
For
each Distribution Date, the STR-C-Swap-IO Interest is entitled
to receive
from each Swap REMIC “B” Interest the cardinal number of which (for
example, XXX-0X, XXX-0X, XXX-0X, etc.) is not less than the ordinal
number
of the Distribution Date (second Distribution Date, third Distribution
Date, fourth Distribution Date, etc.) the interest accruing on
such
interest in excess of a per annum rate equal to the product of
(i) 2 and
(ii) LIBOR.
|
|
(6)
|
The
STR-X-IO Interest is entitled to all amounts payable with respect
to the
SWR-X-IO Interest.
|
|
(7)
|
The
STR-P Interest is entitled to all amounts payable with respect
to the
SWR-P Interest. It pays no
interest.
|
|
(8)
|
The
STR-A-R Interest is the sole class of residual interest in the
Strip
REMIC. It has no principal balance and pays no principal or
interest.
|
On
each
Distribution Date, the Interest Funds and the Principal Distribution Amount
payable with respect to the Swap-IO Interests shall be payable with respect
to
the Strip REMIC Interests in the following manner:
(1) Interest. Interest
is to be distributed with respect to each Strip REMIC Interest at the rate,
or
according to the formulas, described above.
(2) Principal. Principal
Distribution Amounts shall be allocated among the Strip
REMIC Interests as described above.
(3) Prepayment
Penalties. All Prepayment Charges are allocated to the STR-P
Interest.
5
Master
REMIC:
The
Master REMIC Certificates will have the original Class Certificate Balances
and
Pass-Through Rates as set forth in the following table:
|
Class
|
Original
Class Certificate Balance
|
Pass-Through
Rate
|
|
Class
A-1
|
$681,076,000
|
(1)
|
|
Class
A-2
|
$20,000,000
|
(1)
|
|
Class
A-3
|
$55,675,000
|
(1)
|
|
Class
A-4
|
$219,769,000
|
(1)
|
|
Class
X
|
$427,231,675
(2)
|
(1)
|
|
Class
M-1
|
$14,920,000
|
(1)
|
|
Class
M-2
|
$6,689,000
|
(1)
|
|
Class
M-3
|
$5,145,000
|
(1)
|
|
Class
M-4
|
$4,630,000
|
(1)
|
|
Class
M-5
|
$3,602,000
|
(1)
|
|
Class
M-6
|
$4,116,000
|
(1)
|
|
Class
M-7
|
$3,601,000
|
(1)
|
|
Class
M-8
|
$3,602,000
|
(1)
|
|
Class
M-9
|
$2,572,000
|
(1)
|
|
Class
C
|
(3)
|
(4)
|
|
Class
P
|
$100
|
(5)
|
|
Class
A-R
|
$100
|
(6)
|
_______________
|
(1)
|
The
Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement. For federal income tax purposes,
including the computation of the Class C Distributable Amount and
entitlement to Net Rate Carryover, the Pass-Through Rate in respect
of
each Senior Certificate (other than the Class X and Class A-R
Certificates) and Subordinated Certificate will be subject to a
cap equal
to the Strip REMIC Cap rather than the Net Rate
Cap.
|
|
(2)
|
This
Class will be a Class of Notional Amount Master REMIC Interest,
will have
no principal balance and will bear interest on its Notional
Amount. The Class X Master REMIC Interest is entitled to all
amounts payable with respect to the STR-X-IO
Interest.
|
|
(3)
|
For
federal income tax purposes, the Class C Certificates will be treated
as
having a Class Certificate Balance equal to the Overcollateralized
Amount.
|
|
(4)
|
For
each Accrual Period the Class C Certificates are entitled to an
amount
(the “Class C Distributable Amount”) equal to the sum of (a) the interest
payable on the STR-C-Swap-IO Interest, (b) the interest payable
on the
STR-C-OC Interest and (c) a specified portion of the interest payable
on
the Strip REMIC Regular Interests (other than the STR-$100, STR-C-OC,
STR-P, STR-X-IO and STR-C-Swap-IO Interests) equal to the excess
of the
Pool Tax Cap over the weighted average interest rate of the Strip
REMIC
Regular Interests (other than the STR-$100, STR-C and STR-P Interests)
with each such Class subject to a cap and a floor equal to the
Pass-Through Rate of the Corresponding Master REMIC Class. The
Pass-Through Rate of the Class C Certificates shall be a rate sufficient
to entitle it to an amount equal to all interest accrued on the
Mortgage
Loans less the interest accrued on the other interests issued by
the
Master REMIC. The Class C Distributable Amount for any
Distribution Date is payable from current interest on the Mortgage
Loans
and any Overcollateralization Reduction Amount for that Distribution
Date.
|
6
|
(5)
|
For
each Distribution Date the Class P Certificates are entitled to
all
Prepayment Charges distributed with respect to the STR-P
Interest.
|
|
(6)
|
The
Class A-R Certificates represent the sole class of residual interest
in
each REMIC created hereunder. The Class A-R Certificates are
not entitled to distributions of
interest.
|
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Master REMIC as cash flow on REMIC regular
interests, without creating any shortfall—actual or potential (other than for
credit losses)— to any REMIC regular interest. It is not intended that the Class
A-R Certificates be entitled to any cash flows pursuant to this Agreement
except
as provided in Section 4.02(b) hereunder.
7
Set
forth
below are designations of Classes or Components of Certificates and other
defined terms to the categories used in this Agreement:
Accretion
Directed Certificates
None.
Accretion
Directed Components.
None.
Accrual
Certificates
None.
Accrual
Components
None.
Book-Entry
Certificates.
All
Classes of Certificates other than the Physical Certificates.
COFI
Certificates.
None.
Component
Certificates
None.
Components
None.
Delay
Certificates.
All
interest-bearing Classes of Certificates other than the Non-Delay Certificates,
if any.
ERISA-Restricted
Certificates.
The
Residual Certificates and the Private Certificates; and any Certificate of
a
Class that does not or no longer has a rating of BBB- or its equivalent,
or
better from at least one Rating Agency.
Floating
Rate Certificates
The
LIBOR
Certificates.
Inverse
Floating Rate Certificates.
None.
LIBOR
Certificates
The
Senior LIBOR Certificates and the Subordinated Certificates.
MTA
Certificates
None.
Non-Delay
Certificates
The
LIBOR
Certificates.
Notional
Amount Certificates.
Class
X
Certificates.
Offered
Certificates..
All
Classes of Certificates other than the Private Certificates.
8
Physical
Certificates..
The
Private Certificates and the Residual Certificates.
Planned
Principal Classes
None.
Planned
Principal Components
None.
Principal
Only Certificates.
None.
Private
Certificates..
The
Class
M-9, Class C and Class P Certificates.
Rating
Agencies.
S&P
and Xxxxx’x.
Regular
Certificates.
All
Classes of Certificates, other than the Residual Certificates.
Residual
Certificates..
The
Class
A-R Certificates.
Scheduled
Principal Classes..
None.
Senior
Certificates.
The
Class
A-1, Class A-2, Class A-3, Class A-4, Class X and Class A-R
Certificates.
Senior
LIBOR Certificates
The
Class
A-1, Class A-2, Class A-3 and Class A-4 Certificates.
Subordinated
Certificates .
The
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class
M-8
and Class M-9 Certificates.
Targeted
Principal Classes.
None.
Underwriter
Deutsche
Bank Securities Inc.
With
respect to any of the foregoing designations as to which the corresponding
reference is “None,” all defined terms and provisions in this Agreement relating
solely to such designations shall be of no force or effect, and any calculations
in this Agreement incorporating references to such designations shall be
interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to
statistical rating agencies not designated above as Rating Agencies shall
be of
no force or effect.
9
ARTICLE
I
DEFINITIONS
|
SECTION
1.01.
|
Defined
Terms.
|
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
10/1
Mortgage Loan: A Mortgage Loan that has a Mortgage Rate that is
fixed for ten years after origination following which, beginning on the
initial
Payment Adjustment Date, the Mortgage Rate adjusts based on a Mortgage
Index.
Account: Any
Escrow Account, the Certificate Account, the Distribution Account, the
Carryover
Reserve Fund, the Derivative Accounts or any other account related to
the Trust
Fund or the Mortgage Loans.
Accretion
Directed Classes: As specified in the Preliminary
Statement.
Accrual
Period: With respect to any Distribution Date and each Class of
Non-Delay Certificates, the period commencing on the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, the
Closing
Date) and ending on the day immediately preceding such Distribution
Date. With respect to any Distribution Date and each Class of Delay
Certificates and the Class C Certificates, the calendar month preceding
the
month in which such Distribution Date occurs.
Additional
Designated Information: As defined in Section 11.02.
Adjusted
Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the Master Servicing Fee
Rate.
Adjusted
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the Expense Fee
Rate.
Adjusted
Replacement Upfront Amount: As defined in Section
3.19.
Adjustment
Date: A date specified in each Mortgage Note as a date on which
the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: The
payment required to be made by the Master Servicer with respect to any
Distribution Date pursuant to Section 4.01, the amount of any such payment
being
equal to the aggregate of payments of principal and interest (net of
the Master
Servicing Fee) on the Mortgage Loans that were due on the related Due
Date and
not received by the Master Servicer as of the close of business on the
related
Determination Date, together with an amount equivalent to interest on
each
Mortgage Loan as to which the related Mortgaged Property is an REO Property,
net
of any net income from such REO Property, less the aggregate amount of
any such
delinquent payments that the Master Servicer has determined would constitute
a
Nonrecoverable Advance if advanced.
Agreement: This
Pooling and Servicing Agreement and all amendments or supplements this
Pooling
and Servicing Agreement.
Amount
Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business
on the
related Determination Date on account of (i) Principal Prepayments received
after the related Prepayment Period and Liquidation Proceeds and Subsequent
Recoveries received in the month of such Distribution Date and (ii) all
Scheduled Payments due after the related Due Date.
Applied
Realized Loss Amount: With respect to any Distribution Date and
the Senior Certificates (other than the Notional Amount Certificates)
and the
Subordinated Certificates, the sum of the Realized Losses which are to
be
applied in reduction of the Class Certificate Balance of any such Class
of
Certificates pursuant to this Agreement, which shall equal the amount,
if any,
by which the aggregate Class Certificate Balance of the Senior Certificates
and
Subordinated Certificates (after all distributions of principal on such
Distribution Date) exceeds the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Due Date in the month in which such Distribution
Date
occurs (after giving effect to Principal Prepayments received in the
related
Prepayment Period).
Appraised
Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the value of
the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sale price of the Mortgaged Property
at the
time of the origination of such Mortgage Loan; (ii) with respect to a
Refinancing Mortgage Loan other than a Streamlined Documentation Mortgage
Loan,
the value of the Mortgaged Property based upon the appraisal made-at
the time of
the origination of such Refinancing Mortgage Loan; and (iii) with respect
to a
Streamlined Documentation Mortgage Loan, (a) if the loan-to-value ratio
with
respect to the Original Mortgage Loan at the time of the origination
thereof was
80% or less and the loan amount of the new mortgage loan is $650,000
or less,
the value of the Mortgaged Property based upon the appraisal made at
the time of
the origination of the Original Mortgage Loan and (b) if the loan-to-value
ratio
with respect to the Original Mortgage Loan at the time of the origination
thereof was greater than 80% or the loan amount of the new mortgage loan
being
originated is greater than $650,000, the value of the Mortgaged Property
based
upon the appraisal (which may be a drive-by appraisal) made at the time
of the
origination of such Streamlined Documentation Mortgage Loan.
Available
Funds: As to any Distribution Date, the sum of (a) the aggregate
amount held in the Certificate Account at the close of business on the
related
Determination Date, including any Subsequent Recoveries, net of the Amount
Held
for Future Distribution and net of Prepayment Charges and amounts permitted
to
be withdrawn from the Certificate Account pursuant to clauses (i) - (viii)
of
Section 3.08(a) and amounts permitted to be withdrawn from the Distribution
Account pursuant to clauses (i) - (iii) of Section 3.08(b), (b) the amount
of
the Advance and (c) in connection with Defective Mortgage Loans, as applicable,
the aggregate of the Purchase Prices and Substitution Adjustment Amounts
deposited on the related Distribution Account Deposit Date. The
Holders of the Class P Certificates will be entitled to all Prepayment
Charges
received on the Mortgage Loans and such amounts will not be available
for
distribution to the Holders of any other Class of Certificates.
2
Bankruptcy
Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Benefit
Plan Opinion: As defined in Section 5.02(b).
Book-Entry
Certificates: As specified in the Preliminary
Statement.
Business
Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the City of New York, New York, or the
States
of California or Texas or the city in which the Corporate Trust Office
of the
Trustee is located are authorized or obligated by law or executive order
to be
closed.
Capitalized
Interest Account: Not applicable.
Carryover
Reserve Fund: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 3.05(g) in the name of
the Trustee
for the benefit of the Holders of the LIBOR Certificates and designated
“The
Bank of New York in trust for registered holders of CWALT, Inc., Alternative
Loan Trust 2007-HY7C, Mortgage Pass-Through Certificates, Series
2007-HY7C.” Funds in the Carryover Reserve Fund shall be held in
trust for the Holders of the LIBOR Certificates for the uses and purposes
set
forth in this Agreement.
Certificate: Any
one of the Certificates executed by the Trustee in substantially the
forms
attached this Agreement as exhibits.
Certificate
Account: The separate Eligible Account or Accounts created and
maintained by the Master Servicer pursuant to Section 3.05 with a depository
institution, initially Countrywide Bank, FSB, in the name of the Master
Servicer
for the benefit of the Trustee on behalf of Certificateholders and designated
“Countrywide Home Loans Servicing LP in trust for the registered holders
of
Alternative Loan Trust 2007-HY7C, Mortgage Pass-Through Certificates
Series
2007-HY7C.”
Certificate
Balance: With respect to any Certificate (other than the Class C
Certificates and Notional Amount 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 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) any Applied Realized Loss Amounts allocated
to such
Certificate on previous Distribution Dates pursuant to Section 4.02 without
duplication.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate. For the
purposes of this Agreement, in order for a Certificate Owner to enforce
any of
its rights under this Agreement, it shall first have to provide evidence
of its
beneficial ownership interest in a Certificate that is reasonably satisfactory
to the Trustee, the Depositor, and/or the Master Servicer, as
applicable.
Certificate
Register: The register maintained pursuant to Section
5.02.
Certificate
Swap Account: The separate Eligible Account created and initially
maintained by the Supplemental Interest Trustee pursuant to Section
3.05(h).
3
Certificate
Swap Contract: The transaction evidenced by the Confirmation and
subject to the ISDA Master Agreement, a form of which is attached hereto
as
Exhibit R-4.
Certificate
Swap Contract Termination Date: The Distribution Date in June
2012.
Certificateholder
or Holder: The person in whose name a Certificate is registered
in the Certificate Register, except that, solely for the purpose of giving
any
consent pursuant to this Agreement, any Certificate registered in the
name of
the Depositor or any affiliate of the Depositor shall be deemed not to
be
Outstanding and the Percentage Interest evidenced thereby shall not be
taken
into account in determining whether the requisite amount of Percentage
Interests
necessary to effect such consent has been obtained; provided, however,
that if
any such Person (including the Depositor) owns 100% of the Percentage
Interests
evidenced by a Class of Certificates, such Certificates shall be deemed
to be
Outstanding for purposes of any provision of this Agreement (other than
the
second sentence of Section 10.01) that requires the consent of the Holders
of
Certificates of a particular Class as a condition to the taking of any
action
under this Agreement. The Trustee is entitled to rely conclusively on
a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate
of the
Depositor.
Certification
Party: As defined in Section 11.05.
Certifying
Person: As defined in Section 11.05.
Class: All
Certificates bearing the same class designation as set forth in the Preliminary
Statement.
Class
A-1 Swap Account: The separate Eligible Account created and
initially maintained by the Supplemental Interest Trustee pursuant to
Section
3.05(h).
Class
A-1 Swap Contract: The transaction evidenced by the Confirmation
and subject to the ISDA Master Agreement, a form of which is attached
hereto as
Exhibit R-1.
Class
A-1 Swap Contract Termination Date: The earlier of (i) the date
on which the Class Certificate Balance of the Class A-1 Certificates
has been
reduced to zero and (ii) the Distribution Date in August 2037.
Class
A-1 Swap Fee: With respect to the Class A-1 Swap Contract and
each Distribution Date on or prior to the Class A-1 Swap Contract Termination
Date, the product of (a) either (i) 0.07% for any Distribution Date occurring
on
or prior to the Optional Termination Date or (ii) 0.14% for any Distribution
Date occurring after the Optional Termination Date, (b) the Class Certificate
Balance of the Class A-1 Certificates immediately prior to such Distribution
Date and (c) the actual number of days in the related calculation period,
divided by 360.
Class
A-3 Swap Account: The separate Eligible Account created and
initially maintained by the Supplemental Interest Trustee pursuant to
Section
3.05(h).
Class
A-3 Swap Contract: The transaction evidenced by the Confirmation
and subject to the ISDA Master Agreement, a form of which is attached
hereto as
Exhibit R-2.
4
Class
A-3 Swap Contract Termination Date: The earlier of (i) the date
on which the Class Certificate Balance of the Class A-3 Certificates
has been
reduced to zero and (ii) the Distribution Date in August 2037.
Class
A-3 Swap Fee: With respect to the Class A-3 Swap Contract and
each Distribution Date on or prior to the Class A-3 Swap Contract Termination
Date, the product of (a) either (i) 0.07% for any Distribution Date occurring
on
or prior to the Optional Termination Date or (ii) 0.14% for any Distribution
Date occurring after the Optional Termination Date, (b) the Class Certificate
Balance of the Class A-3 Certificates immediately prior to such Distribution
Date and (c) the actual number of days in the related calculation period,
divided by 360.
Class
A-4 Corridor Account: The separate Eligible Account created and
initially maintained by the Supplemental Interest Trustee pursuant to
Section
3.05(h).
Class
A-4 Corridor Contract: The transaction evidenced by the
Confirmation, a form of which is attached hereto as Exhibit R-5.
Class
A-4 Corridor Contract Termination Date: The Distribution Date in
September 2015.
Class
C Distributable Amount: As defined in the Preliminary
Statement.
Class
Certificate Balance: With respect to any Class of Certificates
(other than the Class C Certificates and Notional Amount Certificates)
and as to
any date of determination, the aggregate of the Certificate Balances
of all
Certificates of such Class as of such date. The Class C Certificates
and Notional Amount Certificates do not have Class Certificate
Balances.
Class
M-3 Swap Account: The separate Eligible Account created and
initially maintained by the Supplemental Interest Trustee pursuant to
Section
3.05(h).
Class
M-3 Swap Contract: The transaction evidenced by the Confirmation
and subject to the ISDA Master Agreement, a form of which is attached
hereto as
Exhibit R-3.
Class
M-3 Swap Contract Termination Date: The earlier of (i) the date
on which the Class Certificate Balance of the Class M-3 Certificates
has been
reduced to zero and (ii) the Distribution Date in August 2037.
Class
M-3 Swap Fee: With respect to the Class M-3 Swap Contract and
each Distribution Date on or prior to the Class M-3 Swap Contract Termination
Date, the product of (a) either (i) 0.20% for any Distribution Date occurring
on
or prior to the Optional Termination Date or (ii) 0.30% for any Distribution
Date occurring after the Optional Termination Date, (b) the Class Certificate
Balance of the Class M-3 Certificates immediately prior to such Distribution
Date and (c) the actual number of days in the related calculation period,
divided by 360.
Class
P Certificate: Any Certificate designated as a “Class P
Certificate” on the face thereof, in the form of Exhibit C-2 hereto,
representing the right to distributions as set forth herein.
5
Class
P Principal Distribution Date: The first Distribution Date that
occurs after the end of the latest Prepayment Charge Period for the Mortgage
Loans that have a Prepayment Charge.
Closing
Date: June 29, 2007.
Code: The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
COFI: The
Monthly Weighted Average Cost of Funds Index for the Eleventh District
Savings
Institutions published by the Federal Home Loan Bank of San
Francisco.
COFI
Certificates: As specified in the Preliminary
Statement.
Commission: The
U.S. Securities and Exchange Commission.
Compensating
Interest: As to any Distribution Date, an amount equal to the
product of 50% and the aggregate Master Servicing Fee payable to the
Master
Servicer for that Distribution Date.
Component: As
specified in the Preliminary Statement.
Component
Balance: Not applicable.
Component
Certificates: As specified in the Preliminary
Statement.
Component
Notional Amount: Not applicable.
Confirmation: With
respect to the Class A-1 Swap Contract, the confirmation (reference #
N633920N)
with a trade date of June 15, 2007, evidencing a transaction between
the Swap
Counterparty and the Supplemental Interest Trustee. With respect to
the Class A-3 Swap Contract, the confirmation (reference # N633924N)
with a
trade date of June 15, 2007, evidencing a transaction between the Swap
Counterparty and the Supplemental Interest Trustee. With respect to
the Class M-3 Swap Contract, the confirmation (reference # N642650N)
with a
trade date of June 26, 2007, evidencing a transaction between the Swap
Counterparty and the Supplemental Interest Trustee. With respect to
the Certificate Swap Contract, the confirmation (reference # N639743N)
with a
trade date of June 22, 2007, evidencing a transaction between the Swap
Counterparty and the Supplemental Interest Trustee. With respect to
the Class A-4 Corridor Contract, the confirmation (reference # 1611175)
with a
trade date of June 26, 2007, evidencing a transaction between the Corridor
Counterparty and the Supplemental Interest Trustee. With respect to
the Subordinated Certificates Corridor Contract, the confirmation (reference
#
1611172) with a trade date of June 26, 2007, evidencing a transaction
between
the Corridor Counterparty and the Supplemental Interest Trustee.
Coop
Shares: Shares issued by a Cooperative Corporation.
Cooperative
Corporation: The entity that holds title (fee or an acceptable leasehold
estate) to the real property and improvements constituting the Cooperative
Property and which governs the Cooperative Property, which Cooperative
Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
6
Cooperative
Loan: Any Mortgage Loan secured by Coop Shares and a Proprietary
Lease.
Cooperative
Property: The real property and improvements owned by the Cooperative
Corporation, including the allocation of individual dwelling units to
the
holders of the Coop Shares of the Cooperative Corporation.
Cooperative
Unit: A single family dwelling located in a Cooperative
Property.
Corporate
Trust Office: The designated office of the Trustee in the State
of New York at which at any particular time its corporate trust business
with
respect to this Agreement shall be administered, which office at the
date of the
execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, 0X, Xxx
Xxxx, Xxx
Xxxx 00000 (Attn: Mortgage-Backed Securities Group, CWALT, Inc.
Series 2007-HY7C), facsimile no. (000) 000-0000, and which is the address
to
which notices to and correspondence with the Trustee should be
directed.
Corridor
Counterparty: Swiss Re Financial Products
Corporation.
Corridor
Termination Payment: The payment payable by the Corridor
Counterparty under the related corridor contract due to an early termination
of
the Class A-4 Corridor Contract or the Subordinated Certificates Corridor
Contract, as applicable.
Counterparty: The
Swap Counterparty or the Corridor Counterparty, as applicable.
Countrywide: Countrywide
Home Loans, Inc., a New York corporation and its successors and assigns,
in its
capacity as the seller of the Countrywide Mortgage Loans to the
Depositor.
Countrywide
Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which Countrywide is the applicable
Seller.
Countrywide
Servicing: Countrywide Home Loans Servicing LP, a Texas limited partnership
and its successors and assigns.
Covered
Certificates: In the case of (i) the Certificate Swap Contract,
the Senior Certificates (other than the Class A-R Certificates and Notional
Amount Certificates) and the Subordinated Certificates, (ii) the Class
A-1 Swap
Contract, the Class A-1 Certificates, (iii) the Class A-3 Swap Contract,
the
Class A-3 Certificates, (iv) the Class M-3 Swap Contract, the Class M-3
Certificates, (v) the Class A-4 Corridor Contract, the Class A-4 Certificates
and (vi) the Subordinated Certificates Corridor Contract, the Subordinated
Certificates.
Cumulative
Loss Trigger Event: With respect to a Distribution Date on or after the
Stepdown Date, the aggregate amount of Realized Losses on the Mortgage
Loans
from (and including) the Cut-off Date to (and including) the related
Due Date
(reduced by the aggregate amount of Subsequent Recoveries received from
the
Cut-off Date through the Prepayment Period related to that Due Date)
exceeds the
applicable percentage, for such Distribution Date, of the Cut-off Date
Pool
Principal Balance, as set forth below:
7
|
Distribution
Date
|
Percentage
|
|
July
2009 – June 2010
|
0.15%
with respect to July 2009, plus an additional 1/12th of
0.25% for each month thereafter through June 2010
|
|
July
2010 – June 2011
|
0.40%
with respect to July 2010, plus an additional 1/12th of
0.25% for each month thereafter through June 2011
|
|
July
2011 – June 2012
|
0.65%
with respect to July 2011, plus an additional 1/12th of
0.30% for each month thereafter through June 2012
|
|
July
2012 – June 2013
|
0.95%
with respect to July 2012, plus an additional 1/12th of
0.15% for each month thereafter through June 2013
|
|
July
2013 and thereafter
|
1.10%
|
Current
Interest: With respect to each Class of Senior Certificates and
Subordinated Certificates (other than the Class A-R Certificates) and each
Distribution Date, the interest accrued at the applicable Pass-Through Rate
for
the applicable Accrual Period on the Class Certificate Balance or Notional
Amount of such Class immediately prior to such Distribution Date. All
calculations of interest on the Non-Delay Certificates will be made on the
basis
of the actual number of days elapsed in the related Accrual Period and on
a
360-day year. All calculations of interest on the Delay Certificates
and the Class C Certificates will be made on the basis of a 360-day year
consisting of twelve 30-day months.
Cut-off
Date: As to any Mortgage Loan, the later of the date of
origination of that Mortgage Loan and June 1, 2007.
Cut-off
Date Pool Principal
Balance: $1,028,998,651.91.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off
Date.
Debt
Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy
Code
in the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or
any reduction that results in a permanent forgiveness of principal.
Defective
Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient
Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than
the then-outstanding indebtedness under the Mortgage Loan, or any reduction
in
the amount of principal to be paid in connection with any Scheduled Payment
that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of such court which is final and non-appealable in
a
proceeding under the Bankruptcy Code.
8
Definitive
Certificates: Any Certificate evidenced by a Physical Certificate
and any Certificate issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Delay
Certificates: As specified in the Preliminary Statement.
Delay
Delivery Certification: As defined in Section
2.02(a).
Delay
Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to the Trustee on the
Closing Date. With respect to up to 50% of the Mortgage Loans, the
Depositor may deliver all or a portion of each related Mortgage File to the
Trustee not later than thirty days after the Closing Date. To the
extent that Countrywide Servicing shall be in possession of any Mortgage
Files
with respect to any Delay Delivery Mortgage Loan, until delivery of such
Mortgage File to the Trustee as provided in Section 2.01, Countrywide Servicing
shall hold such files as Master Servicer hereunder, as agent and in trust
for
the Trustee.
Deleted
Mortgage Loan: As defined in Section 2.03(c).
Delinquency
Trigger Event: With respect to a Distribution Date on or after the Stepdown
Date, the Rolling Sixty-Day Delinquency Rate for the outstanding Mortgage
Loans
equals or exceeds the product of (i) 40.00% and (ii) the Senior Enhancement
Percentage for such Distribution Date.
Denomination: With
respect to each Certificate, the amount set forth on the face of that
Certificate as the “Initial Certificate Balance of this Certificate” or the
“Initial Notional Amount of this Certificate” or, if neither of the foregoing,
the Percentage Interest appearing on the face thereof.
Derivative
Account: Each of the Class A-1 Swap Account, the Class A-3 Swap
Account, the Class M-3 Swap Account, the Certificate Swap Account, the Class
A-4
Corridor Account and the Subordinated Certificates Corridor
Account.
Derivative
Agreements: Collectively, the Class A-1 Swap Contract, the Class
A-3 Swap Contract, the Class M-3 Swap Contract, the Certificate Swap Contract,
the Class A-4 Corridor Contract and the Subordinated Certificates Corridor
Contract.
Depositor: CWALT,
Inc., a Delaware corporation, or its successor in interest.
Depository: The
initial Depository shall be The Depository Trust Company, the nominee of
which
is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
9
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: As to any Distribution Date, the 22nd day
of each month
or, if such 22nd day is
not a
Business Day, the next preceding Business Day; provided, however, that if
such
22nd day or
such Business Day, whichever is applicable, is less than two Business Days
prior
to the related Distribution Date, the Determination Date shall be the first
Business Day that is two Business Days preceding such Distribution
Date.
Distribution
Account: The separate Eligible Account created and maintained by
the Trustee pursuant to Section 3.05(d) in the name of the Trustee for the
benefit of the Certificateholders and designated “The Bank of New York in trust
for registered holders of Alternative Loan Trust 2007-HY7C, Mortgage
Pass-Through Certificates, Series 2007-HY7C.” Funds in the
Distribution Account shall be held in trust for the Certificateholders for
the
uses and purposes set forth in this Agreement.
Distribution
Account Deposit Date: As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution
Date.
Distribution
Date: The 25th day
of each
calendar month after the initial issuance of the Certificates, or if such
25th day is
not
a Business Day, the next succeeding Business Day, commencing in July
2007.
Due
Date: With respect to a Mortgage Loan, the date on which
Scheduled Payments are due on that Mortgage Loan. With respect to any
Distribution Date, the related Due Date is the first day of the calendar
month
in which that Distribution Date occurs.
Due
Period: Not applicable.
XXXXX: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
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 does not have the requisite ratings and
is the
principal subsidiary of a holding company, the debt obligations of such holding
company) have (a) the highest short-term ratings of Xxxxx’x or Fitch and (b) (1)
if such Eligible Account is not the Pre-Funding Account or the Capitalized
Interest Account, one of the two highest short-term ratings of S&P (or, if
such entity does not have a short-term rating from S&P, the long-term
unsecured and unsubordinated debt obligations of such entity have a rating
from
S&P of at least “BBB+”) and (2) if such Eligible Account is the Pre-Funding
Account or the Capitalized Interest Account, the highest short-term ratings
of
S&P (or, if such entity does not have a short-term rating from S&P, the
long-term unsecured and unsubordinated debt obligations of such entity have
a
rating from S&P of at least “A+”) (ii) a segregated trust account or
accounts maintained with the corporate trust department of a federal or state
chartered depository institution subject to regulations regarding fiduciary
funds on deposit similar to Title 12 of the Code of Federal Regulations,
Chapter
I, Part 9, Section 9.10(b), which has corporate trust powers, acting in its
fiduciary capacity or (iii) any other account acceptable to each Rating
Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Trustee. In the event that the federal or state chartered depository
institution or trust company maintaining an Eligible Account described in
clause
(i) above no longer satisfies the credit rating of S&P set forth in clause
(i)(b)(1) above then the Person responsible for establishing such Eligible
Account shall cause any amounts on deposit therein to be moved to another
federal or state chartered depository institution or trust company satisfying
such credit rating of S&P within 30 calendar days. In the event
that the federal or state chartered depository institution or trust company
maintaining an Eligible Account described in clause (i) above no longer
satisfies the credit rating of S&P set forth in clause (i)(b)(2) above then
the Person responsible for establishing such Eligible Account shall cause
any
amounts on deposit therein to be moved to another federal or state chartered
depository institution or trust company satisfying such credit rating of
S&P
within 60 calendar days.
10
Eligible
Repurchase Month: As defined in Section 3.11.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting: A best efforts or firm commitment underwriting or
private placement that meets the requirements of the Underwriter’s
Exemption.
ERISA-Restricted
Certificate: As specified in the Preliminary
Statement.
Escrow
Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a).
Event
of Default: As defined in Section 7.01.
Excess
Cashflow: With respect to any Distribution Date, the sum of (i)
the amount remaining as set forth in Section 4.02(a)(6), (ii) the amount
remaining as set forth in Section 4.02(b)(A)(4) or 4.02(b)(B)(3), as applicable,
in each case for such Distribution Date and (iii) the Overcollateralization
Reduction Amount for that Distribution Date, if any.
Excess
Overcollateralization Amount: With respect to any Distribution
Date, the excess, if any, of the Overcollateralized Amount for the Distribution
Date over the Overcollateralization Target Amount for the Distribution
Date.
Excess
Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds received with
respect to such Mortgage Loan during the calendar month in which such Mortgage
Loan became a Liquidated Mortgage Loan plus any Subsequent Recoveries received
with respect to such Mortgage Loan, net of any amounts previously reimbursed
to
the Master Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3.08(a)(iii), exceeds (i) the unpaid principal balance
of such Liquidated Mortgage Loan as of the Due Date in the month in which
such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest
at
the Mortgage Rate from the Due Date as to which interest was last paid or
advanced (and not reimbursed) to Certificateholders up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
11
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange
Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under
the
Exchange Act.
Expense
Fee: As to each Mortgage Loan and any Distribution Date, the
product of the related Expense Fee Rate and its Stated Principal Balance
as of
that Distribution Date.
Expense
Fee Rate: As to each Mortgage Loan and any date of determination,
the sum of (a) the related Master Servicing Fee Rate and (b) the Trustee
Fee
Rate.
Extra
Principal Distribution Amount: With respect to any Distribution
Date, the lesser of (1) the Overcollateralization Deficiency Amount and (2)
the
Excess Cashflow available for payment pursuant to Section 4.02(c).
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home
Finance
Act of 1970, as amended, or any successor to the Federal Home Loan Mortgage
Corporation.
Final
Certification: As defined in Section 2.02(a) of this
Agreement.
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
Fitch:
Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group, or such other address as Fitch may hereafter
furnish to the Depositor and the Master Servicer.
FNMA: The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor to the Federal National Mortgage
Association.
Form
10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending (a) against such Person or
(b)
against any of the Trust Fund, the Depositor, the Trustee, any co-trustee,
the
Master Servicer or any Subservicer, if such Person has actual knowledge
thereof.
Form
10-K Disclosure Item: With respect to any Person, (a) any Form
10-D Disclosure Item and (b) any affiliations or relationships between such
Person and any Item 1119 Party.
Gross
Margin: The percentage set forth in the related Mortgage Note for
the Mortgage Loans to be added to the Mortgage Index for use in determining
the
Mortgage Rate on each Adjustment Date, and which is set forth in the Mortgage
Loan Schedule.
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Guarantees: The
two guarantees of the Guarantor in favor of the Supplemental Interest Trustee
of
all of the Corridor Counterparty’s obligations under each of the Class A-4
Corridor Contract and the Subordinated Certificates Contract, each dated
as of
June 29, 2007.
Guarantor: Swiss
Reinsurance Company.
Index: With
respect to any Accrual Period for the COFI Certificates, if any, the
then-applicable index used by the Trustee pursuant to Section 4.07 to determine
the applicable Pass-Through Rate for such Accrual Period for the COFI
Certificates.
Indirect
Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial
Certification: As defined in Section 2.02(a).
Initial
Component Balance: As specified in the Preliminary
Statement.
Initial
LIBOR Rate: 5.320%.
Initial
Periodic Rate Cap: As to each Mortgage Loan and the related
Mortgage Note, the provision therein that limits permissible increases and
decreases in the Mortgage Rate on the first Adjustment Date for that Mortgage
Loan to not more than the amount set forth therein.
Insurance
Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including all riders and endorsements thereto
in
effect, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest
Carry Forward Amount: With respect to each Class of Senior
Certificates (other than the Class A-R Certificates) and Subordinated
Certificates and each Distribution Date, the excess of (i) the Current Interest
for such Class with respect to prior Distribution Dates over (ii) the amount
actually distributed to such Class with respect to interest on such prior
Distribution Dates.
Interest
Determination Date: With respect to (a) any Accrual Period for
any LIBOR Certificates and (b) any Accrual Period for the COFI Certificates
for
which the applicable Index is LIBOR, the second Business Day prior to the
first
day of such Accrual Period. With respect to the MTA Certificates, the
15th day prior
to the commencement of each Accrual Period or, if such 15th day is
not a
Business Day, the next preceding Business Day.
Interest
Funds: With respect to any Distribution Date, the excess of the
Interest Remittance Amount over the Trustee Fee for such Distribution
Date.
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Interest
Remittance Amount: With respect to any Distribution Date, (x) the
sum, without duplication, of (i) all scheduled interest on the Mortgage Loans
due on the related Due Date and received on or prior to the related
Determination Date, less the related Master Servicing Fees and any payments
made
in respect of premiums on Lender PMI Mortgage Loans, (ii) all interest on
Principal Prepayments on the Mortgage Loans, other than Prepayment Interest
Excess, (iii) all Advances relating to interest with respect to the Mortgage
Loans, (iv) the lesser of the aggregate Prepayment Interest Shortfall and
the
Compensating Interest and (v) Liquidation Proceeds during the related Prepayment
Period (to the extent such Liquidation Proceeds relate to interest), less
(y)
all reimbursements to the Master Servicer since the immediately preceding
Due
Date for Advances of interest previously made.
Investment
Letter: As defined in Section 5.02(b).
ISDA
Master Agreement: With respect to the Class A-1 Swap Contract,
the Class A-3 Swap Contract, the Class M-3 Swap Contract and the Certificate
Swap Contract, the 1992 ISDA Master Agreement (Multicurrency – Cross Border),
including the Schedule and Credit Support Annex thereto, dated June 29, 2007,
between the Swap Counterparty and the Supplemental Interest
Trustee.
Item
1119 Party: The Depositor, any Seller, the Master Servicer, the
Trustee, any Subservicer, any originator identified in the Prospectus
Supplement, each Counterparty and any other material transaction party, as
identified in Exhibit X hereto, as updated pursuant to Section
11.04.
Latest
Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender
PMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the Mortgagor) acquires the Primary Insurance Policy and charges
the related Mortgagor an interest premium.
LIBOR: The
London interbank offered rate for one-month United States dollar deposits
calculated in the manner described in Section 4.08.
LIBOR
Certificates: As specified in the Preliminary
Statement.
Limited
Exchange Act Reporting Obligations: The obligations of the Master
Servicer under Section 3.16(b), Section 6.02 and Section 6.04 with respect
to
notice and information to be provided to the Depositor and Article XI (except
Section 11.07(a)(1) and (2)).
Liquidated
Mortgage Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the Master
Servicer has determined (in accordance with this Agreement) that it has received
all amounts it expects to receive in connection with the liquidation of such
Mortgage Loan, including the final disposition of an REO Property.
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Liquidation
Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage
Loans,
whether through trustee’s sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Master Servicing Fees, Servicing Advances
and Advances.
Loan-to-Value
Ratio: With respect to any Mortgage Loan and as to any date of
determination, the fraction (expressed as a percentage) the numerator of
which
is the principal balance of the related Mortgage Loan at that date of
determination and the denominator of which is the Appraised Value of the
related
Mortgaged Property.
Lost
Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance:
With respect to any Cooperative Unit, the rent paid by the Mortgagor to the
Cooperative Corporation pursuant to the Proprietary Lease.
Majority
in Interest: As to any Class of Regular Certificates, the Holders
of Certificates of such Class evidencing, in the aggregate, at least 51%
of the
Percentage Interests evidenced by all Certificates of such Class.
Master
REMIC: As described in the Preliminary Statement.
Master
Servicer: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as master servicer
hereunder.
Master
Servicer Advance Date: As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution
Date.
Master
Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount payable out of each full payment of interest received on
such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the
Due
Date in the month preceding the month of such Distribution Date, subject
to
reduction as provided in Section 3.14.
Master
Servicing Fee Rate: With respect to each Mortgage Loan, 0.250%
per annum prior to and including the initial Adjustment Date for such Mortgage
Loan and 0.375% per annum thereafter.
Maximum
Mortgage Rate: With respect to each Mortgage Loan, the maximum
rate of interest set forth as such in the related Mortgage Note.
Maximum
Rate: 10.50% per annum.
MERS: Mortgage
Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor to Mortgage Electronic
Registration Systems, Inc.
15
MERS
Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS® System.
MERS®
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
mortgage identification number for any MERS Mortgage Loan.
Minimum
Mortgage Rate: With respect to each Mortgage Loan, the minimum
rate of interest set forth as such in the related Mortgage Note, which, with
respect to certain Mortgage Loans is equal to the related Gross
Margin.
MOM
Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly
Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody’s: Xxxxx’x
Investors Service, Inc., or any successor thereto. If Xxxxx’x is
designated as a Rating Agency in the Preliminary Statement, for purposes
of
Section 10.05(b) the address for notices to Moody’s shall be Xxxxx’x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody’s may
hereafter furnish to the Depositor or the Master Servicer.
Mortgage: The
mortgage, deed of trust or other instrument creating a first lien on an estate
in fee simple or leasehold interest in real 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 delivered
to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Index: As to each Mortgage Loan, the index from time to time in
effect for adjustment of the Mortgage Rate as set forth as such on the related
Mortgage Note.
Mortgage
Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the addition of Substitute Mortgage
Loans and the deletion of Deleted Mortgage Loans pursuant to the provisions
of
this Agreement) transferred to the Trustee as part of the Trust Fund and
from
time to time subject to this Agreement, attached to this Agreement as Schedule
I, setting forth the following information with respect to each Mortgage
Loan:
(i) the
loan number;
(ii) [Reserved];
(iii) the
Mortgagor’s name and the street address of the Mortgaged Property, including the
zip code;
(iv) the
maturity date;
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(v) the
original principal balance;
(vi) the
Cut-off Date Principal Balance;
(vii) the
first payment date of the Mortgage Loan;
(viii) the
Scheduled Payment in effect as of the Cut-off Date;
(ix) the
Loan-to-Value Ratio at origination;
(x) a
code indicating whether the residential dwelling at the time of origination
was
represented to be owner-occupied;
(xi) a
code indicating whether the residential dwelling is either (a) a
detached or attached single family dwelling, (b) a dwelling in a
de minimis PUD, (c) a condominium unit or PUD (other than a de minimis PUD)
or (d) a two- to four-unit residential property or (e) a Cooperative
Unit;
(xii) the
Mortgage Rate as of the Cut-off Date;
(xiii) the
initial Payment Adjustment Date for each Mortgage Loan;
(xiv) a
code indicating whether the Mortgage Loan is a Lender PMI Mortgage Loan and,
in
the case of any Lender PMI Mortgage Loan, a percentage representing the amount
of the related interest premium charged to the borrower;
(xv) the
purpose for the Mortgage Loan;
(xvi) the
type of documentation program pursuant to which the Mortgage Loan was
originated;
(xvii) a
code indicating whether the Mortgage Loan is a Countrywide Mortgage Loan,
a Park
Granada Mortgage Loan, a Park Monaco Mortgage Loan or a Park Sienna Mortgage
Loan;
(xviii) the
direct servicer of such Mortgage Loan as of the Cut-off Date;
(xix) a
code indicating whether the Mortgage Loan is a MERS Mortgage Loan;
(xx) with
respect to each Mortgage Loan, the Gross Margin, the Mortgage Index, the
Maximum
Mortgage Rate and the Minimum Mortgage Rate;
(xxi) the
initial Adjustment Date;
(xxii) a
code indicating the type of Prepayment Charge;
(xxiii) the
state of origination of the related Mortgage Loan; and
(xxiv) the
term of the related Prepayment Charge.
17
The
Mortgage Loan Schedule shall be amended from time to time by the Master Servicer
in accordance with the provisions of this Agreement and a copy of each amendment
to the Mortgage Loan Schedule related to clauses (xxii), (xxiii) and (xxiv)
thereof shall be furnished by the Master Servicer to the Class P and Class
C
Certificateholders and the NIM Insurer.
Mortgage
Loans: Such of the mortgage loans as from time to time are
transferred and assigned to the Trustee pursuant to the provisions of this
Agreement and that are held as a part of the Trust Fund (including any REO
Property), the mortgage loans so held being identified in the Mortgage Loan
Schedule, notwithstanding foreclosure or other acquisition of title of the
related Mortgaged Property.
Mortgage
Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage
Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage
Rate: The annual rate of interest borne by a Mortgage Note from
time to time, net of any interest premium charged by the mortgagee to obtain
or
maintain any Primary Insurance Policy.
Mortgaged
Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The
obligor(s) on a Mortgage Note.
MTA: The
twelve-month average monthly yield on U.S. Treasury Securities adjusted to
a
constant maturity of one-year, as published by the Federal Reserve Board
in the
Federal Reserve Statistical Release “Selected Interest Rates
(H.15)”.
MTA
Certificates: As specified in the Preliminary
Statement.
National
Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net
Prepayment Interest Shortfalls: As to any Distribution Date, the excess of
the aggregate Prepayment Interest Shortfalls for such Distribution Date over
the
Compensating Interest for such Distribution Date.
Net
Rate Cap: For any Class of LIBOR Certificates and each
Distribution Date, a per annum rate equal to the product of (A) the excess,
if
any, of, (i) the Weighted Average Adjusted Net Mortgage Rate for that
Distribution Date over (ii) a fraction, expressed as a percentage, (1) the
numerator of which is the product of (a) the sum of (x) the Net Swap Payment
payable to the Swap Counterparty under the Certificate Swap Contract on such
Distribution Date, (y) any Swap Termination Payment payable to the Swap
Counterparty under the Certificate Swap Contract on such Distribution Date
(other than a Swap Termination Payment due to a Swap Counterparty Trigger
Event)
and (z) the amount of Current Interest and Interest Carry Forward Amount
distributed to the Class X Certificates on such Distribution Date and (b)
12 and
(2) the denominator of which is the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Due Date occurring in the month preceding the month
of
that Distribution Date (after giving effect to Principal Prepayments received
in
the Prepayment Period related to that prior Due Date) and (B) a fraction,
the
numerator of which is 30 and the denominator of which is the actual number
of
days in the related Accrual Period.
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Net
Rate Carryover: For any Class of LIBOR Certificates and any
Distribution Date, the excess of (i) the amount of interest that such Class
would have accrued for such Distribution Date had the Pass-Through Rate for
that
Class and the related Accrual Period not been calculated based on the Net
Rate
Cap (but still subject to the Maximum Rate), over (ii) the amount of interest
such Class accrued for such Distribution Date based on the Net Rate Cap,
plus
the unpaid portion of any such excess from prior Distribution Dates (and
interest accrued thereon at the then applicable Pass-Through Rate, but not
in
excess of the Maximum Rate, without giving effect to the Net Rate
Cap).
Net
Swap Payment: With respect to the Class A-1 Swap Contract, the
Class A-3 Swap Contract or the Class M-3 Swap Contract, as applicable, any
Distribution Date and payment by the Supplemental Interest Trustee to the
Swap
Counterparty, the excess, if any, of the “Floating Amount II” (as defined in the
related swap contract) with respect to such Distribution Date over the “Floating
Amount I” (as defined in the related swap contract) with respect to such
Distribution Date. With respect to the Class A-1 Swap Contract, the
Class A-3 Swap Contract or the Class M-3 Swap Contract, as applicable, any
Distribution Date and payment by the Swap Counterparty to the Supplemental
Interest Trustee, the excess, if any, of the “Floating Amount I” with respect to
such Distribution Date over the “Floating Amount II” with respect to such
Distribution Date.
With
respect to the Certificate Swap Contract, any Distribution Date and payment
by
the Supplemental Interest Trustee to the Swap Counterparty, the excess, if
any,
of the “Fixed Amount” (as defined in the Certificate Swap Contract) with respect
to such Distribution Date over the “Floating Amount” (as defined in the
Certificate Swap Contract) with respect to such Distribution
Date. With respect to the Certificate Swap Contract, any Distribution
Date and payment by the Swap Counterparty to the Supplemental Interest Trustee,
the excess, if any, of the “Floating Amount” (as defined in the Certificate Swap
Contract) with respect to such Distribution Date over the “Fixed Amount” (as
defined in the Certificate Swap Contract) with respect to such Distribution
Date.
NIM
Insurer: Any insurer guarantying at the request of Countrywide certain
payments under notes backed or secured by the Class C or Class P
Certificates.
Non-Delay
Certificates: As specified in the Preliminary
Statement.
Nonrecoverable
Advance: Any portion of an Advance previously made or proposed to
be made by the Master Servicer that, in the good faith judgment of the Master
Servicer, will not be ultimately recoverable by the Master Servicer from
the
related Mortgagor, related Liquidation Proceeds or otherwise.
Notice
of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender
thereof.
19
Notional
Amount: With respect to the Class X Certificates and the Accrual
Period for any Distribution Date, the aggregate Stated Principal Balance
of the
Mortgage Loans in Sub-Group X as of the Due Date in the preceding calendar
month
(after giving effect to Principal Prepayments received in the Prepayment
Period
related to such prior Due Date).
Notional
Amount Certificates: As specified in the Preliminary
Statement.
OC
Floor: An amount equal to 0.35% of the Cut-off Date Pool
Principal Balance.
Offered
Certificates: As specified in the Preliminary
Statement.
Officer’s
Certificate: A certificate (i) in the case of the Depositor,
signed by the Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President (however denominated), an
Assistant Vice President, the Treasurer, the Secretary, or one of the Assistant
Treasurers or Assistant Secretaries of the Depositor, (ii) in the case of
the
Master Servicer, signed by the President, an Executive Vice President, a
Vice
President, an Assistant Vice President, the Treasurer, or one of the Assistant
Treasurers or Assistant Secretaries of Countrywide GP, Inc., its general
partner, (iii) if provided for in this Agreement, signed by a Servicing Officer,
as the case may be, and delivered to the Depositor and the Trustee, as the
case
may be, as required by this Agreement or (iv) in the case of any other Person,
signed by an authorized officer of such Person.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for
a Seller, the Depositor or the Master Servicer, including, in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect
to
the interpretation or application of the REMIC Provisions, such counsel must
(i)
in fact be independent of a Seller, the Depositor and the Master Servicer,
(ii)
not have any direct financial interest in a Seller, the Depositor or the
Master
Servicer or in any affiliate thereof, and (iii) not be connected with a Seller,
the Depositor or the Master Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Optional
Termination Date: The first Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than or
equal
to 10% of the Cut-off Date Pool Principal Balance.
Original
Mortgage Loan: The mortgage loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
OTS: The
Office of Thrift Supervision.
Outside
Reference Date: As to any Accrual Period for the COFI
Certificates, the close of business on the tenth day thereof.
Outstanding: With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and
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(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Trustee pursuant to this Agreement.
Outstanding
Mortgage Loan: As of any Due Date, a Mortgage Loan with a Stated
Principal Balance greater than zero, which was not the subject of a Principal
Prepayment in Full prior to the end of the related Prepayment Period and
which
did not become a Liquidated Mortgage Loan prior to the end of the related
Prepayment Period.
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
Reduction Amount: With respect to any Distribution Date, the
lesser of (i) the Excess Overcollateralization Amount for such Distribution
Date
and (ii) the Principal Remittance Amount for such Distribution
Date.
Overcollateralization
Target Amount: With respect to any Distribution Date, (i) prior
to the Stepdown Date, an amount equal to the OC Floor and (ii) on or after
the
Stepdown Date, an amount equal to the greater of (a) the product of (1) 0.70%
and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
Due Date in the month of that Distribution Date (after giving effect to
Principal Prepayments in the related Prepayment Period) and (b) the OC Floor;
provided, however, that if a Trigger Event is in effect on any Distribution
Date, the Overcollateralization Target Amount will be the Overcollateralization
Target Amount as in effect for the prior Distribution Date.
Overcollateralized
Amount: For any Distribution Date, the amount, if any, by which
(x) the aggregate Stated Principal Balance of the Mortgage Loans as of the
Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (y) the aggregate
Class Certificate Balance of the Senior Certificates and Subordinated
Certificates as of such Distribution Date (after giving effect to distributions
of the Principal Remittance Amount to be made on such Distribution
Date).
Ownership
Interest: As to any Residual Certificate, any ownership 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.
Park
Granada: Park Granada LLC, a Delaware limited liability company,
and its successors and assigns, in its capacity as the seller of the Park
Granada Mortgage Loans to the Depositor.
Park
Granada Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Granada is the applicable
Seller.
Park
Monaco: Park Monaco Inc., a Delaware corporation, and its
successors and assigns, in its capacity as the seller of the Park Monaco
Mortgage Loans to the Depositor.
21
Park
Monaco Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Monaco is the applicable
Seller.
Park
Sienna: Park Sienna LLC, a Delaware limited liability company,
and its successors and assigns, in its capacity as the seller of the Park
Sienna
Mortgage Loans to the Depositor.
Park
Sienna Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Sienna is the applicable
Seller.
Pass-Through
Margin: With respect to the Accrual Period for any Distribution
Date and Class of LIBOR Certificates, the per annum rate indicated in the
following table:
|
Class
of LIBOR Certificates
|
Pass-Through
Margin
|
|||
|
(1)
|
(2)
|
|||
|
Class
A-1
|
0.140%
(3)
|
0.280%
(3)
|
||
|
Class
A-2
|
0.310%
|
0.620%
|
||
|
Class
A-3
|
0.230%
(4)
|
0.460%
(4)
|
||
|
Class
A-4
|
0.230%
|
0.460%
|
||
|
Class
M-1
|
0.380%
|
0.570%
|
||
|
Class
M-2
|
0.400%
|
0.600%
|
||
|
Class
M-3
|
0.620%(5)
|
0.930%(5)
|
||
|
Class
M-4
|
1.200%
|
1.800%
|
||
|
Class
M-5
|
1.500%
|
2.250%
|
||
|
Class
M-6
|
2.250%
|
3.375%
|
||
|
Class
M-7
|
2.500%
|
3.750%
|
||
|
Class
M-8
|
2.250%
|
3.375%
|
||
|
Class
M-9
|
2.250%
|
3.375%
|
||
__________
|
(1)
|
For
the Accrual Period related to any Distribution Date occurring on
or prior
to the Optional Termination Date.
|
|
(2)
|
For
the Accrual Period related to any Distribution Date occurring after
the
Optional Termination Date.
|
|
(3)
|
In
the event that the Class A-1 Swap Contract is terminated, the Pass-Through
Margin listed above for the Class A-1 Certificates will increase
by 0.07%
on or prior to the Optional Termination Date and will increase
by 0.14%
after the Optional Termination
Date.
|
|
(4)
|
In
the event that the Class A-3 Swap Contract is terminated, the Pass-Through
Margin listed above for the Class A-3 Certificates will increase
by 0.07%
on or prior to the Optional Termination Date and will increase
by 0.14%
after the Optional Termination
Date.
|
|
(5)
|
In
the event that the Class M-3 Swap Contract is terminated, the Pass-Through
Margin listed above for the Class M-3 Certificates will increase
by 0.20%
on or prior to the Optional Termination Date and will increase
by 0.30%
after the Optional Termination
Date.
|
Pass-Through
Rate: With respect to any Accrual Period and each Class of LIBOR
Certificates, the least of (x) LIBOR for such Accrual Period plus the
Pass-Through Margin for such Class and Accrual Period, (y) the Net Rate Cap
for
such Class and the related Distribution Date and (z) the Maximum
Rate.
With
respect to the Class X Certificates and (i) any Accrual Period related to
a
Distribution Date on or prior to the Distribution Date in June 2017, 0.65%
per
annum, and (ii) any Accrual Period related to a Distribution Date after the
Distribution Date in June 2017, 1.65% per annum.
The
Class
A-R Certificates do not have a Pass-Through Rate.
22
Payment
Adjustment Date: For each Mortgage Loan, the date specified in
the related Mortgage Note as the annual date on which the related Scheduled
Payment will be adjusted.
Percentage
Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to
the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same
Class. With respect to the Class C, Class P and Class A-R
Certificates, the portion of the Class evidenced thereby, expressed as a
percentage, as stated on the face of such Certificate.
Performance
Certification: As defined in Section 11.05.
Permitted
Investments: At any time, any one or more of the following
obligations and securities, each of which shall mature no later than 60 days
after acquisition:
(i) obligations
of the United States or any agency thereof, provided such obligations are
backed
by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency, or such lower rating
as will
not result in the downgrading or withdrawal of the ratings then assigned
to the
Certificates by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial
paper
and/or long term unsecured debt obligations of such depository institution
or
trust company (or in the case of the principal depository institution in
a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx’x is not a Rating Agency)
are then rated one of the two highest long-term and the highest short-term
ratings of each Rating Agency for such securities, or such lower ratings
as will
not result in the downgrading or withdrawal of the rating then assigned to
the
Certificates by either Rating Agency;
(v) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(vi) units
of a taxable money-market portfolio having the highest rating assigned by
each
Rating Agency (except if Fitch is a Rating Agency and has not rated the
portfolio, the highest rating assigned by Moody’s) and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States
of
America and repurchase agreements collateralized by such obligations;
and
23
(vii) such
other relatively risk free investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either Rating
Agency, as evidenced by a signed writing delivered by each Rating Agency,
and
reasonably acceptable to the NIM Insurer, as evidenced by a signed writing
delivered by the NIM Insurer;
provided,
that no such instrument shall be a Permitted Investment if such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument.
Permitted
Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality
of any
of the foregoing, (ii) a foreign government, International Organization or
any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the
tax
imposed by Section 511 of the Code on unrelated business taxable income)
on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect
to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) an “electing large
partnership” as defined in Section 775 of the Code, (vi) a Person that is not 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, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the
conduct
of a trade or business within the United States 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 unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service
Form
W-8ECI or any applicable successor form, and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Residual Certificate to such Person may cause
any
REMIC created under this Agreement to fail to qualify as a REMIC at any time
that the Certificates are outstanding. The terms “United States,”
“State” and “International Organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State
or
political subdivision thereof for these purposes if all of its activities
are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
Person: Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificate: As specified in the Preliminary
Statement.
24
Plan: An
“employee benefit plan” as defined in section 3(3) of ERISA that is subject to
Title I of ERISA, a “plan” as defined in section 4975 of the Code that is
subject to section 4975 of the Code, or any Person investing on behalf of
or
with plan assets (as defined in 29 CFR §2510.3-101 or otherwise under ERISA) of
such an employee benefit plan or plan.
Pool
Stated Principal Balance: The aggregate of the Stated Principal
Balances of the Outstanding Mortgage Loans.
Pool
Tax Cap: As defined in the Preliminary Statement.
Pre-Funding
Account: Not applicable.
Prepayment
Charge: With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of
such
Mortgage Loan within the related Prepayment Charge Period in accordance with
the
terms thereof.
Prepayment
Charge Amount: As to any Distribution Date, the sum of the
Prepayment Charges collected on the Mortgage Loans during the related Prepayment
Period and any amounts paid pursuant to Section 3.20 with respect to such
Distribution Date.
Prepayment
Charge Period: With respect to any Mortgage Loan, the period of
time during which a Prepayment Charge may be imposed.
Prepayment
Interest Excess: As to any Principal Prepayment received by the
Master Servicer from the first day through the fifteenth day of any calendar
month (other than the calendar month in which the Cut-off Date occurs), all
amounts paid by the related Mortgagor in respect of interest on such Principal
Prepayment. All Prepayment Interest Excess shall be paid to the
Master Servicer as additional master servicing compensation.
Prepayment
Interest Shortfall: As to any Distribution Date, Mortgage Loan
and Principal Prepayment received on or after the sixteenth day of the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, on or after June 1, 2007) and on or before the last day
of
the month preceding the month of such Distribution Date, the amount, if any,
by
which one month’s interest at the related Mortgage Rate, net of the related
Master Servicing Fee Rate, on such Principal Prepayment exceeds the amount
of
interest paid in connection with such Principal Prepayment.
Prepayment
Period: As to any Distribution Date and the related Due Date, the
period from the 16th day of
the
calendar month immediately preceding the month in which the Distribution
Date
occurs (or, in the case of the first Distribution Date, from June 1, 2007)
through the 15th day of
the
calendar month in which the Distribution Date occurs.
Primary
Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Prime
Rate: The prime commercial lending rate of The Bank of New York,
as publicly announced to be in effect from time to time. The Prime
Rate shall be adjusted automatically, without notice, on the effective date
of
any change in such prime commercial lending rate. The Prime Rate is
not necessarily The Bank of New York’s lowest rate of interest.
25
Principal
Distribution Amount: With respect to each Distribution Date, the
sum of: (1) the excess of (A) the Principal Remittance Amount for such
Distribution Date over (B) the sum of (i) any portion of such amount used
to
cover any Net Swap Payment or Swap Termination Payment (other than a Swap
Termination Payment due to a Swap Counterparty Trigger Event) due to the
Swap
Counterparty under the Certificate Swap Contract with respect to such
Distribution Date not paid from the Interest Funds and (ii) the
Overcollateralization Reduction Amount for such Distribution Date, and (2)
the
Extra Principal Distribution Amount for such Distribution Date.
Principal
Net Swap Payment: With respect to any Distribution Date, the sum
of (i) the excess, if any, of any Net Swap Payment payable to the Swap
Counterparty under the Certificate Swap Contract on such Distribution Date
over
the Interest Funds for such Distribution Date and (ii) the aggregate amount
of
such excess for all previous Distribution Dates.
Principal
Prepayment: Any payment of principal by a Mortgagor on a Mortgage
Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date
or
dates in any month or months subsequent to the month of
prepayment. Partial Principal Prepayments shall be applied by the
Master Servicer in accordance with the terms of the related Mortgage
Note.
Principal
Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal
Remittance Amount: As to any Distribution Date, (x) the sum,
without duplication, of (a) the principal portion of each Scheduled Payment
(without giving effect to any reductions thereof caused by any Debt Service
Reductions or Deficient Valuations) collected or advanced on each Mortgage
Loan
(other than a Liquidated Mortgage Loan) on the related Due Date, (b) the
principal portion of the Purchase Price of each Mortgage Loan that was
repurchased by the applicable Seller or purchased by the Master Servicer
pursuant to this Agreement as of such Distribution Date, (c) the Substitution
Adjustment Amount in connection with any Deleted Mortgage Loan received with
respect to such Distribution Date, (d) any Insurance Proceeds or Liquidation
Proceeds allocable to recoveries of principal of Mortgage Loans that are
not yet
Liquidated Mortgage Loans received during the calendar month preceding the
month
of such Distribution Date, (e) with respect to each Mortgage Loan that became
a
Liquidated Mortgage Loan during the related Prepayment Period, the amount
of the
Liquidation Proceeds allocable to principal received during such Prepayment
Period with respect to such Mortgage Loan, (f) all Principal Prepayments
on the
Mortgage Loans received during the related Prepayment Period and (g) any
Subsequent Recoveries on the Mortgage Loans received during the related
Prepayment Period minus (y) all non-recoverable Advances on the
Mortgage Loans relating to principal and certain expenses reimbursable pursuant
to Section 6.03 and reimbursed since the immediately preceding Due
Date.
Principal
Reserve Fund: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 3.05(c) in the name of the
Trustee
for the benefit of the Holders of the Class P Certificates and designated
“The
Bank of New York in trust for registered holders of CWALT, Inc., Alternative
Loan Trust 2007-HY7C, Mortgage Pass-Through Certificates, Series
2007-HY7C.” Funds in the Principal Reserve Fund shall be held in
trust for the Holders of the Class P Certificates for the uses and purposes
set
forth in this Agreement.
26
Private
Certificate: As specified in the Preliminary
Statement.
Proprietary
Lease: With respect to any Cooperative Unit, a lease or occupancy agreement
between a Cooperative Corporation and a holder of related Coop
Shares.
Prospectus: The
prospectus dated June 27, 2007 generally relating to mortgage pass-through
certificates to be sold by the Depositor.
Prospectus
Supplement: The prospectus supplement dated June 28, 2007
relating to the Offered Certificates.
PUD: Planned
Unit Development.
Purchase
Price: With respect to any Mortgage Loan required to be purchased
by the applicable Seller pursuant to Section 2.02 or 2.03 or purchased at
the option of the Master Servicer pursuant to Section 3.11, an amount equal
to the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan
on the date of such purchase, (ii) accrued interest thereon at the
applicable Mortgage Rate (or at the applicable Adjusted Mortgage Rate if
(x) the purchaser is the Master Servicer or (y) if the purchaser is
Countrywide and Countrywide is an affiliate of the Master Servicer) from
the
date through which interest was last paid by the Mortgagor to the Due Date
in
the month in which the Purchase Price is to be distributed to Certificateholders
and (iii) costs and damages incurred by the Trust Fund in connection with
a
repurchase pursuant to Section 2.03 that arises out of a violation of any
predatory or abusive lending law with respect to the related Mortgage
Loan.
Qualified
Insurer: A mortgage guaranty insurance company duly qualified as
such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states
to
transact a mortgage guaranty insurance business in such states and to write
the
insurance provided by the insurance policy issued by it, approved as a
FNMA-approved mortgage insurer and having a claims paying ability rating
of at
least “AA” or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan
must have at least as high a claims paying ability rating as the insurer
it
replaces had on the Closing Date.
Rating
Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in
existence, “Rating Agency” shall be such nationally recognized statistical
rating organization, or other comparable Person, identified as a “Rating Agency”
under the Underwriter’s Exemption, as is designated by the Depositor, notice of
which designation shall be given to the Trustee. References in this
Agreement to a given rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Adjusted Net Mortgage
Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation,
if
the principal amount due under the related Mortgage Note has been reduced,
the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the
Mortgage Loan as reduced by the Deficient Valuation. With respect to
each Mortgage Loan which has become the subject of a Debt Service Reduction
and
any Distribution Date, the amount, if any, by which the principal portion
of the
related Scheduled Payment has been reduced.
27
To
the
extent the Master Servicer receives Subsequent Recoveries with respect to
any
Mortgage Loan, the amount of Realized Losses with respect to that Mortgage
Loan
will be reduced by the amount of such Subsequent Recoveries.
Recognition
Agreement: With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative
Property.
Record
Date: With respect to any Distribution Date and the Delay
Certificates, the last Business Day of the month preceding the month of that
Distribution Date. With respect to any Distribution Date and the
Non-Delay Certificates, the Business Day immediately preceding such Distribution
Date, or if such Certificates are no longer Book-Entry Certificates, the
last
Business Day of the month preceding the month of such Distribution
Date.
Reference
Bank: As defined in Section 4.08(b).
Refinancing
Mortgage Loan: Any Mortgage Loan originated in connection with
the refinancing of an existing mortgage loan.
Regular
Certificates: As specified in the Preliminary
Statement.
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, 1,531 (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.
Relief
Act: The Servicemembers Civil Relief Act and any similar state or
local laws.
REMIC: A
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC
Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
28
REMIC
Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may
be in
effect from time to time as well as provisions of applicable state
laws.
REO
Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable
Event: Any event required to be reported on Form 8-K, and in any
event, the following:
(a) entry
into a definitive agreement related to the Trust Fund, the Certificates or
the
Mortgage Loans, or an amendment to a Transaction Document, even if the Depositor
is not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination
of a Transaction Document (other than by expiration of the agreement on its
stated termination date or as a result of all parties completing their
obligations under such agreement), even if the Depositor is not a party to
such
agreement (e.g., a servicing agreement with a servicer contemplated by Item
1108(a)(3) of Regulation AB);
(c) with
respect to the Master Servicer only, if the Master Servicer becomes aware
of any
bankruptcy or receivership with respect to Countrywide, the Depositor, the
Master Servicer, any Subservicer, the Trustee, a Counterparty, any enhancement
or support provider contemplated by Items 1114(b) or 1115 of Regulation AB,
or
any other material party contemplated by Item 1101(d)(1) of Regulation
AB;
(d) with
respect to the Trustee, the Master Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) the
resignation, removal, replacement, substitution of the Master Servicer, any
Subservicer or the Trustee;
(f) with
respect to the Master Servicer only, if the Master Servicer becomes aware
that
(i) any material enhancement or support specified in Item 1114(a)(1) through
(3)
of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more classes of the Certificates has terminated other than
by
expiration of the contract on its stated termination date or as a result
of all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or
Item
1115 of Regulation AB has been added with respect to one or more Classes
of the
Certificates; or (iii) any existing material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(g) with
respect to the Trustee, the Master Servicer and the Depositor only, a required
distribution to Holders of the Certificates is not made as of the required
Distribution Date under this Agreement.
29
Reporting
Subcontractor: With respect to the Master Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to Section
11.08(b) to be “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB. References to a Reporting Subcontractor
shall refer only to the Subcontractor of such Person and shall not refer
to
Subcontractors generally.
Request
for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N to
this
Agreement, as appropriate.
Required
Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this
Agreement.
Residual
Certificates: As specified in the Preliminary
Statement.
Responsible
Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and
also to whom, with respect to a particular matter, such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
Rolling
Sixty-Day Delinquency Rate: With respect to any Distribution Date
on or after the Stepdown Date, the average of the Sixty-Day Delinquency Rates
for such Distribution Date and the two immediately preceding Distribution
Dates.
S&P: Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be
Standard & Poor’s, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage Surveillance Monitoring, or such other address as S&P may hereafter
furnish to the Depositor and the Master Servicer.
Xxxxxxxx-Xxxxx
Certification: As defined in Section 11.05.
Scheduled
Balances: Not applicable.
Scheduled
Classes: As specified in the Preliminary Statement.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan
which,
unless otherwise specified in this Agreement, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount
of
the monthly payment due on such Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended.
Seller: Countrywide,
Park Granada, Park Monaco or Park Sienna, as applicable.
Senior
Certificates: As specified in the Preliminary
Statement.
Senior
Enhancement Percentage: With respect to a Distribution Date on
and after the Stepdown Date, the fraction (expressed as a percentage) (1)
the
numerator of which is the excess of (a) the aggregate Stated Principal Balance
of the Mortgage Loans as of the Due Date in the month prior to that Distribution
Date (after giving effect to Principal Prepayments in the Prepayment Period
related to that prior Due Date) over (b) (i) before the Class Certificate
Balances of the Senior Certificates have been reduced to zero, the sum of
the
Class Certificate Balances of the Senior Certificates, or (ii) after the
Class
Certificate Balances of the Senior Certificates have been reduced to zero,
the
Class Certificate Balance of the most senior Class of Subordinated Certificates
outstanding as of the Business Day immediately preceding the Distribution
Date
in the calendar month prior to the month of such Distribution Date and (2)
the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans as of the Due Date in the month prior to that Distribution Date (after
giving effect to Principal Prepayments in the Prepayment Period related to
that
prior Due Date).
30
Senior
LIBOR Certificates: As specified in the Preliminary
Statement.
Senior
Principal Distribution Target Amount: As to any Distribution
Date, the excess of (x) the aggregate Class Certificate Balance of the Senior
Certificates immediately prior to such Distribution Date, over (y) the lesser
of
(i) 89.80% of the aggregate Stated Principal Balance of the Mortgage Loans
as of
the Due Date in the month of such Distribution Date (after giving effect
to
Principal Prepayments received in the related Prepayment Period) and (ii)
the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in
the month of such Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period), minus the OC
Floor.
Servicing
Advances: All customary, reasonable and necessary “out of pocket”
costs and expenses incurred in the performance by the Master Servicer
of its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3.11 and
any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.09.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB.
Servicing
Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Sixty-Day
Delinquency Rate: With respect to any Distribution Date on or
after the Stepdown Date, a fraction, expressed as a percentage, the numerator
of
which is the aggregate Stated Principal Balance for such Distribution Date
of
all Mortgage Loans 60 or more days delinquent as of the close of business
on the
last day of the calendar month preceding such Distribution Date (including
Mortgage Loans in foreclosure, bankruptcy and REO Properties) and the
denominator of which is the aggregate Stated Principal Balance for such
Distribution Date of the Mortgage Loans as of the related Due Date (after
giving
effect to Principal Prepayments received in the related Prepayment
Period).
Startup
Day: The Closing Date.
31
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 moratorium or similar waiver
or
grace period) minus 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 Realized Loss previously incurred in connection
with a Deficient Valuation. The Stated Principal Balance of any
Mortgage Loan that becomes a Liquidated Mortgage Loan will be zero on each
date
following the Due Period in which such Mortgage Loan becomes a Liquidated
Mortgage Loan.
Stepdown
Date: The earlier to occur of: (1) the Distribution Date
immediately following the Distribution Date on which the aggregate Class
Certificate Balance of the Senior Certificates is reduced to zero, and (2)
the
later to occur of (x) the Distribution Date in July 2010 and (y) the first
Distribution Date on which the aggregate Class Certificate Balance of the
Senior
Certificates (after giving effect to distributions of the Principal Remittance
Amount to be made on such Distribution Date) is less than or equal to 89.80%
of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Due
Date
in the month of that Distribution Date (after giving effect to Principal
Prepayments received in the Prepayment Period related to that Due
Date).
Stepdown
Target Subordination Percentage: With respect to any Class of
Subordinated Certificates, the respective percentage indicated in the following
table:
|
Stepdown
Target Subordination Percentage
|
|
|
Class
M-1
|
7.30%
|
|
Class
M-2
|
6.00%
|
|
Class
M-3
|
5.00%
|
|
Class
M-4
|
4.10%
|
|
Class
M-5
|
3.40%
|
|
Class
M-6
|
2.60%
|
|
Class
M-7
|
1.90%
|
|
Class
M-8
|
1.20%
|
|
Class
M-9
|
0.70%
|
Streamlined
Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to Countrywide’s Streamlined Loan Documentation Program then in
effect. For the purposes of this Agreement, a Mortgagor is eligible
for a mortgage pursuant to Countrywide’s Streamlined Loan Documentation Program
if that Mortgagor is refinancing an existing mortgage loan that was originated
or acquired by Countrywide where, among other things, the mortgage loan has
not
been more than 30 days delinquent in payment during the previous twelve month
period.
Strip
REMIC: As defined in the Preliminary Statement.
32
Sub-Group
X: All Mortgage Loans identified as 10/1 Mortgage Loans on the
Mortgage Loan Schedule.
Sub-Group
X Mortgage Loans: The Mortgage Loans in Sub-Group X.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
the Mortgage Loans under the direction or authority of the Master Servicer
or a
Subservicer or the Trustee, as the case may be.
Subordinated
Certificates: As specified in the Preliminary
Statement.
Subordinated
Class Principal Distribution Target Amount: With respect to any
Class of Subordinated Certificates and Distribution Date, the excess of (1)
the
sum of (a) the aggregate Class Certificate Balance of the Senior Certificates
(after taking into account the distribution of the Senior Principal Distribution
Target Amount for such Distribution Date), (b) the aggregate Class Certificate
Balance of any Class(es) of Subordinated Certificates that are senior to
the
subject Class (in each case, after taking into account distribution of the
Subordinated Class Principal Distribution Target Amount(s) for such more
senior
Class(es) of Certificates for such Distribution Date), and (c) the Class
Certificate Balance of the subject Class of Subordinated Certificates
immediately prior to such Distribution Date over (2) the lesser of (a) the
product of (x) 100% minus the Stepdown Target Subordination Percentage for
the
subject Class of Certificates and (y) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the Due Date in the month of that Distribution Date
(after giving effect to Principal Prepayments received in the related Prepayment
Period) and (b) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the Due Date in the month of that Distribution Date (after giving effect
to
Principal Prepayments received in the related Prepayment Period) minus the
OC
Floor; provided, however, that if such Class of Subordinated Certificates
is the
only Class of Subordinated Certificates outstanding on such Distribution
Date,
that Class will be entitled to receive the entire remaining Principal
Distribution Amount until its Class Certificate Balance is reduced to
zero.
Subordinated
Certificates Corridor Account: The separate Eligible Account
created and initially maintained by the Supplemental Interest Trustee pursuant
to Section 3.05(h).
Subordinated
Certificates Corridor Contract: The transaction evidenced by the
Confirmation, a form of which is attached hereto as Exhibit R-6.
Subordinated
Certificates Corridor Contract Termination Date: The Distribution
Date in June 2009.
Subsequent
Periodic Rate Cap: As to each Mortgage Loan and the related
Mortgage Note, the provision therein that limits permissible increases and
decreases in the Mortgage Rate on the each Adjustment Date after the first
Adjustment Date for that Mortgage Loan to not more than the amount set forth
therein.
Subsequent
Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the Master Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.08) specifically
related to such Liquidated Mortgage Loan after the classification of such
Mortgage Loan as a Liquidated Mortgage Loan.
33
Subservicer: Any
person to whom the Master Servicer has contracted for the servicing of all
or a
portion of the Mortgage Loans pursuant to Section 3.02.
Substitute
Mortgage Loan: A Mortgage Loan substituted by the applicable
Seller for a Deleted Mortgage Loan which must, on the date of such substitution,
as confirmed in a Request for Release, substantially in the form of Exhibit
M,
(i) have a Stated Principal Balance, after deduction of the principal portion
of
the Scheduled Payment due in the month of substitution, not in excess of,
and
not more than 10% less than the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) be accruing interest at a rate no lower than and not more than
1% per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value
Ratio no higher than that of the Deleted Mortgage Loan; (iv) have a remaining
term to maturity no greater than (and not more than one year less than that
of)
the Deleted Mortgage Loan; (v) have a Maximum Mortgage Rate no lower than
and
not more than 1% per annum higher than, that of the Deleted Mortgage Loan;
(vi)
have a Minimum Mortgage Rate specified in its related mortgage note not more
than 1% per annum higher or lower than the Minimum Mortgage Rate of the Deleted
Mortgage Loan; (vii) have the same Mortgage Index and Mortgage Index reset
period and periodic rate cap as the Deleted Mortgage Loan and a Gross Margin
not
more than 1% per annum higher or lower than that of the Deleted Mortgage
Loan;
(viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan and (ix) comply with each representation and warranty set
forth
in Section 2.03.
Substitution
Adjustment Amount: The meaning ascribed to such term pursuant to
Section 2.03.
Supplemental
Interest Trust: The separate trust created under this Agreement
pursuant to Section 3.05(h).
Supplemental
Interest Trustee: The Bank of New York, a New York banking
corporation, not in its individual or corporate capacity, but solely in its
capacity as trustee of the Supplemental Interest Trust for the benefit of
the
Holders of the Senior Certificates (other than the Class A-R Certificates
and
Notional Amount Certificates) and Subordinated Certificates under this
Agreement, and any successor thereto, and any corporation or national banking
association resulting from or surviving any consolidation or merger to which
it
or its successors may be a party and any successor trustee as may from time
to
time be serving as successor trustee hereunder.
Swap
Counterparty: Deutsche Bank AG, New York Branch and its
successors.
Swap
Counterparty Trigger Event: With respect to the Class A-1 Swap
Contract, Class A-3 Swap Contract, Class M-3 Swap Contract or Certificate
Swap
Contract, as applicable, either (i) an “Event of Default” under the ISDA Master
Agreement with respect to which the Swap Counterparty is the sole “Defaulting
Party” (as defined in the ISDA Master Agreement) or (ii) a “Termination Event”
(other than an Illegality or a Tax Event (as such terms are defined in the
ISDA
Master Agreement)) or “Additional Termination Event” under the ISDA Master
Agreement with respect to which the Swap Counterparty is the sole “Affected
Party” (as defined in the ISDA Master Agreement).
34
Swap
Termination Payment: The payment payable by either the
Supplemental Interest Trustee or the Swap Counterparty under the ISDA Master
Agreement due to an early termination of the Class A-1 Swap Contract, Class
A-3
Swap Contract, Class M-3 Swap Contract or Certificate Swap Contract, as
applicable.
Tax
Matters Person: The person designated as “tax matters person” in
the manner provided under Treasury regulation § 1.860F-4(d) and Treasury
regulation § 301.6231(a)(7)1. Initially, the Tax Matters Person shall
be the Trustee.
Tax
Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Terminator: As
defined in Section 9.01.
Transaction
Documents: This Agreement, the Derivative Agreements and any
other document or agreement entered into in connection with the Trust Fund,
the
Certificates or the Mortgage Loans.
Transfer: Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Trigger
Event: With respect to a Distribution Date on or after the
Stepdown Date, the existence of either a Delinquency Trigger Event or a
Cumulative Loss Trigger Event with respect to that Distribution
Date.
Trust
Fund: The corpus of the trust created under this Agreement
consisting of (i) the Mortgage Loans and all interest and principal received
on
or with respect thereto after the Cut-off Date to the extent not applied
in
computing the Cut-off Date Principal Balance of the Mortgage Loans; (ii)
the
Certificate Account, the Distribution Account and the Carryover Reserve Fund,
and all amounts deposited therein pursuant to the applicable provisions of
this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired
by
foreclosure, deed-in-lieu of foreclosure or otherwise; and (iv) all proceeds
of
the conversion, voluntary or involuntary, of any of the foregoing.
Trustee: The
Bank of New York and its successors and, if a successor trustee is appointed
under this Agreement, such successor.
Trustee
Advance Rate: With respect to any Advance made by the Trustee pursuant to
Section 4.01(b), a per annum rate of interest determined as of the date of
such
Advance equal to the Prime Rate in effect on such date plus 5.00%.
Trustee
Fee: As to any Distribution Date, an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the Pool Stated Principal Balance with respect
to
such Distribution Date.
Trustee
Fee Rate: With respect to each Mortgage Loan, 0.009% per
annum.
35
Underwriters:
As specified in the Preliminary Statement.
Underwriter’s
Exemption: Prohibited Transaction Exemption 2007-5, 72 Fed. Reg.
13130 (2009), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of
Labor.
Unpaid
Realized Loss Amount: For any Class of Senior Certificates (other
than the Notional Amount Certificates) and Subordinated Certificates, (x)
the
portion of the aggregate Applied Realized Loss Amount previously allocated
to
that Class remaining unpaid from prior Distribution Dates minus (y) any increase
in the Class Certificate Balance of that Class due to the receipt of Subsequent
Recoveries to the Class Certificate Balance of that Class pursuant to Section
4.02(h).
Voting
Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class
of Notional Amount Certificates, if any (such Voting Rights to be allocated
among the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), (b) 1% of all Voting Rights shall be allocated
to each of the Class A-R, Class C and Class P Certificates, and (c) the
remaining Voting Rights shall be allocated among Holders of the remaining
Classes of Certificates in proportion to the Certificate Balances of their
respective Certificates on such date.
Weighted
Average Adjusted Net Mortgage Rate: As to any Distribution Date,
the average of the Adjusted Net Mortgage Rates on the Mortgage Loans, weighted
on the basis of the Stated Principal Balance of each Mortgage Loan as of
the Due
Date in the prior calendar month (after giving effect to Principal Prepayments
received in the Prepayment Period related to that prior Due Date).
|
|
SECTION
1.02.
|
Certain
Interpretive Provisions.
|
All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate, agreement or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires:
(a)
accounting terms not otherwise defined in this Agreement, and accounting
terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (b) the words “hereof,” “herein” and “hereunder” and words of
similar import refer to this Agreement (or the certificate, agreement or
other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate, agreement or document); (c) references
to any Section, Schedule or Exhibit are references to Sections, Schedules
and
Exhibits in or to this Agreement, and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term “including” means “including without limitation”; (e)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (f) references
to
any agreement refer to that agreement as amended from time to time; (g)
references to any Person include that Person’s permitted successors and assigns;
and (h) a Mortgage Loan is “30 days delinquent” if any Scheduled Payment has not
been received by the close of business on the day immediately preceding the
Due
Date on which the next Scheduled Payment is due. Similarly for “60
days delinquent,” “90 days delinquent” and so on. Unless otherwise
provided in this Agreement, the determination as to whether a Mortgage Loan
falls into a delinquency category shall be made as of the close of business
on
the last day of each month prior to the date of determining the
delinquency.
36
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans
|
(a) Each
Seller, concurrently with the execution and delivery of this Agreement, hereby
sells, transfers, assigns, sets over and otherwise conveys to the Depositor,
without recourse, all its respective right, title and interest in and to
the
related Mortgage Loans, including all interest and principal received or
receivable by such Seller, on or with respect to the applicable Mortgage
Loans
after the Cut-off Date and all interest and principal payments on the related
Mortgage Loans received prior to the Cut-off Date in respect of installments
of
interest and principal due thereafter, but not including payments of principal
and interest due and payable on such Mortgage Loans on or before the Cut-off
Date. On or prior to the Closing Date, Countrywide shall deliver to
the Depositor or, at the Depositor’s direction, to the Trustee or other designee
of the Depositor, the Mortgage File for each Mortgage Loan listed in the
Mortgage Loan Schedule (except that, in the case of the Delay Delivery Mortgage
Loans (which may include Countrywide Mortgage Loans, Park Granada Mortgage
Loans, Park Monaco Mortgage Loans or Park Sienna Mortgage Loans), such delivery
may take place within thirty (30) days following the Closing
Date). Such delivery of the Mortgage Files shall be made against
payment by the Depositor of the purchase price, previously agreed to by the
Sellers and Depositor, for the Mortgage Loans. With respect to any
Mortgage Loan that does not have a first payment date on or before the Due
Date
in the month of the first Distribution Date, Countrywide shall deposit into
the
Distribution Account on or before the Distribution Account Deposit Date relating
to the first Distribution Date, an amount equal to one month’s interest at the
related Adjusted Mortgage Rate on the Cut-off Date Principal Balance of such
Mortgage Loan.
(b) Immediately
upon the conveyance of the Mortgage Loans referred to in clause (a), the
Depositor sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the benefit of the Certificateholders, without recourse, all
the
right, title and interest of the Depositor in and to the Trust Fund together
with the Depositor’s right to require each Seller to cure any breach of a
representation or warranty made in this Agreement by such Seller or to
repurchase or substitute for any affected Mortgage Loan in accordance
herewith.
(c) In
connection with the transfer and assignment set forth in clause (b) above,
the Depositor has delivered or caused to be delivered to the Trustee (or,
in the
case of the Delay Delivery Mortgage Loans, will deliver or cause to be delivered
to the Trustee within thirty (30) days following the Closing Date) for the
benefit of the Certificateholders the following documents or instruments
with
respect to each Mortgage Loan so assigned:
(i) (A)
the original Mortgage Note endorsed by manual or facsimile signature in blank
in
the following form: “Pay to the order of ____________ without recourse,” with
all intervening endorsements showing a complete chain of endorsement from
the
originator to the Person endorsing the Mortgage Note (each such endorsement
being sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
or
37
(B)
with respect to any Lost Mortgage
Note, a lost note affidavit from Countrywide stating that the original Mortgage
Note was lost or destroyed, together with a copy of such Mortgage
Note;
(ii) except
as provided below and for each Mortgage Loan that is not a MERS Mortgage
Loan,
the original recorded Mortgage or a copy of such Mortgage, with recording
information, (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of each
MERS Mortgage Loan, the original Mortgage or a copy of such Mortgage, with
recording information, noting the presence of the MIN of the Mortgage Loans
and
either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded;
(iii) in
the case of each Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage or a copy of such assignment, with recording
information, (which may be included in a blanket assignment or assignments),
together with, except as provided below, all interim recorded assignments
of
such mortgage or a copy of such assignment, with recording information, (each
such assignment, when duly and validly completed, to be in recordable form
and
sufficient to effect the assignment of and transfer to the assignee thereof,
under the Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public recording
office, such assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such assignment
of
Mortgage need not be delivered in the case of a Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico;
(iv) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any;
(v) except
as provided below, the original or a copy of lender’s title policy or a printout
of the electronic equivalent and all riders thereto; and
(vi) in
the case of a Cooperative Loan, the originals of the following documents
or
instruments:
(A) The
Coop Shares, together with a stock power in blank;
(B) The
executed Security Agreement;
(C) The
executed Proprietary Lease;
(D) The
executed Recognition Agreement;
38
(E) The
executed UCC-1 financing statement with evidence of recording thereon which
have
been filed in all places required to perfect the applicable Seller’s interest in
the Coop Shares and the Proprietary Lease; and
(F) The
executed UCC-3 financing statements or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line
from
the mortgagee to the Trustee with evidence of recording thereon (or in a
form
suitable for recordation).
In
addition, in connection with the assignment of any MERS Mortgage Loan, each
Seller agrees that it will cause, at the Trustee’s expense, the MERS® System to
indicate that the Mortgage Loans sold by such Seller to the Depositor have
been
assigned by that Seller 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 the information required by the MERS® System to identify the
series of the Certificates issued in connection with such Mortgage
Loans. Each Seller further agrees that it will not, and will not
permit the Master Servicer to, and the Master Servicer agrees that it will
not,
alter the information referenced in this paragraph with respect to any Mortgage
Loan sold by such Seller to the Depositor during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the
terms
of this Agreement.
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage or a copy
of
such Mortgage, with recording information, or (b) all interim recorded
assignments or a copy of such assignments, with recording information, or
(c)
the lender’s title policy or a copy of lender’s title policy (together with all
riders thereto) satisfying the requirements of clause (ii), (iii) or (v)
above,
respectively, concurrently with the execution and delivery of this Agreement
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer or
the
Depositor by the applicable title insurer in the case of clause (v) above,
the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or
(iii) above, such original Mortgage or a copy of such Mortgage, with recording
information, or such interim assignment or a copy of such assignments, with
recording information, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but
in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date,
or, in
the case of clause (v) above, no later than 120 days following the Closing
Date;
provided, however, in the event the Depositor is unable to deliver
by such date each Mortgage and each such interim assignment by reason of
the
fact that any such documents have not been returned by the appropriate recording
office, or, in the case of each such interim assignment, because the related
Mortgage has not been returned by the appropriate recording office, the
Depositor shall deliver such documents to the Trustee as promptly as possible
upon receipt thereof and, in any event, within 720 days following the Closing
Date. The Depositor shall forward or cause to be forwarded to the
Trustee (a) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (b) any other documents
required to be delivered by the Depositor or the Master Servicer to the
Trustee. In the event that the original Mortgage is not delivered and
in connection with the payment in full of the related Mortgage Loan and the
public recording office requires the presentation of a “lost instruments
affidavit and indemnity” or any equivalent document, because only a copy of the
Mortgage can be delivered with the instrument of satisfaction or reconveyance,
the Master Servicer shall execute and deliver or cause to be executed and
delivered such a document to the public recording office. In the case
where a public recording office retains the original recorded Mortgage or
in the
case where a Mortgage is lost after recordation in a public recording office,
Countrywide shall deliver to the Trustee a copy of such Mortgage certified
by
such public recording office to be a true and complete copy of the original
recorded Mortgage.
39
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event, within one hundred twenty (120) days after such transfer and assignment,
the Trustee shall (A) as the assignee thereof, affix the following language
to
each assignment of Mortgage: “CWALT, Inc., Series 2007-HY7C, The Bank
of New York, as trustee”, (B) cause such assignment to be in proper form for
recording in the appropriate public office for real property records and
(C)
cause to be delivered for recording in the appropriate public office for
real
property records the assignments of the Mortgages to the Trustee, except
that,
(i) with respect to any assignments of Mortgage as to which the Trustee has
not
received the information required to prepare such assignment in recordable
form,
the Trustee’s obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in
any
event within thirty (30) days after receipt thereof and (ii) the Trustee
need
not cause to be recorded any assignment which relates to a Mortgage Loan,
the
Mortgaged Property and Mortgage File relating to which are located in any
jurisdiction (including Puerto Rico) under the laws of which the recordation
of
such assignment is not necessary to protect the Trustee’s and the
Certificateholders’ interest in the related Mortgage Loan as evidenced by an
opinion of counsel delivered by Countrywide to the Trustee within 90 days
of the
Closing Date (which opinion may be in the form of a “survey” opinion and is not
required to be delivered by counsel admitted to practice law in the jurisdiction
as to which such legal opinion applies).
In
the
case of Mortgage Loans that have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee,
will
deposit in the Certificate Account the portion of such payment that is required
to be deposited in the Certificate Account pursuant to Section
3.05.
Notwithstanding
anything to the contrary in this Agreement, within thirty (30) days after
the
Closing Date with respect to the Mortgage Loans, Countrywide (on its own
behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) shall either
(i)
deliver to the Depositor, or at the Depositor’s direction, to the Trustee or
other designee of the Depositor the Mortgage File as required pursuant to
this
Section 2.01 for each Delay Delivery Mortgage Loan or (ii) either (A) substitute
a Substitute Mortgage Loan for the Delay Delivery Mortgage Loan or (B)
repurchase the Delay Delivery Mortgage Loan, which substitution or repurchase
shall be accomplished in the manner and subject to the conditions set forth
in
Section 2.03 (treating each Delay Delivery Mortgage Loan as a Deleted Mortgage
Loan for purposes of such Section 2.03); provided, however, that if
Countrywide fails to deliver a Mortgage File for any Delay Delivery Mortgage
Loan within the thirty (30)-day period provided in the prior sentence,
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) shall use its best reasonable efforts to effect a substitution,
rather than a repurchase of, such Deleted Mortgage Loan and provided further
that the cure period provided for in Section 2.02 or in Section 2.03
shall not apply to the initial delivery of the Mortgage File for such Delay
Delivery Mortgage Loan, but rather Countrywide (on its own behalf and on
behalf
of Park Granada, Park Monaco and Park Sienna) shall have five (5) Business
Days
to cure such failure to deliver. At the end of such thirty (30)-day period
the
Trustee shall send a Delay Delivery Certification for the Delay Delivery
Mortgage Loans delivered during such thirty (30)-day period in accordance
with
the provisions of Section 2.02.
40
(d) Neither
the Depositor nor the Trust will acquire or hold any Mortgage Loan that would
violate the representations made by Countrywide set forth in clause (46)
of
Schedule III-A hereto.
|
SECTION
2.02.
|
Acceptance
by Trustee of the Mortgage
Loans.
|
(a) The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit F (an “Initial
Certification”) and declares that it holds and will hold such documents and the
other documents delivered to it constituting the Mortgage Files, and that
it
holds or will hold such other assets as are included in the Trust Fund, in
trust
for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it will maintain
possession of the Mortgage Notes in the State of California, unless otherwise
permitted by the Rating Agencies.
The
Trustee agrees to execute and deliver on the Closing Date to the Depositor,
the
Master Servicer and Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) an Initial Certification in the form
annexed to this Agreement as Exhibit F. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the Trustee acknowledges that such documents appear regular
on
their face and relate to the Mortgage Loans. The Trustee shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On
or
about the thirtieth (30th) day
after the
Closing Date, the Trustee shall deliver to the Depositor, the Master Servicer
and Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and Park Sienna) a Delay Delivery Certification with respect to the Mortgage
Loans in the form annexed hereto as Exhibit G (a “Delay Delivery
Certification”), with any applicable exceptions noted thereon.
Not
later
than 90 days after the Closing Date, the Trustee shall deliver to the Depositor,
the Master Servicer and Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) a Final Certification with respect
to the
Mortgage Loans in the form annexed hereto as Exhibit H (a “Final
Certification”), with any applicable exceptions noted thereon.
If,
in
the course of such review, the Trustee finds any document constituting a
part of
a Mortgage File that does not meet the requirements of Section 2.01, the
Trustee shall list such as an exception in the Final Certification;
provided, however that the Trustee shall not make any
determination as to whether (i) any endorsement is sufficient to transfer
all right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or is sufficient to effect the assignment of and transfer
to the
assignee thereof under the mortgage to which the assignment
relates. Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall promptly correct or cure such
defect
within 90 days from the date it was so notified of such defect and, if
Countrywide does not correct or cure such defect within such period, Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
shall either (a) substitute for the related Mortgage Loan a Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase
such Mortgage Loan from the Trustee within 90 days from the date Countrywide
(on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
was
notified of such defect in writing at the Purchase Price of such Mortgage
Loan;
provided, however, that in no event shall such substitution or
purchase occur more than 540 days from the Closing Date, except that if the
substitution or purchase of a Mortgage Loan pursuant to this provision is
required by reason of a delay in delivery of any documents by the appropriate
recording office, and there is a dispute between either the Master Servicer
or
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) and the Trustee over the location or status of the recorded
document, then such substitution or purchase shall occur within 720 days
from
the Closing Date. The Trustee shall deliver written notice to each
Rating Agency within 270 days from the Closing Date indicating each Mortgage
Loan (a) that has not been returned by the appropriate recording office or
(b) as to which there is a dispute as to location or status of such
Mortgage Loan. Such notice shall be delivered every 90 days
thereafter until the related Mortgage Loan is returned to the
Trustee. Any such substitution pursuant to (a) above or purchase
pursuant to (b) above shall not be effected prior to the delivery to the
Trustee of the Opinion of Counsel required by Section 2.05, if any, and any
substitution pursuant to (a) above shall not be effected prior to the additional
delivery to the Trustee of a Request for Release substantially in the form
of
Exhibit N. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. The
Purchase Price for any such Mortgage Loan shall be deposited by Countrywide
(on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
in
the Certificate Account on or prior to the Distribution Account Deposit Date
for
the Distribution Date in the month following the month of repurchase and,
upon
receipt of such deposit and certification with respect thereto in the form
of
Exhibit N hereto, the Trustee shall release the related Mortgage File to
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) and shall execute and deliver at Countrywide’s (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) request such
instruments of transfer or assignment prepared by Countrywide, in each case
without recourse, as shall be necessary to vest in Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna), or its
designee, the Trustee’s interest in any Mortgage Loan released pursuant hereto.
If pursuant to the foregoing provisions Countrywide (on its own behalf and
on
behalf of Park Granada, Park Monaco and Park Sienna) repurchases a Mortgage
Loan
that is a MERS Mortgage Loan, the Master Servicer shall either (i) cause
MERS to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to Countrywide (on its own behalf and on behalf of
Park
Granada, Park Monaco and Park Sienna) or its designee and shall cause such
Mortgage to be removed from registration on the MERS® System in accordance with
MERS’ rules and regulations or (ii) cause MERS to designate on the MERS® System
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) or its designee as the beneficial holder of such Mortgage
Loan.
41
(b) [Reserved].
(c) [Reserved].
(d) The
Trustee shall retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions set forth in this
Agreement. The Master Servicer shall promptly deliver to the Trustee,
upon the execution or receipt thereof, the originals of such other documents
or
instruments constituting the Mortgage File as come into the possession of
the
Master Servicer from time to time.
(e) It
is understood and agreed that the respective obligations of each Seller to
substitute for or to purchase any Mortgage Loan sold to the Depositor by
it
which does not meet the requirements of Section 2.01 above shall constitute
the sole remedy respecting such defect available to the Trustee, the Depositor
and any Certificateholder against that Seller.
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Sellers and Master
Servicer.
|
(a) Countrywide
hereby makes the representations and warranties set forth in (i) Schedule
II-A,
Schedule II-B, Schedule II-C and Schedule II-D hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee,
as
of the Closing Date, (ii) Schedule III-A hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee,
as
of the Closing Date, or if so specified therein, as of the Cut-off Date with
respect to the Mortgage Loans, and (iii) Schedule III-B hereto, and by this
reference incorporated herein, to the Depositor, the Master Servicer and
the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off
Date with respect to the Mortgage Loans that are Countrywide Mortgage
Loans. Park Granada hereby makes the representations and warranties
set forth in (i) Schedule II-B hereto, and by this reference incorporated
herein, to the Depositor, the Master Servicer and the Trustee, as of the
Closing
Date and (ii) Schedule III-C hereto, and by this reference incorporated herein,
to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date,
or if so specified therein, as of the Cut-off Date with respect to the Mortgage
Loans that are Park Granada Mortgage Loans. Park Monaco hereby makes
the representations and warranties set forth in (i) Schedule II-C hereto,
and by this reference incorporated herein, to the Depositor, the Master Servicer
and the Trustee, as of the Closing Date and (ii) Schedule III-D hereto, and
by this reference incorporated herein, to the Depositor, the Master Servicer
and
the Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date with respect to the Mortgage Loans that are Park Monaco Mortgage
Loans. Park Sienna hereby makes the representations and warranties
set forth in (i) Schedule II-D hereto, and by this reference incorporated
herein, to the Depositor, the Master Servicer and the Trustee, as of the
Closing
Date and (ii) Schedule III-E hereto, and by this reference incorporated
herein, to the Depositor, the Master Servicer and the Trustee, as of the
Closing
Date, or if so specified therein, as of the Cut-off Date with respect to
the
Mortgage Loans that are Park Sienna Mortgage Loans.
(b) The
Master Servicer hereby makes the representations and warranties set forth
in
Schedule IV hereto, and by this reference incorporated herein, to the Depositor
and the Trustee, as of the Closing Date.
42
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty with respect to a Mortgage Loan made pursuant to Section 2.03(a)
that materially and adversely affects the interests of the Certificateholders
in
that Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties and the NIM Insurer. Each Seller hereby
covenants that within 90 days of the earlier of its discovery or its receipt
of
written notice from any party of a breach of any representation or warranty
with
respect to a Mortgage Loan sold by it pursuant to Section 2.03(a) that
materially and adversely affects the interests of the Certificateholders
in that
Mortgage Loan, it shall cure such breach in all material respects, and if
such
breach is not so cured, shall, (i) if such 90-day period expires prior to
the second anniversary of the Closing Date, remove such Mortgage Loan (a
“Deleted Mortgage Loan”) from the Trust Fund and substitute in its place a
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth
in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage
Loans from the Trustee at the Purchase Price in the manner set forth below;
provided, however, that any such substitution pursuant to (i)
above shall not be effected prior to the delivery to the Trustee of the Opinion
of Counsel required by Section 2.05, if any, and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery
to
the Trustee of a Request for Release substantially in the form of Exhibit N
and the Mortgage File for any such Substitute Mortgage Loan. The
Seller repurchasing a Mortgage Loan pursuant to this Section 2.03(c) shall
promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. With respect to the
representations and warranties described in this Section which are made to
the best of a Seller’s knowledge, if it is discovered by either the Depositor, a
Seller or the Trustee 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 Certificateholders therein,
notwithstanding that Seller’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.
With
respect to any Substitute Mortgage Loan or Loans sold to the Depositor by
a
Seller, Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment
of
the Mortgage, and such other documents and agreements as are required by
Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required
by
Section 2.01. No substitution is permitted to be made in any calendar
month after the Determination Date for such month. Scheduled Payments
due with respect to Substitute Mortgage Loans in the month of substitution
shall
not be part of the Trust Fund and will be retained by the related Seller
on the
next succeeding Distribution Date. For the month of substitution,
distributions to Certificateholders will include the monthly payment due
on any
Deleted Mortgage Loan for such month and thereafter that Seller shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend the Mortgage Loan Schedule for
the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loan or Loans
and
the Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon such substitution, the Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects, and
the
related Seller shall be deemed to have made with respect to such Substitute
Mortgage Loan or Loans, as of the date of substitution, the representations
and
warranties made pursuant to Section 2.03(a) with respect to such Mortgage
Loan. Upon any such substitution and the deposit to the Certificate
Account of the amount required to be deposited therein in connection with
such
substitution as described in the following paragraph, the Trustee shall release
the Mortgage File held for the benefit of the Certificateholders relating
to
such Deleted Mortgage Loan to the related Seller and shall execute and deliver
at such Seller’s direction such instruments of transfer or assignment prepared
by Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna), in each case without recourse, as shall be necessary to vest
title
in that Seller, or its designee, the Trustee’s interest in any Deleted Mortgage
Loan substituted for pursuant to this Section 2.03.
43
For
any
month in which a Seller substitutes one or more Substitute Mortgage Loans
for
one or more Deleted Mortgage Loans, the Master Servicer will determine the
amount (if any) by which the aggregate principal balance of all Substitute
Mortgage Loans sold to the Depositor by that Seller as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans repurchased by that Seller (after application of the scheduled
principal portion of the monthly payments due in the month of
substitution). The amount of such shortage (the “Substitution
Adjustment Amount”) plus an amount equal to the aggregate of any unreimbursed
Advances with respect to such Deleted Mortgage Loans shall be deposited in
the
Certificate Account by Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) on or before the Distribution Account
Deposit Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan became required to be purchased
or
replaced hereunder.
In
the
event that a Seller shall have repurchased a Mortgage Loan, the Purchase
Price
therefor shall be deposited in the Certificate Account pursuant to
Section 3.05 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which that Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and
upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.05 and receipt of a Request for Release in the form
of Exhibit N hereto, the Trustee shall release the related Mortgage File
held for the benefit of the Certificateholders to such Person, and the Trustee
shall execute and deliver at such Person’s direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is
understood and agreed that the obligation under this Agreement of any Person
to
cure, repurchase or replace any Mortgage Loan as to which a breach has occurred
and is continuing shall constitute the sole remedy against such Persons
respecting such breach available to Certificateholders, the Depositor or
the
Trustee on their behalf.
The
representations and warranties made pursuant to this Section 2.03 shall survive
delivery of the respective Mortgage Files to the Trustee for the benefit
of the
Certificateholders.
|
SECTION
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage
Loans.
|
The
Depositor hereby represents and warrants to the Trustee with respect to each
Mortgage Loan as of the date of this Agreement or such other date set forth
in
this Agreement that as of the Closing Date, and following the transfer of
the
Mortgage Loans to it by each Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses
or
counterclaims.
44
The
Depositor hereby assigns, transfers and conveys to the Trustee all of its
rights
with respect to the Mortgage Loans including, without limitation, the
representations and warranties of each Seller made pursuant to
Section 2.03(a), together with all rights of the Depositor to require a
Seller to cure any breach thereof or to repurchase or substitute for any
affected Mortgage Loan in accordance with this Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach
of any of the foregoing representations and warranties set forth in this
Section
2.04 (referred to herein as a “breach”), which breach materially and adversely
affects the interest of the Certificateholders, the party discovering such
breach shall give prompt written notice to the others and to each Rating
Agency
and the NIM Insurer.
|
SECTION
2.05.
|
Delivery
of Opinion of Counsel in Connection with
Substitutions.
|
(a) Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to
Section 2.02 or Section 2.03 shall be made more than 90 days after the
Closing Date unless Countrywide delivers to the Trustee an Opinion of Counsel,
which Opinion of Counsel shall not be at the expense of either the Trustee
or
the Trust Fund, addressed to the Trustee, to the effect that such substitution
will not (i) result in the imposition of the tax on “prohibited transactions” on
the Trust Fund or contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively, or (ii) cause any REMIC
created under this Agreement to fail to qualify as a REMIC at any time that
any
Certificates are outstanding.
(b) Upon
discovery by the Depositor, a Seller, the Master Servicer, or the Trustee
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
promptly (and in any event within five (5) Business Days of discovery) give
written notice thereof to the other parties and the NIM Insurer. In
connection therewith, the Trustee shall require Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) at its option,
to
either (i) substitute, if the conditions in Section 2.03(c) with respect
to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days
of
such discovery in the same manner as it would a Mortgage Loan for a breach
of
representation or warranty made pursuant to Section 2.03. The Trustee
shall reconvey to Countrywide the Mortgage Loan to be released pursuant to
this
Section 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 contained
in Section 2.03.
|
SECTION
2.06.
|
Execution
and Delivery of Certificates.
|
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund
and,
concurrently with such transfer and assignment, has executed and delivered
to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust
Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders
of
the Certificates and to perform the duties set forth in this Agreement, to
the
end that the interests of the Holders of the Certificates may be adequately
and
effectively protected.
45
|
SECTION
2.07.
|
REMIC
Matters.
|
The
Preliminary Statement sets forth the designations and “latest possible maturity
date” for federal income tax purposes of all interests created
hereby. The “Startup Day” for purposes of the REMIC Provisions shall
be the Closing Date. The “tax matters person” with respect to each
REMIC hereunder shall be the Trustee and the Trustee shall hold the Tax Matters
Person Certificate. Each REMIC’s fiscal year shall be the calendar
year.
|
SECTION
2.08.
|
Covenants
of the Master Servicer.
|
The
Master Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the
Master Servicer shall comply in the performance of its obligations under
this
Agreement with all reasonable rules and requirements of the insurer under
each
Required Insurance Policy; and
(b) no
written information, certificate of an officer, statement furnished in writing
or written report delivered to the Depositor, any affiliate of the Depositor
or
the Trustee and prepared by the Master Servicer pursuant to this Agreement
will
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make such information, certificate, statement or report not
misleading.
46
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
|
SECTION
3.01.
|
Master
Servicer to Service Mortgage
Loans.
|
For
and
on behalf of the Certificateholders, the Master Servicer shall service and
administer the Mortgage Loans in accordance with the terms of this Agreement
and
customary and usual standards of practice of prudent mortgage loan
servicers. In connection with such servicing and administration, the
Master Servicer shall have full power and authority, acting alone and/or
through
Subservicers as provided in Section 3.02, subject to the terms of this
Agreement (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 (but only in the
manner
provided in this Agreement), (iii) to collect any Insurance Proceeds and
other Liquidation Proceeds (which for the purpose of this Section 3.01 includes
any Subsequent Recoveries), and (iv) to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage
Loan; provided that the Master Servicer shall not take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan, and shall not make or permit any modification,
waiver
or amendment of any Mortgage Loan which would cause any REMIC created under
this
Agreement to fail to qualify as a REMIC or result in the imposition of any
tax
under section 860F(a) or section 860G(d) of the
Code. Without limiting the generality of the foregoing, the Master
Servicer, in its own name or in the name of the Depositor and the Trustee,
is
hereby authorized and empowered by the Depositor and the Trustee, when the
Master Servicer believes it appropriate in its reasonable judgment, to execute
and deliver, on behalf of the Trustee, the Depositor, the Certificateholders
or
any of them, 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 with respect to the Mortgaged Properties
held
for the benefit of the Certificateholders. The Master Servicer shall
prepare and deliver to the Depositor and/or the Trustee such documents requiring
execution and delivery by either or both of them as are necessary or appropriate
to enable the Master Servicer to service and administer the Mortgage Loans
to
the extent that the Master Servicer is not permitted to execute and deliver
such
documents pursuant to the preceding sentence. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents
and
deliver them to the Master Servicer. The Master 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 Subservicer, when the
Master
Servicer or the Subservicer, as the case may be, believes it 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.
47
In
accordance with the standards of the preceding paragraph, the Master Servicer
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 reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. The costs incurred by the Master
Servicer, if any, in effecting the timely payments of taxes and assessments
on
the Mortgaged Properties and related insurance premiums shall not, for the
purpose of calculating monthly distributions to the Certificateholders, be
added
to the Stated Principal Balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit.
|
SECTION
3.02.
|
Subservicing;
Enforcement of the Obligations of
Subservicers.
|
(a) The
Master Servicer may arrange for the subservicing of any Mortgage Loan by
a
Subservicer pursuant to a subservicing agreement; provided,
however, that such subservicing arrangement and the terms of the
related
subservicing agreement must provide for the servicing of such Mortgage Loans
in
a manner consistent with the servicing arrangements contemplated under this
Agreement; provided, however, that the NIM Insurer shall have consented to
such
subservicing agreements (which consent shall not be unreasonably
withheld). Unless the context otherwise requires, references in this
Agreement to actions taken or to be taken by the Master Servicer in servicing
the Mortgage Loans include actions taken or to be taken by a Subservicer
on
behalf of the Master Servicer. Notwithstanding the provisions of any
subservicing agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Master Servicer and a Subservicer
or
reference to actions taken through a Subservicer or otherwise, the Master
Servicer shall remain obligated and liable to the Depositor, the Trustee
and the
Certificateholders for the servicing and administration of the Mortgage Loans
in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the Subservicer and to
the
same extent and under the same terms and conditions as if the Master Servicer
alone were servicing and administering the Mortgage Loans. All
actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Master Servicer with the
same
force and effect as if performed directly by the Master Servicer.
(b) For
purposes of this Agreement, the Master Servicer shall be deemed to have received
any collections, recoveries or payments with respect to the Mortgage Loans
that
are received by a Subservicer regardless of whether such payments are remitted
by the Subservicer to the Master Servicer.
|
SECTION
3.03.
|
Rights
of the Depositor, the NIM Insurer and the Trustee in Respect of
the Master
Servicer.
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The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer under this Agreement and may, but is not obligated to, perform,
or
cause a designee to perform, any defaulted obligation of the Master Servicer
under this Agreement and in connection with any such defaulted obligation
to
exercise the related rights of the Master Servicer under this Agreement;
provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. None of the Trustee, the NIM Insurer or the
Depositor shall have any responsibility or liability for any action or failure
to act by the Master Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
48
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SECTION
3.04.
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Trustee
to Act as Master Servicer.
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In
the
event that the Master Servicer shall for any reason no longer be the Master
Servicer under this Agreement (including by reason of an Event of Default
or
termination by the Depositor), the Trustee or its successor shall then assume
all of the rights and obligations of the Master Servicer under this Agreement
arising thereafter (except that the Trustee shall not be (i) liable for
losses of the Master Servicer pursuant to Section 3.09 or any acts or
omissions of the predecessor Master Servicer under this Agreement),
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions
of Mortgage Loans under this Agreement including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03, (iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03 or (v) deemed to have made any representations and
warranties of the Master Servicer under this Agreement). Any such
assumption shall be subject to Section 7.02. If the Master
Servicer shall for any reason no longer be the Master Servicer (including
by
reason of any Event of Default or termination by the Depositor), the Trustee
or
its successor shall succeed to any rights and obligations of the Master Servicer
under each subservicing agreement.
The
Master Servicer shall, upon request of the Trustee, but at the expense of
the
Master Servicer, deliver to the assuming party all documents and records
relating to each subservicing agreement or substitute subservicing agreement
and
the Mortgage Loans then being serviced thereunder and an accounting of amounts
collected or held by it and otherwise use its best efforts to effect the
orderly
and efficient transfer of the substitute subservicing agreement to the assuming
party.
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SECTION
3.05.
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Carryover Reserve Fund; Principal Reserve Fund and Supplemental
Interest
Trust.
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(a) The
Master Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect
all
payments called for under the terms and provisions of the Mortgage Loans
to the
extent such procedures shall be consistent with this Agreement and the terms
and
provisions of any related Required Insurance Policy. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or, subject to Section 3.20, any Prepayment Charge or penalty
interest in connection with the prepayment of a Mortgage Loan and
(ii) extend the due dates for payments due on a Mortgage Note for a period
not greater than 180 days; provided, however, that the Master
Servicer cannot extend the maturity of any such Mortgage Loan past the date
on
which the final payment is due on the latest maturing Mortgage Loan as of
the
Cut-off Date. In the event of any such arrangement, the Master
Servicer shall make Advances on the related Mortgage Loan in accordance with
the
provisions of Section 4.01 during the scheduled period in accordance with
the amortization schedule of such Mortgage Loan without modification thereof
by
reason of such arrangements. In addition, the NIM Insurer’s prior
written consent shall be required for any waiver of Prepayment Charges or
for
the extension of the due dates for payments due on a Mortgage Note, if the
aggregate number of outstanding Mortgage Loans that have been granted such
waivers or extensions exceeds 5% of the aggregate number of Mortgage
Loans. The Master Servicer shall not be required to institute or join
in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant
to
which such payment is required is prohibited by applicable law.
49
(b) The
Master Servicer shall establish and maintain a Certificate Account into which
the Master Servicer shall deposit or cause to be deposited no later than
two
Business Days after receipt (or, if (i) the current short-term credit rating
of
Countrywide from S&P is reduced below “A-2” or, if
Countrywide does not have a short-term credit rating from S&P, the current
long-term credit rating of Countrywide from S&P is reduced below “BBB+”,
(ii) the current long-term credit rating of Countrywide from Xxxxx’x is reduced
below “A3” or (iii) the current long-term credit rating of Countrywide from
Fitch is reduced below “A-”, the Master Servicer shall deposit or cause to be
deposited on a daily basis within one Business Day of receipt), except as
otherwise specifically provided in this Agreement, the following payments
and
collections remitted by Subservicers or received by it in respect of Mortgage
Loans subsequent to the Cut-off Date (other than in respect of principal
and
interest due on the Mortgage Loans on or before the Cut-off Date) and the
following amounts required to be deposited under this Agreement:
(i) all
payments on account of principal on the Mortgage Loans, including Principal
Prepayments and Prepayment Charges;
(ii) all
payments on account of interest on the Mortgage Loans, net of the related
Master
Servicing Fee, Prepayment Interest Excess and any lender paid mortgage insurance
premiums;
(iii) all
Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds, other
than
proceeds to be applied to the restoration or repair of a Mortgaged Property
or
released to the Mortgagor in accordance with the Master Servicer’s normal
servicing procedures;
(iv) any
amount required to be deposited by the Master Servicer or the Depositor in
connection with any losses on Permitted Investments for which it is
responsible;
(v) any
amounts required to be deposited by the Master Servicer pursuant to Section
3.09(c) and in respect of net monthly income from REO Property pursuant to
Section 3.11;
(vi) all
Substitution Adjustment Amounts;
(vii) all
Advances made by the Master Servicer pursuant to Section 4.01;
and
(viii) any
other amounts required to be deposited under this Agreement.
In
addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for such Mortgage Loan, in addition to the monthly
payment remitted by the Mortgagor, the Master Servicer shall cause funds
to be
deposited into the Certificate Account in an amount required to cause an
amount
of interest to be paid with respect to such Mortgage Loan equal to the amount
of
interest that has accrued on such Mortgage Loan from the preceding Due Date
at
the Mortgage Rate net of the related Master Servicing Fee.
50
The
foregoing requirements for remittance by the Master Servicer shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges or assumption fees,
if
collected, need not be remitted by the Master Servicer. In the event
that the Master Servicer shall remit any amount not required to be remitted,
it
may at any time withdraw or direct the institution maintaining the Certificate
Account to withdraw such amount from the Certificate Account, any provision
in
this Agreement to the contrary notwithstanding. Such withdrawal or
direction may be accomplished by delivering written notice thereof to the
Trustee or such other institution maintaining the Certificate Account which
describes the amounts deposited in error in the Certificate
Account. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds
deposited in the Certificate Account shall be held in trust for the
Certificateholders until withdrawn in accordance with Section 3.08.
(c) The
Trustee shall establish and maintain, on behalf of the Holders of the Class
P
Certificates, a Principal Reserve Fund in the name of the Trustee. On
the Closing Date, the Depositor shall deposit into the Principal Reserve
Fund
$100. Funds on deposit in the Principal Reserve Fund shall not be
invested. The Principal Reserve Fund shall be treated as an “outside
reserve fund” under applicable Treasury regulations and shall not be part of any
REMIC created under this Agreement. Amounts on deposit in the
Principal Reserve Fund shall not be invested.
(d) The
Trustee shall establish and maintain, on behalf of the Certificateholders,
the
Distribution Account. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain in the Distribution Account
the
following:
(i) the
aggregate amount remitted by the Master Servicer to the Trustee pursuant
to
Section 3.08(a)(ix);
(ii) any
amount deposited by the Master Servicer or the Depositor pursuant to
Section 3.05(e) in connection with any losses on Permitted Investments for
which it is responsible; and
(iii) any
other amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that the Master Servicer shall remit any amount not required to be
remitted, it may at any time direct the Trustee to withdraw such amount from
the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. Such direction may be accomplished by delivering an
Officer’s Certificate to the Trustee which describes the amounts deposited in
error in the Distribution Account. All funds deposited in the
Distribution Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.08. In no event shall the
Trustee incur liability for withdrawals from the Distribution Account at
the
direction of the Master Servicer.
51
(e) Each
institution at which the Certificate Account or the Distribution Account
is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than (i)
in the
case of the Certificate Account, the second Business Day next preceding the
related Distribution Account Deposit Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account,
then
such Permitted Investment shall mature not later than the Business Day next
preceding such Distribution Account Deposit Date) and (ii) in the case of
the
Distribution Account, the Business Day next preceding the Distribution Date
(except that if such Permitted Investment is an obligation of the institution
that maintains such fund or account, then such Permitted Investment shall
mature
not later than such Distribution Date) and, in each case, shall not be sold
or
disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gain net of any losses realized
from any such investment of funds on deposit in the Certificate Account,
or the
Distribution Account shall be for the benefit of the Master Servicer as
servicing compensation and shall be remitted to it monthly as provided in
this
Agreement. The amount of any realized losses in the Certificate
Account or the Distribution Account incurred in any such account in respect
of
any such investments shall promptly be deposited by the Master Servicer in
the
Certificate Account or paid to the Trustee for deposit into the Distribution
Account, as applicable. The Trustee in its fiduciary capacity shall
not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in the Certificate Account or the
Distribution Account and made in accordance with this Section 3.05.
(f) The
Master Servicer shall give notice to the Trustee, each Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof. The Trustee shall
give notice to the Master Servicer, each Seller, each Rating Agency and the
Depositor of any proposed change of the location of the Distribution Account
or
the Carryover Reserve Fund or any Derivative Account prior to any change
thereof.
(g) On
the Closing Date, the Trustee shall establish and maintain in its name, in
trust
for the benefit of the Holders of the LIBOR Certificates, the Carryover Reserve
Fund and shall deposit $1,000 therein upon receipt from or on behalf of the
Depositor of such amount. The Carryover Reserve Fund 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 held by the Trustee pursuant to this
Agreement.
Funds
in
the Carryover Reserve Fund may be invested in Permitted Investments at the
direction of a Majority in Interest of the Holders of the Class C Certificates,
which Permitted Investments shall mature not later than the Business Day
immediately preceding the first Distribution Date that follows the date of
such
investment (except that if such Permitted Investment is an obligation of
the
institution that maintains the Carryover Reserve Fund, then such Permitted
Investment shall mature not later than such Distribution Date) and shall
not be
sold or disposed of prior to maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the Holders
of the
Class C Certificates. In the absence of such written direction, all funds
in the
Carryover Reserve Fund shall be invested by the Trustee in The Bank of New
York
cash reserves. Any net investment earnings on such amounts shall be
retained therein until withdrawn as provided in Section 3.08. Any
losses incurred in the Carryover Reserve Fund in respect of any such investments
shall be charged against amounts on deposit in the Carryover Reserve Fund
(or
such investments) immediately as realized. The Trustee shall not be
liable for the amount of any loss incurred in respect of any investment or
lack
of investment of funds held in the Carryover Reserve Fund and made in accordance
with this Section 3.05. The Carryover Reserve Fund will not
constitute an asset of any REMIC created hereunder. The Class C
Certificates shall evidence ownership of the Carryover Reserve Fund for federal
tax purposes.
52
(h) On
the Closing Date, there is hereby established a separate trust (the
“Supplemental Interest Trust”), the assets of which shall consist of the
Derivative Accounts and the Supplemental Interest Trustee’s rights and
obligations under each Derivative Agreement. The Supplemental
Interest Trust shall be maintained by the Supplemental Interest Trustee,
who
initially shall be the Trustee.
On
the
Closing Date, the Supplemental Interest Trustee shall establish and maintain
six
separate, segregated trust accounts to be held in the Supplemental Interest
Trust, titled:
(i) “Class
A-1 Swap Account, The Bank of New York, as Supplemental Interest Trustee,
in
trust for the Swap Counterparty and the registered holders of the Class A-1
Certificates of CWALT, Inc., Mortgage Pass-Through Certificates, Series
2007-HY7C”;
(ii) “Class
A-3 Swap Account, The Bank of New York, as Supplemental Interest Trustee,
in
trust for the Swap Counterparty and the registered holders of the Class A-3
Certificates of CWALT, Inc., Mortgage Pass-Through Certificates, Series
2007-HY7C”;
(iii) “Class
M-3 Swap Account, The Bank of New York, as Supplemental Interest Trustee,
in
trust for the Swap Counterparty and the registered holders of the Class M-3
Certificates of CWALT, Inc., Mortgage Pass-Through Certificates, Series
2007-HY7C”;
(iv) “Certificate
Swap Account, The Bank of New York, as Supplemental Interest Trustee, in
trust
for the Swap Counterparty and the registered holders of the Senior Certificates
(other than the Class A-R Certificates and Notional Amount Certificates)
and
Subordinated Certificates of CWALT, Inc., Mortgage Pass-Through Certificates,
Series 2007-HY7C”;
(v) “Class
A-4 Corridor Account, The Bank of New York, as Supplemental Interest Trustee,
in
trust for the registered holders of the Class A-4 Certificates of CWALT,
Inc.,
Mortgage Pass-Through Certificates, Series 2007-HY7C”; and
(vi) “Subordinated
Certificates Corridor Account, The Bank of New York, as Supplemental Interest
Trustee, in trust for the registered holders of the Subordinated Certificates
of
CWALT, Inc., Mortgage Pass-Through Certificates, Series 2007-HY7C”.
On
the
Closing Date, the Trustee shall deposit $1,000 in each of the Class A-1 Swap
Account, Class A-3 Swap Account, Class M-3 Swap Account and Certificate Swap
Account upon receipt from or on behalf of the Depositor of such
amounts.
53
Each
Derivative 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 held by the Trustee
or
Supplemental Interest Trustee pursuant to this Agreement. For federal
income tax purposes, the Supplemental Interest Trust, including the Derivative
Accounts, shall be owned by the Underwriter.
On
each
Distribution Date, the Trustee shall make the deposits to the Class A-1 Swap
Account, Class A-3 Swap Account, Class M-3 Swap Account and Certificate Swap
Account required by Section 4.02. On each Distribution Date, the
Supplemental Interest Trustee shall deposit into each Derivative Account
all
amounts received in respect of the related Derivative Agreement from the
related
Counterparty for the related Accrual Period. The Supplemental Interest Trustee
shall make withdrawals from each Derivative Account to make distributions
pursuant to Section 4.02(e) exclusively (other than as expressly provided
for in
Section 3.08). Notwithstanding anything to the contrary in this
Agreement, the Supplemental Interest Trustee shall be allowed to transfer
funds
in a Derivative Account to the Trustee to facilitate, for administrative
purposes, distribution of such funds to Certificateholders through the
Distribution Account.
Funds
in
each Derivative Account shall be invested by the Supplemental Interest Trustee
in The Bank of New York cash reserves. All such Permitted Investments
shall be made in the name of the Supplemental Interest Trustee, for the benefit
of the Holders of the related Covered Certificates. Any net
investment earnings on such amounts shall be retained therein until withdrawn
as
provided in Section 3.08. Any losses incurred in a Derivative Account
in respect of any such investments shall be charged against amounts on deposit
in that Derivative Account (or such investments) immediately as
realized. The Supplemental Interest Trustee shall not be liable for
the amount of any loss incurred in respect of any investment or lack of
investment of funds held in a Derivative Account and made in accordance with
this Section 3.05.
The
Supplemental Interest Trust and the Derivative Accounts will not constitute
an
asset of the Trust Fund or any REMIC created hereunder.
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SECTION
3.06.
|
Collection
of Taxes, Assessments and Similar Items; Escrow
Accounts.
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(a) To
the extent required by the related Mortgage Note and not violative of current
law, the Master Servicer shall establish and maintain one or more accounts
(each, an “Escrow Account”) and deposit and retain therein all collections from
the Mortgagors (or advances by the Master Servicer) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account
of
the Mortgagors. Nothing in this Agreement shall require the Master
Servicer to compel a Mortgagor to establish an Escrow Account in violation
of
applicable law.
(b) Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse the Master Servicer
out
of related collections for any payments made pursuant to Sections 3.01
(with respect to taxes and assessments and insurance premiums) and 3.09 (with
respect to hazard insurance), to refund to any Mortgagors any sums determined
to
be overages, to pay interest, if required by law or the terms of the related
Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account
or to
clear and terminate the Escrow Account at the termination of this Agreement
in
accordance with Section 9.01. The Escrow Accounts shall not be a
part of the Trust Fund.
54
(c) The
Master Servicer shall advance any payments referred to in Section 3.06(a)
that are not timely paid by the Mortgagors on the date when the tax, premium
or
other cost for which such payment is intended is due, but the Master Servicer
shall be required so to advance only to the extent that such advances, in
the
good faith judgment of the Master Servicer, will be recoverable by the Master
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
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SECTION
3.07.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
The
Master Servicer shall afford each Seller, the Depositor, the NIM Insurer
and the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but
only
upon reasonable request and during normal business hours at the office
designated by the Master Servicer.
Upon
reasonable advance notice in writing, the Master Servicer will provide to
each
Certificateholder and/or Certificate Owner which is a savings and loan
association, bank or insurance company certain reports and reasonable access
to
information and documentation regarding the Mortgage Loans sufficient to
permit
such Certificateholder and/or Certificate Owner to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder and/or Certificate
Owner for actual expenses incurred by the Master Servicer in providing such
reports and access. Upon request, the Master Servicer shall furnish
to the Trustee and the NIM Insurer its most recent publicly available financial
statements and any other information relating to its capacity to perform
its
obligations under this Agreement reasonably requested by the NIM
Insurer.
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SECTION
3.08.
|
Permitted
Withdrawals from the Certificate Account, the Distribution Account,
the
Carryover Reserve Fund; the Principal Reserve Fund and the Derivative
Accounts.
|
(a) The
Master Servicer may from time to time make withdrawals from the Certificate
Account for the following purposes:
(i) to
pay to the Master Servicer (to the extent not previously retained by the
Master
Servicer) the servicing compensation to which it is entitled pursuant to
Section
3.14 and to pay to the Master Servicer, as additional servicing compensation,
earnings on or investment income with respect to funds in or credited to
the
Certificate Account;
(ii) to
reimburse each of the Master Servicer and the Trustee for unreimbursed Advances
made by it, such right of reimbursement pursuant to this subclause (ii) being
limited to amounts received on the Mortgage Loan(s) in respect of which any
such
Advance was made;
55
(iii) to
reimburse each of the Master Servicer and the Trustee for any Nonrecoverable
Advance previously made by it;
(iv) to
reimburse the Master Servicer for Insured Expenses from the related Insurance
Proceeds;
(v) to
reimburse the Master Servicer for (a) unreimbursed Servicing Advances, the
Master Servicer’s right to reimbursement pursuant to this clause (a) with
respect to any Mortgage Loan being limited to amounts received on such Mortgage
Loan(s) that represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01 or Section 3.06 and (b) for unpaid Master
Servicing Fees as provided in Section 3.11;
(vi) to
pay to the purchaser, with respect to each Mortgage Loan or property acquired
in
respect thereof that has been purchased pursuant to Section 2.02, 2.03 or
3.11,
all amounts received on such Mortgage Loan after the date of such
purchase;
(vii) to
reimburse the Sellers, the Master Servicer, the NIM Insurer or the Depositor
for
expenses incurred by any of them and reimbursable pursuant to Section
6.03;
(viii) to
withdraw any amount deposited in the Certificate Account and not required
to be
deposited in the Certificate Account;
(ix) on
or prior to the Distribution Account Deposit Date, to withdraw an amount
equal
to the related Available Funds, the related Prepayment Charge Amount and
the
Trustee Fee for such Distribution Date and remit such amount to the Trustee
for
deposit in the Distribution Account; and
(x) to
clear and terminate the Certificate Account upon termination of this Agreement
pursuant to Section 9.01.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the
Certificate Account pursuant to such subclauses (i), (ii), (iv), (v) and
(vi). Prior to making any withdrawal from the Certificate Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee
an
Officer’s Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The
Trustee shall withdraw funds from the Distribution Account for distributions
to
Certificateholders and remittance to the Class A-1 Swap Account, Class A-3
Swap
Account, Class M-3 Swap Account and Certificate Swap Account, in the manner
specified in this Agreement (and to withhold from the amounts so withdrawn,
the
amount of any taxes that it is authorized to withhold pursuant to the third
paragraph of Section 8.11). In addition, the Trustee may from time to
time make withdrawals from the Distribution Account for the following
purposes:
56
(i) to
pay to itself the Trustee Fee for the related Distribution Date;
(ii) to
pay to the Master Servicer as additional servicing compensation earnings
on or
investment income with respect to funds in the Distribution
Account;
(iii) to
withdraw and return to the Master Servicer any amount deposited in the
Distribution Account and not required to be deposited therein;
(iv) to
reimburse the Trustee for any unreimbursed Advances made by it pursuant to
Section 4.01(b) hereof, such right of reimbursement pursuant to this subclause
(iv) being limited to (x) amounts received on the related Mortgage Loan(s)
in
respect of which any such Advance was made and (y) amounts not otherwise
reimbursed to the Trustee pursuant to Section 3.08(a)(ii) hereof;
(v) to
reimburse the Trustee for any Nonrecoverable Advance previously made by the
Trustee pursuant to Section 4.01(b) hereof, such right of reimbursement pursuant
to this subclause (v) being limited to amounts not otherwise reimbursed to
the
Trustee pursuant to Section 3.08(a)(iii) hereof; and
(vi) to
clear and terminate the Distribution Account upon termination of this Agreement
pursuant to Section 9.01.
(c) The
Trustee shall withdraw funds from the Carryover Reserve Fund for distribution
to
the LIBOR Certificates and the Class C Certificates in the manner specified
in
Section 4.02(d) (and to withhold from the amounts so withdrawn the amount
of any
taxes that it is authorized to retain pursuant to the third paragraph of
Section
8.11). In addition, the Trustee may from time to time make
withdrawals from the Carryover Reserve Fund for the following
purposes:
(i) to
withdraw any amount deposited in the Carryover Reserve Fund and not required
to
be deposited therein; and
(ii) to
clear and terminate the Carryover Reserve Fund upon the termination of this
Agreement pursuant to Section 9.01.
(d) (i) The
Supplemental Interest Trustee shall withdraw funds from the Certificate Swap
Account for distribution to the Swap Counterparty and the Senior Certificates
(other than the Class A-R Certificates and Notional Amount Certificates)
and
Subordinated Certificates in the manner specified in Section 4.02(e)(i) (and
to
withhold from the amounts so withdrawn the amount of any taxes that it is
authorized to retain pursuant to the third paragraph of Section
8.11). In addition, the Supplemental Interest Trustee may from time
to time make withdrawals from the Certificate Swap Account for the following
purposes:
(A) to
withdraw any amount deposited in the Certificate Swap Account and not required
to be deposited therein; and
(B) to
clear and terminate the Certificate Swap Account upon the earlier of (1)
the
later of (x) the reduction of the Class Certificate Balance of each Class
of
Senior Certificates and Subordinated Certificates to zero and (y) the
Certificate Swap Contract Termination Date and (2) the termination of this
Agreement pursuant to Section 9.01;
57
(ii) The
Supplemental Interest Trustee shall withdraw funds from the Class A-1 Swap
Account for distribution to the Swap Counterparty and the Class A-1 Certificates
in the manner specified in Section 4.02(e)(ii) (and to withhold from the
amounts
so withdrawn the amount of any taxes that it is authorized to retain pursuant
to
the third paragraph of Section 8.11). In addition, the Supplemental
Interest Trustee may from time to time make withdrawals from the Class A-1
Swap
Account for the following purposes:
(A) to
withdraw any amount deposited in the Class A-1 Swap Account and not required
to
be deposited therein; and
(B) to
clear and terminate the Class A-1 Swap Account upon the reduction of the
Class
Certificate Balance of the Class A-1 Certificates to zero;
(iii) The
Supplemental Interest Trustee shall withdraw funds from the Class A-3 Swap
Account for distribution to the Swap Counterparty and the Class A-3 Certificates
in the manner specified in Section 4.02(e)(iii) (and to withhold from the
amounts so withdrawn the amount of any taxes that it is authorized to retain
pursuant to the third paragraph of Section 8.11). In addition, the
Supplemental Interest Trustee may from time to time make withdrawals from
the
Class A-3 Swap Account for the following purposes:
(A) to
withdraw any amount deposited in the Class A-3 Swap Account and not required
to
be deposited therein; and
(B) to
clear and terminate the Class A-3 Swap Account upon the reduction of the
Class
Certificate Balance of the Class A-3 Certificates to zero;
(iv) The
Supplemental Interest Trustee shall withdraw funds from the Class M-3 Swap
Account for distribution to the Swap Counterparty and the Class M-3 Certificates
in the manner specified in Section 4.02(e)(iv) (and to withhold from the
amounts
so withdrawn the amount of any taxes that it is authorized to retain pursuant
to
the third paragraph of Section 8.11). In addition, the Supplemental
Interest Trustee may from time to time make withdrawals from the Class M-3
Swap
Account for the following purposes:
(A) to
withdraw any amount deposited in the Class M-3 Swap Account and not required
to
be deposited therein; and
(B) to
clear and terminate the Class M-3 Swap Account upon the reduction of the
Class
Certificate Balance of the Class M-3 Certificates to zero;
(v) The
Supplemental Interest Trustee shall withdraw funds from the Class A-4 Corridor
Account for distribution to the Class A-4 Certificates in the manner specified
in Section 4.02(e)(v) (and to withhold from the amounts so withdrawn the
amount
of any taxes that it is authorized to retain pursuant to the third paragraph
of
Section 8.11). In addition, the Supplemental Interest Trustee may
from time to time make withdrawals from the Class A-4 Corridor Account for
the
following purposes:
58
(A) to
withdraw any amount deposited in the Class A-4 Corridor Account and not required
to be deposited therein; and
(B) to
clear and terminate the Class A-4 Corridor Account upon the earlier of (1)
the
later of (x) the reduction of the Class Certificate Balance of the Class
A-4
Certificates to zero and (y) the Class A-4 Corridor Contract Termination
Date
and (2) the termination of this Agreement pursuant to Section 9.01;
and
(vi) The
Supplemental Interest Trustee shall withdraw funds from the Subordinated
Certificates Corridor Account for distribution to the Subordinated Certificates
in the manner specified in Section 4.02(e)(vi) (and to withhold from the
amounts
so withdrawn the amount of any taxes that it is authorized to retain pursuant
to
the third paragraph of Section 8.11). In addition, the Supplemental
Interest Trustee may from time to time make withdrawals from the Subordinated
Certificates Corridor Account for the following purposes:
(A) to
withdraw any amount deposited in the Subordinated Certificates Corridor Account
and not required to be deposited therein; and
(B) to
clear and terminate the Subordinated Certificates Corridor Account upon the
reduction of the aggregate Class Certificate Balance of the Subordinated
Certificates to zero.
(e) On
the Business Day before the Class P Principal Distribution Date, the Trustee
shall transfer $100.00 from the Principal Reserve Fund to the Distribution
Account and shall distribute such amount to the Class P Certificates on the
Class P Principal Distribution Date. Following the distribution to be
made in accordance with the preceding sentence, the Trustee shall then terminate
the Principal Reserve Fund.
|
SECTION
3.09.
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
(a) The
Master Servicer shall cause to be maintained, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to the
lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan or (ii) the greater of (y) the outstanding principal
balance of the Mortgage Loan and (z) an amount such that the proceeds of
such policy shall be sufficient to prevent the Mortgagor and/or the mortgagee
from becoming a co-insurer. Each such policy of standard hazard
insurance shall contain, or have an accompanying endorsement that contains,
a
standard mortgagee clause. Any amounts collected by the Master
Servicer under any such policies (other than the amounts to be applied to
the
restoration or repair of the related Mortgaged Property or amounts released
to
the Mortgagor in accordance with the Master Servicer’s normal servicing
procedures) shall be deposited in the Certificate Account. Any cost
incurred by the Master Servicer in maintaining any such insurance shall not,
for
the purpose of calculating monthly distributions to the Certificateholders
or
remittances to the Trustee for their benefit, be added to the principal balance
of the Mortgage Loan, notwithstanding that the terms of the Mortgage Loan
so
permit. Such costs shall be recoverable by the Master Servicer out of
late payments by the related Mortgagor or out of proceeds of liquidation
of the
Mortgage Loan or Subsequent Recoveries to the extent permitted by
Section 3.08. It is understood and agreed that no earthquake or
other additional insurance is to be required of any Mortgagor or maintained
on
property acquired in respect of a Mortgage 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 the Mortgaged Property is
located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in the
national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such
flood insurance shall be in an amount equal to the least of (i) the outstanding
principal balance of the related Mortgage Loan, (ii) the replacement value
of
the improvements which are part of such Mortgaged Property, and (iii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program.
59
(b) [Reserved].
(c) The
Master Servicer shall not take any action which would result in non-coverage
under any applicable Primary Insurance Policy of any loss which, but for
the
actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall not cancel or refuse to renew
any such Primary Insurance Policy that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder
unless the replacement Primary Insurance Policy for such canceled or non-renewed
policy is maintained with a Qualified Insurer.
Except
with respect to any Lender PMI Mortgage Loans, the Master Servicer shall
not be
required to maintain any Primary Insurance Policy (i) with respect to any
Mortgage Loan with a Loan-to-Value Ratio less than or equal to 80% as of
any
date of determination or, based on a new appraisal, the principal balance
of
such Mortgage Loan represents 80% or less of the new appraised value or
(ii) if maintaining such Primary Insurance Policy is prohibited by
applicable law. With respect to the Lender PMI Mortgage Loans, the
Master Servicer shall maintain the Primary Insurance Policy for the life
of such
Mortgage Loans, unless otherwise provided for in the related Mortgage Note
or
prohibited by law.
The
Master Servicer agrees to effect the timely payment of the premiums on each
Primary Insurance Policy, and such costs not otherwise recoverable shall
be
recoverable by the Master Servicer from the related proceeds of liquidation
and
Subsequent Recoveries.
(d) In
connection with its activities as Master Servicer of the Mortgage Loans,
the
Master Servicer agrees to present on behalf of itself, the Trustee and
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary
to
permit recovery under any Primary Insurance Policies respecting defaulted
Mortgage Loans. Any amounts collected by the Master Servicer under
any Primary Insurance Policies shall be deposited in the Certificate
Account.
|
SECTION
3.10.
|
Enforcement
of Due-on-Sale Clauses; Assumption
Agreements.
|
(a) Except
as otherwise provided in this Section, when any property subject to a Mortgage
has been conveyed by the Mortgagor, the Master Servicer shall to the extent
that
it has knowledge of such conveyance, enforce any due-on-sale clause contained
in
any Mortgage Note or Mortgage, to the extent permitted under applicable law
and
governmental regulations, but only to the extent that such enforcement will
not
adversely affect or jeopardize coverage under any Required Insurance
Policy. Notwithstanding the foregoing, the Master Servicer is not
required to exercise such rights with respect to a Mortgage Loan if the Person
to whom the related Mortgaged Property has been conveyed or is proposed to
be
conveyed satisfies the terms and conditions contained in the Mortgage Note
and
Mortgage related thereto and the consent of the mortgagee under such Mortgage
Note or Mortgage is not otherwise so required under such Mortgage Note or
Mortgage as a condition to such transfer. In the event that the
Master Servicer is prohibited by law from enforcing any such due-on-sale
clause,
or if coverage under any Required Insurance Policy would be adversely affected,
or if nonenforcement is otherwise permitted hereunder, the Master Servicer
is
authorized, subject to Section 3.10(b), to take or enter into an assumption
and modification agreement from or with the person to whom such property
has
been or is about to be conveyed, pursuant to which such person becomes liable
under the Mortgage Note and, unless prohibited by applicable state law, the
Mortgagor remains liable thereon, provided that the Mortgage Loan shall continue
to be covered (if so covered before the Master Servicer enters such agreement)
by the applicable Required Insurance Policies. The Master Servicer,
subject to Section 3.10(b), is also authorized with the prior approval of
the insurers under any Required Insurance Policies 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 Mortgagor
and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Master Servicer shall not be deemed to be in default under
this
Section by reason of any transfer or assumption which the Master Servicer
reasonably believes it is restricted by law from preventing, for any reason
whatsoever.
60
(b) Subject
to the Master Servicer’s duty to enforce any due-on-sale clause to the extent
set forth in Section 3.10(a), in any case in which a Mortgaged Property has
been conveyed to a Person by a Mortgagor, and such Person is to enter into
an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Master Servicer shall prepare and deliver
or
cause to be prepared and delivered to the Trustee for signature and shall
direct, in writing, the Trustee to execute the assumption agreement with
the
Person to whom the Mortgaged Property is to be conveyed and such modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
as
are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. In
connection with any such assumption, no material term of the Mortgage Note
may
be changed. In addition, the substitute Mortgagor and the Mortgaged
Property must be acceptable to the Master Servicer in accordance with its
underwriting standards as then in effect. Together with each such
substitution, assumption or other agreement or instrument delivered to the
Trustee for execution by it, the Master Servicer shall deliver an Officer’s
Certificate signed by a Servicing Officer stating that the requirements of
this
subsection have been met in connection therewith. The Master Servicer
shall notify the Trustee that any such substitution or assumption agreement
has
been completed by forwarding to the Trustee the original of such substitution
or
assumption agreement, which in the case of the original 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. Any fee collected by the Master Servicer
for entering into an assumption or substitution of liability agreement will
be
retained by the Master Servicer as additional servicing
compensation.
61
|
SECTION
3.11.
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
(a) The
Master Servicer shall use reasonable efforts 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. In
connection with such foreclosure or other conversion, the Master Servicer
shall
follow such practices and procedures as it shall deem necessary or advisable
and
as shall be normal and usual in its general mortgage servicing activities
and
meet the requirements of the insurer under any Required Insurance Policy;
provided, however, that the Master Servicer shall not be required to expend
its
own funds in connection with any foreclosure or towards the restoration of
any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will
be
recoverable to it through the proceeds of liquidation of the Mortgage Loan
and
Subsequent Recoveries (respecting which it shall have priority for purposes
of
withdrawals from the Certificate Account). The Master Servicer shall
be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the proceeds of liquidation of the Mortgage Loan and Subsequent
Recoveries with respect to the related Mortgaged Property, as provided in
the
definition of Liquidation Proceeds. If the Master Servicer has
knowledge that a Mortgaged Property which the Master Servicer is contemplating
acquiring in foreclosure or by deed in lieu of foreclosure is located within
a 1
mile radius of any site listed in the Expenditure Plan for the Hazardous
Substance Clean Up Bond Act of 1984 or other site with environmental or
hazardous waste risks known to the Master Servicer, the Master Servicer will,
prior to acquiring the Mortgaged Property, consider such risks and only take
action in accordance with its established environmental review
procedures.
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of the Certificateholders. 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 Master Servicer
shall ensure that the title to such REO Property references the Pooling and
Servicing Agreement and the Trustee’s capacity thereunder. The Master
Servicer shall allow any REO Property that was subject to a lease at the
time of
acquisition through foreclosure or deed-in-lieu of foreclosure to continue
to be
rented pursuant to such lease, but upon the expiration of such lease, the
Master
Servicer shall not take any action to rent the related REO
Property. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall either itself or through an agent selected by the Master
Servicer protect and conserve such REO Property in the same manner and to
such
extent as is customary in the locality where such REO Property is
located. The Master Servicer shall prepare for and deliver to the
Trustee a statement with respect to each REO Property that has been rented
showing the aggregate rental income received and all expenses incurred in
connection with the maintenance of such REO Property at such times as is
necessary to enable the Trustee to comply with the reporting requirements
of the
REMIC Provisions. Any net monthly income from such REO Property shall
be deposited in the Certificate Account no later than the close of business
on
each Determination Date. The Master Servicer shall perform the tax
reporting and withholding required by Sections 1445 and 6050J of the Code
with
respect to foreclosures and abandonments, the tax reporting required by Section
6050H of the Code with respect to the receipt of mortgage interest from
individuals and any tax reporting required by Section 6050P of the Code with
respect to the cancellation of indebtedness by certain financial entities,
by
preparing such tax and information returns as may be required, in the form
required, and delivering the same to the Trustee for filing.
62
In
the
event that the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage
Loan,
the Master Servicer shall dispose of such Mortgaged Property as soon as
practicable in a manner that maximizes the Liquidation Proceeds thereof,
but in
no event later than three years after its acquisition by the Trust
Fund. In the event that the Trustee shall have been supplied with an
Opinion of Counsel to the effect that the holding by the Trust Fund of such
Mortgaged Property subsequent to a three-year period, if applicable, will
not
result in the imposition of taxes on “prohibited transactions” of any REMIC
hereunder as defined in Section 860F of the Code or cause any REMIC hereunder
to
fail to qualify as a REMIC at any time that any Certificates are outstanding,
then the Trust Fund may continue to hold such Mortgaged Property (subject
to any
conditions contained in such Opinion of Counsel) after the expiration of
such
three-year period. Notwithstanding any other provision of this
Agreement, no Mortgaged Property acquired by the Trust Fund shall be allowed
to
continue to be rented or otherwise used for the production of income by or
on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code or (ii) subject
any REMIC hereunder to the imposition of any federal, state or local income
taxes on the income earned from such Mortgaged Property under Section 860G(c) of
the Code or otherwise, unless the Master Servicer has agreed to indemnify
and
hold harmless the Trust Fund with respect to the imposition of any such
taxes.
In
the
event of a default on a Mortgage Loan one or more of whose obligor is not
a
United States Person, as that term is defined in Section 7701(a)(30) of the
Code, in connection with any foreclosure or acquisition of a deed in lieu
of
foreclosure (together, “foreclosure”) in respect of such Mortgage Loan, the
Master Servicer will cause compliance with the provisions of Treasury Regulation
Section 1.1445-2(d)(3) (or any successor thereto) necessary to assure that
no
withholding tax obligation arises with respect to the proceeds of such
foreclosure except to the extent, if any, that proceeds of such foreclosure
are
required to be remitted to the obligors on such Mortgage Loan.
The
decision of the Master Servicer to foreclose on a defaulted Mortgage Loan
shall
be subject to a determination by the Master Servicer that the proceeds of
such
foreclosure would exceed the costs and expenses of bringing such a
proceeding. The income earned from the rental of any REO Properties,
net of reimbursement to the Master Servicer for expenses incurred (including
any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall
be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were
still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate
Account. To the extent the net income received during any calendar
month is in excess of the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan
for
such calendar month, such excess shall be considered to be a partial prepayment
of principal of the related Mortgage Loan.
63
The
proceeds from any liquidation of a Mortgage Loan, as well as any income from
an
REO Property, will be applied in the following order of priority: first,
to
reimburse the Master Servicer for any related unreimbursed Servicing Advances
and Master Servicing Fees; second, to reimburse the Master Servicer or the
Trustee for any unreimbursed Advances; third, to reimburse the Certificate
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer or the Trustee pursuant to
Section 3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued
and unpaid interest (to the extent no Advance has been made for such amount
or
any such Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Adjusted Net Mortgage Rate to the Due Date occurring in
the
month in which such amounts are required to be distributed; and fifth, as
a
recovery of principal of the Mortgage Loan. Excess Proceeds, if any,
from the liquidation of a Liquidated Mortgage Loan will be retained by the
Master Servicer as additional servicing compensation pursuant to Section
3.14.
The
Master Servicer, in its sole discretion, shall have the right to purchase
for
its own account from the Trust Fund any Mortgage Loan which is 151 days or
more
delinquent at a price equal to the Purchase Price; provided, however, that
the
Master Servicer may only exercise this right on or before the next to the
last
day of the calendar month in which such Mortgage Loan became 151 days delinquent
(such month, the “Eligible Repurchase Month”); provided further, that any such
Mortgage Loan which becomes current but thereafter becomes delinquent may
be
purchased by the Master Servicer pursuant to this Section in any ensuing
Eligible Repurchase Month. The Purchase Price for any Mortgage Loan
purchased under this Section 3.11 shall be deposited in the Certificate Account
and the Trustee, upon receipt of a certificate from the Master Servicer in
the
form of Exhibit N to this Agreement, shall release or cause to be released
to the purchaser of such Mortgage Loan the related Mortgage File and shall
execute and deliver such instruments of transfer or assignment prepared by
the
purchaser of such Mortgage Loan, in each case without recourse, as shall
be
necessary to vest in the purchaser of such Mortgage Loan any Mortgage Loan
released pursuant hereto and the purchaser of such Mortgage Loan shall succeed
to all the Trustee’s right, title and interest in and to such Mortgage Loan and
all security and documents related thereto. Such assignment shall be
an assignment outright and not for security. The purchaser of such
Mortgage Loan shall thereupon own such Mortgage Loan, and all security and
documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
(b) Countrywide
is permitted to solicit Mortgagors for reductions to the Mortgage Rates of
their
respective Mortgage Loans so long as the Mortgagors are not selected for
solicitation based on the inclusion of the related Mortgage Loans in the
Trust
Fund. If a Mortgagor requests a reduction to the Mortgage Rate for
the related Mortgage Loan, the Master Servicer shall agree to a reduction
in the
Mortgage Rate of that Mortgage Loan (the “Modified Mortgage Loan”) if (i) no
monetary default exists with respect to such Mortgage Loan and (ii) Countrywide,
in its corporate capacity, agrees to purchase the Modified Mortgage Loan
from
the Trust Fund immediately following the modification as described
below. Effective immediately after the modification, and, in any
event, on the same Business Day on which the modification occurs, all interest
of the Trustee in the Modified Mortgage Loan shall automatically be deemed
transferred and assigned to Countrywide and all benefits and burdens of
ownership thereof, including the right to accrued interest thereon from the
date
of modification and the risk of default thereon, shall pass to
Countrywide. The Master Servicer shall promptly deliver to the
Trustee a certification of a Servicing Officer to the effect that all
requirements of this paragraph have been satisfied with respect to the Modified
Mortgage Loan. For federal income tax purposes, the Trustee shall
account for such purchase as a prepayment in full of the Modified Mortgage
Loan.
64
Countrywide
shall remit the Purchase Price for any Modified Mortgage Loan to the Master
Servicer for deposit into the Certificate Account pursuant to Section 3.05
within one Business Day after the purchase of the Modified Mortgage
Loan. Upon receipt by the Trustee of written notification of any such
deposit signed by a Servicing Officer, the Trustee shall release to Countrywide
the related Mortgage File and shall execute and deliver such instruments
of
transfer or assignment, in each case without recourse, as shall be necessary
to
vest in Countrywide any Modified Mortgage Loan previously transferred and
assigned pursuant hereto. Countrywide covenants and agrees to
indemnify the Trust Fund against any liability for any “prohibited transaction”
taxes and any related interest, additions, and penalties imposed on the Trust
Fund established hereunder as a result of any modification of a Mortgage
Loan
effected pursuant to this subsection (b), any holding of a Modified Mortgage
Loan by the Trust Fund or any purchase of a Modified Mortgage Loan by
Countrywide (but such obligation shall not prevent Countrywide or any other
appropriate Person from in good faith contesting any such tax in appropriate
proceedings and shall not prevent Countrywide from withholding payment of
such
tax, if permitted by law, pending the outcome of such
proceedings). Countrywide shall have no right of reimbursement for
any amount paid pursuant to the foregoing indemnification, except to the
extent
that the amount of any tax, interest, and penalties, together with interest
thereon, is refunded to the Trust Fund or Countrywide. Nothing in
this Section 3.11(b) restricts the ability of the Master Servicer to modify
a
Mortgage Loan in a manner that is consistent with the servicing standard
set
forth in Section 3.01; provided, however, that Countrywide shall have no
obligation to purchase any such modified Mortgage Loan.
|
SECTION
3.12.
|
Trustee
to Cooperate; Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer
of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Master Servicer will immediately notify the Trustee by
delivering, or causing to be delivered a “Request for Release” substantially in
the form of Exhibit N of this Agreement. Upon receipt of such
request, the Trustee shall promptly release the related Mortgage File to
the
Master Servicer, and the Trustee shall at the Master Servicer’s direction
execute and deliver to the Master Servicer the request for reconveyance,
deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Mortgage in each case provided by the Master Servicer, together
with the Mortgage Note with written evidence of cancellation on the Mortgage
Note. The Master Servicer is authorized to cause the removal from the
registration on the MERS® System of such Mortgage and to execute and deliver, on
behalf of the Trustee and the Certificateholders or any of them, any and
all
instruments of satisfaction or cancellation or of partial or full
release. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any fidelity bond or errors
or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee shall, upon delivery to the Trustee
of a Request for Release in the form of Exhibit M signed by a Servicing
Officer, release the Mortgage File to the Master Servicer. Subject to
the further limitations set forth below, the Master Servicer shall cause
the
Mortgage File or documents so released to be returned to the Trustee when
the
need therefor by the Master Servicer no longer exists, unless the Mortgage
Loan
is liquidated and the proceeds thereof are deposited in the Certificate Account,
in which case the Master Servicer shall deliver to the Trustee a Request
for
Release in the form of Exhibit N, signed by a Servicing
Officer.
65
If
the
Master Servicer at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, the Master
Servicer shall deliver or cause to be delivered to the Trustee, for signature,
as appropriate, any court pleadings, requests for trustee’s sale or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or
to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law
or
in equity.
|
SECTION
3.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
the
Trustee.
|
Notwithstanding
any other provisions of this Agreement, the Master Servicer shall transmit
to
the Trustee as required by this Agreement all documents and instruments in
respect of a Mortgage Loan coming into the possession of the Master Servicer
from time to time and shall account fully to the Trustee for any funds received
by the Master Servicer or which otherwise are collected by the Master Servicer
as Liquidation Proceeds, Insurance Proceeds or Subsequent Recoveries in respect
of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, the Master Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or
from
Liquidation Proceeds and any Subsequent Recoveries, including but not limited
to, any funds on deposit in the Certificate Account, shall be held by the
Master
Servicer for and on behalf of the Trustee and shall be and remain the sole
and
exclusive property of the Trustee, subject to the applicable provisions of
this
Agreement. The Master Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, Distribution Account or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment or other encumbrance, or assert by legal action
or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that
the
Master Servicer shall be entitled to set off against and deduct from any
such
funds any amounts that are properly due and payable to the Master Servicer
under
this Agreement.
|
SECTION
3.14.
|
Servicing
Compensation.
|
As
compensation for its activities hereunder, the Master Servicer shall be entitled
to retain or withdraw from the Certificate Account an amount equal to the
Master
Servicing Fee; provided, that the aggregate Master Servicing Fee with respect
to
any Distribution Date shall be reduced (i) by an amount equal to the aggregate
of the Prepayment Interest Shortfalls, if any, with respect to such Distribution
Date, but not by more than the Compensating Interest for that Distribution
Date,
and (ii) with respect to the first Distribution Date, an amount equal to
any
amount to be deposited into the Distribution Account by the Depositor pursuant
to Section 2.01(a) and not so deposited.
66
Additional
servicing compensation in the form of Excess Proceeds, Prepayment Interest
Excess, assumption fees, late payment charges and all income and gain net
of any
losses realized from Permitted Investments on the Certificate Account and
the
Distribution Account shall be retained by the Master Servicer to the extent
not
required to be deposited in the Certificate Account pursuant to Section
3.05. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its master servicing activities hereunder
(including payment of any premiums for hazard insurance and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement therefor
except as specifically provided in this Agreement.
|
SECTION
3.15.
|
Access
to Certain Documentation.
|
The
Master Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders and/or Certificate Owners and
the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall
be afforded without charge, but only upon reasonable and prior written request
and during normal business hours at the offices designated by the Master
Servicer. Nothing in this Section shall limit the obligation of the
Master Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of the Master Servicer
to
provide access as provided in this Section as a result of such obligation
shall
not constitute a breach of this Section.
|
SECTION
3.16.
|
Annual
Statement as to Compliance.
|
(a) The
Master Servicer shall deliver to the Depositor and the Trustee on or before
March 15 of each year, commencing with its 2008 fiscal year, an Officer’s
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer
under
this Agreement, has been made under such officer’s supervision and (ii) to the
best of such officer’s knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement, in all material respects
throughout such year (or applicable 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.
(b) The
Master Servicer shall cause each Subservicer to deliver to the Depositor
and the
Trustee on or before March 15 of each year, commencing with its 2008 fiscal
year, an Officer’s Certificate stating, as to the signer thereof, that (i) a
review of the activities of such Subservicer during the preceding calendar
year
(or applicable portion thereof) and of the performance of the Subservicer
under
the applicable Subservicing Agreement or primary servicing agreement, has
been
made under such officer’s supervision and (ii) to the best of such officer’s
knowledge, based on such review, such Subservicer has fulfilled all its
obligations under the applicable Subservicing Agreement or primary servicing
agreement, in all material respects throughout such year (or applicable 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.
67
(c) The
Trustee shall forward a copy of each such statement to each Rating
Agency.
|
SECTION
3.17.
|
Errors
and Omissions Insurance; Fidelity
Bonds.
|
The
Master Servicer shall for so long as it acts as master servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as
Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond
shall, together, comply with the requirements from time to time of FNMA or
FHLMC
for persons performing servicing for mortgage loans purchased by FNMA or
FHLMC. In the event that any such policy or bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy
or bond
from an insurer or issuer, meeting the requirements set forth above as of
the
date of such replacement.
|
SECTION
3.18.
|
Notification
of Adjustments.
|
On
each
Adjustment Date, the Master Servicer shall make interest rate and scheduled
payment adjustments for each Mortgage Loan in compliance with the requirements
of the related Mortgage and Mortgage Note and applicable
regulations. The Master Servicer shall execute and deliver the
notices required by each Mortgage and Mortgage Note and applicable regulations
regarding interest rate adjustments. The Master Servicer also shall
provide timely notification to the Trustee of all applicable data and
information regarding such interest rate adjustments and the Master Servicer’s
methods of implementing such interest rate adjustments. Upon the
discovery by the Master Servicer or the Trustee that the Master Servicer
has
failed to adjust or has incorrectly adjusted a Mortgage Rate or a monthly
payment pursuant to the terms of the related Mortgage Note and Mortgage,
the
Master Servicer shall immediately deposit in the Certificate Account from
its
own funds the amount of any interest loss caused thereby without reimbursement
therefor; provided, however, the Master Servicer shall be held harmless with
respect to any interest rate adjustments made by any servicer prior to the
Master Servicer.
|
SECTION
3.19.
|
The
Derivative Agreements.
|
No
later
than two Business Days following each Distribution Date, the Trustee shall
provide the Supplemental Interest Trustee with information regarding the
Class
Certificate Balance of the Class A-1, Class A-3 and Class M-3 Certificates
and
the aggregate Class Certificate Balance of the Subordinated Certificates
after
all distributions on such Distribution Date.
Upon
the
Supplemental Interest Trustee obtaining actual knowledge of a Collateral
Event
(as defined in the ISDA Master Agreement), the Supplemental Interest Trustee
shall (i) demand delivery of the Delivery Amount (as defined in ISDA Master
Agreement) from the Swap Counterparty on each Valuation Date (as defined
in the
ISDA Master Agreement), if applicable, (ii) deliver to the Swap Counterparty
the
Return Amount (as defined in the ISDA Master Agreement) on each Valuation
Date,
if applicable, as well as Distributions and the Interest Amount (each as
defined
in the ISDA Master Agreement), to the extent required under the ISDA Master
Agreement and (iii) take such other action required under the ISDA Master
Agreement. If a Delivery Amount is demanded under the ISDA Master
Agreement, the Supplemental Interest Trustee shall open and maintain a
segregated account meeting the requirements set forth in the ISDA Master
Agreement to hold cash and other eligible investments pledged under the ISDA
Master Agreement. Any cash or other Eligible Collateral (as defined
in the ISDA Master Agreement) pledged under the ISDA Master Agreement shall
not
be part of the Distribution Account or any Derivative Account unless remitted
to
such accounts by the Supplemental Interest Trustee. If Eligible
Collateral with a Value (as defined in the ISDA Master Agreement) equal to
the
Delivery Amount is not delivered to the Supplemental Interest Trustee by
the
Swap Counterparty, the Supplemental Interest Trustee shall notify the Swap
Counterparty and Countrywide of such failure.
68
Upon
the
Supplemental Interest Trustee obtaining actual knowledge of an Event of Default
or Termination Event (each as defined in the ISDA Master Agreement) under
the
ISDA Master Agreement for which the Supplemental Interest Trustee has the
right
to designate an Early Termination Date (as defined in the ISDA Master
Agreement), the Supplemental Interest Trustee shall act at the written direction
of Countrywide as to whether to designate an Early Termination Date; provided,
however, that, following such Event of Default or Termination Event and before
designating an Early Termination Date, the Trustee or the Supplemental Interest
Trustee shall provide written notice to each Rating Agency. Following
the designation of an Early Termination Date, (i) the Supplemental Interest
Trustee shall use its reasonable best efforts to enforce its rights under
the
ISDA Master Agreement consistent with the terms hereof, (ii) Countrywide
shall
assist the Supplemental Interest Trustee in procuring replacement swap contracts
with terms that are substantially the same as those of the original swap
contracts and (iii) the Supplemental Interest Trustee shall request the Swap
Counterparty to assist in procuring replacement swap contracts with terms
that
are substantially the same as those of the original swap contracts.
Any
Swap
Termination Payment received from the Swap Counterparty shall be used to
pay any
upfront amount required under any replacement swap contract and any excess
shall
be distributed to the Underwriter and will not be available to make
distributions in respect of any Class of Certificates. In the event
that a replacement swap contract cannot be procured, any Swap Termination
Payment received from the Swap Counterparty in respect of the termination
of the
original swap contract shall be retained in the related Derivative Account
and
used on subsequent Distribution Dates up to and including the Class A-1 Swap
Contract Termination Date, Class A-3 Swap Contract Termination Date, Class
M-3
Swap Contract Termination Date or Certificate Swap Contract Termination Date,
as
applicable, to pay any amounts distributable to the applicable Classes of
Certificates pursuant to Sections 4.02(e)(i), 4.02(e)(ii), 4.02(e)(iii) or
4.02(e)(iv), as applicable, that will remain unpaid following all distributions
to be made on such Distribution Date pursuant to Section 4.02(a) through
(d). Any portion of such Swap Termination Payment remaining after the
Class A-1 Swap Contract Termination Date, Class A-3 Swap Contract Termination
Date, Class M-3 Swap Contract Termination Date or Certificate Swap Contract
Termination Date, as applicable, shall be distributed to the Underwriter
and
will not be available to make distributions in respect of any Class of
Certificates.
In
the
event that the counterparty in respect of a replacement swap contract pays
any
upfront amount to the Supplemental Interest Trustee in connection with entering
into the replacement swap contract and such upfront amount is received by
the
Supplemental Interest Trustee prior to the Distribution Date on which any
Swap
Termination Payment will be payable to the Swap Counterparty in respect of
the
original swap contract, a portion of that upfront amount equal to the lesser
of
(x) that upfront amount and (y) the amount of the Swap Termination Payment
due
to the Swap Counterparty in respect of the original swap contract (the “Adjusted
Replacement Upfront Amount”) shall be included in Interest Funds for that
Distribution Date, and any upfront amount in excess of the Adjusted Replacement
Upfront Amount shall be distributed to the Underwriter and will not be available
to make distributions in respect of any Class of Certificates. If any
upfront amount is paid to the Supplemental Interest Trustee by the counterparty
in respect of a replacement swap contract after the Distribution Date on
which
any Swap Termination Payment will be payable to the Swap Counterparty in
respect
of the original swap contract, such upfront amount shall be retained by the
Supplemental Interest Trustee in the related Derivative Account and used
on
subsequent Distribution Dates up to and including the Class A-1 Swap Contract
Termination Date, Class A-3 Swap Contract Termination Date, Class M-3 Swap
Contract Termination Date or Certificate Swap Contract Termination Date,
as
applicable, to pay any amounts distributable to the applicable Classes of
Certificates pursuant to Sections 4.02(e)(i), 4.02(e)(ii), 4.02(e)(iii) or
4.02(e)(iv), as applicable, that will remain unpaid following all distributions
to be made on such Distribution Date pursuant to Section 4.02(a) through
(d).
69
Any
Corridor Termination Payment received from the Corridor Counterparty shall
be
retained in the related Derivative Account and used on subsequent Distribution
Dates (i) in the case of the Class A-4 Corridor Contract, up to and including
the Class A-4 Corridor Contract Termination Date and (ii) in the case of
the
Subordinated Certificates Corridor Contract, up to and including the
Distribution Date on which the aggregate Class Certificate Balance of the
Subordinated Certificates is reduced to zero, in each case to pay any amounts
distributable to the applicable Classes of Certificates pursuant to Section
4.02(e)(v) or Section 4.02(e)(vi), as applicable, that will remain unpaid
following all distributions to be made on such Distribution Date pursuant
to
Section 4.02(a) through (d). Any portion of such upfront amount
remaining after the Class A-4 Corridor Contract Termination Date or Subordinated
Certificates Corridor Contract Termination Date, as applicable, shall be
distributed to the Underwriter and will not be available to make distributions
in respect of any Class of Certificates.
If
the
obligations of the Swap Counterparty shall become guaranteed pursuant to
the
guarantee of any party (whether an affiliate of the Swap Counterparty or
otherwise), then the Supplemental Interest Trustee shall promptly demand
in
accordance with the terms of the guarantee from such guarantor all amounts
payable or deliverable by the Swap Counterparty under a swap contract in
the
event that the Swap Counterparty fails to make timely payment or delivery
of
such amounts.
The
Supplemental Interest Trustee shall demand payment from the Guarantor under
the
applicable Guarantee of all amounts payable or deliverable by the Corridor
Counterparty under a corridor contract in the event that the Corridor
Counterparty fails to make timely payment or delivery of such
amounts.
The
Swap
Counterparty shall be an express third party beneficiary of this Agreement
for
the purpose of enforcing the provisions hereof to the extent of the Swap
Counterparty’s rights explicitly specified herein as if a party
hereto.
70
|
SECTION
3.20.
|
Prepayment
Charges.
|
(a) Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Master Servicer may
not
waive any Prepayment Charge or portion thereof required by the terms of the
related Mortgage Note unless (i) such Mortgage Loan is in default or the
Master
Servicer believes that such a default is imminent, and the Master Servicer
determines that such waiver would maximize recovery of Liquidation Proceeds
for
such Mortgage Loan, taking into account the value of such Prepayment Charge,
or
(ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors’ rights
generally or (2) due to acceleration in connection with a foreclosure or
other
involuntary payment, or (B) the enforceability is otherwise limited or
prohibited by applicable law. In the event of a Principal Prepayment
in full or in part with respect to any Mortgage Loan, the Master Servicer
shall
deliver to the Trustee an Officer’s Certificate substantially in the form of
Exhibit T no later than the third Business Day following the immediately
succeeding Determination Date with a copy to the Class P
Certificateholders. If the Master Servicer has waived or does not
collect all or a portion of a Prepayment Charge relating to a Principal
Prepayment in full or in part due to any action or omission of the Master
Servicer, other than as provided above, the Master Servicer shall deliver
to the
Trustee, together with the Principal Prepayment in full or in part, the amount
of such Prepayment Charge (or such portion thereof as had been waived) for
deposit into the Certificate Account (not later than 1:00 p.m. Pacific time
on
the immediately succeeding Master Servicer Advance Date, in the case of such
Prepayment Charge) for distribution in accordance with the terms of this
Agreement.
(b) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee
of a
breach of the foregoing subsection (a), the party discovering the breach
shall
give prompt written notice to the other parties.
(c) Countrywide
represents and warrants to the Depositor and the Trustee, as of the Closing
Date, that the information contained in clauses (xxii), (xxiii) and (xxiv)
of
the Mortgage Loan Schedule is complete and accurate in all material respects
at
the dates as of which the information is furnished and each Prepayment Charge
is
permissible and enforceable in accordance with its terms under applicable
state
law, except as the enforceability thereof is limited due to acceleration
in
connection with a foreclosure or other involuntary payment.
(d) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee
of a
breach of the foregoing clause (c) that materially and adversely affects
right
of the Holders of the Class P Certificates to any Prepayment Charge, the
party discovering the breach shall give prompt written notice to the other
parties. Within 60 days of the earlier of discovery by the Master Servicer
or
receipt of notice by the Master Servicer of breach, the Master Servicer shall
cure the breach in all material respects or shall pay into the Certificate
Account the amount of the Prepayment Charge that would otherwise be due from
the
Mortgagor, less any amount representing such Prepayment Charge previously
collected and paid by the Master Servicer into the Certificate
Account.
71
ARTICLE
IV
DISTRIBUTIONS
AND
ADVANCES
BY THE MASTER SERVICER
|
SECTION
4.01.
|
Advances.
|
(a) The
Master Servicer shall determine on or before each Master Servicer Advance
Date
whether it is required to make an Advance pursuant to the definition
thereof. If the Master Servicer determines it is required to make an
Advance, it shall, on or before the Master Servicer Advance Date, either
(i) deposit into the Certificate Account an amount equal to the Advance or
(ii) make an appropriate entry in its records relating to the Certificate
Account that any Amount Held for Future Distribution has been used by the
Master
Servicer in discharge of its obligation to make any such Advance. Any
funds so applied shall be replaced by the Master Servicer by deposit in the
Certificate Account no later than the close of business on the next Master
Servicer Advance Date. The Master Servicer shall be entitled to be
reimbursed from the Certificate Account for all Advances of its own funds
made
pursuant to this Section as provided in Section 3.08. The
obligation to make Advances with respect to any Mortgage Loan shall continue
if
such Mortgage Loan has been foreclosed or otherwise terminated and the related
Mortgaged Property has not been liquidated.
(b) If
the Master Servicer determines that it will be unable to comply with its
obligation to make the Advances as and when described in the second sentence
of
Section 4.01(a), it shall use its best efforts to give written notice thereof
to
the Trustee (each such notice a “Trustee Advance Notice”; and such notice may be
given by telecopy), not later than 3:00 P.M., New York time, on the Business
Day
immediately preceding the related Master Servicer Advance Date, specifying
the
amount that it will be unable to deposit (each such amount an “Advance
Deficiency”) and certifying that such Advance Deficiency constitutes an Advance
hereunder and is not a Nonrecoverable Advance. If the Trustee
receives a Trustee Advance Notice on or before 3:30 P.M., New York time on
a
Master Servicer Advance Date, the Trustee shall, not later than 3:00 P.M.,
New
York time, on the related Distribution Date, deposit in the Distribution
Account
an amount equal to the Advance Deficiency identified in such Trustee Advance
Notice unless it is prohibited from so doing by applicable
law. Notwithstanding the foregoing, the Trustee shall not be required
to make such deposit if the Trustee shall have received written notification
from the Master Servicer that the Master Servicer has deposited or caused
to be
deposited in the Certificate Account an amount equal to such Advance
Deficiency. All Advances made by the Trustee pursuant to this Section
4.01(b) shall accrue interest on behalf of the Trustee at the Trustee Advance
Rate from and including the date such Advances are made to but excluding
the
date of repayment, with such interest being an obligation of the Master Servicer
and not the Trust Fund. The Master Servicer shall reimburse the
Trustee for the amount of any Advance made by the Trustee pursuant to this
Section 4.01(b) together with accrued interest, not later than the fifth
day
following the related Master Servicer Advance Date. In the event that
the Master Servicer does not reimburse the Trustee in accordance with the
requirements of the preceding sentence, the Trustee shall have the right,
but
not the obligation, to immediately (a) terminate all of the rights and
obligations of the Master Servicer under this Agreement in accordance with
Section 7.01 and (b) subject to the limitations set forth in Section 3.04,
assume all of the rights and obligations of the Master Servicer
hereunder.
72
(c) The
Master Servicer shall, not later than the close of business on the second
Business Day immediately preceding each Distribution Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the Trustee)
that indicates (i) the Mortgage Loans with respect to which the Master Servicer
has determined that the related Scheduled Payments should be advanced and
(ii)
the amount of the related Scheduled Payments. The Master Servicer
shall deliver to the Trustee on the related Master Servicer Advance Date
an
Officer’s Certificate of a Servicing Officer indicating the amount of any
proposed Advance determined by the Master Servicer to be a Nonrecoverable
Advance.
|
SECTION
4.02.
|
Priorities
of Distribution.
|
(a) Distributions
of Interest Funds. On each Distribution Date, the Interest Funds
for such Distribution Date shall be distributed by the Trustee from the
Distribution Account in the following order:
|
|
(1)
|
concurrently:
|
|
|
(a)
|
to
the Certificate Swap Account, any Net Swap Payment and any Swap
Termination Payment (other than a Swap Termination Payment due
to a Swap
Counterparty Trigger Event) payable to the Swap Counterparty under
the
Certificate Swap Contract with respect to such Distribution Date;
and
|
|
|
(b)
|
concurrently,
to the Class A-1 Swap Account and the Class A-3 Swap Account, the
Class
A-1 Swap Fee and the Class A-3 Swap Fee, in each case payable to
the Swap
Counterparty with respect to such Distribution Date, pro rata based
on the
respective swap fee;
|
|
|
(2)
|
from
interest collections on the Mortgage Loans in Sub-Group X, Current
Interest and Interest Carry Forward Amount to the Class X
Certificates;
|
|
|
(3)
|
concurrently,
to each Class of Senior LIBOR Certificates, the related Current
Interest
and Interest Carry Forward Amount, pro rata based on their respective
entitlements; provided, however, that for so long as the Class
A-1 Swap Contract or the Class A-3 Swap Contract has not been terminated,
any amounts of Current Interest and Interest Carry Forward Amount
that
would be distributed to the Class A-1 and Class A-3 Certificates,
respectively, in the absence of the related Swap Contract will
instead be
distributed to the related Swap Account and, provided further, if
a Swap Termination Payment (other than a Swap Termination Payment
due to a
Swap Counterparty Trigger Event) is due to the Swap Counterparty
with
respect to the Class A-1 Swap Contract or the Class A-3 Swap Contract,
then any amounts of Current Interest and Interest Carry Forward
Amount
that would be distributed to the Class A-1 and Class A-3 Certificates,
respectively, in the absence of such Swap Termination Payment will
instead
be distributed, up to the amount of such Swap Termination Payment,
to the
related Swap Account;
|
73
|
|
(4)
|
to
the Class M-3 Swap Account, the Class M-3 Swap Fee payable to the
Swap
Counterparty with respect to such Distribution
Date;
|
|
|
(5)
|
sequentially,
in order of their distribution priorities, to each Class of Subordinated
Certificates, the Current Interest for each such Class; provided,
however, that for so long as the Class M-3 Swap Contract has not
been
terminated, any amounts of Current Interest that would be distributed
to
the Class M-3 Certificates in the absence of the Class M-3 Swap
Contract
will instead be distributed to the Class M-3 Swap Account and,
provided further, if a Swap Termination Payment (other than a
Swap Termination Payment due to a Swap Counterparty Trigger Event)
is due
to the Swap Counterparty with respect to the Class M-3 Swap Contract,
then
any amounts of Current Interest that would be distributed to the
Class M-3
Certificates in the absence of such Swap Termination Payment will
instead
be distributed, up to the amount of such Swap Termination Payment,
to the
Class M-3 Swap Account; and
|
|
|
(6)
|
any
remainder as part of the Excess
Cashflow.
|
(b) Distributions
of Principal Distribution Amount. On each Distribution Date, the
Principal Distribution Amount for such Distribution Date shall be distributed
by
the Trustee from the Distribution Account in the following order with all
distributions pursuant to this clause (b) being made first from the Principal
Remittance Amount:
|
|
(A)
|
For
each Distribution Date prior to the Stepdown Date or on which a
Trigger
Event is in effect, in the following
order:
|
|
|
(1)
|
to
the Class A-R Certificates, until its Class Certificate Balance
is reduced
to zero;
|
|
|
(2)
|
concurrently,
to the Class X-0, Xxxxx X-0, Class A-3 and Class A-4 Certificates,
pro
rata, until their respective Class Certificate Balances are reduced
to
zero;
|
|
|
(3)
|
sequentially,
in order of their distribution priorities, to each Class of Subordinated
Certificates, until their respective Class Certificate Balances
are
reduced to zero; and
|
|
|
(4)
|
any
remainder as part of the Excess
Cashflow.
|
|
|
(B)
|
For
each Distribution Date on or after the Stepdown Date and so long
as a
Trigger Event is not in effect, in the following
order:
|
|
|
(1)
|
in
an amount up to the Senior Principal Distribution Target Amount,
concurrently, to the Class A-1, Class A-2, Class A-3 and Class
A-4
Certificates, pro rata, until their respective Class Certificate
Balances
are reduced to zero;
|
|
|
(2)
|
sequentially,
in order of their distribution priorities, to each Class of Subordinated
Certificates, the Subordinated Class Principal Distribution Target
Amount
for each such Class, until their respective Class Certificate Balances
are
reduced to zero; and
|
74
|
|
(3)
|
any
remainder as part of the Excess
Cashflow.
|
(c) Distributions
of Excess Cashflow. With respect to any Distribution Date, any
Excess Cashflow will be distributed to the Classes of Certificates in the
following order, in each case to the extent of remaining Excess
Cashflow:
|
|
(1)
|
to
the Classes of LIBOR Certificates then entitled to receive distributions
in respect of principal, in an amount equal to the Extra Principal
Distribution Amount, payable to such Classes of Certificates as
part of
the Principal Distribution Amount pursuant to Section 4.02(b)
hereof;
|
|
|
(2)
|
concurrently,
to each Class of Senior LIBOR Certificates, in an amount equal
to any
Interest Carry Forward Amount for each such Class, pro rata based
on their
respective entitlements; provided, however, that for so long as
the Class A-1 Swap Contract or the Class A-3 Swap Contract has
not been
terminated, any Interest Carry Forward Amount that would be distributed
to
the Class A-1 and Class A-3 Certificates, respectively, in the
absence of
the related swap contract will instead be distributed to the related
Swap
Account and, provided further, if a Swap Termination Payment
(other than a Swap Termination Payment due to a Swap Counterparty
Trigger
Event) is due to the Swap Counterparty with respect to the Class
A-1 Swap
Contract or the Class A-3 Swap Contract, then any Interest Carry
Forward
Amount that would be distributed to the Class A-1 and Class A-3
Certificates, respectively, in the absence of such Swap Termination
Payment will instead be distributed, up to the amount of such Swap
Termination Payment, to the related swap
account;
|
|
|
(3)
|
sequentially,
in the order of their distribution priorities, to each Class of
Subordinated Certificates, in an amount equal to any Interest Carry
Forward Amount for each such Class; provided, however, that for
so long as the Class M-3 Swap Contract has not been terminated,
any
Interest Carry Forward Amount that would be distributed to the
Class M-3
Certificates in the absence of the Class M-3 Swap Contract will
instead be
distributed to the Class M-3 Swap Account and, provided further,
if a Swap Termination Payment (other than a Swap Termination payment
due
to a Swap Counterparty Trigger Event) is due to the Swap Counterparty
with
respect to the Class M-3 Swap Contract, then any Interest Carry
Forward
Amount that would be distributed to the Class M-3 Certificates
in the
absence of such Swap Termination Payment will instead be distributed,
up
to the amount of such Swap Termination Payment, to the Class M-3
Swap
Account;
|
|
|
(4)
|
concurrently,
to each Class of Senior LIBOR Certificates, in an amount equal
to the
Unpaid Realized Loss Amount for each such Class, pro rata, based
on the
Unpaid Realized Loss Amount for each such Class, except that any
payments
in respect of Unpaid Realized Loss Amount payable to the Class
A-2 and
Class A-3 Certificates will first be paid, pro rata, based on the
Unpaid
Realized Loss Amount for each such Class, to the Class A-1
Certificates;
|
75
|
|
(5)
|
sequentially,
in the order of their distribution priorities, to each Class of
Subordinated Certificates, in an amount equal to the Unpaid Realized
Loss
Amount for each such Class;
|
|
|
(6)
|
concurrently,
to the Classes of LIBOR Certificates, pro rata, to the extent needed
to
pay any unpaid Net Rate Carryover for each such Class; provided,
however, that for so long as the Class A-1 Swap Contract, the Class
A-3 Swap Contract or the Class M-3 Swap Contract has not been terminated,
any amount of Net Rate Carryover that would be distributed to the
Class
A-1, Class A-3 and Class M-3 Certificates, respectively, in the
absence of
the related Swap Contract will instead be distributed to the related
Swap
Account and, provided further, if a Swap Termination Payment
(other than a Swap Termination Payment due to a Swap Counterparty
Trigger
Event) is due to the Swap Counterparty with respect to the Class
A-1 Swap
Contract, the Class A-3 Swap Contract or the Class M-3 Swap Contract,
then
any amount of Net Rate Carryover that would be distributed to the
Class
A-1, Class A-3 and Class M-3 Certificates, respectively, in the
absence of
such Swap Termination Payment will instead be distributed, up to
the
amount of such Swap Termination Payment, to the related Swap
Account;
|
|
|
(7)
|
concurrently,
to the Certificate Swap Account, the Class A-1 Swap Account, the
Class A-3
Swap Account and the Class M-3 Swap Account, pro rata based on
the amounts
of any Swap Termination Payment due to the Swap Counterparty as
a result
of a Swap Counterparty Trigger Event under the related Derivative
Agreement, in an amount equal to any such Swap Termination Payment;
and
|
|
|
(8)
|
to
the Class C Certificates, an amount up to the Class C Distributable
Amount
for such Distribution Date; and
|
|
|
(9)
|
to
the Class A-R Certificates.
|
(d) Distributions
from the Carryover Reserve Fund. To the extent that a Class of
LIBOR Certificates receives interest from Excess Cashflow in excess of the
Net
Rate Cap, such interest shall be deemed to have been paid to the Carryover
Reserve Fund and then paid by the Carryover Reserve Fund to those
Certificateholders. For purposes of the Code, amounts deemed
deposited in the Carryover Reserve Fund shall be deemed to have first been
distributed to the Class C Certificates. To the extent that a Class
of LIBOR Certificates receives interest in excess of the related Net Rate
Cap
and such interest is paid pursuant to Section 4.02(e), such interest shall
be
deemed to have been paid to the applicable Derivative Account and then paid
by
that Derivative Account to those Certificateholders.
(e) (i) On
each Distribution Date on or prior to the Certificate Swap Contract Termination
Date, following all distributions pursuant to Sections 4.02(a) through (c),
the
Supplemental Interest Trustee shall distribute amounts on deposit in the
Certificate Swap Account in the following order:
76
|
|
(1)
|
to
the Swap Counterparty, any Net Swap Payment payable to the Swap
Counterparty under the Certificate Swap Contract with respect to
that
Distribution Date;
|
|
|
(2)
|
to
the Swap Counterparty, any Swap Termination Payment (other than
a Swap
Termination Payment due to a Swap Counterparty Trigger Event) payable
to
the Swap Counterparty under the Certificate Swap Contract with
respect to
that Distribution Date;
|
|
|
(3)
|
concurrently,
to each Class of Senior LIBOR Certificates, the related unpaid
Current
Interest and Interest Carry Forward Amount, pro rata based on entitlement;
provided, however, that for so long as the Class A-1 Swap
Contract or the Class A-3 Swap Contract has not been terminated,
any
amounts of Current Interest and Interest Carry Forward Amount that
would
be distributed to the Class A-1 and Class A-3 Certificates, respectively,
in the absence of the related Swap Contract will instead be distributed
to
the related Swap Account and, provided further, if a Swap
Termination Payment (other than a Swap Termination Payment due
to a Swap
Counterparty Trigger Event) is due to the Swap Counterparty with
respect
to the Class A-1 Swap Contract or the Class A-3 Swap Contract,
then any
amounts of Current Interest and Interest Carry Forward Amount that
would
be distributed to the Class A-1 and Class A-3 Certificates, respectively,
in the absence of such Swap Termination Payment will instead be
distributed, up to the amount of such Swap Termination Payment,
to the
related Swap Account;
|
|
|
(4)
|
sequentially,
in the order of their distribution priorities, to each Class of
Subordinated Certificates, in an amount equal to any unpaid Current
Interest and Interest Carry Forward Amount for each such Class;
provided, however, that for so long as the Class M-3 Swap
Contract has not been terminated, any amounts of Current Interest
and
Interest Carry Forward Amount that would be distributed to the
Class M-3
Certificates in the absence of the Class M-3 Swap Contract will
instead be
distributed to the Class M-3 Swap Account and, provided further,
if a Swap Termination Payment (other than a Swap Termination Payment
due
to a Swap Counterparty Trigger Event) is due to the Swap Counterparty
with
respect to the Class M-3 Swap Contract, then any amounts of Current
Interest and Interest Carry Forward Amount that would be distributed
to
the Class M-3 Certificates in the absence of such Swap Termination
Payment
will instead be distributed, up to the amount of such Swap Termination
Payment, to the Class M-3 Swap
Account;
|
|
|
(5)
|
to
the Class or Classes of LIBOR Certificates then entitled to receive
distributions in respect of principal, in an aggregate amount equal
to the
Overcollateralization Deficiency Amount remaining unpaid following
the
distributions described under Section 4.02(c), payable to such
Classes of
Certificates as described under Section
4.02(b);
|
|
|
(6)
|
concurrently,
to the Classes of LIBOR Certificates, pro rata, to the extent needed
to
pay any unpaid Net Rate Carryover for each such Class; provided,
however, that for so long as the Class A-1 Swap Contract, the Class
A-3 Swap Contract or the Class M-3 Swap Contract has not been terminated,
any amount of Net Rate Carryover that would be distributed to the
Class
A-1, Class A-3 and Class M-3 Certificates, respectively, in the
absence of
the related Swap Contract will instead be distributed to the related
Swap
Account and, provided further, if a Swap Termination Payment
(other than a Swap Termination Payment due to a Swap Counterparty
Trigger
Event) is due to the Swap Counterparty with respect to the Class
A-1 Swap
Contract, the Class A-3 Swap Contract or the Class M-3 Swap Contract,
then
any amount of Net Rate Carryover that would be distributed to the
Class
A-1, Class A-3 and Class M-3 Certificates, respectively, in the
absence of
such Swap Termination Payment will instead be distributed, up to
the
amount of such Swap Termination Payment, to the related Swap
Account;
|
77
|
|
(7)
|
concurrently,
to each Class of Senior LIBOR Certificates, in an amount equal
to the
Unpaid Realized Loss Amount for each such Class, pro rata, based
on the
Unpaid Realized Loss Amount for each such Class, except that any
payments
in respect of Unpaid Realized Loss Amount payable to the Class
A-2 and
Class A-3 Certificates will first be paid, pro rata, based on the
Unpaid
Realized Loss Amount for each such Class, to the Class A-1
Certificates;
|
|
|
(8)
|
sequentially,
in the order of their distribution priorities, to each Class of
Subordinated Certificates, in an amount equal to the Unpaid Realized
Loss
Amount for each such Class;
|
|
|
(9)
|
to
the Swap Counterparty, any Swap Termination Payment due to a Swap
Counterparty Trigger Event payable to the Swap Counterparty under
the
Certificate Swap Contract with respect to that Distribution Date;
and
|
|
|
(10)
|
any
remainder, to the Underwriter.
|
Notwithstanding
the foregoing, no portion of any distributions on any Distribution Date pursuant
to priorities (5), (7) and (8) above will be made in reimbursement of any
Principal Net Swap Payment.
(ii) On
each Distribution Date on or prior to the Class A-1 Swap Contract Termination
Date, following the deposits to the Class A-1 Swap Account pursuant to Sections
4.02(a), 4.02(c) and 4.02(e)(i), the Supplemental Interest Trustee shall
distribute amounts on deposit in the Class A-1 Swap Account in the following
order:
|
|
(1)
|
to
the Swap Counterparty, any Net Swap Payment payable to the Swap
Counterparty under the Class A-1 Swap Contract with respect to
that
Distribution Date;
|
|
|
(2)
|
to
the Swap Counterparty, any Swap Termination Payment (other than
a Swap
Termination Payment due to a Swap Counterparty Trigger Event) payable
to
the Swap Counterparty under the Class A-1 Swap Contract with respect
to
that Distribution Date;
|
78
|
|
(3)
|
to
the Class A-1 Certificates, an amount equal to the product of (i)
the sum
of (a) LIBOR and (b) the Pass-Through Margin for the Class A-1
Certificates for such Distribution Date, (ii) the Class Certificate
Balance of the Class A-1 Certificates immediately prior to such
Distribution Date and (iii) the actual number of days in the related
Accrual Period, divided by 360; and
|
|
|
(4)
|
to
the Swap Counterparty, any Swap Termination Payment due to a Swap
Counterparty Trigger Event payable to the Swap Counterparty under
the
Class A-1 Swap Contract with respect to that Distribution
Date.
|
(iii) On
each Distribution Date on or prior to the Class A-3 Swap Contract Termination
Date, following the deposits to the Class A-3 Swap Account pursuant to Sections
4.02(a), 4.02(c) and 4.02(e)(i), the Supplemental Interest Trustee shall
distribute amounts on deposit in the Class A-3 Swap Account in the following
order:
|
|
(1)
|
to
the Swap Counterparty, any Net Swap Payment payable to the Swap
Counterparty under the Class A-3 Swap Contract with respect to
that
Distribution Date;
|
|
|
(2)
|
to
the Swap Counterparty, any Swap Termination Payment (other than
a Swap
Termination Payment due to a Swap Counterparty Trigger Event) payable
to
the Swap Counterparty under the Class A-3 Swap Contract with respect
to
that Distribution Date;
|
|
|
(3)
|
to
the Class A-3 Certificates, an amount equal to the product of (i)
the sum
of (a) LIBOR and (b) the Pass-Through Margin for the Class A-3
Certificates for such Distribution Date, (ii) the Class Certificate
Balance of the Class A-3 Certificates immediately prior to such
Distribution Date and (iii) the actual number of days in the related
Accrual Period, divided by 360; and
|
|
|
(4)
|
to
the Swap Counterparty, any Swap Termination Payment due to a Swap
Counterparty Trigger Event payable to the Swap Counterparty under
the
Class A-3 Swap Contract with respect to that Distribution
Date.
|
(iv) On
each Distribution Date on or prior to the Class M-3 Swap Contract Termination
Date, following the deposits to the Class M-3 Swap Account pursuant to Sections
4.02(a), 4.02(c), 4.02(e)(i) and 4.02(e)(vi), the Supplemental Interest Trustee
shall distribute amounts on deposit in the Class M-3 Swap Account in the
following order:
|
|
(1)
|
to
the Swap Counterparty, any Net Swap Payment payable to the Swap
Counterparty under the Class M-3 Swap Contract with respect to
that
Distribution Date;
|
|
|
(2)
|
to
the Swap Counterparty, any Swap Termination Payment (other than
a Swap
Termination Payment due to a Swap Counterparty Trigger Event) payable
to
the Swap Counterparty under the Class M-3 Swap Contract with respect
to
that Distribution Date;
|
79
|
|
(3)
|
to
the Class M-3 Certificates, an amount equal to the product of (i)
the sum
of (a) LIBOR and (b) the Pass-Through Margin for the Class M-3
Certificates for such Distribution Date, (ii) the Class Certificate
Balance of the Class M-3 Certificates immediately prior to such
Distribution Date and (iii) the actual number of days in the related
Accrual Period, divided by 360; and
|
|
|
(4)
|
to
the Swap Counterparty, any Swap Termination Payment due to a Swap
Counterparty Trigger Event payable to the Swap Counterparty under
the
Class M-3 Swap Contract with respect to that Distribution
Date.
|
(v) On
each Distribution Date on or prior to the Class A-4 Corridor Contract
Termination Date, following all distributions pursuant to Sections 4.02(a)
through (c) and Section 4.02(e)(i), the Supplemental Interest Trustee shall
distribute amounts on deposit in the Class A-4 Corridor Account in the following
order:
|
|
(1)
|
to
the Class A-4 Certificates, to the extent needed to pay any unpaid
Net
Rate Carryover for such Class; and
|
|
|
(2)
|
any
remainder, to the Underwriter.
|
(vi) On
each Distribution Date on or prior to the Distribution Date on which the
aggregate Class Certificate Balance of the Subordinated Certificates is reduced
to zero, following all distributions pursuant to Sections 4.02(a) through
(c)
and Section 4.02(e)(i), the Supplemental Interest Trustee shall distribute
amounts on deposit in the Subordinated Certificates Corridor Account in the
following order (with any amounts remaining after distribution pursuant to
(1)
below prior to the Distribution Date on which the aggregate Class Certificate
Balance of the Subordinated Certificates is reduced to zero remaining on
deposit
in the Subordinated Certificates Corridor Account):
|
|
(1)
|
sequentially,
in order of their distribution priorities, to each Class of Subordinated
Certificates, to the extent needed to pay any unpaid Net Rate Carryover
for each such Class; provided, however, that for so long as the
Class M-3 Swap Contract has not been terminated, any amount of
Net Rate
Carryover that would be distributed to the Class M-3 Certificates
in the
absence of the Class M-3 Swap Contract will instead be distributed
to the
Class M-3 Swap Account and, provided further, (a) if a Swap
Termination Payment (other than a Swap Termination Payment due
to a Swap
Counterparty Trigger Event) is due to the Swap Counterparty with
respect
to the Class M-3 Swap Contract, then any amount of Net Rate Carryover
that
would be distributed to the Class M-3 Certificates in the absence
of such
Swap Termination Payment will instead be distributed, up to the
amount of
such Swap Termination Payment, to the Class M-3 Swap Account;
and
|
|
|
(2)
|
on
the Distribution Date on which the aggregate Class Certificate
Balance of
the Subordinated Certificates has been reduced to zero, any remainder,
to
the Underwriter.
|
80
(f) On
each Distribution Date, the Prepayment Charge Amount shall be distributed
to the
Class P Certificates.
(g) Application
of Applied Realized Loss Amounts. On each Distribution Date, the
Trustee shall allocate the Applied Realized Loss Amount to reduce (i) the
Class
Certificate Balances of the Subordinated Certificates, sequentially, to the
Class X-0, Xxxxx X-0, Class M-7, Class M-6, Class M-5, Class M-4, Class M-3,
Class M-2 and Class M-1 Certificates, in that order, until their respective
Class Certificate Balances are reduced to zero, and (ii) the Class Certificate
Balance of each Class of Senior Certificates, pro rata based on their respective
Class Certificate Balances, until their respective Class Certificate Balances
of
such Classes have been reduced to zero, except that any amounts that would
otherwise be allocated to the Class A-1 Certificates will instead be allocated,
pro rata, based on their respective Class Certificate Balances, to the Class
A-2
and Class A-3 Certificates, until their respective Class Certificate Balances
are reduced to zero.
(h) Application
of Subsequent Recoveries. If Subsequent Recoveries have been
received with respect to a Liquidated Mortgage Loan, the amount of such
Subsequent Recoveries will be applied (i) concurrently, to the Classes of
Senior
Certificates, pro rata based on the Unpaid Realized Loss Amounts for each
Class,
to increase the Class Certificate Balance of the Senior Certificates in an
amount up to the Unpaid Realized Loss Amount for each such Class of
Certificates; except that any amounts otherwise allocable to the Class A-2
and
Class A-3 Certificates will first be allocated, pro rata, based on the Unpaid
Realized Loss Amount for each such Class, to the Class A-1 Certificates,
in an
amount up to the Unpaid Realized Loss Amount for such Class and (ii) to the
Classes of Subordinated Certificates in the order of payment priority, to
increase the Class Certificate Balance of each Class of Subordinated
Certificates to which Realized Losses have been allocated, in an amount up
to
Unpaid Realized Loss Amount for that Class of Certificates.
Holders
of Certificates to which any Subsequent Recoveries have been allocated shall
not
be entitled to any payment in respect of Current Interest on the amount of
such
increases for any Accrual Period preceding the Distribution Date on which
such
increase occurs.
|
SECTION
4.03.
|
[Reserved].
|
|
SECTION
4.04.
|
[Reserved].
|
|
SECTION
4.05.
|
[Reserved].
|
|
SECTION
4.06.
|
Monthly
Statements to
Certificateholders.
|
(a) Concurrently
with each distribution on a Distribution Date, the Trustee will forward by
mail
to each Rating Agency and make available to Certificateholders on the Trustee’s
website (xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting
forth the information contained in Exhibit U.
(b) The
Trustee’s responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy
of
the information provided by the Master Servicer.
81
(c) On
or before the fifth Business Day following the end of each Prepayment Period
(but in no event later than the third Business Day prior to the related
Distribution Date), the Master Servicer shall deliver to the Trustee (which
delivery may be by electronic data transmission) a report in substantially
the
form set forth as Schedule VI to this Agreement.
(d) Within
a reasonable period of time after the end of each calendar year, the Trustee
shall cause to be furnished to each Person who at any time during the calendar
year was a Certificateholder, a statement containing the information set
forth
in items (1), (2) and (7) of Exhibit U aggregated for such calendar year
or
applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code
as
from time to time in effect.
|
SECTION
4.07.
|
Determination
of Pass-Through Rates for COFI
Certificates.
|
The
Pass-Through Rate for each Class of COFI Certificates for each Accrual Period
after the initial Accrual Period shall be determined by the Trustee as provided
below on the basis of the Index and the applicable formulae appearing in
footnotes corresponding to the COFI Certificates in the table relating to
the
Certificates in the Preliminary Statement.
Except
as
provided below, with respect to each Accrual Period following the initial
Accrual Period, the Trustee shall not later than two Business Days prior
to such
Accrual Period but following the publication of the applicable Index determine
the Pass-Through Rate at which interest shall accrue in respect of the COFI
Certificates during the related Accrual Period.
Except
as
provided below, the Index to be used in determining the respective Pass-Through
Rates for the COFI Certificates for a particular Accrual Period shall be
COFI
for the second calendar month preceding the Outside Reference Date for such
Accrual Period. If at the Outside Reference Date for any Accrual
Period, COFI for the second calendar month preceding such Outside Reference
Date
has not been published, the Trustee shall use COFI for the third calendar
month
preceding such Outside Reference Date. If COFI for neither the second
nor third calendar months preceding any Outside Reference Date has been
published on or before the related Outside Reference Date, the Index for
such
Accrual Period and for all subsequent Accrual Periods shall be the National
Cost
of Funds Index for the third calendar month preceding such Accrual Period
(or
the fourth preceding calendar month if such National Cost of Funds Index
for the
third preceding calendar month has not been published by such Outside Reference
Date). In the event that the National Cost of Funds Index for neither
the third nor fourth calendar months preceding an Accrual Period has been
published on or before the related Outside Reference Date, then for such
Accrual
Period and for each succeeding Accrual Period, the Index shall be LIBOR,
determined in the manner set forth below.
With
respect to any Accrual Period for which the applicable Index is LIBOR, LIBOR
for
such Accrual Period will be established by the Trustee on the related Interest
Determination Date as provided in Section 4.08.
In
determining LIBOR and any Pass-Through Rate for the COFI Certificates or
any
Reserve Interest Rate, the Trustee may conclusively rely and shall be protected
in relying upon the offered quotations (whether written, oral or on the Reuters
Screen) from the Reference Banks or the New York City banks as to LIBOR or
the
Reserve Interest Rate, as appropriate, in effect from time to
time. The Trustee shall not have any liability or responsibility to
any Person for (i) the Trustee’s selection of New York City banks for purposes
of determining any Reserve Interest Rate or (ii) its inability, following
a
good-faith reasonable effort, to obtain such quotations from the Reference
Banks
or the New York City banks or to determine such arithmetic mean, all as provided
for in this Section 4.07.
82
The
establishment of LIBOR and each Pass-Through Rate for the COFI Certificates
by
the Trustee shall (in the absence of manifest error) be final, conclusive
and
binding upon each Holder of a Certificate and the Trustee.
|
SECTION
4.08.
|
Determination
of Pass-Through Rates for LIBOR
Certificates.
|
(a) On
each Interest Determination Date so long as any LIBOR Certificates are
outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers’ Association (“BBA”) “Interest Settlement Rate” for one-month deposits
in U.S. dollars as quoted on the Bloomberg Terminal as of each LIBOR
Determination Date.
(b) If
on any Interest Determination Date, LIBOR cannot be determined as provided
in
paragraph (A) of this Section 4.08, the Trustee shall either (i) request
each
Reference Bank to inform the Trustee of the quotation offered by its principal
London office for making one-month United States dollar deposits in leading
banks in the London interbank market, as of 11:00 a.m. (London time) on such
Interest Determination Date or (ii) in lieu of making any such request, rely
on
such Reference Bank quotations that appear at such time on the Reuters Screen
LIBO Page (as defined in the International Swap Dealers Association Inc.
Code of
Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition), to
the
extent available. LIBOR for the next Accrual Period will be
established by the Trustee on each interest Determination Date as
follows:
(i) If
on any Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the next applicable Accrual Period shall be
the
arithmetic mean of such offered quotations (rounding such arithmetic mean
upwards if necessary to the nearest whole multiple of 1/32%).
(ii) If
on any Interest Determination Date only one or none of the Reference Banks
provides such offered quotations, LIBOR for the next Accrual Period shall
be
whichever is the higher of (i) LIBOR as determined on the previous Interest
Determination Date or (ii) the Reserve Interest Rate. The “Reserve
Interest Rate” shall be the rate per annum which the Trustee determines to be
either (i) the arithmetic mean (rounded upwards if necessary to the nearest
whole multiple of 1/32%) of the one-month United States dollar lending rates
that New York City banks selected by the Trustee are quoting, on the relevant
Interest Determination Date, to the principal London offices of at least
two of
the Reference Banks to which such quotations are, in the opinion of the Trustee,
being so made, or (ii) in the event that the Trustee can determine no such
arithmetic mean, the lowest one-month United States dollar lending rate which
New York City banks selected by the Trustee are quoting on such Interest
Determination Date to leading European banks.
83
(iii) If
on any Interest Determination Date the Trustee is required but is unable
to
determine the Reserve Interest Rate in the manner provided in paragraph (b)
above, LIBOR for the related Classes of Certificates shall be LIBOR as
determined on the preceding applicable Interest Determination
Date. If on the initial LIBOR Determination Date, the Trustee is
required but unable to determine LIBOR in the manner provided above, LIBOR
for
next Accrual Period will be the Initial LIBOR Rate.
Until
all
of the LIBOR Certificates are paid in full, the Trustee will at all times
retain
at least four Reference Banks for the purpose of determining LIBOR with respect
to each Interest Determination Date. The Master Servicer initially
shall designate the Reference Banks. Each “Reference Bank” shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Trustee and shall have an established place of business
in
London. If any such Reference Bank should be unwilling or unable to
act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Trustee shall promptly appoint or cause to be appointed
another Reference Bank. The Trustee shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank
for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable
control.
(c) The
Pass-Through Rate for each Class of LIBOR Certificates for each Accrual Period
shall be determined by the Trustee on each Interest Determination Date so
long
as the LIBOR Certificates are outstanding on the basis of LIBOR and the
respective formulae appearing in the definition of Pass-Through
Rate.
In
determining LIBOR, any Pass-Through Rate for the LIBOR Certificates, any
Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered quotations
(whether written, oral or on the Dow Xxxxx Markets) from the BBA designated
banks, the Reference Banks or the New York City banks as to LIBOR, the Interest
Settlement Rate or the Reserve Interest Rate, as appropriate, in effect from
time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee’s selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City
banks
or to determine such arithmetic mean, all as provided for in this Section
4.08.
The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by
the Trustee shall (in the absence of manifest error) be final, conclusive
and
binding upon each Holder of a Certificate and the Trustee.
|
SECTION
4.09.
|
Determination
of MTA.
|
(a) On
each related Interest Determination Date, so long as the MTA Certificates
are
outstanding, the Trustee shall determine MTA on the basis of the most recent
MTA
figure available as of such related Interest Determination Date.
(b) If
on any Interest Determination Date, MTA is no longer available, the Trustee
shall select a new index for the MTA Certificates that is based on comparable
information. When the Trustee selects a new index for the MTA
Certificates, the Pass-Through Margin for each Class of MTA Certificates
will
increase or decrease by the difference between the average MTA for the final
three years it was in effect and the average of the most recent three years
for
the replacement index. The Pass-Through Margin for each Class of MTA
Certificates will be increased by that difference if the average MTA is greater
than the average replacement index, and the Pass-Through Margin for each
Class
of MTA Certificates will be decreased by that difference if the replacement
index is greater than the average MTA.
(c) The
Pass-Through Rate for each Class of MTA Certificates for each Accrual Period
shall be determined by the Trustee on each Interest Determination Date so
long
as the MTA Certificates are outstanding on the basis of MTA and the respective
formulae appearing in footnotes corresponding to the MTA Certificates in
the
table relating to the Certificates in the Preliminary Statement.
The
determination of MTA and the Pass-Through Rates for the MTA Certificates
by the
Trustee shall (in the absence of manifest error) be final, conclusive and
binding upon each Holder of a MTA Certificate and the Trustee
|
SECTION
4.10.
|
[Reserved].
|
84
ARTICLE
V
THE
CERTIFICATES
|
SECTION
5.01.
|
The
Certificates.
|
The
Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in
the minimum dollar denominations, integral dollar multiples in excess thereof
and aggregate dollar denominations as set forth in the following
table:
|
Class
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Original
Class Certificate Balance/Original Notional
Amount
|
|
A-1
|
$25,000.00
|
$1.00
|
$681,076,000
|
|
A-2
|
$25,000.00
|
$1.00
|
$20,000,000
|
|
A-3
|
$25,000.00
|
$1.00
|
$55,675,000
|
|
A-4
|
$25,000.00
|
$1.00
|
$219,769,000
|
|
X
|
$25,000.00
|
$1.00
|
$427,231,675
|
|
M-1
|
$25,000.00
|
$1.00
|
$14,920,000
|
|
M-2
|
$25,000.00
|
$1.00
|
$6,689,000
|
|
M-3
|
$25,000.00
|
$1.00
|
$5,145,000
|
|
M-4
|
$25,000.00
|
$1.00
|
$4,630,000
|
|
M-5
|
$25,000.00
|
$1.00
|
$3,602,000
|
|
M-6
|
$25,000.00
|
$1.00
|
$4,116,000
|
|
M-7
|
$25,000.00
|
$1.00
|
$3,601,000
|
|
M-8
|
$25,000.00
|
$1.00
|
$3,602,000
|
|
M-9
|
$100,000.00
|
$1.00
|
$2,572,000
|
|
A-R
|
$99.95
(1)
|
N/A
|
$100
|
|
C
|
N/A
|
N/A
|
N/A
|
|
P
|
(2)
|
(2)
|
$100
|
|
(1)
|
The
Tax Matters Person Certificate may be issued in a denomination
of
$0.05.
|
|
(2)
|
The
Class P Certificates are issuable in minimum notional amounts equal
to a
20% Percentage Interest and any amount in excess
thereof.
|
Subject
to Section 9.02 respecting the final distribution on the Certificates, on
each
Distribution Date the Trustee shall make distributions to each Certificateholder
of record on the preceding Record Date either (x) by wire transfer in
immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if (i) such Holder has so
notified the Trustee at least five Business Days prior to the related Record
Date and (ii) such Holder shall hold (A) a Notional Amount Certificate, (B)
100%
of the Class Certificate Balance of any Class of Certificates or (C)
Certificates of any Class with aggregate principal Denominations of not less
than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trustee by an authorized officer. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
were affixed, authorized to sign on behalf of the Trustee shall bind the
Trustee, notwithstanding that such individuals or any of them have ceased
to be
so authorized prior to the countersignature and delivery of such Certificates
or
did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be
valid
for any purpose, unless countersigned by the Trustee by manual signature,
and
such countersignature upon any Certificate shall be conclusive evidence,
and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their
countersignature. On the Closing Date, the Trustee shall countersign
the Certificates to be issued at the direction of the Depositor, or any
affiliate of the Depositor.
85
The
Depositor shall provide, or cause to be provided, to the Trustee on a continuous
basis, an adequate inventory of Certificates to facilitate
transfers.
|
SECTION
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
(a) The
Trustee shall maintain, or cause to be maintained in accordance with the
provisions of Section 5.06, a Certificate Register for the Trust Fund in
which, subject to the provisions of subsections (b) and (c) below and 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 provided in this Agreement. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the
name
of the designated transferee or transferees, one or more new Certificates
of the
same Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest upon surrender of the Certificates to
be
exchanged at the office or agency of the Trustee. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a
written instrument of transfer in form satisfactory to the Trustee duly executed
by the holder thereof or his attorney duly authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but 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 may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act
and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities
Act and
such laws, in order to assure compliance with the Securities Act and such
laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder’s prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer in substantially the forms set
forth
in Exhibit J-2 (the “Transferor Certificate”) and (i) deliver a letter
in substantially the form of either Exhibit K (the “Investment Letter”) or
Exhibit L-1 (the “Rule 144A Letter”) or (ii) there shall be delivered to
the Trustee at the expense of the transferor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act; provided,
however, that in the case of the delivery of an Investment Letter in connection
with the transfer of any Class C or Class P Certificate to a transferee that
is
formed with the purpose of issuing notes backed by such Class C or Class
P
Certificate, as the case may be, clause (b) and (c) of the form of Investment
Letter shall not be applicable and shall be deleted by such
transferee. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and
such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Master
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to
the
Depositor such information regarding the Certificates, the Mortgage Loans
and
other matters regarding the Trust Fund as the Depositor shall reasonably
request
to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee and the Depositor, the Sellers, the NIM Insurer
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.
86
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(in the event such Certificate is a Private Certificate, such requirement
is
satisfied only by the Trustee’s receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L-1, or in the
event such Certificate is a Residual Certificate, such requirement is satisfied
only by the Trustee’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that (x) such transferee
is not an employee benefit plan or arrangement subject to Section 406 of
ERISA
or a plan or arrangement subject to Section 4975 of the Code, or a person
acting
on behalf of any such plan or arrangement or using the assets of any such
plan
or arrangement to effect such transfer or (y) in the case of a Certificate
that
is an ERISA-Restricted Certificate and that has been the subject of an
ERISA-Qualifying Underwriting, if the purchaser is an insurance company,
a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of
such Certificates satisfy the requirements for exemptive relief under Sections
I
and III of PTCE 95-60 or (ii) in the case of any ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan or
arrangement subject to ERISA or a plan or arrangement subject to Section
4975 of
the Code (or comparable provisions of any subsequent enactments), or a trustee
or any other person acting on behalf of any such plan or arrangement, or
using
such plan’s or arrangement’s assets, an Opinion of Counsel satisfactory to the
Trustee, which Opinion of Counsel shall not be an expense of the Trustee,
the
Master Servicer or the Trust Fund, addressed to the Trustee and the Master
Servicer to the effect that the purchase and holding of such ERISA-Restricted
Certificate will not result in a non-exempt prohibited transaction under
Section
406 of ERISA or Section 4975 of the Code and will not subject the Trustee
or the
Master Servicer to any obligation in addition to those expressly undertaken
in
this Agreement or to any liability (such Opinion of Counsel, a “Benefit Plan
Opinion”). For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Residual Certificate, in the event
the representation letter or Benefit Plan Opinion referred to in the preceding
sentence is not so furnished, one of the representations in clause (i), as
appropriate, shall be deemed to have been made to the Trustee by the
transferee’s (including an initial acquiror’s) acceptance of the
ERISA-Restricted Certificate. Notwithstanding anything else to the
contrary in this Agreement, any purported transfer of an ERISA-Restricted
Certificate to or on behalf of an employee benefit plan or other plan or
arrangement subject to ERISA or to Section 4975 of the Code without the delivery
to the Trustee of a Benefit Plan Opinion of Counsel satisfactory to the Trustee
as described above shall be void and of no effect.
87
So
long
as the Class A-1 Swap Contract, Class A-3 Swap Contract, Class M-3 Swap
Contract, Certificate Swap Contract, Class A-4 Corridor Contract or
Subordinated Certificates Corridor Contract, as applicable, is in effect
(and,
with respect to the Subordinated Certificates Corridor Contract, so long
as
amounts are on deposit in the Subordinated Certificates Corridor Account),
no
transfer of any related Covered Certificate (other than a transfer of a Covered
Certificate to an affiliate of the Depositor (either directly or through
a
nominee) in connection with the initial issuance of the Certificates) shall
be
made unless the Trustee shall have received a representation letter from
the
transferee of any such Covered Certificate substantially in the form of Exhibit
L-2 to the effect that (i) such transferee is not a Plan, or (ii) that the
purchase and holding of the Covered Certificate satisfies the requirements
for
exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX
96-23, the service provider exemption provided under Section 408(b)(17) of
ERISA
and Section 4975(d)(20) of the Code or a similar exemption. In the
event that such a representation letter is not delivered, one of the foregoing
representations, as appropriate, shall be deemed to have been made by the
transferee’s (including an initial acquiror’s) acceptance of the Covered
Certificate. In the event that such representation is violated, such
transfer or acquisition shall be void and of no effect.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Certificate that is in fact not permitted
by
this Section 5.02(b) or for making any payments due on such Certificate to
the
Holder thereof or taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the transfer was registered by the
Trustee in accordance with the foregoing requirements.
(c) 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 the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of
any
change or impending change in its status as a Permitted Transferee.
(ii) Except
in connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Residual Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the Certificates,
no Ownership Interest in a Residual Certificate may be registered on the
Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless the Trustee shall have been furnished
with an
affidavit (a “Transfer Affidavit”) of the initial owner or the proposed
transferee in the form attached hereto as Exhibit I.
88
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in
a
Residual Certificate or to cause the Transfer of an Ownership Interest in
a
Residual Certificate to any other Person if it has actual knowledge that
such
Person is not a Permitted Transferee and to provide to the Trustee a certificate
substantially in the form attached hereto as Exhibit J-1 (the “Residual
Transferor Certificate”) stating that it has no knowledge that such Person is
not a Permitted Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall
be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all rights
as
Holder thereof retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that is
in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement
so
long as the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate and either the Rule 144A Letter or the
Investment Letter, if required. The Trustee shall be entitled but not
obligated to recover from any Holder of a Residual Certificate that was in
fact
not a Permitted Transferee at the time it became a Holder or, at such subsequent
time as it became other than a Permitted Transferee, all payments made on
such
Residual Certificate at and after either such time. Any such payments
so recovered by the Trustee shall be paid and delivered by the Trustee to
the
last preceding Permitted Transferee of such Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this Section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Residual Certificate may be deleted) with respect to Transfers occurring
after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer or
any
Seller, to the effect that the elimination of such restrictions will not
cause
any REMIC hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the
Trust
Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Residual Certificate hereby consents
to
any amendment of this Agreement which, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Residual Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a
Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
89
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as provided below, the Book-Entry Certificates shall at all times remain
registered in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Book-Entry Certificates; (iii) ownership and transfers of
registration of the Book-Entry Certificates on the books of the Depository
shall
be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses
from
its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates
for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed
to be
inconsistent if they are made with respect to different Certificate Owners;
and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All
transfers by Certificate Owners of 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 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.
If
(x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the
Certificate Balance of the Book-Entry Certificates together advise the Trustee
and the Depository through the Depository Participants 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 Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such
event
and of the availability of definitive, fully-registered Certificates (the
“Definitive Certificates”) to Certificate Owners requesting the
same. Upon surrender to the Trustee of the related Class of
Certificates by the Depository, accompanied by the instructions from the
Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Master Servicer, the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and
each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Master Servicer shall provide the Trustee with an
adequate inventory of certificates to facilitate the issuance and transfer
of
Definitive Certificates. Upon the issuance of Definitive Certificates
all references in this Agreement to obligations imposed upon or to be performed
by the Depository shall be deemed to be imposed upon and performed by the
Trustee, to the extent applicable with respect to such Definitive Certificates
and the Trustee shall recognize the Holders of the Definitive Certificates
as
Certificateholders hereunder; provided that the Trustee shall not by virtue
of
its assumption of such obligations become liable to any party for any act
or
failure to act of the Depository.
90
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Certificate and (b) there is delivered to the Master Servicer and the
Trustee such security or indemnity as may be required by them to save each
of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance
of any new Certificate under this Section 5.03, the Trustee 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 Trustee) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete
and indefeasible evidence of ownership, 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
Master Servicer, the NIM Insurer, the Trustee and any agent of the Master
Servicer, the NIM Insurer or the Trustee may treat the Person in whose name
any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the NIM Insurer, the Trustee
nor
any agent of the Master Servicer, the NIM Insurer or the Trustee shall be
affected by any notice to the contrary.
|
SECTION
5.05.
|
Access
to List of Certificateholders’ Names and
Addresses.
|
If
three
or more Certificateholders and/or Certificate Owners (a) request such
information in writing from the Trustee, (b) state that such Certificateholders
and/or Certificate Owners desire to communicate with other Certificateholders
and/or Certificate Owners with respect to their rights under this Agreement
or
under the Certificates, and (c) provide a copy of the communication which
such
Certificateholders and/or Certificate Owners propose to transmit, or if the
Depositor or Master Servicer shall request such information in writing from
the
Trustee, then the Trustee shall, within ten Business Days after the receipt
of
such request, (x) provide the Depositor, the Master Servicer or such
Certificateholders and/or Certificate Owners at such recipients’ expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any, and (y) assist the Depositor, the Master Servicer or such
Certificateholders and/or Certificate Owners at such recipients’ expense with
obtaining from the Depository a list of the related Depository Participants
acting on behalf of Certificate Owners of Book Entry
Certificates. The Depositor and every Certificateholder and
Certificate Owner, by receiving and holding a Certificate or beneficial interest
therein, agree that the Trustee shall not be held accountable by reason of
the
disclosure of any such information as to the list of the Certificateholders
and/or Depository Participants hereunder, regardless of the source from which
such information was derived.
|
SECTION
5.06.
|
Maintenance
of Office or Agency.
|
The
Trustee will maintain or cause to be maintained at its expense an office
or
offices or agency or agencies in New York City where Certificates may be
surrendered for registration of transfer or exchange. The Trustee
initially designates its Corporate Trust Office for such
purposes. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
91
ARTICLE
VI
THE
DEPOSITOR AND THE MASTER SERVICER
|
SECTION
6.01.
|
Respective
Liabilities of the Depositor and the Master
Servicer.
|
The
Depositor and the Master Servicer shall each be liable in accordance with
this
Agreement only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them in this Agreement.
|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor or the Master
Servicer.
|
The
Depositor will keep in full effect its existence, rights and franchises as
a
corporation under the laws of the United States or under the laws of one
of the
states thereof and 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,
or any of the Mortgage Loans and to perform its duties under this
Agreement. The Master Servicer will keep in effect its existence,
rights and franchises as a limited partnership under the laws of the United
States or under the laws of one of the states thereof and will obtain and
preserve its qualification or registration to do business as a foreign
partnership in each jurisdiction in which such qualification or registration
is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to
which
the Depositor or the Master Servicer shall be a party, or any person succeeding
to the business of the Depositor 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 in this Agreement to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the
Master Servicer shall be qualified to service mortgage loans on behalf of,
FNMA
or FHLMC.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation
of the
Master Servicer, the Master Servicer shall provide (x) written notice to
the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Master
Servicer.
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Sellers, the Master Servicer,
the NIM
Insurer and Others.
|
None
of
the Depositor, the Master Servicer, the NIM Insurer or any Seller or any
of the
directors, officers, employees or agents of the Depositor, the Master Servicer,
the NIM Insurer or any Seller shall be under any liability to 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, any Seller or any such Person against any
breach
of representations or warranties made by it in this Agreement or protect
the
Depositor, the Master Servicer, any Seller or any such Person from any liability
which would otherwise be imposed by reasons of willful misfeasance, bad faith
or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Depositor, the Master
Servicer, the NIM Insurer, each Seller and any director, officer, employee
or
agent of the Depositor, the Master Servicer, the NIM Insurer or each
Seller may rely in good faith on any document of any kind
primafacie properly executed and submitted by any Person
respecting any matters arising under this Agreement. The Depositor,
the Master Servicer, the NIM Insurer, each Seller and any director, officer,
employee or agent of the Depositor, the Master Servicer, the NIM Insurer
or any
Seller shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy
or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and 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. None of the Depositor, the Master Servicer, the NIM
Insurer or any Seller shall be under any obligation to appear in, prosecute
or
defend any legal action that is not incidental to its respective duties
hereunder and which in its opinion may involve it in any expense or liability;
provided, however, that any of the Depositor, the Master Servicer,
the NIM Insurer or any Seller may in its discretion undertake any such action
that it may deem necessary or desirable in respect of this Agreement and
the
rights and duties of the parties hereto and interests of the Trustee and
the
Certificateholders hereunder. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Depositor, the Master Servicer,
the NIM Insurer and each Seller shall be entitled to be reimbursed therefor
out
of the Certificate Account.
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|
SECTION
6.04.
|
Limitation
on Resignation of Master
Servicer.
|
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (a) upon appointment of a successor servicer that is
reasonably acceptable to the Trustee and the NIM Insurer and the written
confirmation from each Rating Agency (which confirmation shall be furnished
to
the Depositor, the Trustee and the NIM Insurer) that such resignation will
not
cause such Rating Agency to reduce the then-current rating of the Certificates
or (b) upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination under
clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No resignation of the Master Servicer shall become effective
until the Trustee or a successor master servicer shall have assumed the Master
Servicer’s responsibilities, duties, liabilities (other than those liabilities
arising prior to the appointment of such successor) and obligations under
this
Agreement and the Depositor shall have received the information described
in the
following sentence. As a condition to the effectiveness of any such
resignation, at least 15 calendar days prior to the effective date of such
resignation, the Master Servicer shall provide (x) written notice to the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to the resignation of
the
Master Servicer.
93
ARTICLE
VII
DEFAULT
|
SECTION
7.01.
|
Events
of Default.
|
“Event
of
Default,” wherever used in this Agreement, means any one of the following
events:
(i) any
failure by the Master Servicer to deposit in the Certificate Account or remit
to
the Trustee any payment required to be made under the terms of this Agreement,
which failure shall continue unremedied for five days after the date upon
which
written notice of such failure shall have been given to the Master Servicer
by
the Trustee, the NIM Insurer or the Depositor or to the Master Servicer,
the NIM
Insurer and the Trustee by the Holders of Certificates having not less than
25%
of the Voting Rights evidenced by the Certificates; or
(ii) any
failure by the Master Servicer to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Master Servicer
contained in this Agreement (except with respect to a failure related to
a
Limited Exchange Act Reporting Obligation), which failure materially affects
the
rights of Certificateholders, that failure continues unremedied for a period
of
60 days after the date on which written notice of such failure shall have
been
given to the Master Servicer by the Trustee, the NIM Insurer or the Depositor,
or to the Master Servicer and the Trustee by the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates; provided, however, that the sixty day cure period shall
not apply to the initial delivery of the Mortgage File for Delay Delivery
Mortgage Loans nor the failure to substitute or repurchase in lieu of delivery;
or
(iii) a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a receiver or liquidator
in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Master Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 consecutive
days; or
(iv) the
Master Servicer shall consent to the appointment of a receiver or liquidator
in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings of or relating to the Master Servicer or all or
substantially all of the property of the Master Servicer; or
(v) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of, or commence a
voluntary case under, any applicable insolvency or reorganization statute,
make
an assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations; or
94
(vi) the
Master Servicer shall fail to reimburse in full the Trustee within five days
of
the Master Servicer Advance Date for any Advance made by the Trustee pursuant
to
Section 4.01(b) together with accrued and unpaid interest.
If
an
Event of Default described in clauses (i) to (vi) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee may, or, if an Event of Default described
in
clauses (i) to (v) of this Section shall occur, then, and in each and every
such
case, so long as such Event of Default shall not have been remedied, at the
direction of either the NIM Insurer or the Holders of Certificates evidencing
not less than 66-2/3% of the Voting Rights, evidenced by the Certificates;
the
Trustee shall by notice in writing to the Master Servicer (with a copy to
each
Rating Agency and the Depositor), terminate all of the rights and obligations
of
the Master Servicer under this Agreement and in and to the Mortgage Loans
and
the proceeds thereof, other than its rights as a Certificateholder
hereunder. In addition, if during the period that the Depositor is
required to file Exchange Act Reports with respect to the Trust Fund, the
Master
Servicer shall fail to observe or perform any of the obligations that constitute
a Limited Exchange Act Reporting Obligation or the obligations set forth
in
Section 3.16(a) or Section 11.07(a)(1) and (2), and such failure continues
for
the lesser of 10 calendar days or such period in which the applicable Exchange
Act Report can be filed timely (without taking into account any extensions),
so
long as such failure shall not have been remedied, the Trustee shall, but
only
at the direction of the Depositor, terminate all of the rights and obligations
of the Master Servicer under this Agreement and in and to the Mortgage Loans
and
the proceeds thereof, other than its rights as a Certificateholder
hereunder. The Depositor shall not be entitled to terminate the
rights and obligations of the Master Servicer if a failure of the Master
Servicer to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely
to the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
On
and
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer hereunder, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall thereupon make any Advance which the Master Servicer failed
to
make subject to Section 4.01 hereof whether or not the obligations of the
Master
Servicer have been terminated pursuant to this Section. 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. Unless expressly provided in such
written notice, no such termination shall affect any obligation of the Master
Servicer to pay amounts owed pursuant to Article VIII. The Master
Servicer agrees to cooperate with the Trustee in effecting the termination
of
the Master Servicer’s responsibilities and rights hereunder, including, without
limitation, the transfer to the Trustee of all cash amounts which shall at
the
time be credited to the Certificate Account, or thereafter be received with
respect to the Mortgage Loans.
Notwithstanding
any termination of the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to receive, out of any late collection of a Scheduled
Payment on a Mortgage Loan which was due prior to the notice terminating
such
Master Servicer’s rights and obligations as Master Servicer hereunder and
received after such notice, that portion thereof to which such Master Servicer
would have been entitled pursuant to Sections 3.08(a)(i) through (viii),
and any other amounts payable to such Master Servicer hereunder the entitlement
to which arose prior to the termination of its activities under this
Agreement.
95
If
the
Master Servicer is terminated, the Trustee shall provide the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of
the
Master Servicer as set forth herein.
|
SECTION
7.02.
|
Trustee
to Act; Appointment of
Successor.
|
On
and
after the time the Master Servicer receives a notice of termination pursuant
to
Section 7.01, the Trustee shall, subject to and to the extent provided in
Section 3.04, be the successor to the Master Servicer in its capacity as
master servicer under this Agreement and the transactions set forth or provided
for in this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Master Servicer by the terms
and
provisions of this Agreement and applicable law including the obligation
to make
Advances pursuant to Section 4.01. As compensation therefor, the
Trustee shall be entitled to all funds relating to the Mortgage Loans that
the
Master Servicer would have been entitled to charge to the Certificate Account
or
Distribution Account if the Master Servicer had continued to act
hereunder. Notwithstanding the foregoing, if the Trustee has become
the successor to the Master Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.01 or if it is
otherwise unable to so act, (i) appoint any established mortgage loan servicing
institution reasonably acceptable to the NIM Insurer (as evidenced by the
prior
written consent of the NIM Insurer), or (ii) if it is unable for 60 days
to
appoint a successor servicer reasonably acceptable to the NIM Insurer, petition
a court of competent jurisdiction to appoint any established mortgage loan
servicing institution, the appointment of which does not adversely affect
the
then-current rating of the Certificates and the NIM Insurer guaranteed notes
(without giving any effect to any policy or guaranty provided by the NIM
Insurer) by each Rating Agency 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. Any successor to the
Master Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least $15,000,000,
and which is willing to service the Mortgage Loans and (i) executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Master Servicer
(other than liabilities of the Master Servicer under Section 6.03 incurred
prior to termination of the Master Servicer under Section 7.01), with like
effect as if originally named as a party to this Agreement; and provided
further
that each Rating Agency acknowledges that its rating of the Certificates
in
effect immediately prior to such assignment and delegation will not be qualified
or reduced as a result of such assignment and delegation and (ii) provides
to
the Depositor in writing, fifteen (15) days prior to the effective date of
such
appointment and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by the Depositor in order to comply
with
its reporting obligation under Item 6.02 of Form 8-K with respect to a
replacement master servicer. The Trustee shall provide written notice
to the Depositor of such successor pursuant to this Section. Pending
appointment of a successor to the Master Servicer hereunder, the Trustee,
unless
the Trustee is prohibited by law from so acting, shall, subject to Section
3.04,
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 Mortgage Loans as it and
such
successor shall agree; provided, however, that no such compensation shall
be in
excess of the Master Servicing Fee permitted to be paid to the Master Servicer
hereunder. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Trustee nor any other successor master
servicer shall be deemed to be in default hereunder by reason of any failure
to
make, or any delay in making, any distribution hereunder or any portion thereof
or any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused by the failure of the Master
Servicer to deliver or provide, or any delay in delivering or providing,
any
cash, information, documents or records to it.
96
Any
successor to the Master Servicer as master servicer shall give notice to
the NIM
Insurer and the Mortgagors of such change of servicer and shall, during the
term
of its service as master servicer maintain in force the policy or policies
that
the Master Servicer is required to maintain pursuant to
Section 3.09.
In
connection with the termination or resignation of the Master Servicer hereunder,
either (i) the successor Master Servicer, including the Trustee if the
Trustee is acting as successor Master 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, or (ii) the
predecessor Master Servicer shall cooperate with the successor Master Servicer
either (x) in causing MERS to execute and deliver an assignment of Mortgage
in
recordable form to transfer the Mortgage from MERS to the Trustee 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 Master Servicer or
(y) in causing MERS to designate on the MERS® System the successor Master
Servicer as the servicer of such Mortgage Loan. The predecessor
Master Servicer shall file or cause to be filed any such assignment in the
appropriate recording office. The successor Master Servicer shall
cause such assignment to be delivered to the Trustee promptly upon receipt
of
the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
|
SECTION
7.03.
|
Notification
to Certificateholders.
|
(a) Upon
any termination of or appointment of a successor to the Master Servicer,
the
Trustee shall give prompt written notice thereof to Certificateholders and
to
each Rating Agency.
(b) Within
60 days after the occurrence of any Event of Default, the Trustee shall transmit
by mail to all Certificateholders notice of each such Event of Default hereunder
known to the Trustee, unless such Event of Default shall have been cured
or
waived.
97
ARTICLE
VIII
CONCERNING
THE TRUSTEE
|
SECTION
8.01.
|
Duties
of Trustee.
|
The
Trustee, prior to the occurrence of an Event of Default and after the curing
of
all Events of Default that may have occurred, shall undertake to perform
such
duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains
uncured, 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 person would exercise or use under the circumstances in the
conduct
of such person’s own affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee
that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they are in the form required
by this Agreement; provided, however, that the Trustee shall not
be responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act
or its
own willful misconduct; provided, however, that:
(i) unless
an Event of Default known to the Trustee shall have occurred and be continuing,
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 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 which it believed in good faith to be genuine
and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be
finally proven that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction
of
Holders of Certificates evidencing not less than 25% of the Voting Rights
of
Certificates relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Agreement; and
(iv) without
in any way limiting the provisions of this Section 8.01 or Section 8.02,
the
Trustee shall be entitled to rely conclusively on the information delivered
to
it by the Master Servicer in a Trustee Advance Notice in determining whether
it
is required to make an Advance under Section 4.01(b), shall have no
responsibility to ascertain or confirm any information contained in any Trustee
Advance Notice, and shall have no obligation to make any Advance under Section
4.01(b) in the absence of a Trustee Advance Notice or actual knowledge of
a
Responsible Officer of the Trustee that (A) an Advance was not made by the
Master Servicer and (B) such Advance is not a Nonrecoverable
Advance.
98
The
Trustee hereby represents, warrants, covenants and agrees that, except as
permitted by Article IX hereof, it shall not cause the Trust Fund to consolidate
or amalgamate with, or merge with or into, or transfer all or substantially
all
of the Trust Fund to, another Person.
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 8.01:
(i) the
Trustee 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 believed
by
it to be genuine and to have been signed or presented by the proper party
or
parties and the Trustee shall have no responsibility to ascertain or confirm
the
genuineness of any signature of any such party or parties;
(ii) the
Trustee may consult with counsel, financial advisers or accountants and the
advice of any such counsel, financial advisers or accountants 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) the
Trustee shall not be 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;
(iv) the
Trustee shall not 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 document,
unless requested in writing so to do by the NIM Insurer or Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated
to each
Class of Certificates;
(v) the
Trustee may execute any of the trusts or powers hereunder or perform any
duties
hereunder either directly or by or through agents, accountants or
attorneys;
(vi) the
Trustee shall not be required to risk or expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against
such risk or liability is not assured to it;
99
(vii) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement (other than as issuer of the investment security);
(viii) the
Trustee shall not be deemed to have knowledge of an Event of Default until
a
Responsible Officer of the Trustee shall have received written notice thereof;
and
(ix) the
Trustee shall be under no obligation to exercise any of the trusts, 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
the NIM Insurer or any of the Certificateholders, pursuant to the provisions
of
this Agreement, unless the NIM Insurer or such Certificateholders shall have
offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby.
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained in this Agreement and in the Certificates shall be taken
as
the statements of the Depositor or a Seller, as the case may be, and the
Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of
the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS®
System other than with respect to the Trustee’s execution and counter-signature
of the Certificates. The Trustee shall not be accountable for the use
or application by the Depositor or the Master Servicer of any funds paid
to the
Depositor or the Master Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor or the Master
Servicer.
|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
|
SECTION
8.05.
|
Trustee’s
Fees and Expenses.
|
The
Trustee, as compensation for its activities hereunder, shall be entitled
to
withdraw from the Distribution Account on each Distribution Date an amount
equal
to the Trustee Fee for such Distribution Date. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified
by the
Master Servicer and held harmless against any loss, liability or expense
(including reasonable attorney’s fees) (i) incurred in connection with any claim
or legal action relating to (a) this Agreement, (b) the Certificates or (c)
in
connection with the performance of any of the Trustee’s duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Trustee’s duties
hereunder or incurred by reason of any action of the Trustee taken at the
direction of the Certificateholders and (ii) resulting from any error in
any tax
or information return prepared by the Master Servicer. Such indemnity
shall survive the termination of this Agreement or the resignation or removal
of
the Trustee hereunder. Without limiting the foregoing, the Master
Servicer covenants and agrees, except as otherwise agreed upon in writing
by the
Depositor and the Trustee, and except for any such expense, disbursement
or
advance as may arise from the Trustee’s negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with
any of the provisions of this Agreement with respect to: (A) the
reasonable compensation and the expenses and disbursements of its counsel
not
associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant, engineer
or appraiser that is not regularly employed by the Trustee, to the extent
that
the Trustee must engage such persons to perform acts or services hereunder
and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided in this
Agreement, the Trustee shall not be entitled to payment or reimbursement
for any
routine ongoing expenses incurred by the Trustee in the ordinary course of
its
duties as Trustee, Registrar, Tax Matters Person or Paying Agent hereunder
or
for any other expenses.
100
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which
would
not cause either of the Rating Agencies to reduce or withdraw their respective
then current ratings of the Certificates (or having provided such security
from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association 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 corporation or
association shall be deemed to be its combined capital and surplus as set
forth
in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
this Section 8.06, the Trustee shall resign immediately in the manner and
with
the effect specified in Section 8.07. The entity serving as Trustee
may have normal banking and trust relationships with the Depositor and its
affiliates or the Master Servicer and its affiliates; provided,
however, that such entity cannot be an affiliate of the Master Servicer
other than the Trustee in its role as successor to the Master
Servicer.
|
SECTION
8.07.
|
Resignation
and Removal of Trustee.
|
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer
and each Rating Agency not less than 60 days before the date specified in
such
notice when, subject to Section 8.08, such resignation is to take effect,
and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no
successor trustee meeting such qualifications shall have been so appointed
and
have accepted appointment within 30 days after the giving of such notice
or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Trustee shall provide
(x) written notice to the Depositor of any successor pursuant to this Section
and (y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Trustee.
101
If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 hereof and shall fail to resign after written
request
thereto by the NIM Insurer or the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)
a
tax is imposed with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund is located and the imposition of such tax would be avoided
by
the appointment of a different trustee, or (iv) during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Trustee fails to comply with its obligations under the last sentence
of Section 7.01, in the preceding paragraph, Section 8.09 or Article XI and
such
failure is not remedied within the lesser of 10 calendar days or such period
in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions), then, in the case of clauses (i) through (iii),
the Depositor, the NIM Insurer or the Master Servicer, and in the case of
clause
(iv), the Depositor, may remove the Trustee and appoint a successor trustee,
reasonably acceptable to the NIM Insurer, by written instrument, in triplicate,
one copy of which instrument shall be delivered to the Trustee, one copy
of
which shall be delivered to the Master Servicer, one copy of which shall
be
delivered to the NIM Insurer and one copy of which shall be delivered to
the
successor trustee.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may
at any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Trustee to the Master Servicer, one complete set to the Trustee so removed,
one
complete set to the NIM Insurer and one complete set to the successor so
appointed. Notice of any removal of the Trustee shall be given to
each Rating Agency by the successor trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in
Section 8.08.
|
SECTION
8.08.
|
Successor
Trustee.
|
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and
the
Master Servicer an instrument accepting such appointment hereunder and thereupon
the resignation or removal of the predecessor trustee shall become effective
and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with the like effect as if originally named as trustee
in
this Agreement. The Depositor, the Master Servicer and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming
in
the successor trustee all such rights, powers, duties, and
obligations.
102
No
successor trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06 hereof, is reasonably acceptable to
the NIM
Insurer, its appointment shall not adversely affect the then -current ratings
of
the Certificates and has provided to the Depositor in writing and in form
and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to a replacement Trustee.
Upon
acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to the NIM Insurer and all Holders of
Certificates. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the
Depositor.
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the
Trustee
hereunder, provided that such corporation shall be eligible under the provisions
of Section 8.06 without the execution or filing of any paper or further act
on the part of any of the parties hereto, anything in this Agreement to the
contrary notwithstanding.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation
of the
Trustee, the Trustee shall provide (x) written notice to the Depositor of
any
successor pursuant to this Section and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement Trustee.
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate
Trustee.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust
Fund
or property securing any Mortgage Note may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and reasonably acceptable to the NIM 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 the Trust Fund, and to vest in such Person or Persons,
in
such capacity and for the benefit of the Certificateholders, such title to
the
Trust Fund or any part thereof, whichever is applicable, and, subject to
the
other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. If the Master Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request to do so,
or in
the case an Event of Default shall have occurred and be continuing, 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 and no notice to Certificateholders
of
the appointment of any co-trustee or separate trustee shall be required under
Section 8.08.
103
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) To
the extent necessary to effectuate the purposes of this Section 8.10, all
rights, powers, duties and obligations conferred or imposed upon the Trustee,
except for the obligation of the Trustee under this Agreement to advance
funds
on behalf of the Master Servicer, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not
authorized to act separately without the Trustee joining in such act), except
to
the extent that under any law of any jurisdiction in which any particular
act or
acts are to be performed (whether as Trustee hereunder or as successor to
the
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 the applicable Trust Fund
or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Trustee;
(ii) No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder and such appointment shall not, and
shall not be deemed to, constitute any such separate trustee or co-trustee
as
agent of the Trustee;
(iii) The
Trustee may at any time accept the resignation of or remove any separate
trustee
or co-trustee; and
(iv) The
Master Servicer, and not the Trustee, shall be liable for the payment of
reasonable compensation, reimbursement and indemnification to any such separate
trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the separate trustees and co-trustees, when and 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 trusts 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 Master Servicer and
the
Depositor.
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.
104
|
SECTION
8.11.
|
Tax
Matters.
|
It
is
intended that the assets with respect to which any REMIC election is to be
made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a “real estate mortgage investment conduit” as defined in and in
accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent (and
the
Trustee is hereby appointed to act as agent) on behalf of any such REMIC
and
that in such capacity it shall: (a) prepare and file, or cause to be
prepared and filed, in a timely manner, a U.S. Real Estate Mortgage Investment
Conduit Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and
filed
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to any
such
REMIC, containing such information and at the times and in the manner as
may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby;
(b)
within thirty days of the Closing Date, furnish or cause to be furnished
to the
Internal Revenue Service, on Forms 8811 or as otherwise may be required by
the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form,
and
update such information at the time or times in the manner required by the
Code;
(c) make or cause to be made elections that such assets be treated as a REMIC
on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service
and, if
necessary, state tax authorities, all information returns and reports as
and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a
Person
that is not a Permitted Transferee, or an agent (including a broker, nominee
or
other middleman) of a Non-Permitted Transferee, or a pass-through entity
in
which a Non-Permitted Transferee is the record holder of an interest (the
reasonable cost of computing and furnishing such information may be charged
to
the Person liable for such tax); (f) to the extent that they are under its
control conduct matters relating to such assets at all times that any
Certificates are outstanding so as to maintain the status as a REMIC under
the
REMIC Provisions; (g) not knowingly or intentionally take any action or omit
to
take any action that would cause the termination of the tax status of any
REMIC;
(h) pay, from the sources specified in the third paragraph of this Section
8.11,
the amount of any federal or state tax, including prohibited transaction
taxes
as described below, imposed on any such REMIC prior to its termination when
and
as the same shall be due and payable (but such obligation shall not prevent
the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); (i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to any such REMIC, including but not limited
to
the income, expenses, assets and liabilities thereof and the fair market
value
and adjusted basis of the assets determined at such intervals as may be required
by the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and (k) as and when necessary and appropriate,
represent any such REMIC in any administrative or judicial proceedings relating
to an examination or audit by any governmental taxing authority, request
an
administrative adjustment as to any taxable year of any such REMIC, enter
into
settlement agreements with any governmental taxing agency, extend any statute
of
limitations relating to any tax item of any such REMIC, and otherwise act
on
behalf of any such REMIC in relation to any tax matter or controversy involving
it.
105
In
order
to enable the Trustee to perform its duties as set forth in this Agreement,
the
Depositor shall provide, or cause to be provided, to the Trustee within ten
(10)
days after the Closing Date all information or data that the Trustee requests
in
writing and determines to be relevant for tax purposes to the valuations
and
offering prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flows of the Certificates
and
the Mortgage Loans. Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor, any such additional information
or data that the Trustee may, from time to time, reasonably request in order
to
enable the Trustee to perform its duties as set forth in this
Agreement. The Depositor hereby indemnifies the Trustee for any
losses, liabilities, damages, claims or expenses of the Trustee arising from
any
errors or miscalculations of the Trustee that result from any failure of
the
Depositor to provide, or to cause to be provided, accurate information or
data
to the Trustee on a timely basis.
In
the
event that any tax is imposed on “prohibited transactions” of any REMIC
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 contribution to any REMIC hereunder after the Startup Day pursuant
to
Section 860G(d) of the Code, or any other tax is imposed, including, without
limitation, any minimum tax imposed upon any REMIC hereunder pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if
not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by
the
Trustee of any of its obligations under this Agreement, (ii) the Master
Servicer, in the case of any such minimum tax, or if such tax arises out
of or
results from a breach by the Master Servicer or a Seller of any of their
obligations under this Agreement, (iii) any Seller, if any such tax arises
out
of or results from that Seller’s obligation to repurchase a Mortgage Loan
pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or in the event
that the Trustee, the Master Servicer or any Seller fails to honor its
obligations under the preceding clauses (i),(ii) or (iii), any such tax will
be
paid with amounts otherwise to be distributed to the Certificateholders,
as
provided in Section 3.08(b).
The
Trustee shall treat the Carryover Reserve Fund and the Supplemental Interest
Trust, including each Derivative Account, as an outside reserve fund within
the
meaning of Treasury Regulation 1.860G-2(h), none of which is an asset of
any
REMIC created hereunder. The Carryover Reserve Fund shall be treated
as owned by the Holders of the Class C Certificates, and the Supplemental
Interest Trust, including the Derivative Accounts, shall be treated as owned
by
the Underwriter. The Trustee shall treat the rights of the Holders of
the LIBOR Certificates and the Class C Certificates to receive payments from
the
Carryover Reserve Fund or the Supplemental Interest Trust, including the
Derivative Accounts, as applicable, as rights and obligations with respect
to
notional principal contracts written by (i) the Holders of the Class C
Certificates in respect of any Net Rate Carryover distributed pursuant to
Section 4.02(c)(6) herein and (ii) each Counterparty in respect of any Net
Rate
Carryover funded by the related Derivative Agreement and in respect of any
residual payments from such Derivative Agreement received by the
Underwriter. Thus, the LIBOR Certificates and the Class C
Certificates shall be treated as representing ownership of Master REMIC regular
interests coupled with contractual rights and obligations within the meaning
of
Treasury Regulation 1.860G-2(i). For purposes of determining the
issue price of the various Master REMIC regular interests, the Trustee (i)
shall
treat any obligation (or deemed obligation) to make payments under the
Certificate Swap Contract undertaken by the holder of such Master REMIC
Certificate, as part of the consideration paid by the Certificateholder for
the
underlying REMIC regular interest, and the total deemed obligation for all
Certificateholders shall be $3,548,000, (ii) shall assume that each of the
Class
A-1 Swap Contract, Class A-3 Swap Contract and Class M-3 Swap Contract was
acquired at market and (iii) shall assume that the Class A-4 Corridor Contract
and the Subordinated Certificates Corridor Contract have a value of $85,000
and
$114,000, respectively. The Trustee shall treat any amount payable to
a Class C Certificateholder as first deposited in the Carryover Reserve
Fund. In addition, to the extent the interest otherwise payable to a
Certificateholder is reduced for amounts payable with respect to a swap
contract, the Trustee, for federal income tax purposes, shall treat the amount
of such reduction as first payable to the Certificateholder as interest and
as
then payable by the Certificateholder with respect to a notional principal
contract. To the extent the amount payable with respect to such swap
contract exceeds the aggregate of the reductions described in the immediately
preceding sentence, the Trustee, for federal income tax purposes, shall treat
such excess as Realized Losses from Mortgage Loans and to the extent such
Realized Losses (if they had occurred) would be allocated to a
Certificateholder, the Trustee shall treat such amount as first payable to
the
Certificateholder as principal and as then payable by the Certificateholder
with
respect to a notional principal contract.
Solely
for income tax purposes, any differences in the distributions to a
Certificateholder (positive or negative) that would result from the application
of the Strip REMIC Cap rather than the applicable Net Rate Cap shall be treated
by the Trustee as reconciled among the Certificates by swap payments made
pursuant to notional principal contracts entered into among the
Certificateholders.
|
SECTION
8.12.
|
Monitoring
of Significance Percentage.
|
With
respect to each Distribution Date, the Trustee shall calculate the “significance
percentage” (as defined in Item 1115 of Regulation AB) of each derivative
instrument, if any, based on the aggregate Class Certificate Balance of the
related Classes of Covered Certificates for such derivative instrument and
Distribution Date (after all distributions to be made thereon on such
Distribution Date) and based on the methodology provided in writing by or
on
behalf of Countrywide no later than the fifth Business Day preceding such
Distribution Date. On each Distribution Date, the Trustee shall
provide to Countrywide a written report (which written report may include
similar information with respect to other derivative instruments relating
to
securitization transactions sponsored by Countrywide) specifying the
“significance percentage” of each derivative instrument, if any, for that
Distribution Date. If the “significance percentage” of any derivative
instrument exceeds 7.0% with respect to any Distribution Date, the Trustee
shall
make a separate notation thereof in the written report described in the
preceding sentence. Such written report may contain such assumptions
and disclaimers as are deemed necessary and appropriate by the
Trustee.
106
ARTICLE
IX
TERMINATION
|
SECTION
9.01.
|
Termination
upon Liquidation or Purchase of all Mortgage
Loans.
|
Subject
to Section 9.03, the obligations and responsibilities of the Depositor, the
Sellers, the Master Servicer and the Trustee created hereby with respect
to the
Trust Fund shall terminate upon the earlier of (a) the purchase by the Master
Servicer or NIM Insurer (the party exercising such purchase option, the
“Terminator”) of all of the Mortgage Loans (and REO Properties) at the price
equal to the sum of (i) 100% of the Stated Principal Balance of each Mortgage
Loan (other than in respect of an REO Property), (ii) accrued interest thereon
at the applicable Mortgage Rate (or, if such repurchase is effected by the
Master Servicer, at the applicable Adjusted Mortgage Rate, (iii) the appraised
value of any REO Property (up to the Stated Principal Balance of the related
Mortgage Loan), such appraisal to be conducted by an appraiser mutually agreed
upon by the Terminator and the Trustee, (iv) any remaining unpaid costs and
damages incurred by the Trust Fund that arises out of a violation of any
predatory or abusive lending law that also constitutes an actual breach of
clause (46) on Schedule III-A, in all cases plus accrued and unpaid interest
thereon at the applicable Adjusted Mortgage Rate, (v) plus, if the Terminator
is
the NIM Insurer, any unreimbursed Servicing Advances, and the principal portion
of any unreimbursed Advances, made on the Mortgage Loans prior to the exercise
of such repurchase and (vi) any amounts payable to the Swap
Counterparty, including any Swap Termination Payment payable to the Swap
Counterparty as a result of the early termination of the Certificate Swap
Contract (including any Swap Termination Payment resulting from the termination
of the Trust Fund pursuant to this Section 9.01 and determined in accordance
with Part 5(c)(vii) of the Schedule to the ISDA Master Agreement) and (b)
the
later of (i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to the
Certificateholders of all amounts required to be distributed to them pursuant
to
this Agreement, as applicable. In no event shall the trusts 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. James’s, living on the date
hereof and (ii) the Latest Possible Maturity Date.
The
right
to purchase all Mortgage Loans and REO Properties by the Terminator pursuant
to
clause (a) of the immediately preceding paragraph shall be conditioned upon
(1)
the Pool Stated Principal Balance, at the time of any such repurchase, is
less
than or equal to ten percent (10%) of the Cut-off Date Pool Principal Balance
and (2) unless the NIM Insurer otherwise consents, the purchase price for
such
Mortgage Loans and REO Properties shall result in a final distribution on
any
NIM Insurer guaranteed notes that is sufficient (x) to pay such notes in
full
and (y) to pay any amounts due and payable to the NIM Insurer pursuant to
the
indenture related to such notes. The preceding notwithstanding, on
any Distribution Date on which each of the Master Servicer and the NIM Insurer
shall have the option to purchase all the Mortgage Loans (and REO Properties)
remaining in the Trust Fund pursuant to this Section 9.01, the NIM Insurer’s
purchase option shall require the prior written consent of the Master
Servicer.
The
Supplemental Interest Trust shall terminate on the earlier of (i) the
termination of the last remaining Derivative Account and (ii) the termination
of
this Agreement.
107
|
SECTION
9.02.
|
Final
Distribution on the
Certificates.
|
If
on any
Determination Date, the Master Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than
the
funds in the Certificate Account, the Master Servicer shall direct the Trustee
promptly to send a final distribution notice to each
Certificateholder. If the Terminator elects to terminate the Trust
Fund pursuant to clause (a) of Section 9.01, at least 20 days prior to
the date notice is to be mailed to the affected Certificateholders, the
Terminator shall notify the Depositor and the Trustee of the date the Master
Servicer intends to terminate the Trust Fund and of the applicable repurchase
price of the Mortgage Loans and REO Properties.
Notice
of
any termination of the Trust Fund, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by
letter
to Certificateholders mailed not earlier than the 10th day and
no later
than the 15th
day of the month next preceding the month of such final
distribution. Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and
(d) that the Record Date otherwise applicable to such Distribution Date is
not applicable, distributions being made only upon presentation and surrender
of
the Certificates at the office therein specified. The Terminator will
give such notice to each Rating Agency at the time such notice is given to
the
affected Certificateholders.
In
the
event such notice is given, the Master Servicer shall cause all funds in
the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on or before the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect
of the
Certificates. Upon such final deposit with respect to the Trust Fund
and the receipt by the Trustee of a Request for Release therefor, the Trustee
shall promptly release to the Master Servicer the Mortgage Files for the
Mortgage Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class, in each case on the
final
Distribution Date and in the order set forth in Section 4.02, in proportion
to their respective Percentage Interests, with respect to Certificateholders
of
the same Class, an amount equal to (i) as to each Class of Regular
Certificates, the Certificate Balance thereof plus accrued interest thereon
(or
on their Notional Amount, if applicable) in the case of an interest bearing
Certificate and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i)
above. Notwithstanding the reduction of the Class Certificate Balance
of any Class of Certificates to zero, such Class will be outstanding hereunder
(solely for the purpose of receiving distributions and not for any other
purpose) until the termination of the respective obligations and
responsibilities of the Depositor, each Seller, the Master Servicer and the
Trustee hereunder in accordance with Article IX.
In
the
event that any affected Certificateholders shall not surrender its Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Trustee shall give a second written notice
to the
remaining Certificateholders to surrender their Certificates for cancellation
and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall
not
have been surrendered for cancellation, the Trustee may take appropriate
steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part
of
the Trust Fund. If within one year after the second notice all
Certificates shall not have been surrendered for cancellation then, the
Class A-R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject to this
Agreement.
108
|
SECTION
9.03.
|
Additional
Termination Requirements.
|
(a) In
the event the Terminator exercises its purchase option as provided in
Section 9.01, the REMICs shall be terminated in accordance with the
following additional requirements, unless the Trustee has been supplied with
an
Opinion of Counsel, at the expense of the Terminator, to the effect that
the
failure to comply with the requirements of this Section 9.03 will not
(i) result in the imposition of taxes on “prohibited transactions” on any
REMIC as defined in section 860F of the Code, or (ii) cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(1) The
Master Servicer shall establish a 90-day liquidation period and notify the
Trustee thereof, which shall in turn specify the first day of such period
in a
statement attached to the final Tax Return of each REMIC subject to termination
hereto pursuant to Treasury Regulation Section 1.860F-1. The Master
Servicer shall prepare a plan of complete liquidation and shall otherwise
satisfy all the requirements of a qualified liquidation under Section 860F
of
the Code and any regulations thereunder, as evidenced by an Opinion of Counsel
delivered to the Trustee and the Depositor obtained at the expense of the
Terminator; and
(2) Within
90 days after the time of adoption of such a plan of complete liquidation,
the
Trustee shall sell all of the assets of each REMIC subject to termination
hereto
to the Terminator for cash in accordance with Section 9.01.
(b) The
Trustee, as agent for any REMIC created hereunder, hereby agrees to adopt
and
sign such a plan of complete liquidation upon the written request of the
Master
Servicer, and the receipt of the Opinion of Counsel referred to in
Section 9.03(a)(1) and to take such other action in connection therewith as
may be reasonably requested by the Terminator.
(c) By
their acceptance of the Certificates, the Holders thereof hereby authorize
the
Master Servicer to prepare and the Trustee to adopt and sign a plan of complete
liquidation.
109
ARTICLE
X
MISCELLANEOUS
PROVISIONS
|
SECTION
10.01.
|
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, each Seller,
the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any
defective provision in this Agreement or to supplement any provision in this
Agreement which may be inconsistent with any other provision in this Agreement,
(iii) to conform this Agreement to the Prospectus and Prospectus Supplement
provided to investors in connection with the initial offering of the
Certificates, (iv) to add to the duties of the Depositor, any Seller or the
Master Servicer, (v) to modify, alter, amend, add to or rescind any of the
terms
or provisions contained in this Agreement to comply with any rules or
regulations promulgated by the Securities and Exchange Commission from time
to
time, (vi) to add any other provisions with respect to matters or questions
arising hereunder or (vii) to modify, alter, amend, add to or rescind any
of the
terms or provisions contained in this Agreement; provided that any action
pursuant to clauses (vi) or (vii) above shall not, as evidenced by an Opinion
of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee
or the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall be deemed
not to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating
Agency
stating that the amendment would not result in the downgrading or withdrawal
of
the respective ratings then assigned to the Certificates; it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent
a
determination only as to the credit issues affecting any such
rating. Notwithstanding the foregoing, no amendment that
significantly changes the permitted activities of the trust created by this
Agreement may be made without the consent of a Majority in Interest of each
Class of Certificates affected by such amendment. Each party to this
Agreement hereby agrees that it will cooperate with each other party in amending
this Agreement pursuant to clause (v) above. The Trustee, each
Seller, the Depositor and the Master Servicer also may at any time and from
time
to time amend this Agreement without the consent of the Certificateholders
to
modify, eliminate or add to any of its provisions to such extent as shall
be
necessary or helpful to (i) maintain the qualification of any REMIC as a
REMIC
under the Code, (ii) avoid or minimize the risk of the imposition of any
tax on
any REMIC pursuant to the Code that would be a claim at any time prior to
the
final redemption of the Certificates or (iii) comply with any other requirements
of the Code, provided that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but
in
any case shall not be an expense of the Trustee or the Trust Fund, to the
effect
that such action is necessary or helpful to, as applicable, (i) maintain
such
qualification, (ii) avoid or minimize the risk of the imposition of such
a tax
or (iii) comply with any such requirements of the Code.
This
Agreement may also be amended from time to time by the Depositor, each Seller,
the Master Servicer and the Trustee with the consent of the Holders of a
Majority in Interest of each Class of Certificates affected thereby 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 Holders of Certificates; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of,
payments 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 Holders of any Class of Certificates in a manner other
than
as described in (i), without the consent of the Holders of Certificates of
such
Class evidencing, as to such Class, Percentage Interests aggregating 66-2/3%
or
(iii) reduce the aforesaid percentages of Certificates the Holders of which
are
required to consent to any such amendment, without the consent of the Holders
of
all such Certificates then outstanding.
110
Notwithstanding
any contrary provision of this Agreement, no amendment shall adversely affect
in
any material respect the Swap Counterparty without the prior written consent
of
the Swap Counterparty, which consent shall not be unreasonably
withheld. Countrywide shall provide the Swap Counterparty with prior
written notice of any proposed material amendment of this
Agreement.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel, which opinion shall not be an expense of the Trustee or the Trust
Fund,
to the effect that such amendment will not cause the imposition of any tax
on
any REMIC or the Certificateholders or cause any REMIC to fail to qualify
as a
REMIC at any time that any Certificates are outstanding.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of such amendment to each Certificateholder, the Swap
Counterparty and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section
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 Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment without
receiving an Opinion of Counsel (which Opinion shall not be an expense of
the
Trustee or the Trust Fund), satisfactory to the Trustee that (i) such
amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any
material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
|
SECTION
10.02.
|
Recordation
of Agreement; Counterparts.
|
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 Master Servicer at its expense, but only upon direction by
the
Trustee 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 in this Agreement
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.
111
|
SECTION
10.03.
|
Governing
Law.
|
THIS
AGREEMENT 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
10.04.
|
Intention
of Parties.
|
(a) It
is the express intent of the parties hereto that the conveyance of the (i)
of
the Mortgage Loans by the Sellers to the Depositor and (ii) Trust Fund by
the
Depositor to the Trustee each be, and be construed as, an absolute sale thereof
to the Trustee. It is, further, not the intention of the parties that
such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to
be the
property of any Seller or the Depositor, as the case may be, or if for any
other
reason this Agreement is held or deemed to create a security interest in
either
such assets, then (i) this Agreement shall be deemed to be a security
agreement (within the meaning of the Uniform Commercial Code of the State
of New
York) with respect to all such assets and security interests and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant pursuant to the terms of this Agreement (i) by each Seller to
the
Depositor or (ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders and the Swap Counterparty, of a security interest in all
of
the assets that constitute the Trust Fund, whether now owned or hereafter
acquired.
Each
Seller and the Depositor for the benefit of the Certificateholders and the
Swap
Counterparty shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed
to
create a security interest in the Trust Fund, such security interest would
be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of the
Agreement. The Depositor shall arrange for filing any Uniform
Commercial Code continuation statements in connection with any security interest
granted or assigned to the Trustee for the benefit of the Certificateholders
and
the Swap Counterparty.
(b) The
Depositor hereby represents that:
(i) This
Agreement creates a valid and continuing security interest (as defined in
the
Uniform Commercial Code as enacted in the State of New York (the “NY UCC”)) in
the Mortgage Notes in favor of the Trustee, which security interest is prior
to
all other liens, and is enforceable as such as against creditors of and
purchasers from the Depositor.
(ii) The
Mortgage Notes constitutes “instruments” within the meaning of the NY
UCC.
112
(iii) Immediately
prior to the assignment of each Mortgage Loan to the Trustee, the Depositor
owns
and has good and marketable title to such Mortgage Loan free and clear of
any
lien, claim or encumbrance of any Person.
(iv) The
Depositor has received all consents and approvals required by the terms of
the
Mortgage Loans to the sale of the Mortgage Loans hereunder to the
Trustee.
(v) All
original executed copies of each Mortgage Note that are required to be delivered
to the Trustee pursuant to Section 2.01 have been delivered to the
Trustee.
(vi) Other
than the security interest granted to the Trustee pursuant to this Agreement,
the Depositor has not pledged, assigned, sold, granted a security interest
in,
or otherwise conveyed any of the Mortgage Loans. The Depositor has
not authorized the filing of and is not aware of any financing statements
against the Depositor that include a description of collateral covering the
Mortgage Loans other than any financing statement relating to the security
interest granted to the Trustee hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor.
The
parties to this Agreement shall not waive any of the representations set
forth
in this Section 10.04(b) without obtaining a confirmation of the then-current
ratings of the Certificates.
(c) The
Master Servicer shall take such action as is reasonably necessary to maintain
the perfection and priority of the security interest of the Trustee in the
Mortgage Loans; provided, however, that the obligation to deliver the Mortgage
File to the Trustee pursuant to Section 2.01 shall be solely the Depositor’s
obligation and the Master Servicer shall not be responsible for the safekeeping
of the Mortgage Files by the Trustee.
(d) It
is understood and agreed that the representations and warranties set forth
in
subsection (b) above shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach
of any of the foregoing representations and warranties set forth in subsection
(b) above, which breach materially and adversely affects the interest of
the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
|
SECTION
10.05.
|
Notices.
|
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency and the Swap Counterparty (other than with respect to 4 below) 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 Event of Default that has not been cured;
3. The
resignation or termination of the Master Servicer or the Trustee and the
appointment of any successor;
4. The
repurchase or substitution of Mortgage Loans pursuant to
Section 2.03;
113
5. The
final payment to Certificateholders; and
6. Any
rating action involving the long-term credit rating of Countrywide, which
notice
shall be made by first class mail within two Business Days after the
Trustee gains actual knowledge of such a rating action.
In
addition, the Trustee shall promptly furnish to each Rating Agency copies
of the
following:
1. Each
report to Certificateholders described in Section 4.06;
2. Each
annual statement as to compliance described in Section 3.16;
3. Each
annual independent public accountants’ servicing report described in Section
11.07; and
4. Any
notice of a purchase of a Mortgage Loan pursuant to Section 2.02, 2.03 or
3.11.
(b) All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered by first class mail, by courier
or
by facsimile transmission to (1) in the case of the Depositor, CWALT, Inc.,
0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx, (2) in the case
of Countrywide, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxx Xxxxx, or such other address as may be hereafter
furnished to the Depositor and the Trustee by Countrywide in writing, (3)
in the
case of Park Granada LLC, c/o Countrywide Financial Corporation, 0000 Xxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx, or such other address as may be
hereafter furnished to the Depositor and the Trustee by Park Granada in writing,
(4) in the case of Park Monaco Inc., c/o Countrywide Financial Corporation,
0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx, or such other address as may be
hereafter furnished to the Depositor and the Trustee by Park Monaco in writing,
(5) in the case of Park Sienna LLC, c/o Countrywide Financial Corporation,
0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx, or such other address as may be
hereafter furnished to the Depositor and the Trustee by Park Sienna in writing,
(6) in the case of the Master Servicer, Countrywide Home Loans Servicing
LP, 000
Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, facsimile number (000) 000-0000,
Attention: Xxxx Xxxx, or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in writing,
(7) in the case of the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx,
0X,
Xxx Xxxx, Xxx Xxxx 00000, facsimile number: (000) 000-0000,
Attention: Mortgage-Backed Securities Group, CWALT, Inc. Series 2007-HY7C,
or
such other address as the Trustee may hereafter furnish to the Depositor
or
Master Servicer, (8) in the case of the Rating Agencies, the address specified
therefor in the definition corresponding to the name of such Rating Agency
and
(9) in the case of the Swap Counterparty, Deutsche Bank AG, New York Branch,
00
Xxxx Xxxxxx, Xxx Xxxx, XX 00000, or such other address as may be hereafter
furnished by the Swap Counterparty. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
114
|
SECTION
10.06.
|
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 of the
Certificates.
|
SECTION
10.07.
|
Assignment.
|
Notwithstanding
anything to the contrary contained in this Agreement, except as provided
in
Section 6.02, this Agreement may not be assigned by the Master Servicer
without the prior written consent of the Trustee and the Depositor.
|
SECTION
10.08.
|
Limitation
on Rights of
Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the
trust
created by this Agreement, or 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 provided in this
Agreement) or in any manner otherwise control the operation and management
of
the Trust Fund, or the obligations of the parties hereto, nor shall anything
set
forth in this Agreement or contained in the terms 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 party by reason of any action taken by the parties
to
this Agreement pursuant to any provision of this Agreement.
No
Certificateholder shall have any right by virtue or by availing itself of
any
provisions 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 an
Event
of Default and of the continuance thereof, as provided in this Agreement,
and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request
to 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 60 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 being understood and intended, and being
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 whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the 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 provided in this Agreement
and
for the common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 10.08, each and every
Certificateholder and the Trustee shall be entitled to such relief as can
be
given either at law or in equity.
115
|
SECTION
10.09.
|
Inspection
and Audit Rights.
|
The
Master Servicer agrees that, on reasonable prior notice, it will permit and
will
cause each Subservicer to permit any representative of the Depositor or the
Trustee during the Master Servicer’s normal business hours, to examine all the
books of account, records, reports and other papers of the Master Servicer
relating to the Mortgage Loans, to make copies and extracts therefrom, to
cause
such books to be audited by independent certified public accountants selected
by
the Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Master Servicer hereby authorizes
said accountants to discuss with such representative such affairs, finances
and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the
Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall
be
borne by the Master Servicer or the related Subservicer.
|
SECTION
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust
Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by
the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
|
SECTION
10.11.
|
[Reserved].
|
|
SECTION
10.12.
|
Protection
of Assets.
|
(a) Except
for transactions and activities entered into in connection with the
securitization that is the subject of this Agreement, the Trust Fund created
by
this Agreement is not authorized and has no power to:
(i) borrow
money or issue debt;
(ii) merge
with another entity, reorganize, liquidate or sell assets; or
(iii) engage
in any business or activities.
(b) Each
party to this Agreement agrees that it will not file an involuntary bankruptcy
petition against the Trustee or the Trust Fund or initiate any other form
of
insolvency proceeding until the date that is one year and one day after the
Certificates have been paid.
|
SECTION
10.13.
|
Rights
of the NIM Insurer.
|
(a) The
rights of the NIM Insurer under this Agreement shall exist only so long as
either:
116
(1) the
notes certain, payments on which are guaranteed by the NIM Insurer, remain
outstanding or
(2) the
NIM Insurer is owed amounts paid by it with respect to that
guaranty.
(b) The
rights of the NIM Insurer under this Agreement are exercisable by the NIM
Insurer only so long as no default by the NIM Insurer under its guaranty
of
certain payments under notes backed or secured by the Class C or Class P
Certificates has occurred and is continuing. If the NIM Insurer is the subject
of any insolvency proceeding, the rights of the NIM Insurer under this Agreement
will be exercisable by the NIM Insurer only so long as:
(1) the
obligations of the NIM Insurer under its guaranty of notes backed or secured
by
the Class C or Class P Certificates have not been disavowed and
(2) Countrywide
and the Trustee have received reasonable assurances that the NIM Insurer
will be
able to satisfy its obligations under its guaranty of notes backed or secured
by
the Class C or Class P Certificates.
(c) The
NIM Insurer is a third party beneficiary of this Agreement to the same extent
as
if it were a party to this Agreement and may enforce any of those rights
under
this Agreement.
(d) A
copy of any documents of any nature required by this Agreement to be delivered
by the Trustee, or to the Trustee or the Rating Agencies, shall in each case
at
the same time also be delivered to the NIM Insurer. Any notices required
to be
given by the Trustee, or to the Trustee or the Rating Agencies, shall in
each
case at the same time also be given to the NIM Insurer. If the
Trustee receives a notice or document that is required hereunder to be delivered
to the NIM Insurer, and if such notice or document does not indicate that
a copy
thereof has been previously sent to the NIM Insurer, the Trustee shall send
the
NIM Insurer a copy of such notice or document. If such document is an
Opinion of Counsel, the NIM Insurer shall be an addressee thereof or such
Opinion of Counsel shall contain language permitting the NIM Insurer to rely
thereon as if the NIM Insurer were an addressee thereof.
(e) Anything
in this Agreement that is conditioned on not resulting in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies shall also be conditioned on not resulting in the downgrading or
withdrawal of the ratings then assigned by the Rating Agencies to the notes
backed or secured by the Class C or Class P Certificates (without giving
effect
to any policy or guaranty provided by the NIM Insurer).
117
ARTICLE
XI
EXCHANGE
ACT REPORTING
|
SECTION
11.01.
|
Filing
Obligations.
|
The
Master Servicer, the Trustee and each Seller shall reasonably cooperate with
the
Depositor in connection with the satisfaction of the Depositor’s reporting
requirements under the Exchange Act with respect to the Trust
Fund. In addition to the information specified below, if so requested
by the Depositor for the purpose of satisfying its reporting obligation under
the Exchange Act, the Master Servicer, the Trustee and each Seller shall
(and
the Master Servicer shall cause each Subservicer to) provide the Depositor
with
(a) such information which is available to such Person without unreasonable
effort or expense and within such timeframe as may be reasonably requested
by
the Depositor to comply with the Depositor’s reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor
is
not a party) to any agreement or amendment required to be filed, copies of
such
agreement or amendment in XXXXX-compatible form.
|
SECTION
11.02.
|
Form
10-D Filings.
|
(a) In
accordance with the Exchange Act, the Trustee shall prepare for filing and
file
within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act) with the Commission with respect to the Trust Fund,
a
Form 10-D with copies of the Monthly Statement and, to the extent delivered
to
the Trustee, no later than 10 days following the Distribution Date, such
other
information identified by the Depositor or the Master Servicer, in writing,
to
be filed with the Commission (such other information, the “Additional Designated
Information”). If the Depositor or Master Servicer directs that any
Additional Designated Information is to be filed with any Form 10-D, the
Depositor or Master Servicer, as the case may be, shall specify the Item
on Form
10-D to which such information is responsive and, with respect to any Exhibit
to
be filed on Form 10-D, the Exhibit number. Any information to be
filed on Form 10-D shall be delivered to the Trustee in XXXXX-compatible
form or
as otherwise agreed upon by the Trustee and the Depositor or the Master
Servicer, as the case may be, at the Depositor’s expense, and any necessary
conversion to XXXXX-compatible format will be at the Depositor’s
expense. At the reasonable request of, and in accordance with the
reasonable directions of, the Depositor or the Master Servicer, subject to
the
two preceding sentences, the Trustee shall prepare for filing and file an
amendment to any Form 10-D previously filed with the Commission with respect
to
the Trust Fund. The Master Servicer shall sign the Form 10-D filed on
behalf of the Trust Fund.
(b) No
later than each Distribution Date, each of the Master Servicer and the Trustee
shall notify (and the Master Servicer shall cause any Subservicer to notify)
the
Depositor and the Master Servicer of any Form 10-D Disclosure Item, together
with a description of any such Form 10-D Disclosure Item in form and substance
reasonably acceptable to the Depositor. In addition to such
information as the Master Servicer and the Trustee are obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Depositor, each of the Master Servicer and the Trustee shall provide such
information which is available to the Master Servicer and the Trustee, as
applicable, without unreasonable effort or expense regarding the performance
or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Master Servicer) as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB. Such information shall be provided concurrently with
the delivery of the reports specified in Section 4.06(c) in the case of the
Master Servicer and the Monthly Statement in the case of the Trustee, commencing
with the first such report due not less than five Business Days following
such
request.
118
(c) The
Trustee shall not have any responsibility to file any items (other than those
generated by it) that have not been received in a format suitable (or readily
convertible into a format suitable) for electronic filing via the XXXXX system
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it or that are readily convertible to
such
format). The Trustee shall have no liability to the
Certificateholders, the Trust Fund, the Master Servicer, the Depositor or
the
NIM Insurer with respect to any failure to properly prepare or file any of
Form
10-D to the extent that such failure is not the result of any negligence,
bad
faith or willful misconduct on its part.
|
SECTION
11.03.
|
Form
8-K Filings.
|
The
Master Servicer shall prepare and file on behalf of the Trust Fund any Form
8-K
required by the Exchange Act. Each Form 8-K must be signed by the
Master Servicer. Each of the Master Servicer (and the Master Servicer
shall cause any Subservicer to promptly notify) and the Trustee shall promptly
notify the Depositor and the Master Servicer (if the notifying party is not
the
Master Servicer), but in no event later than one (1) Business Day after its
occurrence, of any Reportable Event of which it has actual
knowledge. Each Person shall be deemed to have actual knowledge of
any such event to the extent that it relates to such Person or any action
or
failure to act by such Person. Concurrently with any Supplemental
Transfer, Countrywide shall notify the Depositor and the Master Servicer,
if any
material pool characteristic of the actual asset pool at the time of issuance
of
the Certificates differs by 5% or more (other than as a result of the pool
assets converting into cash in accordance with their terms) from the description
of the asset pool in the Prospectus Supplement.
|
SECTION
11.04.
|
Form
10-K Filings.
|
Prior
to
March 30th of each year, commencing in 2008 (or such earlier date as may
be
required by the Exchange Act), the Depositor shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. A senior officer in charge of the servicing function of the
Master Servicer shall sign each Form 10-K filed on behalf of the Trust
Fund. Such Form 10-K shall include as exhibits each (i) annual
compliance statement described under Section 3.16, (ii) annual report on
assessments of compliance with the Servicing Criteria described under Section
11.07 and (iii) accountant’s report described under Section
11.07. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx
Certification required to be included therewith, as described in Section
11.05.
If
the
Item 1119 Parties listed on Exhibit X have changed since the Closing Date,
no
later than March 1 of each year, the Master Servicer shall provide each of
the
Master Servicer (and the Master Servicer shall provide any Subservicer) and
the
Trustee with an updated Exhibit X setting forth the Item 1119
Parties. No later than March 15 of each year, commencing in 2008, the
Master Servicer and the Trustee shall notify (and the Master Servicer shall
cause any Subservicer to notify) the Depositor and the Master Servicer of
any
Form 10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the
Depositor. Additionally, each of the Master Servicer and the Trustee
shall provide, and shall cause each Reporting Subcontractor retained by the
Master Servicer or the Trustee, as applicable, and in the case of the Master
Servicer shall cause each Subservicer, to provide, the following information
no
later than March 15 of each year in which a Form 10-K is required to be filed
on
behalf of the Trust Fund: (i) if such Person’s report on assessment of
compliance with servicing criteria described under Section 11.07 or related
registered public accounting firm attestation report described under Section
11.07 identifies any material instance of noncompliance, notification of
such
instance of noncompliance and (ii) if any such Person’s report on assessment of
compliance with Servicing Criteria or related registered public accounting
firm
attestation report is not provided to be filed as an exhibit to such Form
10-K,
information detailing the explanation why such report is not
included.
119
|
SECTION
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”) required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of 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)). No later than March 15 of each year,
beginning in 2008, the Master Servicer and the Trustee shall (unless such
person
is the Certifying Person), and the Master Servicer shall cause each Subservicer
and each Reporting Subcontractor and the Trustee shall cause each Reporting
Subcontractor to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying Person”) a certification (each, a “Performance
Certification”), in the form attached hereto as Exhibit V-1 (in the case of a
Subservicer or any Reporting Subcontractor of the Master Servicer or a
Subservicer) and Exhibit V-2 (in the case of the Trustee or any Reporting
Subcontractor of the Trustee), on 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 in
charge of the servicing function of the Master Servicer shall serve as the
Certifying Person on behalf of the Trust Fund. Neither the Master
Servicer nor the Depositor will request delivery of a certification under
this
clause unless the Depositor is required under the Exchange Act to file an
annual
report on Form 10-K with respect to the Trust Fund. In the event that
prior to the filing date of the Form 10-K in March of each year, the Trustee
or
the Depositor has actual knowledge of information material to the Xxxxxxxx-Xxxxx
Certification, the Trustee or the Depositor, as the case may be, shall promptly
notify the Master Servicer and the Depositor. The respective parties
hereto agree to cooperate with all reasonable requests made by any Certifying
Person or Certification Party in connection with such Person’s attempt to
conduct any due diligence that such Person reasonably believes to be appropriate
in order to allow it to deliver any Xxxxxxxx-Xxxxx Certification or portion
thereof with respect to the Trust Fund.
|
SECTION
11.06.
|
Form
15 Filing.
|
Prior
to
January 30 of the first year in which the Depositor is able to do so under
applicable law, the Depositor shall file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange
Act.
|
SECTION
11.07.
|
Report
on Assessment of Compliance and
Attestation.
|
120
(a) On
or before March 15 of each calendar year, commencing in 2008:
(1) Each
of the Master Servicer and the Trustee shall deliver to the Depositor and
the
Master Servicer a report (in form and substance reasonably satisfactory to
the
Depositor) regarding the Master Servicer’s or the Trustee’s, as applicable,
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be
signed by an authorized officer of such Person and shall address each of
the
Servicing Criteria specified on a certification substantially in the form
of
Exhibit W hereto delivered to the Depositor concurrently with the execution
of
this Agreement. To the extent any of the Servicing Criteria are not
applicable to such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a statement
to
that effect. The Depositor and the Master Servicer, and each of their
respective officers and directors shall be entitled to rely on upon each
such
servicing criteria assessment.
(2) Each
of the Master Servicer and the Trustee shall deliver to the Depositor and
the
Master Servicer a report of a registered public accounting firm reasonably
acceptable to the Depositor that attests to, and reports on, the assessment
of
compliance made by Master Servicer or the Trustee, as applicable, and delivered
pursuant to the preceding paragraphs. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act, including, without limitation that 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. To the extent any of the Servicing
Criteria are not applicable to such Person, with respect to asset-backed
securities transactions taken as a whole involving such Person and that are
backed by the same asset type backing the Certificates, such report shall
include such a statement that that effect.
(3) The
Master Servicer shall cause each Subservicer and each Reporting Subcontractor
to
deliver to the Depositor an assessment of compliance and accountant’s
attestation as and when provided in paragraphs (a) and (b) of this Section
11.07.
(4) The
Trustee shall cause each Reporting Subcontractor to deliver to the Depositor
and
the Master Servicer an assessment of compliance and accountant’s attestation as
and when provided in paragraphs (a) and (b) of this Section.
(5) The
Master Servicer and the Trustee shall execute (and the Master Servicer shall
cause each Subservicer to execute, and the Master Servicer and the Trustee
shall
cause each Reporting Subcontractor to execute) a reliance certificate to
enable
the Certification Parties to rely upon each (i) annual compliance statement
provided pursuant to Section 3.16, (ii) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section 11.07
and
(iii) accountant’s report provided pursuant to this Section 11.07 and shall
include a certification that each such annual compliance statement or report
discloses any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the certificates
provided for in this Section 11.07. In the event the Master Servicer, any
Subservicer, the Trustee or Reporting Subcontractor is terminated or resigns
during the term of this Agreement, such Person shall provide a certification
to
the Certifying Person pursuant to this Section 11.07 with respect to the
period
of time it was subject to this Agreement or provided services with respect
to
the Trust Fund, the Certificates or the Mortgage Loans.
121
(b) In
the event the Master Servicer, any Subservicer, the Trustee or Reporting
Subcontractor is terminated or resigns during the term of this Agreement,
such
Person shall provide documents and information required by this Section 11.07
with respect to the period of time it was subject to this Agreement or provided
services with respect to the Trust Fund, the Certificates or the Mortgage
Loans.
(c) Each
assessment of compliance provided by a Subservicer pursuant to Section
11.07(a)(3) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit W hereto delivered to
the
Depositor concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 11.07(a)(3) or (4) need not address any elements of the
Servicing Criteria other than those specified by the Master Servicer or the
Trustee, as applicable, pursuant to Section 11.07(a)(1).
|
SECTION
11.08.
|
Use
of Subservicers and
Subcontractors.
|
(a) The
Master Servicer shall cause any Subservicer used by the Master Servicer (or
by
any Subservicer) for the benefit of the Depositor to comply with the provisions
of Section 3.16 and this Article XI to the same extent as if such Subservicer
were the Master Servicer (except with respect to the Master Servicer’s duties
with respect to preparing and filing any Exchange Act Reports or as the
Certifying Person). The Master Servicer shall be responsible for
obtaining from each Subservicer and delivering to the Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
3.16, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 11.07 and any certification required to be
delivered to the Certifying Person under Section 11.05 as and when required
to
be delivered. As a condition to the succession to any Subservicer as
subservicer under this Agreement by any Person (i) into which such Subservicer
may be merged or consolidated, or (ii) which may be appointed as a successor
to
any Subservicer, the Master Servicer shall provide to the Depositor, at least
15
calendar days prior to the effective date of such succession or appointment,
(x)
written notice to the Depositor of such succession or appointment and (y)
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K.
(b) It
shall not be necessary for the Master Servicer, any Subservicer or the Trustee
to seek the consent of the Depositor or any other party hereto to the
utilization of any Subcontractor. The Master Servicer or the Trustee,
as applicable, shall promptly upon request provide to the Depositor (or any
designee of the Depositor, such as the Master Servicer or administrator)
a
written description (in form and substance satisfactory to the Depositor)
of the
role and function of each Subcontractor utilized by such Person (or in the
case
of the Master Servicer or any Subservicer), specifying (i) the identity of
each
such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
122
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Trustee, as applicable, shall cause
any such Subcontractor used by such Person (or in the case of the Master
Servicer or any Subservicer) for the benefit of the Depositor to comply with
the
provisions of Sections 11.07 and 11.09 of this Agreement to the same extent
as
if such Subcontractor were the Master Servicer (except with respect
to the Master Servicer’s duties with respect to preparing and filing any
Exchange Act Reports or as the Certifying Person) or the Trustee, as
applicable. The Master Servicer or the Trustee, as applicable, shall
be responsible for obtaining from each Subcontractor and delivering to the
Depositor and the Master Servicer, any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 11.05 and Section
11.07, in each case as and when required to be delivered.
|
SECTION
11.09.
|
Amendments.
|
In
the
event the parties to this Agreement desire to further clarify or amend any
provision of this Article XI, this Agreement shall be amended to reflect
the new
agreement between the parties covering matters in this Article XI pursuant
to
Section 10.01, which amendment shall not require any Opinion of Counsel or
Rating Agency confirmations or the consent of any Certificateholder or the
NIM
Insurer. If, during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Master Servicer is no longer
an
Affiliate of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Master Servicer in this Article XI with respect to
the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Master Servicer satisfactory to the Depositor, and such Master Servicer has
agreed to provide a Xxxxxxxx-Xxxxx Certification to the Depositor substantially
in the form of Exhibit Y and the certifications referred to in Section
11.07.
|
SECTION
11.10.
|
Reconciliation
of Accounts.
|
Any
reconciliation of Accounts
performed by any party hereto, or any Subservicer or Subcontractor shall
be
prepared no later than 45 calendar days after the bank statement cutoff
date.
* * * * * *
123
IN
WITNESS WHEREOF, the Depositor, the Trustee, the Sellers and the Master Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above
written.
| CWALT,
INC.,
as
Depositor
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Senior Vice President | |||
| THE
BANK OF NEW YORK,
as
Trustee
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxx | |
| Name: | |||
| Title: | |||
| COUNTRYWIDE
HOME LOANS, INC.,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Senior Vice President | |||
| PARK
GRANADA LLC,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Senior Vice President | |||
|
PARK
MONACO INC.,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Senior Vice President | |||
|
PARK
SIENNA LLC,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Senior Vice President | |||
|
COUNTRYWIDE
HOME LOANS SERVICING LP,
as
Master Servicer
|
|||
| By: | COUNTRYWIDE GP, INC. | ||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Senior Vice President | |||
|
Acknowledged
solely with respect to the Trustee’s obligations under Section
4.01(b):
|
|||
| THE BANK OF NEW YORK, in its individual capacity | |||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
SCHEDULE
I
Mortgage
Loan Schedule
[Delivered
at Closing to Trustee]
S-I-1
SCHEDULE
II-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Countrywide
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule II-A to the Depositor, the Master Servicer and
the
Trustee, as of the Closing Date. Capitalized terms used but not
otherwise defined in this Schedule II-A shall have the meanings ascribed
thereto
in the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”)
relating to the above-referenced Series, among Countrywide Home Loans, Inc.,
as
a seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, CWALT, Inc., as depositor, Countrywide Home Loans
Servicing LP, as master servicer and The Bank of New York, as
trustee.
(1) Countrywide
is duly organized as a New York corporation and is validly existing and in
good
standing under the laws of the State of New York and is duly authorized and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide in any state in which
a
Mortgaged Property is located or is otherwise not required under applicable
law
to effect such qualification and, in any event, is in compliance with the
doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under the Pooling and Servicing Agreement in accordance with
the
terms thereof.
(2) Countrywide
has the full corporate power and authority to sell each Countrywide Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has
duly
authorized by all necessary corporate action on the part of Countrywide the
execution, delivery and performance of the Pooling and Servicing Agreement;
and
the Pooling and Servicing Agreement, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a legal, valid
and binding obligation of Countrywide, enforceable against Countrywide in
accordance with its terms, except that (a) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and other
similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide
,
the sale of the Countrywide Mortgage Loans by Countrywide under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment
of or
compliance with the terms thereof are in the ordinary course of business
of
Countrywide and will not (A) result in a material breach of any term or
provision of the charter or by-laws of Countrywide or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or
result in a material default under, the terms of any other material agreement
or
instrument to which Countrywide is a party or by which it may be bound, or
(C) constitute a material violation of any statute, order or regulation
applicable to Countrywide of any court, regulatory body, administrative agency
or governmental body having jurisdiction over Countrywide; and Countrywide
is
not in breach or violation of any material indenture or other material agreement
or instrument, or in violation of any statute, order or regulation of any
court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair Countrywide’s ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-A-1
(4) Countrywide
is an approved servicer of conventional mortgage loans for FNMA or FHLMC
and is
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act.
(5) No
litigation is pending or, to the best of Countrywide’s knowledge, threatened,
against Countrywide that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Countrywide to sell the Countrywide Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
of,
or compliance by Countrywide with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Countrywide has obtained the
same.
(7) Countrywide
intends to treat the transfer of the Countrywide Mortgage Loans to the Depositor
as a sale of the Countrywide Mortgage Loans for all tax, accounting and
regulatory purposes.
(8) Countrywide
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 in the Trust Fund for as long as such Mortgage Loans
are
registered with MERS.
S-II-A-2
SCHEDULE
II-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Park Granada
Park
Granada LLC (“Park Granada”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-B to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule II-B shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Park Granada, as a seller, Park Monaco Inc.,
as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans, Inc., as a
seller,
Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) Park
Granada is a limited liability company duly formed and validly existing and
in
good standing under the laws of the State of Delaware.
(2) Park
Granada has the full corporate power and authority to sell each Park Granada
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of
Park
Granada the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Granada, enforceable
against Park Granada in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Granada,
the sale of the Park Granada Mortgage Loans by Park Granada under the Pooling
and Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment
of or
compliance with the terms thereof are in the ordinary course of business
of Park
Granada and will not (A) result in a material breach of any term or provision
of
the certificate of formation or the limited liability company agreement of
Park
Granada or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Park Granada is a party or
by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Park Granada of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park
Granada; and Park Granada is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Granada’s ability to perform or meet any of
its obligations under the Pooling and Servicing Agreement.
S-II-B-1
(4) No
litigation is pending or, to the best of Park Granada’s knowledge, threatened,
against Park Granada that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Granada to sell the Park Granada Mortgage Loans or to perform any
of its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Granada
of,
or compliance by Park Granada with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Granada has obtained the
same.
(6) Park
Granada intends to treat the transfer of the Park Granada Mortgage Loans
to the
Depositor as a sale of the Park Granada Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-B-2
SCHEDULE
II-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Park Monaco
Park
Monaco Inc. (“Park Monaco”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-C to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule II-C shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Park Monaco, as a seller, Countrywide, as
a
seller, Park Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and
The
Bank of New York, as trustee.
(1) Park
Monaco is a corporation duly formed and validly existing and in good standing
under the laws of the State of Delaware.
(2) Park
Monaco has the full corporate power and authority to sell each Park Monaco
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of
Park
Monaco the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Monaco, enforceable
against Park Monaco in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Monaco,
the sale of the Park Monaco Mortgage Loans by Park Monaco under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment
of or
compliance with the terms thereof are in the ordinary course of business
of Park
Monaco and will not (A) result in a material breach of any term or provision
of
the certificate of incorporation or by-laws of Park Monaco or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or
result in a material default under, the terms of any other material agreement
or
instrument to which Park Monaco is a party or by which it may be bound, or
(C)
constitute a material violation of any statute, order or regulation applicable
to Park Monaco of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Park Monaco; and Park Monaco is
not
in breach or violation of any material indenture or other material agreement
or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair Park Monaco’s ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-C-1
(4) No
litigation is pending or, to the best of Park Monaco’s knowledge, threatened,
against Park Monaco that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Monaco to sell the Park Monaco Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Monaco
of,
or compliance by Park Monaco with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Monaco has obtained the
same.
(6) Park
Monaco intends to treat the transfer of the Park Monaco Mortgage Loans to
the
Depositor as a sale of the Park Monaco Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-C-2
SCHEDULE
II-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Park Sienna
Park
Sienna LLC (“Park Sienna”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-D to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule II-D shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Park Sienna, as a seller, Countrywide, as
a
seller, Park Granada LLC, as a seller, and Park Monaco Inc., as a seller,
Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) Park
Sienna is a limited liability company duly formed and validly existing and
in
good standing under the laws of the State of Delaware.
(2) Park
Sienna has the full corporate power and authority to sell each Park Sienna
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of
Park
Sienna the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Sienna, enforceable
against Park Sienna in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Sienna,
the sale of the Park Sienna Mortgage Loans by Park Sienna under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment
of or
compliance with the terms thereof are in the ordinary course of business
of Park
Sienna and will not (A) result in a material breach of any term or provision
of
the certificate of formation or the limited liability company agreement of
Park
Sienna or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Park Sienna is a party or
by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Park Sienna of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park
Sienna;
and Park Sienna is not in breach or violation of any material indenture or
other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially
impair
Park Sienna’s ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
S-II-D-1
(4) No
litigation is pending or, to the best of Park Sienna’s knowledge, threatened,
against Park Sienna that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Sienna to sell the Park Sienna Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Sienna
of,
or compliance by Park Sienna with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Sienna has obtained the
same.
(6) Park
Sienna intends to treat the transfer of the Park Sienna Mortgage Loans to
the
Depositor as a sale of the Park Sienna Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-D-2
SCHEDULE
III-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Countrywide as to all of the Mortgage Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-A to the Depositor, the Master Servicer and
the
Trustee, with respect to all of the Mortgage Loans as of the Closing Date,
or if
so specified herein, as of the Cut-off Date. Capitalized terms used
but not otherwise defined in this Schedule III-A shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) relating to the above-referenced Series, among
Countrywide, as a seller, Park Granada LLC, as a seller, Park Monaco Inc.,
as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) The
information set forth on Schedule I to the Pooling and Servicing Agreement
with
respect to each Mortgage Loan (other than the information contained in clauses
(xxii), (xxiii) and (xxiv) of the Mortgage Loan Schedule) is true and correct
in
all material respects as of the Closing Date.
(2) As
of the Closing Date, all payments due with respect to each Mortgage Loan
prior
to the Cut-off Date have been made.
(3) No
Mortgage Loan had a Loan-to-Value Ratio at origination in excess
of 100.00%.
(4) Each
Mortgage is a valid and enforceable first lien on the Mortgaged Property
subject
only to (a) the lien of non delinquent current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
of such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal
made
in connection with the origination of the related Mortgage Loan, and (c)
other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage.
(5) [Reserved].
(6) There
is no delinquent tax or assessment lien against any Mortgaged
Property.
(7) There
is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal of
or
interest on such Mortgage Note.
S-III-A-1
(8) There
are no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with, the
lien
of such Mortgage, except those which are insured against by the title insurance
policy referred to in item (12) below.
(9) As
of the Closing Date, to the best of Countrywide’s knowledge, each Mortgaged
Property is free of material damage and in good repair.
(10) Each
Mortgage Loan at origination complied in all material respects with applicable
local, state and federal laws, including, without limitation, usury, equal
credit opportunity, predatory and abusive lending laws, real estate
settlement procedures, truth-in-lending and disclosure laws, and consummation
of
the transactions contemplated hereby will not involve the violation of any
such
laws.
(11) As
of the Closing Date, neither Countrywide nor any prior holder of any Mortgage
has modified the Mortgage in any material respect (except that a Mortgage
Loan
may have been modified by a written instrument which has been recorded or
submitted for recordation, if necessary, to protect the interests of the
Certificateholders and the original or a copy of which has been delivered
to the
Trustee); satisfied, cancelled or subordinated such Mortgage in whole or
in
part; released the related Mortgaged Property in whole or in part from the
lien
of such Mortgage; or executed any instrument of release, cancellation,
modification or satisfaction with respect thereto.
(12) A
lender’s policy of title insurance together with a condominium endorsement and
extended coverage endorsement, if applicable, in an amount at least equal
to the
Cut-off Date Stated Principal Balance of each such Mortgage Loan or a commitment
(binder) to issue the same was effective on the date of the origination of
each
Mortgage Loan, each such policy is valid and remains in full force and effect,
and each such policy was issued by a title insurer qualified to do business
in
the jurisdiction where the Mortgaged Property is located and acceptable to
FNMA
or FHLMC and is in a form acceptable to FNMA or FHLMC, which policy insures
Countrywide and successor owners of indebtedness secured by the insured
Mortgage, as to the first priority lien of the Mortgage subject to the
exceptions set forth in paragraph (4) above and 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/or
monthly payment; to the best of Countrywide’s knowledge, no claims have been
made under such mortgage title insurance policy and no prior holder of the
related Mortgage, including Countrywide, has done, by act or omission, anything
which would impair the coverage of such mortgage title insurance
policy.
(13) With
respect to each Mortgage Loan, all mortgage rate and payment adjustments,
if
any, made on or prior to the Cut-off Date have been made in accordance with
the
terms of the related Mortgage Note or subsequent modifications, if any, and
applicable law.
(14) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended) by an entity that satisfied
at the
time of origination the requirements of Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended.
S-III-A-2
(15) To
the best of Countrywide’s knowledge, all of the improvements which were included
for the purpose of determining the Appraised Value of the Mortgaged Property
lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property.
(16) To
the best of Countrywide’s knowledge, no improvement located on or being part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation. To the best of Countrywide’s knowledge, 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, unless the lack thereof would not have a material
adverse effect on the value of such Mortgaged Property, and the Mortgaged
Property is lawfully occupied under applicable law.
(17) Each
Mortgage Note and the related Mortgage are genuine, and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms and under applicable law. To the best of Countrywide’s
knowledge, all parties to the Mortgage Note and the Mortgage had legal capacity
to execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(18) The
proceeds of the Mortgage Loans have been fully disbursed, 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 or recording the Mortgage Loans
were
paid.
(19) The
related Mortgage contains customary and enforceable provisions which render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including, (i) in
the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure.
(20) With
respect to each Mortgage constituting a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses
are
or will become payable by the Certificateholders to the trustee under the
deed
of trust, except in connection with a trustee’s sale after default by the
Mortgagor.
(21) Each
Mortgage Note and each Mortgage is in substantially one of the forms acceptable
to FNMA or FHLMC, with such riders as have been acceptable to FNMA or FHLMC,
as
the case may be.
(22) There
exist no deficiencies with respect to escrow deposits and payments, if such
are
required, for which customary arrangements for repayment thereof have not
been
made, and no escrow deposits or payments of other charges or payments due
Countrywide have been capitalized under the Mortgage or the related Mortgage
Note.
S-III-A-3
(23) The
origination, underwriting and collection practices used by Countrywide with
respect to each Mortgage Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(24) There
is no pledged account or other security other than real estate securing the
Mortgagor’s obligations in respect of any Mortgage Loan.
(25) No
Mortgage Loan has a shared appreciation feature, or other contingent interest
feature.
(26) Each
Mortgage Loan contains a customary “due on sale” clause.
(27) As
of the Closing Date, approximately 49.70% of the Mortgage Loans (and
approximately 50.51% of the Mortgage Loans in Sub-Group X), by aggregate
Cut-off
Date Principal Balance of the Mortgage Loans, provide for a Prepayment
Charge.
(28) Each
Mortgage Loan that had a Loan-to-Value Ratio at origination in excess of
80% is
the subject of a Primary Insurance Policy that insures that portion of the
principal balance equal to a specified percentage times the sum of the remaining
principal balance of the related Mortgage Loan, the accrued interest thereon
and
the related foreclosure expenses. The specified coverage percentage
for mortgage loans with terms to maturity of between 25 and 30 years is 12%
for
Loan-to-Value Ratios between 80.01% and 85.00%, 25% for Loan-to-Value Ratios
between 85.01% and 90.00%, 30% for Loan-to-Value Ratios between 90.01% and
95.00% and 35% for Loan-to-Value Ratios between 95.01% and 100%. The
specified coverage percentage for mortgage loans with terms to maturity of
up to
20 years ranges from 6% to 12% for Loan-to-Value Ratios between 80.01% and
85.00%; from 12% to 20% for Loan-to-Value Ratios between 85.01% and 90.00%
and
from 20% to 25% for Loan-to-Value Ratios between 90.01% and 95.00%. Each
such
Primary Insurance Policy is issued by a Qualified Insurer. All
provisions of any such Primary Insurance Policy have been and are being complied
with, any such policy is in full force and effect, and all premiums due
thereunder have been paid. Any Mortgage subject to any such Primary
Insurance Policy obligates either the Mortgagor or the mortgagee thereunder
to
maintain such insurance and to pay all premiums and charges in connection
therewith, subject, in each case, to the provisions of Section 3.09(b) of
the
Pooling and Servicing Agreement. The Mortgage Rate for each Mortgage
Loan is net of any such insurance premium.
(29) As
of the Closing Date, the improvements upon each Mortgaged Property are covered
by a valid and existing hazard insurance policy with a generally acceptable
carrier that provides for fire and extended coverage and coverage for such
other
hazards as are customary in the area where the Mortgaged Property is located
in
an amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements securing such Mortgage Loan or (ii) the greater
of (a)
the outstanding principal balance of the Mortgage Loan and (b) an amount
such
that the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer. If the Mortgaged
Property is a condominium unit, it is included under the coverage afforded
by a
blanket policy for the condominium unit. All such individual
insurance policies and all flood policies referred to in item (30) below
contain
a standard mortgagee clause naming Countrywide or the original mortgagee,
and
its successors in interest, as mortgagee, and Countrywide has received no
notice
that any premiums due and payable thereon have not been paid; the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance including
flood insurance at the Mortgagor’s cost and expense, and upon the Mortgagor’s
failure to do so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at the Mortgagor’s cost and expense and to seek reimbursement
therefor from the Mortgagor.
S-III-A-4
(30) If
the Mortgaged Property is in an area identified in the Federal Register by
the
Federal Emergency Management Agency as having special flood hazards, a flood
insurance policy in a form meeting the requirements of the current guidelines
of
the Flood Insurance Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
not less than the least of (A) the original outstanding principal balance
of the
Mortgage Loan, (B) the minimum amount required to compensate for damage or
loss
on a replacement cost basis, or (C) the maximum amount of insurance that
is
available under the Flood Disaster Protection Act of 1973, as
amended.
(31) To
the best of Countrywide’s knowledge, there is no proceeding occurring, pending
or threatened for the total or partial condemnation of the Mortgaged
Property.
(32) There
is no material monetary default existing under any Mortgage or the related
Mortgage Note and, to the best of Countrywide’s knowledge, there is no material
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
of
acceleration under the Mortgage or the related Mortgage Note; and Countrywide
has not waived any default, breach, violation or event of
acceleration.
(33) Each
Mortgaged Property is improved by a one- to four-family residential dwelling
including condominium units and dwelling units in PUDs, which, to the best
of
Countrywide’s knowledge, does not include cooperatives or mobile homes and does
not constitute other than real property under state law.
(34) Each
Mortgage Loan is being master serviced by the Master Servicer.
(35) Any
future advances made prior to the Cut-off Date have been consolidated with
the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term
reflected on the Mortgage Loan Schedule. The consolidated principal
amount does not exceed the original principal amount of the Mortgage
Loan. The Mortgage Note does not permit or obligate the Master
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
(36) 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. Except for (A) payments in
the nature of escrow payments, and (B) interest accruing from the date of
the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever
is
later, to the day which precedes by one month the Due Date of the first
installment of principal and interest, including without limitation, taxes
and
insurance payments, the Master Servicer has not 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
by the
Mortgage.
S-III-A-5
(37) All
of the Mortgage Loans were underwritten in all material respects in accordance
with Countrywide’s underwriting guidelines as set forth in the Prospectus
Supplement.
(38) Other
than with respect to any Streamlined Documentation Mortgage Loan as to which
the
loan-to-value ratio of the related Original Mortgage Loan was less than 90%
at
the time of the origination of such Original Mortgage Loan, prior to the
approval of the Mortgage Loan application, an appraisal of the related Mortgaged
Property was obtained from a qualified appraiser, duly appointed by the
originator, 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; such appraisal
is
in a form acceptable to FNMA and FHLMC.
(39) None
of the Mortgage Loans is a graduated payment mortgage loan or a growing equity
mortgage loan, and none of the Mortgage Loans is subject to a buydown or
similar
arrangement.
(40) Any
leasehold estate securing a Mortgage Loan has a term of not less than five
years
in excess of the term of the related Mortgage Loan.
(41) The
Mortgage Loans were selected from among the outstanding adjustable-rate one-
to
four-family mortgage loans in the portfolios of the Sellers at the Closing
Date
as to which the representations and warranties made as to the Mortgage Loans
set
forth in this Schedule III-A can be made. Such selection was not made
in a manner intended to adversely affect the interests of
Certificateholders.
(42) Except
for 578 Mortgage Loans (and 336 of the Mortgage Loans in Sub-Group X), each
Mortgage Loan has a payment date on or before the Due Date in the month of
the
first Distribution Date.
(43) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Trustee certifying that the original Mortgage Note is a Lost Mortgage Note,
if
such Mortgage Loan is subsequently in default, the enforcement of such Mortgage
Loan or of the related Mortgage by or on behalf of the Trustee will not be
materially adversely affected by the absence of the original Mortgage
Note. A “Lost Mortgage Note” is a Mortgage Note the original of which
was permanently lost or destroyed and has not been replaced.
(44) The
Mortgage Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) No
Mortgage Loan originated between October 1, 2002 and March 7, 2003 is subject
to
the Georgia Fair Lending Act, as amended. No Mortgage Loan originated
between October 1, 2002 and March 7, 2003 is secured by a Mortgaged Property
located in the state of Georgia, and there is no Mortgage Loan originated
on or
after March 7, 2003 that is a “high cost home loan” as defined under the Georgia
Fair Lending Act.
S-III-A-6
(46) None
of the Mortgage Loans are “high cost” loans as defined by applicable predatory
and abusive lending laws.
(47) None
of the Mortgage Loans are covered by the Home Ownership and Equity Protection
Act of 1994 (“HOEPA”).
(48) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.).
(49) 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.).
(50) No
Mortgage Loan is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
(Mass. Gen. Law ch. 183C).
(51) [Reserved].
(52) [Reserved].
(53) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and with
respect to the foregoing, the terms “High Cost Loan” and “Covered Loan” have the
meaning assigned to them in the then current Standard & Poor’s LEVELS®
Version 6.0 Glossary Revised, Appendix E which is attached hereto as Exhibit
Q
(the “Glossary”) where (x) a “High Cost Loan” is each loan identified in the
column “Category under applicable anti-predatory lending law” of the table
entitled “Standard & Poor's High Cost Loan Categorization” in the Glossary
as each such loan is defined in the applicable anti-predatory lending law
of the
State or jurisdiction specified in such table and (y) a “Covered Loan” is each
loan identified in the column “Category under applicable anti-predatory lending
law” of the table entitled “Standard & Poor’s Covered Loan Categorization”
in the Glossary as each such loan is defined in the applicable anti-predatory
lending law of the State or jurisdiction specified in such table.
S-III-A-7
SCHEDULE
III-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-B to the Depositor, the Master Servicer and
the
Trustee, with respect to the Countrywide Mortgage Loans as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule III-B shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide, as a seller, Park Granada LLC,
as a
seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and
The
Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Countrywide Mortgage Loan to the Depositor,
Countrywide had good title to, and was the sole owner of, such Countrywide
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE
III-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
Park
Granada LLC (“Park Granada”) hereby makes the representations and warranties set
forth in this Schedule III-C to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Granada Mortgage Loans as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule III-C shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park
Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC,
as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as
depositor, and The Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Granada Mortgage Loan to the Depositor,
Park Granada had good title to, and was the sole owner of, such Park Granada
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
same pursuant to the Pooling and Servicing Agreement.
S-III-C-1
SCHEDULE
III-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
Park
Monaco Inc. (“Park Monaco”) hereby makes the representations and warranties set
forth in this Schedule III-D to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Monaco Mortgage Loans as of the Closing
Date,
or if so specified herein, as of the Cut-off Date. Capitalized terms
used but not otherwise defined in this Schedule III-D shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) relating to the above-referenced Series, among Countrywide
Home Loans, Inc., as a seller, Park Monaco, as a seller, Park Granada LLC,
as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Immediately
prior to the assignment of each Park Monaco Mortgage Loan to the Depositor,
Park
Monaco had good title to, and was the sole owner of, such Park Monaco Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest
and
had full right and authority, subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the same pursuant to
the
Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE
III-E
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
Park
Sienna LLC (“Park Sienna”) hereby makes the representations and warranties set
forth in this Schedule III-E to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Sienna Mortgage Loans as of the Closing
Date,
or if so specified herein, as of the Cut-off Date. Capitalized terms
used but not otherwise defined in this Schedule III-E shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) relating to the above-referenced Series, among Countrywide
Home Loans, Inc., as a seller, Park Sienna LLC, as a seller, Park Monaco
Inc.,
as a seller, Park Granada LLC, as a seller, Countrywide Home Loans Servicing
LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York,
as
trustee.
(1) Immediately
prior to the assignment of each Park Sienna Mortgage Loan to the Depositor,
Park
Sienna had good title to, and was the sole owner of, such Park Sienna Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest
and
had full right and authority, subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the same pursuant to
the
Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE
IV
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY7C
Representations
and Warranties of the Master Servicer
Countrywide
Home Loans Servicing LP (“Countrywide Servicing”) hereby makes the
representations and warranties set forth in this Schedule IV to the Depositor,
the Sellers and the Trustee, as of the Closing Date. Capitalized
terms used but not otherwise defined in this Schedule IV shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) relating to the above-referenced Series, among Countrywide
Home Loans, Inc., as a seller, Park Granada LLC, as a seller, Park Monaco
Inc.,
as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing
LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York,
as
trustee.
(1) Countrywide
Servicing is duly organized as a limited partnership and is validly existing
and
in good standing under the laws of the State of Texas and is duly authorized
and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide Servicing in any state
in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary to
perform any of its obligations under the Pooling and Servicing Agreement
in
accordance with the terms thereof.
(2) Countrywide
Servicing has the full partnership power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has
duly
authorized by all necessary partnership action on the part of Countrywide
Servicing the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Countrywide Servicing,
enforceable against Countrywide Servicing in accordance with its terms, except
that (a) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors’ rights
generally and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide
Servicing, the servicing of the Mortgage Loans by Countrywide Servicing under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Countrywide Servicing and will not (A) result in a material
breach of any term or provision of the certificate of limited partnership,
partnership agreement or other organizational document of Countrywide Servicing
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other
material agreement or instrument to which Countrywide Servicing is a party
or by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Countrywide Servicing of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
Countrywide Servicing; and Countrywide Servicing is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair the ability of Countrywide Servicing
to perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-IV-1
(4) Countrywide
Servicing is an approved servicer of conventional mortgage loans for FNMA
or
FHLMC and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No
litigation is pending or, to the best of Countrywide Servicing’s knowledge,
threatened, against Countrywide Servicing that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Countrywide Servicing to service the Mortgage
Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
Servicing of, or compliance by Countrywide Servicing with, the Pooling and
Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Countrywide Servicing has obtained the same.
(7) Countrywide
Servicing 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.
S-IV-2
SCHEDULE
V
Principal
Balances Schedule
*[Attached
to Prospectus Supplement, if applicable.]
S-V-1
SCHEDULE
VI
Form
of
Monthly Master Servicer Report
|
LOAN
LEVEL REPORTING SYSTEM
|
||||
|
DATABASE
STRUCTURE
|
||||
|
[MONTH,
YEAR]
|
||||
|
Field
Number
|
Field
Name
|
Field
Type
|
Field
Width
|
Dec
|
|
1
|
INVNUM
|
Numeric
|
4
|
|
|
2
|
INVBLK
|
Numeric
|
4
|
|
|
3
|
INACNU
|
Character
|
8
|
|
|
4
|
BEGSCH
|
Numeric
|
15
|
2
|
|
5
|
SCHPRN
|
Numeric
|
13
|
2
|
|
6
|
TADPRN
|
Numeric
|
11
|
2
|
|
7
|
LIQEPB
|
Numeric
|
11
|
2
|
|
8
|
ACTCOD
|
Numeric
|
11
|
|
|
9
|
ACTDAT
|
Numeric
|
4
|
|
|
10
|
INTPMT
|
Numeric
|
8
|
|
|
11
|
PRNPMT
|
Numeric
|
13
|
2
|
|
12
|
ENDSCH
|
Numeric
|
13
|
2
|
|
13
|
SCHNOT
|
Numeric
|
13
|
2
|
|
14
|
SCHPAS
|
Numeric
|
7
|
3
|
|
15
|
PRINPT
|
Numeric
|
7
|
3
|
|
16
|
PRIBAL
|
Numeric
|
11
|
2
|
|
17
|
LPIDTE
|
Numeric
|
13
|
2
|
|
18
|
DELPRN
|
Numeric
|
7
|
|
|
19
|
PPDPRN
|
Numeric
|
11
|
2
|
|
20
|
DELPRN
|
Numeric
|
11
|
2
|
|
21
|
NXTCHG
|
Numeric
|
8
|
|
|
22
|
ARMNOT
|
Numeric
|
7
|
3
|
|
23
|
ARMPAS
|
Numeric
|
7
|
3
|
|
24
|
ARMPMT
|
Numeric
|
11
|
2
|
|
25
|
ZZTYPE
|
Character
|
2
|
|
|
26
|
ISSUID
|
Character
|
1
|
|
|
27
|
KEYNAME
|
Character
|
8
|
|
|
TOTAL
|
240
|
|||
|
Suggested
Format:
|
DBASE
file
Modem
transmission
|
|||
S-VI-1
EXHIBIT
A
[FORM
OF
SENIOR CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER 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”).]
[UNTIL
THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE,
OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE BY THE TRANSFEREE’S ACCEPTANCE OF A CERTIFICATE OF THIS
CLASS AND BY A BENEFICIAL OWNER’S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF
THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR TO A PERSON INVESTING ASSETS
OF,
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT
TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
A-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
|
||
|
of
this Certificate
|
||
|
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
|
||
|
of
all Certificates of
|
||
|
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Sellers, the Master Servicer or the Trustee referred to
below
or any of their respective affiliates. Neither this Certificate nor
the Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that
is the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate
Initial Certificate Balance of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by CWALT, Inc. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”) among the Depositor, Countrywide Home Loans, Inc., as a seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master
Servicer”), and The Bank of New York, as trustee (the
“Trustee”). 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.
A-2
[Until
this certificate has been the subject of an ERISA-Qualifying Underwriting,
no
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, or (ii) in the
case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), a trustee of any such benefit plan or arrangement or any other
person acting on behalf of any such benefit plan or arrangement, an Opinion
of
Counsel satisfactory to the Trustee to the effect that the purchase and holding
of such Certificate will not result in a non-exempt prohibited transaction
under
Section 406 of ERISA or Section 4975 of the Code, and will not subject the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund. Unless the transferee
delivers the Opinion of Counsel described above, such representation shall
be
deemed to have been made to the Trustee by the Transferee’s acceptance of a
Certificate of this Class and by a beneficial owner’s acceptance of its interest
in a Certificate of this Class. Notwithstanding anything else to the
contrary herein, until such certificate has been the subject of an
ERISA-Qualifying Underwriting, any purported transfer of a Certificate of this
Class to, or to a person investing assets of, an employee benefit plan subject
to ERISA or a plan or arrangement subject to Section 4975 of the Code without
the opinion of counsel satisfactory to the Trustee as described above shall
be
void and of no effect.]
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
A-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
|
THE
BANK OF NEW YORK,
as Trustee |
|||
|
|
By:
|
||
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
A-4
EXHIBIT
B
[FORM
OF
SUBORDINATED CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER 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 SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE 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.
[NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF
OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS
DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60, AND THE PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.]
B-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
|
||
|
of
this Certificate
|
||
|
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
|
||
|
of
all Certificates of
|
||
|
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Sellers, the Master Servicer or the Trustee referred to
below
or any of their respective affiliates. Neither this Certificate nor
the Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that
is the registered owner of the Percentage Interest evidenced by this
Certificate (obtained by dividing the denomination of this Certificate by the
aggregate Initial Certificate Balance of all Certificates of the Class to which
this Certificate belongs) in certain monthly distributions with respect to
a
Trust Fund consisting primarily of the Mortgage Loans deposited by CWALT, Inc.
(the “Depositor”). The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”) among the Depositor, Countrywide Home Loans, Inc., as a seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master
Servicer”), and The Bank of New York, as trustee (the
“Trustee”). 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.
B-2
[No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder’s prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial issuance
of Certificates pursuant hereto, there shall also be delivered (except in the
case of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Sellers, the Master
Servicer or the Depositor. 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.]
[No
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
certificate has been the subject of an ERISA-Qualifying Underwriting and the
transferee is an insurance company, a representation that the transferee is
purchasing such Certificate with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60, or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust
Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate of this Class to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
B-3
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
B-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
|
THE
BANK OF NEW YORK,
as Trustee |
|||
|
|
By:
|
||
Countersigned:
By
Authorized
Signatory ofTHE
BANK
OF NEW YORK,
as
Trustee
B-5
EXHIBIT
C-1
[FORM
OF
RESIDUAL CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF
OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS
DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60, AND THE PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
[THIS
CERTIFICATE REPRESENTS THE “TAX MATTERS PERSON RESIDUAL INTEREST” ISSUED UNDER
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE TRANSFERRED
TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE TRANSFEREE OF
THE
DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
|
||
|
of
this Certificate
|
||
|
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
|
||
|
of
all Certificates of
|
||
|
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
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|
Maturity
Date
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:
|
CWALT, INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
A-R
evidencing
the distributions allocable to the Class A-R Certificates with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage loans (the
“Mortgage Loans”) secured by first liens on one- to four-family residential
properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Sellers, the Master Servicer or the Trustee referred to
below
or any of their respective affiliates. Neither this Certificate nor
the Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that
is the registered owner of the Percentage Interest (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Certificate Balance
of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, Countrywide Home
Loans, Inc., as a seller (“CHL”), Park Granada LLC, as a seller (“Park
Granada”), Park Monaco, Inc., as a seller (“Park Monaco”), and Park Sienna LLC,
as a seller (“Park Sienna” and, together with CHL, Park Granada and Park Monaco,
the “Sellers”), Countrywide Home Loans Servicing LP, as master servicer (the
“Master Servicer”), and The Bank of New York, as trustee (the
“Trustee”). 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.
C-1-2
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Class A-R Certificate at the
Corporate Trust Office or the office or agency maintained by the Trustee in
New
York, New York.
No
transfer of a Class A-R Certificate shall be made unless the Trustee shall
have
received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
certificate has been the subject of an ERISA-Qualifying Underwriting and the
transferee is an insurance company, a representation that the transferee is
purchasing such Certificate with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60, or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust
Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Class A-R Certificate to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
Each
Holder of this Class A-R Certificate will be deemed to have agreed to be bound
by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in
this Class A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without delivery
to
the Trustee of (a) a transfer affidavit of the proposed transferee and (b)
a
transfer certificate of the transferor, each of such documents to be in the
form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class A-R Certificate must agree not to transfer an Ownership
Interest in this Class A-R Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class A-R Certificate
in
violation of such restrictions will be absolutely null and void and will vest
no
rights in the purported transferee.
C-1-3
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
C-1-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
|
THE
BANK OF NEW YORK,
as Trustee |
|||
|
|
By:
|
||
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-1-5
EXHIBIT
C-2
[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
(THE “CODE”).
THIS
CLASS P CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE
EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO
HEREIN.
THIS
CLASS P CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE
WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF
OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS
DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60, AND THE PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
C-2-1
|
Certificate
No.
|
:
|
|
|
Initial
Certificate Balance
|
||
|
of
this Certificate
|
||
|
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
|
||
|
of
all Certificates of
|
||
|
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
| ISIN | : | |
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Alternative
Loan Trust 200____-____
Mortgage
Pass-Through Certificates, Series 200____-____
evidencing
a percentage interest in the distributions allocable to the Class P Certificates
with respect to a Trust Fund consisting primarily of a pool of conventional
mortgage loans (the “Mortgage Loans”) secured by first and second liens on one-
to four-family residential properties
CWALT,
Inc., as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
This
certifies that __________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of
this Certificate by the aggregate Initial Notional Amount of all Certificates
of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, Countrywide Home
Loans, Inc., as a seller (“CHL”), Park Granada LLC, as a seller (“Park
Granada”), Park Monaco, Inc., as a seller (“Park Monaco”), and Park Sienna LLC,
as a seller (“Park Sienna” and, together with CHL, Park Granada and Park Monaco,
the “Sellers”), Countrywide Home Loans Servicing LP, as master servicer (the
“Master Servicer”), and The Bank of New York, as trustee (the
“Trustee”). 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.
C-2-2
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class P
Certificates on such Distribution Date pursuant to Section 4.02 of the
Agreement. The Record Date applicable to each Distribution Date is
the last Business Day of the month immediately preceding such Distribution
Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the related
Record Date and such Certificateholder shall hold 100% of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Balance
of
$1,000,000 or more, or, if not, by check mailed by first class mail to the
address of such Certificateholder 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 or such other location specified in the notice to
Certificateholders of such final distribution.
No
transfer of a Class P Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Act and any applicable
state securities laws or is exempt from the registration requirements under
the
Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee in writing the facts surrounding the
transfer. In the event that such a transfer is to be made within two
years from the date of the initial issuance of Certificates, there shall also
be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Regulations promulgated pursuant to the Act) to the Trustee an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the Act
and
such state securities laws, which Opinion of Counsel shall not be obtained
at
the expense of the Trustee, the Master Servicer or the Depositor. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trustee, the Certificate 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.
C-2-3
No
transfer of a Class P Certificate shall be made unless the Trustee shall have
received either (i) a representation letter from the transferee of a Class
P
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
Class P Certificate has been the subject of an ERISA-Qualifying Underwriting
and
the transferee is an insurance company, a representation that the transferee
is
purchasing such Class P Certificate with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Class P Certificate satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60, or (iii) in the case of a Class
P
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust
Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Class P Certificate to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
This
Class P Certificate may not be pledged or used as collateral for any other
obligation if it would cause any portion of the Trust Fund to be treated as
a
taxable mortgage pool under Section 7701(i) of the Code.
Each
Holder of this Class P Certificate will be deemed to have agreed to be bound
by
the transfer restrictions set forth in the Agreement and all other terms and
provisions of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless the certificate of authentication hereon has been
manually executed by an authorized officer of the Trustee.
* * *
C-2-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
|
THE
BANK OF NEW YORK,
as Trustee |
|||
|
|
By:
|
||
Countersigned
By
___________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-2-5
EXHIBIT
C-3
[FORM
OF
CLASS C 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
(THE “CODE”).
THIS
CLASS C CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE
EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO
HEREIN.
THIS
CLASS C CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS C CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE
WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR ARRANGEMENT OR USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT
THAT TRANSFER, OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO
THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT TO SECTION 4975
OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
C-3-1
|
Certificate
No.
|
:
|
|
|
Initial
Certificate Balance
|
||
|
of
this Certificate
|
||
|
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
|
||
|
of
all Certificates of
|
||
|
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
| ISIN | : | |
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Alternative
Loan Trust 200____-____
Mortgage
Pass-Through Certificates, Series 200____-____
evidencing
a percentage interest in the distributions allocable to the Class C Certificates
with respect to a Trust Fund consisting primarily of a pool of conventional
mortgage loans (the “Mortgage Loans”) secured by first and second liens on one-
to four-family residential properties
CWALT,
Inc., as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
This
certifies that __________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of
this Certificate by the aggregate Initial Notional Amount of all Certificates
of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”) among the Depositor, Countrywide Home
Loans, Inc., as a seller (“CHL”), Park Granada LLC, as a seller (“Park
Granada”), Park Monaco, Inc., as a seller (“Park Monaco”), and Park Sienna LLC,
as a seller (“Park Sienna” and, together with CHL, Park Granada and Park Monaco,
the “Sellers”), Countrywide Home Loans Servicing LP, as master servicer (the
“Master Servicer”), and The Bank of New York, as trustee (the
“Trustee”). 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.
C-3-2
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class C
Certificates on such Distribution Date pursuant to Section 4.02 of the
Agreement. The Record Date applicable to each Distribution Date is
the last Business Day of the month immediately preceding such Distribution
Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the related
Record Date and such Certificateholder shall hold 100% of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Balance
of
$1,000,000 or more, or, if not, by check mailed by first class mail to the
address of such Certificateholder 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 or such other location specified in the notice to
Certificateholders of such final distribution.
No
transfer of a Class C Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Act and any applicable
state securities laws or is exempt from the registration requirements under
the
Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee in writing the facts surrounding the
transfer. In the event that such a transfer is to be made within two
years from the date of the initial issuance of Certificates, there shall also
be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Regulations promulgated pursuant to the Act) to the Trustee an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the Act
and
such state securities laws, which Opinion of Counsel shall not be obtained
at
the expense of the Trustee, the Master Servicer or the Depositor. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trustee, the Certificate and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No
transfer of a Class C Certificate shall be made unless the Trustee shall have
received either (i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Trustee, to the
effect that such transferee is not an employee benefit plan subject to section
406 of ERISA or a plan subject to section 4975 of the Code, or a Person acting
on behalf of any such plan or using the assets of any such plan, or (ii) in
the
case of any Class C Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan subject to section 4975 of
the
Code (or comparable provisions of any subsequent enactments), or a trustee
of
any such plan or any other person acting on behalf of or investing plan assets
of any such plan, an Opinion of Counsel satisfactory to the Trustee to the
effect that the purchase or holding of such Class C Certificate will not result
in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code
and will not subject the Trustee to any obligation in addition to
those expressly undertaken in the Agreement, which Opinion of Counsel shall
not
be an expense of the Trustee. Notwithstanding anything else to the
contrary herein, any purported transfer of a Class C Certificate to or on behalf
of an employee benefit plan subject to section 406 of ERISA or a plan subject
to
section 4975 of the Code without the delivery to the Trustee of an Opinion
of
Counsel satisfactory to the Trustee as described above shall be void
and of no effect.
C-3-3
This
Class C Certificate may not be pledged or used as collateral for any other
obligation if it would cause any portion of the Trust Fund to be treated as
a
taxable mortgage pool under Section 7701(i) of the Code.
Each
Holder of this Class C Certificate will be deemed to have agreed to be bound
by
the transfer restrictions set forth in the Agreement and all other terms and
provisions of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless the certificate of authentication hereon has been
manually executed by an authorized officer of the Trustee.
* * *
C-3-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
|
THE
BANK OF NEW YORK,
as Trustee |
|||
|
|
By:
|
||
Countersigned:
By
___________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-3-5
EXHIBIT
C-4
[Reserved]
C-4-1
EXHIBIT
D
[FORM
OF
NOTIONAL AMOUNT CERTIFICATE]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER 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.
THIS
CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTION
IN
RESPECT OF PRINCIPAL.
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”).
[UNTIL
THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE,
OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE BY THE TRANSFEREE’S ACCEPTANCE OF A CERTIFICATE OF THIS
CLASS AND BY A BENEFICIAL OWNER’S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF
THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR A PERSON INVESTING ASSETS OF,
AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
D-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
|
||
|
of
this Certificate
|
||
|
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
|
||
|
of
all Certificates of
|
||
|
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
Interest Only |
|
Maturity
Date
|
:
|
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWALT,
Inc., as Depositor
The
Notional Amount of this certificate at any time, may be less than the Notional
Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that
is the registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate
Initial Notional Amount of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by CWALT, Inc. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”) among the Depositor, Countrywide Home Loans, Inc., as a seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master
Servicer”), and The Bank of New York, as trustee (the
“Trustee”). 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.
D-2
[Until
this certificate has been the subject of an ERISA-Qualifying Underwriting,
no
transfer of a Certificate of this Class shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, or (ii) in the
case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), a trustee of any such benefit plan or arrangement or any other
person acting on behalf of any such benefit plan or arrangement, an Opinion
of
Counsel satisfactory to the Trustee to the effect that the purchase and holding
of such Certificate will not result in a non-exempt prohibited transaction
under
Section 406 of ERISA or Section 4975 of the Code, and will not subject the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund. When the transferee
delivers the Opinion of Counsel described above, such representation shall
be
deemed to have been made to the Trustee by the Transferee’s acceptance of a
Certificate of this Class and by a beneficial owner’s acceptance of its interest
in a Certificate of this Class. Notwithstanding anything else to the
contrary herein, until such certificate has been the subject of an
ERISA-Qualifying Underwriting, any purported transfer of a Certificate of this
Class to, or a person investing assets of, an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code without
the
opinion of counsel satisfactory to the Trustee as described above shall be
void
and of no effect.]
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
D-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
|
THE
BANK OF NEW YORK,
as Trustee |
|||
|
|
By:
|
||
Countersigned:
By
___________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
D-4
EXHIBIT
E
[FORM
OF]
REVERSE OF CERTIFICATES
CWALT,
INC.
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
CWALT, Inc. Mortgage Pass-Through Certificates, of the Series specified on
the
face hereof (herein collectively called the “Certificates”), and representing a
beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such day is not a Business Day, the Business Day immediately
following (the “Distribution Date”), commencing on the first Distribution Date
specified on the face hereof, to the Person in whose name this Certificate
is
registered at the close of business on the applicable Record Date in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to Holders of Certificates of the
Class to which this Certificate belongs on such Distribution Date pursuant
to
the Agreement. The Record Date applicable to each Distribution Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the related
Record Date and such Certificateholder shall satisfy the conditions to receive
such form of payment set forth in the Agreement, or, if not, by check mailed
by
first class mail to the address of such Certificateholder 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 or such other location specified
in
the notice to Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
E-1
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the Corporate Trust Office or the office or agency maintained by the Trustee
in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
Fund will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Sellers and the Trustee and any agent of
the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and neither the Depositor,
the
Trustee, nor any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date on which the Pool Stated Principal Balance is less than or
equal to 10% of the Cut-off Date Pool Principal Balance,
the Master Servicer will have the option, subject to the limitations set forth
in the Agreement, to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at
a
purchase price determined as provided in the Agreement. In the event
that no such optional termination occurs, the obligations and responsibilities
created by the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required
to be
distributed pursuant to the Agreement. In no event, however, will the
trust created by the Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
E-2
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
E-3
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________
___________________________________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
_______________________________________________________________________
Dated:
________________________________
Signature
by or on behalf of
assignor
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,
________________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________________,
for
the account of
__________________________________________________________________________________________________________________________,
account
number _______________________________________,
or, if mailed by check, to
________________________________________________________________.
Applicable
statements should be mailed to
_______________________________________________________________________________________________________,
________________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________________.
This
information is provided by
_________________________________________________________________________________________________________,
the
assignee named above, or
__________________________________________________________________________________________________________________,
as
its
agent.
E-4
STATE
OF )
) ss.:
COUNTY
OF )
On
the
_____day of ___________________, 20__ before me, a notary public in and for
said
State, personally appeared _____________________________________, known
to me who, being by me duly sworn, did depose and say that he executed the
foregoing instrument.
___________________________________________
Notary
Public
[Notarial
Seal]
E-5
EXHIBIT
F
[FORM
OF]
INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
___________________________
___________________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc. (“Countrywide”), as a Seller, Park Granada LLC, as a Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, and The Bank of New
York, as
Trustee, Mortgage Pass-Through Certificates, Series
200_-_
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
schedule) it has received:
(i) (a)
the original Mortgage Note endorsed in the following form: “Pay to
the order of __________, without recourse” or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from Countrywide stating that the original
Mortgage Note was lost or destroyed; and
(ii) a
duly executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
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 Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any
such Mortgage Loan.
F-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
THE
BANK
OF NEW YORK,
as
Trustee
By: _________________________
Name:
Title:
F-2
EXHIBIT
G
[FORM
OF]
DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_____________________
_____________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc. (“Countrywide”), as a Seller, Park Granada LLC, as a Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, and The Bank of New
York, as
Trustee, Mortgage Pass-Through Certificates, Series
200_-_
|
Gentlemen:
Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto (the “Schedule A”),
delivered by the undersigned, as Trustee, on the Closing Date in accordance
with
Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”). The undersigned hereby certifies
that, as to each Delay Delivery Mortgage Loan listed on Schedule A attached
hereto (other than any Mortgage Loan paid in full or listed on Schedule B
attached hereto) it has received:
|
(i)
|
the
original Mortgage Note, endorsed by Countrywide or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to Countrywide, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
Countrywide, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage
Note;
|
|
(ii)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
the
original recorded Mortgage, [and in the case of each Mortgage Loan
that is a MERS Mortgage Loan, the original Mortgage, noting thereon
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 indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has
been
recorded];
|
G-1
|
(iii)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan, a
duly executed assignment of the Mortgage to “The Bank of New York, as
trustee under the Pooling and Servicing Agreement dated as of [month]
1,
200__, without recourse”, or, in the case of each Mortgage Loan with
respect to property located in the State of California that is not
a MERS
Mortgage Loan, a duly executed assignment of the Mortgage in blank
(each
such assignment, when duly and validly completed, to be in recordable
form
and sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment
relates);
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the presence
of
a MIN in the case of each MERS Mortgage
Loan)];
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report or
an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing
Date.
|
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
Countrywide cannot deliver the original recorded Mortgage or all interim
recorded assignments of the Mortgage satisfying the requirements of clause
(ii),
(iii) or (iv), as applicable, the Trustee has received, in lieu thereof, a
true
and complete copy of such Mortgage and/or such assignment or assignments of
the
Mortgage, as applicable, each certified by Countrywide, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan,
as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Mortgage Loan, and
(ii) the information set forth in items (i), (iv), (v), (vi), (viii), (xi)
and (xiv) of the definition of the “Mortgage Loan Schedule” in Article I of the
Pooling and Servicing Agreement accurately reflects information set forth in
the
Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations
as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number
and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
G-2
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
THE
BANK
OF NEW YORK,
as
Trustee
By: _________________________
Name:
Title:
G-3
EXHIBIT
H
[FORM
OF]
FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_____________________
_____________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc. (“Countrywide”), as a Seller, Park Granada LLC, as a Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, and The Bank of New
York, as
Trustee, Mortgage Pass-Through Certificates, Series
200_-_
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
Document Exception Report) it has received:
|
(i)
|
the
original Mortgage Note, endorsed by Countrywide or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to Countrywide, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
Countrywide, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage
Note;
|
|
(ii)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
the
original recorded Mortgage, [and in the case of each Mortgage Loan
that is a MERS Mortgage Loan, the original Mortgage, noting thereon
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 indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has
been
recorded];
|
H-1
|
(iii)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
a duly
executed assignment of the Mortgage to “The Bank of New York, as trustee
under the Pooling and Servicing Agreement dated as of [month] 1,
200__,
without recourse”, or, in the case of each Mortgage Loan with respect
to property located in the State of California that is not a MERS
Mortgage
Loan, a duly executed assignment of the Mortgage in blank (each such
assignment, when duly and validly completed, to be in recordable
form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment
relates);
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the presence
of
a MIN in the case of each Mortgage Loan that is a MERS Mortgage
Loan)];
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report or
an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing
Date.
|
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
Countrywide cannot deliver the original recorded Mortgage or all interim
recorded assignments of the Mortgage satisfying the requirements of clause
(ii),
(iii) or (iv), as applicable, the Trustee has received, in lieu thereof, a
true
and complete copy of such Mortgage and/or such assignment or assignments of
the
Mortgage, as applicable, each certified by Countrywide, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan,
as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Mortgage Loan, and
(ii) the information set forth in items (i), (iv), (v), (vi), (viii), (xi)
and (xiv) of the definition of the “Mortgage Loan Schedule” in Article I of the
Pooling and Servicing Agreement accurately reflects information set forth in
the
Mortgage File.
H-2
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations
as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number and
Borrower Identification Mortgage Loan Schedule] or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
H-3
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
THE
BANK
OF NEW YORK,
as
Trustee
By: _________________________
Name:
Title:
H-4
EXHIBIT
I
[FORM
OF]
TRANSFER AFFIDAVIT
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
STATE
OF )
)
ss.:
COUNTY
OF )
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of
,
the proposed Transferee of an Ownership Interest in a Class A-R Certificate
(the
“Certificate”) issued pursuant to the Pooling and Servicing Agreement, dated as
of _________ __, 2___ (the “Agreement”), by and among CWALT, Inc., as depositor
(the “Depositor”), Countrywide Home Loans, Inc. (the “Company”), as a Seller,
Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park Sienna
LLC,
as a Seller (and together with the Company, Park Granada and Park Monaco, the
“Sellers”), Countrywide Home Loans Servicing LP, as Master Servicer and The Bank
of New York, as 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.
2. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or to section 4975 of the Internal Revenue Code of 1986, nor is it acting on
behalf of or with plan assets of any such plan. The Transferee is, as of the
date hereof, and will be, as of the date of the Transfer, a Permitted
Transferee. The Transferee will endeavor to remain a Permitted
Transferee for so long as it retains its Ownership Interest in the
Certificate. The Transferee is acquiring its Ownership Interest in
the Certificate for its own account.
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.)
I-1
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
(attached hereto as Exhibit 2 and incorporated herein by reference) 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 Trustee a certificate substantially in the form set forth as Exhibit J-1
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 does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the Class A-R
Certificates.
8. The
Transferee’s taxpayer identification number is ______________.
9. The
Transferee is a U.S. Person as defined in Code section
7701(a)(30) and, unless the Transferor (or any subsequent
transferor) expressly waives such requirement, 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 another U.S. taxpayer.
10. The
Transferee is aware that the Class A-R Certificates may be “noneconomic residual
interests” within the meaning of Treasury Regulation Section 1.860E-1(c) 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. In addition, as the Holder of a noneconomic residual
interest, the Transferee may incur tax liabilities in excess of any cash flows
generated by the interest and the Transferee hereby represents that it intends
to pay taxes associated with holding the residual interest as they become
due.
I-2
11. The
Transferee has provided financial statements or other financial information
requested by the Transferor in connection with the transfer of the Certificate
to permit the Transferor to assess the financial capability of the Transferee
to
pay such taxes. The Transferee historically has paid its debts as
they have come due and intends to pay its debts as they come due in the
future.
12. Unless
the Transferor (or any subsequent transferor) expressly waives such requirement,
the Transferee (and any subsequent transferee) certifies (or will certify),
respectively, that the transfer satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula
Test” imposed by Treasury Regulation § 1.860E-1(c)(7).
* * *
I-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf by its duly authorized officer, this_____ day of ___________,
2___.
|
PRINT
NAME OF TRANSFEREE
By:_______________________________
Name:
Title:
|
[Corporate
Seal]
ATTEST:
_____________________________
[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 the
of the Transferee, and acknowledged that he executed the same as his free
act
and deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this day of
,
20 .
|
NOTARY
PUBLIC
My
Commission expires the
___
day of_________, 20__
|
I-4
WAIVER
OF
REQUIREMENT THAT TRANSFEREE CERTIFIES TRANSFER OF CERTIFICATE SATISFIES CERTAIN
REGULATORY “SAFE HARBORS”
The
Transferor hereby waives the requirement that the Transferee certify that the
transfer of the Certificate satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula Test”
imposed by Treasury Regulation § 1.860E-1(c)(7).
CWALT,
INC.
By: ________________________________
Name:
Title:
I-5
EXHIBIT
1
to
EXHIBIT
I
Certain
Definitions
“Asset
Test”: A transfer satisfies the Asset Test if: (i) At
the time of the transfer, and
at the close of each of the transferee's two fiscal years preceding the
transferee's fiscal year of transfer, the transferee's gross assets for
financial reporting purposes exceed $100 million and its net assets for
financial reporting purposes exceed $10 million. The gross assets and net assets
of a transferee do not include any obligation of any “related person” or any
other asset if a principal purpose for holding or acquiring the other asset
is
to permit the transferee to satisfy such monetary conditions; (ii) The
transferee must be
an “eligible corporation” and must agree in writing that any subsequent transfer
of the interest will be to another eligible corporation in a transaction that
satisfies paragraphs 9 through 11 of this Transfer Affidavit and the Asset
Test.
A transfer fails to meet the Asset Test if the transferor knows, or has reason
to know, that the transferee will not honor the restrictions on subsequent
transfers of the Certificate; and (iii) A
reasonable person would not conclude, based on the facts
and circumstances known to the transferor on or before the date of the transfer,
that the taxes associated with the Certificate will not be paid. The
consideration given to the transferee to acquire the Certificate is only one
factor to be considered, but the transferor will be deemed to know that the
transferee cannot or will not pay if the amount of consideration is so low
compared to the liabilities assumed that a reasonable person would conclude
that
the taxes associated with holding the Certificate will not be
paid. For purposes of applying the Asset Test, (i) an “eligible
corporation” means any
domestic C corporation (as defined in section 1361(a)(2) of the Code) other
than (A) a
corporation which is exempt from, or is not subject to, tax under section 11
of
the Code, (B) an
entity described in section 851(a) or 856(a) of the Code, (C) A
REMIC, or (D) an
organization to
which part I of subchapter T of chapter 1 of subtitle A of the Code applies;
(ii) a
“related
person” is any person that (A) bears
a relationship to the transferee enumerated in section
267(b) or 707(b)(1) of the Code, using “20 percent” instead of “50 percent”
where it appears under the provisions, or (B) is
under common
control (within the meaning of section 52(a) and (b)) with the transferee.
“Formula
Test”: A transfer satisfies the formula test if the present value of the
anticipated tax liabilities associated with holding the Certificate does not
exceed the sum of
(i) the present value of any consideration
given to the
transferee to acquire the Certificate; (ii)
the
present value of the expected future distributions
on the Certificate; and (iii) the
present value of the anticipated tax savings associated
with holding the Certificate as the issuing REMIC generates
losses. For
purposes of applying the Formula Test: (i) The
transferee is assumed to pay tax at a rate equal to the
highest rate of tax specified in section 11(b)(1) 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, then the tax rate specified
in section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in section 11(b)(1) of the Code; (ii)
The
transfer must satisfy paragraph 9 of the Transfer
Affidavit; and (iii) Present
values are computed using a discount rate equal to
the Federal short-term rate prescribed by section 1274(d) of the Code for the
month of the transfer and the compounding period used by the
taxpayer.
I-6
“Ownership
Interest”: As to any Certificate, any ownership 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.
“Permitted
Transferee”: Any person other than (i) the United States, any State
or political subdivision thereof, or any agency or instrumentality of any of
the
foregoing, (ii) a foreign government, International Organization or any agency
or instrumentality of either of the foregoing, (iii) an organization (except
certain farmers’ cooperatives described in section 521 of the Code) that is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by
section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of
a
trade or business within the United States, 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 authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon
an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause any REMIC formed under the Agreement to
fail to qualify as a REMIC at any time that any Certificates are
Outstanding. The terms “United States,” “State” and “International
Organization” shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with
the exception of the Federal Home Loan Mortgage Corporation, a majority of
its
board of directors is not selected by such government unit.
“Person”: Any
individual, corporation, limited liability company, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Transfer”: Any
direct or indirect transfer or sale of any Ownership Interest in a Certificate,
including the acquisition of a Certificate by the Depositor.
“Transferee”: Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
I-7
EXHIBIT
2
to
EXHIBIT
I
Section
5.02(c) of the Agreement
(c) Each
Person who has or who acquires any Ownership Interest in a Class A-R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Class A-R Certificate are expressly
subject to the following provisions:
(1) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(2) Except
in connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Class A-R Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the
Certificates,no Ownership Interest in a Class A-R Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of any Class A-R Certificate unless, the Trustee shall
have been furnished with an affidavit (a “Transfer Affidavit”) of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
I.
(3) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Class A-R
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Class A-R Certificate and (C) not to Transfer its Ownership Interest in a
Class A-R Certificate, or to cause the Transfer of an Ownership Interest in
a
Class A-R Certificate to any other Person, if it has actual knowledge that
such
Person is not a Permitted Transferee.
(4) Any
attempted or purported Transfer of any Ownership Interest in a Class A-R
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Class A-R Certificate in violation of the provisions of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all rights
as
Holder thereof retroactive to the date of registration of Transfer of such
Class
A-R Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Class A-R Certificate that is
in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the Transfer was registered after receipt of the related Transfer
Affidavit and Transferor Certificate. The Trustee shall be entitled
but not obligated to recover from any Holder of a Class A-R Certificate that
was
in fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all payments
made on such Class A-R Certificate at and after either such time. Any
such payments so recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Permitted Transferee of such
Certificate.
I-8
(5) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Class A-R Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Class A-R Certificate set forth in this section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Class A-R Certificate may be deleted) with respect to Transfers occurring after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trustee, the Sellers or the Master Servicer, to the
effect that the elimination of such restrictions will not cause any constituent
REMIC of any REMIC formed hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax
on
the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any ownership Interest in a Class A-R Certificate hereby
consents to any amendment of this Agreement that, based on an Opinion of Counsel
furnished to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Class A-R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Class
A-R
Certificate that is held by a Person that is not a Permitted Transferee to
a
Holder that is a Permitted Transferee.
I-9
EXHIBIT
J-1
[FORM
OF]
TRANSFEROR CERTIFICATE
(RESIDUAL)
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 4W
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mortgage-Backed
Securities Group Series
200_-_
Re: CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
In
connection with our disposition of the above Certificates we certify that to
the
extent we are disposing of a Class A-R Certificate, we have no knowledge the
Transferee is not a Permitted Transferee.
Very
truly yours,
__________________________________
Print
Name of Transferor
By: _______________________________
Authorized
Officer
J-1-1
EXHIBIT
J-2
[FORM
OF]
TRANSFEROR CERTIFICATE
(PRIVATE)
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 4W
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mortgage-Backed
Securities Group Series
200_-_
Re: CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, (b)
we
have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the
Act.
Very
truly yours,
__________________________________
Print
Name of Transferor
By: _______________________________
Authorized
Officer
J-2-1
EXHIBIT
K
[FORM
OF]
INVESTMENT LETTER (NON-RULE 144A)
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 4W
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mortgage-Backed
Securities Group Series
200_-_
Re: CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an “accredited investor,”
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(d)
either (i) we are not an employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or a plan or
arrangement that is subject to Section 4975 of the Internal Revenue Code of
1986, as amended, nor are we acting on behalf of or investing the assets of
any
such benefit plan or arrangement to effect such acquisition or (ii) if the
Certificates have been the subject of an ERISA-Qualifying Underwriting and
we
are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we are acquiring
the Certificates for investment for our own account and not with a view to
any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Pooling and Servicing Agreement.
Very
truly yours,
____________________________________
Print
Name of Transferee
By: _________________________________
Authorized
Officer
K-1
EXHIBIT
L-1
[FORM
OF]
RULE 144A LETTER
_____________________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 4W
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mortgage-Backed
Securities Group Series
200_-_
Re: CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) either (i) we are not an employee benefit plan that is subject
to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of or investing the assets
of any such benefit plan or arrangement to effect such acquisition or (ii)
if
the Certificates have been the subject of an ERISA-Qualifying Underwriting
and
we are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificates, any interest in the Certificates
or
any other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, (f) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to
us is being made in reliance on Rule 144A. We are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates 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 Securities Act.
Very
truly yours,
____________________________________
Print
Name of Transferee
By: _________________________________
Authorized Officer
L-1-1
ANNEX
1 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis either at least $100,000 in securities or, if Buyer is
a
dealer, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities (except for the excluded securities referred to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
|
|
___
|
Corporation,
etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described
in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
|
|
|
___
|
Bank. The
Buyer (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 Buyer (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 $25,000,000 as demonstrated in its
latest
annual financial statements, a copy of which is attached
hereto.
|
L-1-2
|
|
___
|
Broker-dealer. The
Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
|
|
___
|
Insurance
Company. The Buyer 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 Buyer 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 Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of
1974.
|
|
|
___
|
Investment
Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of
1940.
|
|
|
___
|
Small
Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act
of
1958.
|
|
|
___
|
Business
Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors
Act of
1940.
|
3. The
term
“securities” as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of
an
unsold allotment to or subscription by the Buyer, if the Buyer 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 Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the
securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer
in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer’s direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary of another
enterprise and the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
L-1-3
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it 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
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer 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 Buyer’s
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Buyer is a bank or savings and loan is provided above, the Buyer agrees that
it
will furnish to such parties updated annual financial statements promptly after
they become available.
_________________________________________
Print
Name of Buyer
By: ______________________________________
Name:
Title:
Date: ____________________________________
L-1-4
ANNEX
2 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’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 Buyer’s most recent fiscal
year. For purposes of determining the amount of securities owned by
the Buyer or the Buyer’s Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer’s Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in
the preceding sentence applies, the securities may be valued at
market.
|
|
___
|
The
Buyer owned
$
in securities (other than the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
|
|
___
|
The
Buyer 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 Buyer’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).
L-1-5
4. The
term
“securities” as used herein does not include (i) securities of issuers
that are affiliated with the Buyer or are part of the Buyer’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
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer
will only purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
____________________________________
Print
Name of Buyer or
Adviser
By: _________________________________
Name:
Title:
IF
AN
ADVISER:
____________________________________
Print
Name of BuyerDate: ________________________________________
X-0-0
XXXXXXX
X-0
[FORM
OF]
ERISA LETTER (COVERED CERTIFICATES)
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 4W
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mortgage-Backed
Securities Group Series
200_-_
Re: CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
Ladies
and Gentlemen:
In
connection with our acquisition of
the above Certificates, we certify that we are not, and are not acquiring the
Certificates on behalf of or with plan assets of an “employee benefit plan” as
defined in section 3(3) of ERISA that is subject to Title I of ERISA, a “plan”
as defined in section 4975 of the Code that is subject to section 4975 of the
Code, or any person investing on behalf of or with plan assets (as defined
in 29
CFR §2510.3-101 or otherwise under ERISA) of such an employee benefit plan or
plan, or (ii) the purchase and holding of the Certificates satisfy the
requirements for exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 91-38,
XXXX
00-00, XXXX 96-233, the service provider exemption provided under Section
408(b)(17) of ERISA and Section 4975(d)(20) of the Code or a similar
exemption. We understand that, in the event that such representation
is violated, such transfer or acquisition shall be void and of no
effect.
Very
truly yours,
__________________________________________
Print
Name of Transferee
By: _________________________________
Authorized
Officer
L-2-1
EXHIBIT
M
[FORM
OF]
REQUEST FOR RELEASE
(for
Trustee)
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
| Loan Information | |
|
Name
of Mortgagor:
|
|
|
Servicer
Loan No.:
|
|
|
Trustee
|
|
|
Name:
|
|
|
Address:
|
|
|
Trustee
|
|
|
Mortgage
File No.:
|
The
undersigned Master Servicer hereby acknowledges that it has received from The
Bank of New York, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the “Documents”). All capitalized terms not otherwise defined in
this Request for Release shall have the meanings given them in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series among the Trustee, Countrywide Home Loans, Inc., as
a
Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master Servicer
and CWALT, Inc., as Depositor.
|
( )
|
Mortgage
Note dated _______________, 20__, in the original principal sum of
$___________, made by ____________________________, payable to, or
endorsed to the order of, the
Trustee.
|
|
( )
|
Mortgage
recorded on __________________ as instrument no.
______________________ in the County Recorder’s Office of the County of
_________________________, State of _______________________
in book/reel/docket _________________________ of official records
at
page/image
_______________________________.
|
M-1
|
( )
|
Deed
of Trust recorded on ______________________ as instrument no. ___________
in the County Recorder’s Office of the County of
__________________________, State of _____________________
in book/reel/docket _________________________ of official records
at page/image
____________________________.
|
|
( )
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on
_____________________ as instrument no. __________________ in the
County
Recorder’s Office of the County of _____________________, State of
___________________ in book/reel/docket ________________ of official
records at page/image
______________________.
|
|
( )
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
( ) ___________________________________________________________________________
( ) ___________________________________________________________________________
( ) ___________________________________________________________________________
( ) ___________________________________________________________________________
The
undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The
Master Servicer shall hold and retain possession of the Documents in trust
for
the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Master Servicer shall not cause or knowingly permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Servicer assert or seek
to assert any claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The
Master Servicer shall return each and every Document previously requested from
the Mortgage File to the Trustee when the need therefor no longer exists, unless
the Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except as expressly
provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Master Servicer shall at all times be
earmarked for the account of the Trustee, and the Master Servicer shall keep
the
Documents and any proceeds separate and distinct from all other property in
the
Master Servicer’s possession, custody or control.
M-2
COUNTRYWIDE
HOME LOANS
SERVICING LP
SERVICING LP
By _____________________________________
Its _____________________________________
Date:_________________,
20__
M-3
EXHIBIT
N
[FORM
OF]
REQUEST FOR RELEASE OF DOCUMENTS
To: The
Bank of New
York Attn: Mortgage
Custody Services
|
|
Re:
|
The
Pooling & Servicing Agreement dated [month] 1, 200_, among Countrywide
Home Loans, Inc., as a Seller,
Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master Servicer, CWALT, Inc. and The Bank of New York, as Trustee |
Ladies
and Gentlemen:
In
connection with the administration of the Mortgage Loans held by you as Trustee
for CWALT, Inc., we request the release of the Mortgage Loan File for the
Mortgage Loan(s) described below, for the reason indicated.
FT
Account
#: Pool
#:
Mortgagor’s
Name, Address and Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents (check one)
|
|
1.
|
Mortgage
Loan paid in full (Countrywide Home Loans, Inc. hereby certifies
that all
amounts have been received).
|
|
|
2.
|
Mortgage
Loan Liquidated (Countrywide Home Loans, Inc. hereby certifies that
all
proceeds of foreclosure, insurance, or other liquidation have been
finally
received).
|
|
|
3.
|
Mortgage
Loan in Foreclosure.
|
|
|
4.
|
Mortgage
Loan repurchased by the Master Servicer pursuant to Section 3.11(a)
(Countrywide Home Loans Servicing LP hereby certifies that the Purchase
Price for the Mortgage Loan has been deposited in the Certificate
Account).
|
|
|
5.
|
Other
(explain):
|
If
item 1
or 2 above is checked, and if all or part of the Mortgage File was previously
released to us, please release to us our previous receipt on file with you,
as
well as any additional documents in your possession relating to the
above-specified Mortgage Loan. If item 3, 4 or 5 is checked, upon
return of all of the above documents to you as Trustee, please acknowledge
your
receipt by signing in the space indicated below, and returning this
form.
N-1
COUNTRYWIDE
HOME LOANS, INC.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
By: _________________________________
Name: _______________________________
Title: ________________________________
Date: ________________________________
[COUNTRYWIDE
HOME LOANS SERVICING LP]
By: _________________________________
Name: _______________________________
Title: ________________________________
Date: ________________________________
ACKNOWLEDGEMENT
OF RECEIPT
By: _________________________________
Name: _______________________________
Title: ________________________________
Date: ________________________________
N-2
EXHIBIT
O
[Reserved]
O-1
EXHIBIT
P
[Reserved]
P-1
EXHIBIT
Q
GLOSSARY
of TERMS for STANDARD & POOR’S LEVELS® VERSION 6.0 FILE FORMAT
APPENDIX E
– Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000
etseq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 etseq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101
etseq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
etseq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01
etseq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
Q-1
Standard & Poor’s High Cost Loan
Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory
Lending Law |
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 etseq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1
etseq.
Effective
October 1, 2002 – March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 – current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1
etseq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5
etseq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101
etseq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207)
and;
|
|
High
APR Consumer Loan (id. § 16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 287 – High Cost Home Loan Act, Ky. Rev. Stat. §§ 360.100 et
seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
Q-2
Standard & Poor’s High Cost Loan
Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory
Lending Law |
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101
etseq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq. and 209 C.M.R. §§ 40.01 et
seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010
etseq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
etseq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1
etseq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
etseq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev. Code
Xxx.
§§ 1349.25 etseq.
Effective
May 24, 2002
|
Covered
Loan
|
Q-3
Standard & Poor’s High Cost Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx. §§ 37-23-10
etseq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act, W.
Va. Code
Xxx. §§ 31-17-1 etseq.
Effective
June 5, 2002
|
West
Virginia Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1
etseq.
Effective
October 1, 2002 – March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
etseq.
Effective
November 27, 2003 – July 5, 2004
|
Covered
Home Loan
|
Q-4
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1
et.seq.
Effective
October 1, 2002 – March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et.seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1
et.seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et.seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx. §§ 37-23-10
et.seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Q-5
EXHIBIT
R-1
[FORM
OF]
CLASS A-1 SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS A-3 SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS M-3 SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CERTIFICATE SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS A-4 CORRIDOR CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
SUBORDINATED CERTIFICATES CORRIDOR CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[Reserved]
S-1-1
EXHIBIT
S-2
[Reserved]
S-2-1
EXHIBIT
T
[FORM
OF]
OFFICER’S CERTIFICATE WITH RESPECT TO PREPAYMENTS
MORTGAGE
BACKED CERTIFICATES,
Series
200_-__
[Date]
Via
Facsimile
__________________,
as
Trustee
_______________
_______________________
Dear
Sir
or Madam:
Reference
is made to the Pooling and Servicing Agreement, dated as of _________, 200_,
(the “Pooling and Servicing Agreement”) among [CWALT, Inc.], as Depositor,
[Countrywide Home Loans, Inc.], as a Seller, [Park Granada LLC], as a Seller,
[Park Monaco Inc.], as a Seller, [Park Sienna LLC], as a Seller, [Countrywide
Home Loans Servicing LP], as Master Servicer and __________________, as
Trustee. Capitalized terms used herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
__________________
hereby certifies that he/she is a Servicing Officer, holding the office set
forth beneath his/her name and hereby further certifies as follows:
With
respect to the Distribution Date in _________ 200_ and each Mortgage Loan set
forth in the attached schedule:
1.
A
Principal Prepayment in full or in part was received during the related
Prepayment Period;
2.
Any
Prepayment Charge due under the terms of the Mortgage Note with respect to
such
Principal Prepayment was or was not, as indicated on the attached schedule
using
“Yes” or “No”, received from the Mortgagor and deposited in the Certificate
Account;
3.
As to
each Mortgage Loan set forth on the attached schedule for which all or part
of
the Prepayment Charge required in connection with the Principal Prepayment
was
waived by the Master Servicer, such waiver was, as indicated on the attached
schedule, based upon:
(i)
the
Master Servicer’s determination that such waiver would maximize recovery of
Liquidation Proceeds for such Mortgage Loan, taking into account the value
of
such Prepayment Charge, or
(ii)(A)
the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium,
receivership, or other similar law relating to creditors’ rights generally or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law; and
T-1
4.
We
certify that all amounts due in connection with the waiver of a Prepayment
Charge inconsistent with clause 3 above which are required to be deposited
by
the Master Servicer pursuant to Section 3.19 of the Pooling and Servicing
Agreement, have been or will be so deposited.
|
|
[COUNTRYWIDE
HOME LOANS, INC.],
as Master Servicer
|
T-2
SCHEDULE
OF MORTGAGE LOANS FOR WHICH A PREPAYMENT WAS RECEIVED DURING THE RELATED
PREPAYMENT PERIOD
|
Loan
Number
|
Clause
2: Yes/No
|
Clause
3: (i) or (ii)
|
T-3
EXHIBIT
U
MONTHLY
STATEMENT
[On
file
with Trustee]
U-1
EXHIBIT
V-1
[FORM
OF]
PERFORMANCE CERTIFICATION
(Servicer)
[On
file
with Trustee]
V-1-1
EXHIBIT
V-2
[FORM
OF]
PERFORMANCE CERTIFICATION
(Trustee)
[On
file
with Trustee]
V-2-1
EXHIBIT
W
[FORM
OF]
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by [the Master Servicer] [Trustee]
[Name of Subservicer] shall address, at a minimum, the criteria identified
as
below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
W-1
EXHIBIT
X
[FORM
OF]
LIST OF ITEM 1119 PARTIES
ALTERNATIVE
LOAN TRUST 200_-__
MORTGAGE
PASS-THROUGH CERTIFICATES,
Series
200_-__
[Date]
|
Party
|
Contact
Information
|
X-1
EXHIBIT
Y
FORM
OF
XXXXXXXX-XXXXX CERTIFICATION
(REPLACEMENT
OF MASTER SERVICER)
Y-1
