EXHIBIT 99.1
6
EXECUTION COPY
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CWALT, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
PARK GRANADA LLC,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
and
THE BANK OF NEW YORK,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2004
-----------------------------------
ALTERNATIVE LOAN TRUST 2004-J2
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-J2
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Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans..........................................................II-1
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans...........................................II-7
SECTION 2.03. Representations, Warranties and Covenants of the Sellers and Master Servicer.........II-10
SECTION 2.04. Representations and Warranties of the Depositor as to the Mortgage Loans.............II-12
SECTION 2.05. Delivery of Opinion of Counsel in Connection with Substitutions......................II-13
SECTION 2.06. Execution and Delivery of Certificates...............................................II-13
SECTION 2.07. REMIC Matters........................................................................II-13
SECTION 2.08. Covenants of the Master Servicer.....................................................II-14
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans............................................III-1
SECTION 3.02. Subservicing; Enforcement of the Obligations of Servicers............................III-2
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of the Master Servicer............III-2
SECTION 3.04. Trustee to Act as Master Servicer....................................................III-2
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate Account; Distribution Account;
Supplemental Loan Account; Capitalized Interest Account..............................III-3
SECTION 3.06. Collection of Taxes, Assessments and Similar Items; Escrow Accounts..................III-6
SECTION 3.07. Access to Certain Documentation and Information Regarding the Mortgage Loans.........III-7
SECTION 3.08. Permitted Withdrawals from the Certificate Account and the Distribution Account......III-7
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies...........III-9
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements...........................III-10
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans.....III-11
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.....................................III-14
SECTION 3.13. Documents, Records and Funds in Possession of Master Servicer to be Held for the
Trustee.............................................................................III-14
SECTION 3.14. Servicing Compensation..............................................................III-15
SECTION 3.15. Access to Certain Documentation.....................................................III-15
SECTION 3.16. Annual Statement as to Compliance...................................................III-15
SECTION 3.17. Annual Independent Public Accountants' Servicing Statement; Financial Statements....III-16
SECTION 3.18. Errors and Omissions Insurance; Fidelity Bonds......................................III-16
i
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances..............................................................................IV-1
SECTION 4.02. Priorities of Distribution............................................................IV-2
SECTION 4.03. [Reserved]............................................................................IV-9
SECTION 4.04. Allocation of Realized Losses.........................................................IV-9
SECTION 4.05. Cross-Collateralization; Adjustments to Available Funds...................................
SECTION 4.06. Monthly Statements to Certificateholders.............................................IV-11
SECTION 4.07. Determination of Pass-Through Rates for COFI Certificates............................IV-13
SECTION 4.08. Determination of Pass-Through Rates for LIBOR Certificates...........................IV-14
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.......................................................................V-1
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange of Certificates............V-1
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates......................................V-5
SECTION 5.04. Persons Deemed Owners..................................................................V-5
SECTION 5.05. Access to List of Certificateholders' Names and Addresses..............................V-6
SECTION 5.06. Maintenance of Office or Agency........................................................V-6
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master Servicer.......................VI-1
SECTION 6.02. Merger or Consolidation of the Depositor or the Master Servicer.......................VI-1
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers, the Master Servicer and
Others................................................................................VI-1
SECTION 6.04. Limitation on Resignation of Master Servicer..........................................VI-2
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default....................................................................VII-1
SECTION 7.02. Trustee to Act; Appointment of Successor.............................................VII-2
SECTION 7.03. Notification to Certificateholders...................................................VII-3
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee...................................................................VIII-1
SECTION 8.02. Certain Matters Affecting the Trustee...............................................VIII-2
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans...............................VIII-3
SECTION 8.04. Trustee May Own Certificates........................................................VIII-3
SECTION 8.05. Trustee's Fees and Expenses.........................................................VIII-3
SECTION 8.06. Eligibility Requirements for Trustee................................................VIII-3
SECTION 8.07. Resignation and Removal of Trustee..................................................VIII-4
SECTION 8.08. Successor Trustee...................................................................VIII-4
SECTION 8.09. Merger or Consolidation of Trustee..................................................VIII-5
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.......................................VIII-5
SECTION 8.11. Tax Matters.........................................................................VIII-6
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Mortgage Loans........................IX-1
SECTION 9.02. Final Distribution on the Certificates................................................IX-1
SECTION 9.03. Additional Termination Requirements...................................................IX-2
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment..............................................................................X-1
SECTION 10.02. Recordation of Agreement; Counterparts.................................................X-2
SECTION 10.03. Governing Law..........................................................................X-2
SECTION 10.04. Intention of Parties...................................................................X-2
SECTION 10.05. Notices................................................................................X-3
SECTION 10.06. Severability of Provisions.............................................................X-4
SECTION 10.07. Assignment.............................................................................X-4
SECTION 10.08. Limitation on Rights of Certificateholders.............................................X-4
SECTION 10.09. Inspection and Audit Rights............................................................X-5
SECTION 10.10. Certificates Nonassessable and Fully Paid..............................................X-5
SECTION 10.11. [Reserved].............................................................................X-5
SECTION 10.12. Protection of Assets...................................................................X-5
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 III-A Representations and Warranties of Countrywide as to 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-B-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-I
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EXHIBITS
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 III-A: Representations and Warranties of Countrywide as to 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 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 Notional Amount Certificates)....................A-1
Exhibit B: Form of Subordinated Certificate.......................................................B-1
Exhibit C: Form of Class A-R Certificate..........................................................C-1
Exhibit D: Form of Notional Amount Certificate....................................................D-1
Exhibit E: Form of Reverse of Certificates........................................................E-1
Exhibit F-1: Form of Initial Certification of Trustee (Initial Mortgage Loans)......................F-1
Exhibit F-2: Form of Initial Certification of Trustee (Supplemental Mortgage
Loans).................................................................................F-2
Exhibit G-1: Form of Delay Delivery Certification of Trustee (Initial Mortgage
Loans).................................................................................G-1
Exhibit G-2: Form of Delay Delivery Certification of Trustee (Supplemental
Mortgage Loans)........................................................................G-2
Exhibit H-1: Form of Final Certification of Trustee (Initial Mortgage Loans)........................H-1
Exhibit H-2: Form of Final Certification of Trustee (Supplemental Mortgage
Loans).................................................................................H-2
Exhibit I: Form of Transfer Affidavit.............................................................I-1
Exhibit J-1: Form of Transferor Certificate (Residual)..............................................J-1
Exhibit J-2: Form of Transferor Certificate (Private)...............................................J-2
Exhibit K: Form of Investment Letter [Non-Rule 144A]..............................................K-1
Exhibit L: Form of Rule 144A Letter...............................................................L-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
Exhibit O: [Reserved] ............................................................................O-1
Exhibit P: Form of Supplemental Transfer Agreement................................................P-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of March 1, 2004,
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"), 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 herein contained,
the parties hereto 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. For federal income tax
purposes, the Trust Fund, other than the Supplemental Loan Account and
Capitalized Interest Account, will consist of three real estate mortgage
investment conduits (each a "REMIC" or, in the alternative, the "Lower Tier
REMIC," the "Middle Tier REMIC," and the "Master REMIC," respectively). 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 represents ownership of the sole class
of residual interest in the Lower Tier REMIC, the Middle Tier REMIC and the
Master REMIC. The Master REMIC will hold as assets the several classes of
uncertificated Middle Tier REMIC Interests (other than the Class MTR-A-R
Interest). The Middle Tier REMIC will hold as assets the several classes of
uncertificated Lower Tier REMIC Interests (other than the Class LT-A-R
Interest). The Lower Tier REMIC will hold as assets all property of the Trust
Fund (other than the Supplemental Loan Account and Capitalized Interest
Account). Each Lower Tier REMIC Interest (other than the Class LT-A-R
Interest) is hereby designated as a regular interest in the Lower Tier REMIC.
Each Middle Tier REMIC Interest (other than the Class MTR-A-R Interest) is
hereby designated as a regular interest in the Middle Tier REMIC. The latest
possible maturity date of all REMIC regular interests created herein shall be
the Latest Possible Maturity Date.
The following table sets forth characteristics of the Master REMIC
Certificates, together with the minimum denominations and integral multiples
in excess thereof in which such Classes shall be issuable (except that one
Certificate of each Class of Certificates may be issued in a different amount
and, in addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
Pass-Through Integral Multiples
Initial Class Rate Minimum in Excess of
Class Designation Certificate Balance (per annum) Denomination Minimum
---------------------- ------------------- ------------ -------------------- -------------------
Class 1-A-1 $62,069,000.00 6.00% $25,000.00 $1,000.00
Class 1-X (1) (2) $25,000.00(3) $1,000.00(3)
Class 2-A-1 $45,907,000.00 6.50% $25,000.00 $1,000.00
Class 2-X (4) (5) $25,000.00(3) $1,000.00(3)
Class 3-A-1 $19,855,000.00 3.50% $25,000.00 $1,000.00
Class 3-A-2 $50,413,000.00 3.50% $25,000.00 $1,000.00
Class 3-A-3 $28,135,000.00 5.50% $25,000.00 $1,000.00
Class 3-A-4 $19,098,000.00 5.50% $25,000.00 $1,000.00
Class 3-A-5 $14,278,000.00 5.75% $25,000.00 $1,000.00
Class 3-A-6 $649,000.00 0.00% $25,000.00 $1,000.00
Class 3-A-7 $25,000.00 5.50% $25,000.00 $1,000.00
Class 3-A-8 (6) 5.50% $25,000.00 $1,000.00
Class 3-X (7) (8) $25,000.00(3) $1,000.00(3)
Class 4-A-1 $49,983,000.00 6.00% $25,000.00 $1,000.00
Class 4-X (9) (10) $25,000.00(3) $1,000.00(3)
Class 5-A-1 $21,340,000.00 5.00% $25,000.00 $1,000.00
Class 5-X (11) (12) $25,000.00(3) $1,000.00(3)
Class 6-A-1 $37,523,000.00 5.00% $25,000.00 $1,000.00
Class 6-X (13) (14) $25,000.00(3) $1,000.00(3)
Class 7-A-1 $48,357,000.00 6.00% $25,000.00 $1,000.00
Class 7-X (15) (16) $25,000.00(3) $1,000.00(3)
Class PO $1,372,797.00 (17) $25,000.00 $1,000.00
Class A-R(18) $100.00 6.00% (19) (19)
Class M $8,381,000.00 (20) $25,000.00 $1,000.00
Class B-1 $3,980,000.00 (20) $25,000.00 $1,000.00
Class B-2 $2,304,000.00 (20) $25,000.00 $1,000.00
Class B-3 $2,304,000.00 (20) $100,000.00 $1,000.00
Class B-4 $1,676,000.00 (20) $100,000.00 $1,000.00
Class B-5 $1,256,861.14 (20) $100,000.00 $1,000.00
------------------------------------------
(1) The Class 1-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on their
Notional Amount (initially, $47,080,356.00).
(2) The Pass-Through Rate for the Class 1-X Certificates for any Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the average of the Adjusted Net Mortgage Rates of the Non-Discount
Mortgage Loans in Loan Group 1 weighted on the basis of their Stated
Principal Balance as of the Due Date in the preceding month (after
giving effect to prepayments received in the Prepayment Period related
to such prior Due Date), over (b) 6.00%. The Pass-Through Rate for the
Class 1-X Certificates during the initial Interest Accrual Period is
0.3351% per annum.
2
(3) Minimum denomination is based on the Notional Amount of such Class.
(4) The Class 2-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on their
Notional Amount (initially, $46,181,612.00).
(5) The Pass-Through Rate for the Class 2-X Certificates for any Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the average of the Adjusted Net Mortgage Rates of the Non-Discount
Mortgage Loans in Loan Group 2 weighted on the basis of their Stated
Principal Balance as of the Due Date in the preceding month (after
giving effect to prepayments received in the Prepayment Period related
to such prior Due Date), over (b) 6.50%. The Pass-Through Rate for the
Class 2-X Certificates during the initial Interest Accrual Period is
0.4506% per annum.
(6) The Class 3-A-8 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on their
Notional Amount (initially, $25,552,000.00).
(7) The Class 3-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on their
Notional Amount (initially, $112,738,041.00).
(8) The Pass-Through Rate for the Class 3-X Certificates for any Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the average of the Adjusted Net Mortgage Rates of the Non-Discount
Mortgage Loans in Loan Group 3 weighted on the basis of their Stated
Principal Balance as of the Due Date in the preceding month (after
giving effect to prepayments received in the Prepayment Period related
to such prior Due Date), over (b) 5.50%. The Pass-Through Rate for the
Class 3-X Certificates during the initial Interest Accrual Period is
0.2940% per annum.
(9) The Class 4-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on their
Notional Amount (initially, $52,475,818.00).
(10) The Pass-Through Rate for the Class 4-X Certificates for any Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the average of the Adjusted Net Mortgage Rates of the Non-Discount
Mortgage Loans in Loan Group 4 weighted on the basis of their Stated
Principal Balance as of the Due Date in the preceding month (after
giving effect to prepayments received in the Prepayment Period related
to such prior Due Date), over (b) 6.00%. The Pass-Through Rate for the
Class 4-X Certificates during the initial Interest Accrual Period is
0.2733% per annum.
(11) The Class 5-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on their
Notional Amount (initially, $20,133,349.00).
(12) The Pass-Through Rate for the Class 5-X Certificates for any Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the average of the Adjusted Net Mortgage Rates of the Non-Discount
Mortgage Loans in Loan Group 5 weighted on the basis of their Stated
Principal Balance as of the Due Date in the preceding month (after
giving effect to prepayments received in the Prepayment Period related
to such prior Due Date), over (b) 5.00%. The Pass-Through Rate for the
Class 5-X Certificates during the initial Interest Accrual Period is
0.4013% per annum.
(13) The Class 6-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on their
Notional Amount (initially, $39,394,973.00).
3
(14) The Pass-Through Rate for the Class 6-X Certificates for any Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the average of the Adjusted Net Mortgage Rates of the Non-Discount
Mortgage Loans in Loan Group 6 weighted on the basis of their Stated
Principal Balance as of the Due Date in the preceding month (after
giving effect to prepayments received in the Prepayment Period related
to such prior Due Date), over (b) 5.00%. The Pass-Through Rate for the
Class 6-X Certificates during the initial Interest Accrual Period is
0.6116% per annum.
(15) The Class 7-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on their
Notional Amount (initially, $48,276,540.00).
(16) The Pass-Through Rate for the Class 7-X Certificates for any Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the average of the Adjusted Net Mortgage Rates of the Non-Discount
Mortgage Loans in Loan Group 7 weighted on the basis of their Stated
Principal Balance as of the Due Date in the preceding month (after
giving effect to prepayments received in the Prepayment Period related
to such prior Due Date), over (b) 6.00%. The Pass-Through Rate for the
Class 7-X Certificates during the initial Interest Accrual Period is
0.9027% per annum.
(17) The Class PO Certificates will be Principal Only Certificates and will
not receive any distributions of interest.
(18) The Class A-R Certificates represent the sole Class of residual
interest in the REMIC.
(19) The Class A-R Certificate shall be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of $0.01.
(20) The Pass-Through Rate for each Class of Subordinated Certificates for
each Interest Accrual Period for any Distribution Date will be a per
annum rate equal to the sum of (i) 6.00% multiplied by the excess of
the aggregate Stated Principal Balance of the Mortgage Loans in Loan
Group 1 over the aggregate of the Class Certificate Balances of the
Group 1 Senior Certificates immediately prior to that Distribution
Date, (ii) 6.50% multiplied by the excess of the aggregate Stated
Principal Balance of the Mortgage Loans in Loan Group 2, as of the Due
Date in the prior month (after giving effect to Principal Prepayments i
the Prepayment Period related to each prior Due Date) over the
aggregate of the Class Certificate Balances of the Group 2 Senior
Certificates immediately prior to that Distribution Date, (iii) 5.50%
multiplied by the excess of the aggregate Stated Principal Balance of
the Mortgage Loans in Loan Group 3 (after giving effect to Principal
Prepayments i the Prepayment Period related to each prior Due Date)
over the aggregate of the Class Certificate Balances of the Group 3
Senior Certificates immediately prior to that Distribution Date, (iv)
6.00% multiplied by the excess of the aggregate Stated Principal
Balance of the Mortgage Loans in Loan Group 4 (after giving effect to
Principal Prepayments i the Prepayment Period related to each prior Due
Date) over the aggregate of the Class Certificate Balances of the Group
4 Senior Certificates immediately prior to that Distribution Date, (v)
5.00% multiplied by the excess of the aggregate Stated Principal
Balance of the Mortgage Loans in Loan Group 5 (after giving effect to
Principal Prepayments i the Prepayment Period related to each prior Due
Date) over the aggregate of the Class Certificate Balances of the Group
5 Senior Certificates immediately prior to that Distribution Date, (vi)
5.00% multiplied by the excess of the aggregate Stated Principal
Balance of the Mortgage Loans in Loan Group 6 (after giving effect to
Principal Prepayments i the Prepayment Period related to each prior Due
Date) over the aggregate of the Class Certificate Balances of the Group
6 Senior Certificates immediately prior to that Distribution Date, and
(vii) 6.00% multiplied by the
4
excess of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 7 (after giving effect to Principal Prepayments
i the Prepayment Period related to each prior Due Date) over the
aggregate of the Class Certificate Balances of the Group 7 Senior
Certificates immediately prior to that Distribution Date; divided by
the aggregate of the Class Certificate Balances of the Subordinated
Certificates immediately prior to that Distribution Date. The
Pass-Through Rate for each Class of Subordinated Certificates for
the initial Interest Accrual Period will be 5.7432% per annum.
5
The following table specifies the class designation, interest rate, and
principal amount for each class of Lower Tier REMIC Interests:
Lower Tier REMIC Interest
Lower Tier
REMIC Class Initial Class
Designation Principal Balance Class Interest Rate
-------------- ------------------ -------------------
LT-1-P&I (1) 6.00%
LT-1-PO $700,147 (2)
LT-1-IO (3) (4)
LT-2-P&I (5) 6.50%
LT-2-PO $2,794 (2)
LT-2-IO (3) (6)
LT-3-P&I (7) 5.50%
LT-3-PO $662,015 (2)
LT-3-IO (3) (8)
LT-4-P&I (9) 6.00%
LT-4-IO (3) (10)
LT-5-P&I (11) 5.00%
LT-5-PO $4,097 (2)
LT-5-IO (3) (12)
LT-6-P&I (13) 5.00%
LT-6-IO (3) (14)
LT-7-P&I (15) 6.00%
LT-7-PO $3,744 (2)
LT-7-IO (3) (16)
LT-A-R (17) (17)
(1) The initial principal balance of the Class LT-1-P&I Interest is the
aggregate principal balance of the Initial Mortgage Loans in Loan
Group 1 plus the amount, if any, on deposit in the Supplemental Loan
Account allocated to Loan Group 1 minus the amount of the LT-1-PO
Interest.
(2) This Class of Lower Tier Interest does not pay any interest.
(3) This Class of Lower Tier Interest does not pay any principal.
(4) The Class LT-1-IO is entitled to receive on each Distribution Date a
specified portion of the interest payable on the Non-Discount
Mortgage Loans in Loan Group 1. Specifically, for each related
Distribution Date, the Class SR-1-IO is entitled to interest accruals
on each Non-Discount Mortgage Loan in excess of an Adjusted Net
Mortgage Rate of 6.00% per annum.
(5) The initial principal balance of the Class LT-2-P&I Interest is the
aggregate principal balance of the Initial Mortgage Loans in Loan
Group 2 plus the amount, if any, on deposit in the Supplemental Loan
Account allocated to Loan Group 2 minus the amount of the LT-2-PO
Interest.
(6) The Class LT-2-IO is entitled to receive on each Distribution Date a
specified portion of the
6
interest payable on the Non-Discount Mortgage Loans in Loan Group 2.
Specifically, for each related Distribution Date, the Class SR-2-IO
is entitled to interest accruals on each Non-Discount Mortgage Loan
in excess of an Adjusted Net Mortgage Rate of 6.50% per annum.
(7) The initial principal balance of the Class LT-3-P&I Interest is the
aggregate principal balance of the Initial Mortgage Loans in Loan
Group 3 minus the amount of the LT-3-PO Interest.
(8) The Class LT-3-IO is entitled to receive on each Distribution Date a
specified portion of the interest payable on the Non-Discount
Mortgage Loans in Loan Group 3. Specifically, for each related
Distribution Date, the Class SR-3-IO is entitled to interest accruals
on each Non-Discount Mortgage Loan in excess of an Adjusted Net
Mortgage Rate of 5.50% per annum.
(9) The initial principal balance of the Class LT-4-P&I Interest is the
aggregate principal balance of the Initial Mortgage Loans in Loan
Group 4.
(10) The Class LT-4-IO is entitled to receive on each Distribution Date a
specified portion of the interest payable on the Non-Discount
Mortgage Loans in Loan Group 4. Specifically, for each related
Distribution Date, the Class SR-4-IO is entitled to interest accruals
on each Non-Discount Mortgage Loan in excess of an Adjusted Net
Mortgage Rate of 6.00% per annum.
(11) The initial principal balance of the Class LT-5-P&I Interest is the
aggregate principal balance of the Initial Mortgage Loans in Loan
Group 5 minus the amount of the LT-5-PO Interest.
(12) The Class LT-5-IO is entitled to receive on each Distribution Date a
specified portion of the interest payable on the Non-Discount
Mortgage Loans in Loan Group 5. Specifically, for each related
Distribution Date, the Class SR-5-IO is entitled to interest accruals
on each Non-Discount Mortgage Loan in excess of an Adjusted Net
Mortgage Rate of 5.00% per annum.
(13) The initial principal balance of the Class LT-6-P&I Interest is the
aggregate principal balance of the Initial Mortgage Loans in Loan
Group 6.
(14) The Class LT-6-IO is entitled to receive on each Distribution Date a
specified portion of the interest payable on the Non-Discount
Mortgage Loans in Loan Group 6. Specifically, for each related
Distribution Date, the Class SR-6-IO is entitled to interest accruals
on each Non-Discount Mortgage Loan in excess of an Adjusted Net
Mortgage Rate of 5.00% per annum.
(15) The initial principal balance of the Class LT-7-P&I Interest is the
aggregate principal balance of the Initial Mortgage Loans in Loan
Group 7 minus the amount of the LT-7-PO Interest.
(16) The Class LT-7-IO is entitled to receive on each Distribution Date a
specified portion of the interest payable on the Non-Discount
Mortgage Loans in Loan Group 7. Specifically, for each related
Distribution Date, the Class SR-7-IO is entitled to interest accruals
on each Non-Discount Mortgage Loan in excess of an Adjusted Net
Mortgage Rate of 6.00% per annum.
(17) The Class LT-A-R Interest is the sole class of residual interest in
the Lower Tier REMIC. It does not pay any interest or principal.
On each Distribution Date, the Trustee shall allocate the Realized
Losses on the Group 1 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 1 Mortgage Loans attributable to any
related Subsequent Recoveries), and distribute the principal on the Group 1
Mortgage Loans between the Class LT-1-PO Interest and the Class LT-1-P&I
Interest in the
7
same manner that such amounts are allocated to or distributed between (a) the
Class PO-1 Component and (b) the remaining Group 1 Senior Certificates and the
Assumed Balance of the Class Certificate Balance of each Class of Subordinated
Certificates related to the Group 1 Mortgage Loans.
On each Distribution Date, the Trustee shall allocate the Realized
Losses on the Group 2 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 2 Mortgage Loans attributable to any
related Subsequent Recoveries), and distribute the principal on the Group 2
Mortgage Loans between the Class LT-2-PO Interest and the Class LT-2-P&I
Interest in the same manner that such amounts are allocated to or distributed
between (a) the Class PO-2 Component and (b) the remaining Group 2 Senior
Certificates and the Assumed Balance of the Class Certificate Balance of each
Class of Subordinated Certificates related to the Group 2 Mortgage Loans.
On each Distribution Date, the Trustee shall allocate the Realized
Losses on the Group 3 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 3 Mortgage Loans attributable to any
related Subsequent Recoveries), and distribute the principal on the Group 3
Mortgage Loans between the Class LT-3-PO Interest and the Class LT-3-P&I
Interest in the same manner that such amounts are allocated to or distributed
between (a) the Class PO-3 Component and (b) the remaining Group 3 Senior
Certificates and the Assumed Balance of the Class Certificate Balance of each
Class of Subordinated Certificates related to the Group 3 Mortgage Loans.
On each Distribution Date, the Trustee shall allocate the Realized
Losses on the Group 4 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 4 Mortgage Loans attributable to any
related Subsequent Recoveries), and distribute the principal on the Group 4
Mortgage Loans to the Class LT-4-P&I Interest.
On each Distribution Date, the Trustee shall allocate the Realized
Losses on the Group 5 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 5 Mortgage Loans attributable to any
related Subsequent Recoveries), and distribute the principal on the Group 5
Mortgage Loans between the Class LT-5-PO Interest and the Class LT-5-P&I
Interest in the same manner that such amounts are allocated to or distributed
between (a) the Class PO-5 Component and (b) the remaining Group 5 Senior
Certificates and the Assumed Balance of the Class Certificate Balance of each
Class of Subordinated Certificates related to the Group 5 Mortgage Loans.
On each Distribution Date, the Trustee shall allocate the Realized
Losses on the Group 6 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 6 Mortgage Loans attributable to any
related Subsequent Recoveries), and distribute the principal on the Group 6
Mortgage Loans to the Class LT-6-P&I Interest.
On each Distribution Date, the Trustee shall allocate the Realized
Losses on the Group 7 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 7 Mortgage Loans attributable to any
related Subsequent Recoveries), and distribute the principal on the Group 7
Mortgage Loans between the Class LT-7-PO Interest and the Class LT-7-P&I
Interest in the same manner that such amounts are allocated to or distributed
between (a) the Class PO-7 Component and (b) the remaining Group 7 Senior
Certificates and the Assumed Balance of the Class Certificate Balance of each
Class of Subordinated Certificates related to the Group 7 Mortgage Loans.
8
On each Distribution Date, interest is payable on each Lower Tier
REMIC Interest at the rates, or according to the formulas, shown above.
9
The following table specifies the class designation, interest rate
and principal amount for each class of Middle Tier REMIC Interest:
Middle Tier REMIC Interests
Initial Class
Middle Tier REMIC Principal Corresponding Class of
Class Designation Balance Class Interest Rate Certificates
----------------------- -------------- ------------------ ----------------------
MTR-1-A-1 $62,069,000.00 6.00% 0-X-0
XXX-0-X (1) (2) 1-X
MTR-2-A-1 $45,907,000.00 6.50% 0-X-0
XXX-0-X (1) (3) 2-X
MTR-3-A-1 $19,855,000.00 5.50% 3-A-1, 3-A-8(4)
MTR-3-A-2 $50,413,000.00 5.50% 3-A-2, 3-A-8(4)
MTR-3-A-3 $28,135,000.00 5.50% 0-X-0
XXX-0-X-0 $19,098,000.00 5.75% 0-X-0
XXX-0-X-0 $14,278,000.00 0.00% 0-X-0
XXX-0-X-0 $649,000.00 5.50% 0-X-0
XXX-0-X-0 $25,000.00 5.50% 0-X-0
XXX-0-X (1) (5) 3-X
MTR-4-A-1 $49,983,000.00 6.00% 0-X-0
XXX-0-X (1) (6) 4-X
MTR-5-A-1 $21,340,000.00 5.00% 0-X-0
XXX-0-X (1) (7) 5-X
MTR-6-A-1 $37,523,000.00 5.00% 0-X-0
XXX-0-X (1) (8) 6-X
MTR-7-A-1 $48,357,000.00 6.00% 0-X-0
XXX-0-X (1) (9) 7-X
MTR-PO $1,372,797.00 (10) PO
MTR-M $8,381,000.00 (11) M
MTR-B-1 $3,980,000.00 (11) B-1
MTR-B-2 $2,304,000.00 (11) B-2
MTR-B-3 $2,304,000.00 (11) B-3
MTR-B-4 $1,676.00 (11) B-4
MTR-B-5 $1,256,861.14 (11) B-5
MTR-A-R (12) (12) A-R
------------------------------------------
10
(1) This Class of Middle Tier Interest does not pay any principal.
(2) The Class MTR-1-X Interest is entitled to receive on each Distribution
Date, 100% of the interest payable on the LT-1-IO Interest.
(3) The Class MTR-2-X Interest is entitled to receive on each Distribution
Date, 100% of the interest payable on the LT-2-IO Interest.
(4) The Class 3-A-8 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the MTR-3-A-1 Middle
Tier REMIC Interest and the MTR-3-A-2 Middle Tier REMIC Interest.
Specifically, for each related Distribution Date, the Class 3-A-8
Certificates are entitled to interest accruals on the MTR-3-A-1 Middle
Tier REMIC Interest and the MTR-3-A-2 Middle Tier REMIC Interest at a per
annum rate equal to 2.00%.
(5) The Class MTR-3-X Interest is entitled to receive on each Distribution
Date, 100% of the interest payable on the LT-3-IO Interest.
(6) The Class MTR-4-X Interest is entitled to receive on each Distribution
Date, 100% of the interest payable on the LT-4-IO Interest.
(7) The Class MTR-5-X Interest is entitled to receive on each Distribution
Date, 100% of the interest payable on the LT-5-IO Interest.
(8) The Class MTR-6-X Interest is entitled to receive on each Distribution
Date, 100% of the interest payable on the LT-6-IO Interest.
(9) The Class MTR-7-X Interest is entitled to receive on each Distribution
Date, 100% of the interest payable on the LT-7-IO Interest.
(10) This class of Middle Tier Interest will be a principal only Interest and
does not pay any interest.
(11) The Pass-Through Rate for each Subordinated Interest for any Distribution
Date will be equal to (a) a per annum rate equal to the sum of: (i) 6.00%
multiplied by the excess of the Loan Group 1 Principal Balance over the
aggregate of the Class Certificate Balances of the Group 1 Senior
Certificates immediately prior to that Distribution Date, (ii) 6.50%,
multiplied by the excess of the Loan Group 2 Principal Balance over the
aggregate of the Class Certificate Balances of the Group 2 Senior
Certificates immediately prior to that Distribution Date, (iii) 5.50%,
multiplied by the excess of the Loan Group 3 Principal Balance over the
aggregate of the Class Certificate Balances of the Group 3 Senior
Certificates immediately prior to that Distribution Date, (iv) 6.00%,
multiplied by the excess of the Loan Group 4 Principal Balance over the
aggregate of the Class Certificate Balances of the Group 4 Senior
Certificates immediately prior to that Distribution Date, (v) 5.00%,
multiplied by the excess of the Loan Group 5 Principal Balance over the
aggregate of the Class Certificate Balances of the Group 5 Senior
Certificates immediately prior to that Distribution Date, (vi) 5.00%,
multiplied by the excess of the Loan Group 6 Principal Balance over the
aggregate of the Class Certificate Balances of the Group 6 Senior
Certificates immediately prior to that Distribution Date and (vii) 6.00%,
multiplied by the excess of the Loan Group 4 Principal Balance over the
aggregate of the Class Certificate Balances of the Group 4 Senior
Certificates immediately prior to that Distribution Date; divided by (b)
the aggregate of the Class Certificate Balances of the Subordinated
Certificates on that Distribution Date. The Pass-Through Rate for each
Subordinated Interest for the first Distribution Date will be 5.7432% per
annum.
11
(12) MTR-A-R is the sole class of residual interest in the Middle Tier REMIC.
It pays no interest or principal.
On each Distribution Date, the Trustee will allocate the losses on
(including any reductions in previously allocated losses attributable to any
related subsequent recoveries), and distribute the principal and interest on,
the Middle Tier REMIC Regular Interest in the same manner that losses
(including subsequent recoveries), principal and interest are allocated amount
or distributed to, the Corresponding Class (or Classes) of Master REMIC
Certificates.
12
Set forth below are designations of Classes or Components of Certificates and
other defined terms to the categories used herein:
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.
Combined Certificates..................... None.
Component Certificates.................... Class PO Certificates.
Components................................ For purposes of calculating
distributions of principal and/or
interest, the Component
Certificates, if any, will be
comprised of multiple payment
components having the
designations, Initial Component
Balances or Notional Amounts, as
applicable, and Pass-Through Rates
set forth below:
Initial Component
Designation Principal Balance Pass-Through Rate
-------------------- ------------------ -----------------
Class PO-1 Component $700,147 (1)
Class PO-2 Component $2,794 (1)
Class PO-3 Component $662,015 (1)
Class PO-5 Component $4,097 (1)
Class PO-7 Component $3,744 (1)
(1) This Component does not bear interest.
Delay Certificates........................ All interest-bearing Classes of
Certificates other than the Non-
Delay Certificates, if any.
ERISA-Restricted Certificates............. The Residual Certificates and
Private Certificates; and any
Certificate of a Class that ceases
to satisfy the applicable rating
requirement under the
Underwriter's Exemption.
Floating Rate Certificates................ None.
Group 1 Certificates...................... Group 1 Senior Certificates and the
portions of the Subordinated
Certificates related to Loan
Group 1.
Group 1 Senior Certificates............... Class 1-A-1, Class 1-X and Class
A-R Certificates and the Class PO-1
Component.
Group 2 Certificates...................... Group 2 Senior Certificates and the
portions of the Subordinated
Certificates related to Loan
Group 2.
Group 2 Senior Certificates............... Class 2-A-1 and Class 2-X
Certificates and the Class PO-2
Component.
Group 3 Certificates...................... Group 3 Senior Certificates and the
portions of the Subordinated
Certificates related to Loan
Group 3.
Group 3 Senior Certificates............... Class 3-A-1, Class 3-A-2, Class
3-A-3, Class 3-A-4, Class 3-A-5,
Class 3-A-6, Class 3-A-7, Class
3-A-8 and Class 3-X Certificates
and the Class PO-3 Component.
Group 4 Certificates...................... Group 4 Senior Certificates and
the portions of the Subordinated
Certificates related to Loan
Group 4.
Group 4 Senior Certificates............... Class 4-A-1 and Class 4-X
Certificates.
Group 5 Certificates...................... Group 5 Senior Certificates and the
portions of the Subordinated
Certificates related to Loan
Group 5.
Group 5 Senior Certificates............... Class 5-A-1 and Class 5-X
Certificates and the Class PO-5
Component.
Group 6 Certificates...................... Group 6 Senior Certificates and the
portions of the Subordinated
Certificates related to Loan
Group 2.
Group 6 Senior Certificates............... Class 6-A-1 and Class 6-X
Certificates.
Group 7 Certificates...................... Group 7 Senior Certificates and the
portions of the Subordinated
Certificates related to Loan
Group 7.
Group 7 Senior Certificates............... Class 7-A-1 and Class 7-X
Certificates and the Class PO-7
Component.
Inverse Floating Rate Certificates........ None.
LIBOR Certificates........................ None.
Non-Delay Certificates.................... None.
Notional Amount Certificates.............. Class 3-A-8, Class 1-X, Class 2-X,
Class 3-X, Class 4-X, Class 5-X,
Class 6-X and Class 7-X
Certificates.
Notional Amount Components................ None.
Offered Certificates...................... All Classes of Certificates other
than the Private Certificates.
Physical Certificates..................... Private Certificates and the
Residual Certificates.
Planned Principal Classes................. Class 3-A-1, Class 3-A-2 and
Class 3-A-3 Certificates.
Principal Only Certificates............... Class PO Certificates.
Private Certificates...................... Class B-3, Class B-4 and Class B-5
Certificates.
2
Rating Agencies........................... S&P and Fitch.
Regular Certificates...................... All Classes of Certificates, other
than the Residual Certificates.
Residual Certificates..................... Class A-R Certificates.
Scheduled Principal Classes............... None.
Senior Certificates Group................. The Group 1 Senior Certificates,
the Group 2 Senior Certificates,
the Group 3 Senior Certificates,
the Group 4, Senior Certificates,
the Group 5 Senior Certificates,
the Group 6 Senior Certificates or
the Group 7 Senior Certificates,
as applicable.
Senior Certificates....................... Class 1-A-1, Class 1-X, Class 2-A-1,
Class 2-X, Class 3-A-1, Class
3-A-2, Class 3-A-3, Class 3-A-4,
Class 3-A-5, Class 3-A-6, Class
3-A-7, Class 3-A-8, Class 3-X,
Class 4-A-1, Class 4-X, Class
5-A-1, Class 5-X, Class 6-A-1,
Class 6-X, Class 7-A-1, Class 7-X,
Class PO and Class A-R
Certificates.
Subordinated Certificates................. Class M, Class B-1, Class B-2,
Class B-3, Class B-4 and Class B-5
Certificates.
Targeted Principal Classes................ None.
Underwriter............................... Countrywide Securities Corporation.
With respect to any of the foregoing designations as to which
the corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
If the aggregate Stated Principal Balance of the Initial
Mortgage Loans in Loan Group 1 or Loan Group 2 on the Closing Date is equal to
or greater than the aggregate Class Certificate Balance of the Certificates in
Loan Group 1 or Loan Group 2, respectively, as of such date, all references
herein to "Aggregate Supplemental Purchase Amount", "Aggregate Supplemental
Transfer Amount", "Capitalized Interest Account", "Capitalized Interest
Requirement", "Conveyance Period", "Conveyance Period Distribution Date",
"Remaining Non-PO Supplemental Loan Amount", "Remaining PO Supplemental Loan
Amount", "Supplemental Amount", "Supplemental Cut-off Date", "Supplemental
Loan Account", "Supplemental Mortgage Loan", "Supplemental Transfer Agreement"
and "Supplemental Transfer Date" with respect to that Loan Group shall be of
no force or effect and all provisions herein related thereto shall similarly
be of no force or effect.
3
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accretion Directed Certificates: As specified in the
Preliminary Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: With respect to any Class of Accrual
Certificates or any Accrual Component and any Distribution Date prior to the
related Accrual Termination Date, the amount allocable to interest on such
Class of Accrual Certificates or Accrual Component with respect to such
Distribution Date pursuant to Section 4.02(a).
Accrual Certificates: As specified in the Preliminary
Statement.
Accrual Components: As specified in the Preliminary
Statement.
Accrual Termination Date: Not applicable.
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 sum of the
Trustee Fee Rate and the Master Servicing Fee Rate. For purposes of
determining whether any Substitute Mortgage Loan is a Discount Mortgage Loan
or a Non-Discount Mortgage Loan and for purposes of calculating the applicable
PO Percentage and the applicable Non-PO Percentage, each Substitute Mortgage
Loan shall be deemed to have an Adjusted Net Mortgage Rate equal to the
Adjusted Net Mortgage Rate of the Deleted Mortgage Loan for which it is
substituted.
Advance: As to a Loan Group, 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 and net of
any net income in the case of any REO Property) on the Mortgage Loans in such
Loan Group 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, 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 hereto.
Aggregate Planned Balance: With respect to any group of
Planned Principal Classes or Components and any Distribution Date, the amount
set forth for such group for such Distribution Date in Schedule V hereto.
I-1
Aggregate Supplemental Purchase Amount: With respect to any
Supplemental Transfer Date and Loan Group 1 or Loan Group 2, the applicable
"Aggregate Supplemental Purchase Amount" identified in the related
Supplemental Transfer Agreement for such Loan Group, which shall be an
estimate of the aggregate Stated Principal Balance of the Supplemental
Mortgage Loans to be included in such Loan Group identified in such
Supplemental Transfer Agreement.
Aggregate Supplemental Transfer Amount: With respect to any
Supplemental Transfer Date and Loan Group 1 and Loan Group 2, the aggregate
Stated Principal Balance as of the related Supplemental Cut-off Date of the
Supplemental Mortgage Loans to be included in such Loan Group conveyed on such
Supplemental Transfer Date, as listed on the revised Mortgage Loan Schedule
delivered pursuant to Section 2.01(f); provided, however, that such amount
shall not exceed the amount on deposit in the Supplemental Loan Account
allocated to purchasing Supplemental Mortgage Loans for such Loan Group.
Aggregate Targeted Balance: With respect to any group of
Targeted Principal Classes or Components and any Distribution Date, the amount
set forth for such group for such Distribution Date in Schedule V hereto.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Allocable Share: As to any Distribution Date and any
Mortgage Loan (i) with respect to the Class PO-1, Class PO-2, Class PO-3,
Class PO-5 and Class PO-7 Components, zero, (ii) with respect to the Class
1-X, Class 2-X, Class 3-X, Class 4-X, Class 5-X, Class 6-X and Class 7-X
Certificates, (a) the ratio that the excess, if any, of the Adjusted Net
Mortgage Rate with respect to such Mortgage Loan, over the related Required
Coupon bears to such Adjusted Net Mortgage Rate or (b) if the Adjusted Net
Mortgage Rate with respect to such Mortgage Loan does not exceed the related
Required Coupon, zero, and (iii) with respect to each other Class of
Certificates the product of (a) the lesser of (I) the ratio that the related
Required Coupon bears to the Adjusted Net Mortgage Rate of such Mortgage Loan
and (II) one, multiplied by (b) the ratio that the amount calculated with
respect to such Distribution Date (A) with respect to the Senior Certificates
of the related Senior Certificate Group, pursuant to clause (i) of the
definition of Class Optimal Interest Distribution Amount (without giving
effect to any reduction of such amount pursuant to Section 4.02 (d)) and (B)
with respect to the Subordinated Certificates, pursuant to the definition of
Assumed Interest Amount or after the sixth Senior Termination Date pursuant to
clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
4.02(d)) bears to the amount calculated with respect to such Distribution Date
for each Class of Certificates pursuant to clause (i) of the definition of
Class Optimal Interest Distribution Amount (without giving effect to any
reduction of such amounts pursuant to Section 4.02(d)) or the definition of
Assumed Interest Amount, as applicable.
Amount Available for Senior Principal: As to any
Distribution Date and (a) Loan Group 1, the Available Funds for such
Distribution Date and Loan Group, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 4.02(a)(1)(ii), (b) Loan Group 2, the Available Funds for
such Distribution Date and Loan Group, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 4.02(a)(2)(ii), (c) Loan Group 3, the Available Funds for
such Distribution Date and Loan Group, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 4.02(a)(3)(ii), (d) Loan Group 4, the Available Funds for
such Distribution Date and Loan Group, reduced by the aggregate amount
I-2
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 4.02(a)(4)(ii), (e) Loan Group 5, the Available Funds for
such Distribution Date and Loan Group, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 4.02(a)(5)(ii), (f) Loan Group 6, the Available Funds for
such Distribution Date and Loan Group, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 4.02(a)(6)(ii) and (g) Loan Group 7, the Available Funds
for such Distribution Date and Loan Group, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the related Senior Certificates
pursuant to Section 4.02(a)(7)(ii).
Amount Held for Future Distribution: As to any Distribution
Date and Mortgage Loans in a Loan Group, 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 relating to such Loan Group and (ii) all
Scheduled Payments due after the related Due Date relating to such Loan Group.
Applicable Credit Support Percentage: As defined in Section
4.02(e).
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 sales 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 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.
Assumed Balance: With respect to any Distribution Date,
Class of Subordinated Certificates and Loan Group, each such Class' pro rata
interest (based on their respective Class Certificate Balances) in such Loan
Group equal to the product of the Subordinated Percentage for such Loan Group
as of such Distribution Date and the aggregate of the applicable Non-PO
Percentage of the Stated Principal Balance of each Mortgage Loan in such Loan
Group as of the Due Date occurring in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments received in
the Prepayment Period related to such prior Due Date).
Assumed Interest Amount: With respect to any Distribution
Date and Class of Subordinated Certificates, one month's interest accrued
during the related Interest Accrual Period at the Pass-Through Rate for such
Class on the applicable Assumed Balance immediately prior to that Distribution
Date.
I-3
Available Funds: As to any Distribution Date and the
Mortgage Loans in a Loan Group, 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, in respect of such Mortgage Loans
net of the related Amount Held for Future Distribution and net of amounts
permitted to be withdrawn from the Certificate Account pursuant to clauses (i)
- (viii), inclusive, of Section 3.08(a) in respect of such Mortgage Loans and
amounts permitted to be withdrawn from the Distribution Account pursuant to
clauses (i) - (iii), inclusive, of Section 3.08(b) in respect of such Mortgage
Loans, (b) the amount of the related Advance, (c) in connection with Defective
Mortgage Loans in such Loan Group, as applicable, the aggregate of the
Purchase Prices and Substitution Adjustment Amounts deposited on the related
Distribution Account Deposit Date, (d) with respect to Loan Group 1 and Loan
Group 2, on each Conveyance Period Distribution Date, the amount, if any,
transferred from the Capitalized Interest Account in respect of the applicable
Capitalized Interest Requirement with respect to the Mortgage Loans in Loan
Group 1 and Loan Group 2, and (e) with respect to Loan Group 1 and Loan Group
2, on the last Conveyance Period Distribution Date, the amount, if any,
transferred from the Supplemental Loan Account representing the Remaining
Non-PO Supplemental Loan Amount for Loan Group 1 and Loan Group 2, if any;
provided, however, that on the sixth Senior Termination Date, Available Funds
with respect to the Loan Group relating to the remaining Senior Certificate
Group shall include the Available Funds from the other Loan Groups after all
distributions are made on the Senior Certificates of the other Senior
Certificate Group or Groups and on any Distribution Date thereafter, Available
Funds shall be calculated based upon all the Mortgage Loans in the Mortgage
Pool, as opposed to the Mortgage Loans in the related Loan Group.
Bankruptcy Code: The United States Bankruptcy Reform Act of
1978, as amended.
Bankruptcy Coverage Termination Date: The point in time at
which the Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a
Deficient Valuation or Debt Service Reduction; provided, however, that a
Bankruptcy Loss shall not be deemed a Bankruptcy Loss hereunder so long as the
Master Servicer has notified the Trustee in writing that the Master Servicer
is diligently pursuing any remedies that may exist in connection with the
related Mortgage Loan and either (A) the related Mortgage Loan is not in
default with regard to payments due thereunder or (B) delinquent payments of
principal and interest under the related Mortgage Loan and any related escrow
payments in respect of such Mortgage Loan are being advanced on a current
basis by the Master Servicer, in either case without giving effect to any Debt
Service Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any date of
determination, the Bankruptcy Loss Coverage Amount shall equal the Initial
Bankruptcy Coverage Amount as reduced by (i) the aggregate amount of
Bankruptcy Losses allocated to the Certificates since the Cut-off Date and
(ii) any permissible reductions in the Bankruptcy Loss Coverage Amount as
evidenced by a letter of each Rating Agency to the Trustee to the effect that
any such reduction will not result in a downgrading of the then current
ratings assigned to the Classes of Certificates rated by it.
Blanket Mortgage: The mortgage or mortgages encumbering the
Cooperative Property.
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 State of California 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.
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Capitalized Interest Account: The separate Eligible Account
designated as such and created and maintained by the Trustee pursuant to
Section 3.05(h) hereof. The Capitalized Interest Account shall be treated as
an "outside reserve fund" under applicable Treasury regulations and shall not
be part of any REMIC. Except as provided in Section 3.05(h) hereof, any
investment earnings on the amounts on deposit in the Capitalized Interest
Account shall be treated as owned by the Depositor and will be taxable to the
Depositor.
Capitalized Interest Requirement: With respect to each
Conveyance Period Distribution Date and Loan Group 1 and Loan Group 2, the
excess, if any, of (a) the sum of (1) the amount calculated pursuant to clause
(i) of the definition of Class Optimal Interest Distribution Amount for each
Class of Certificates (including, with respect to the Subordinated
Certificates, the related Assumed Balance of each such Class) in the
Certificate Group related to Loan Group 1 or Loan Group 2 for such
Distribution Date, plus (2) the Trustee Fee for Loan Group 1 or Loan Group 2
for such Distribution Date, over (b) (1) with respect to each Mortgage Loan in
Loan Group 1 and Loan Group 2, 1/12 of the product of the related Adjusted
Mortgage Rate and the related Stated Principal Balance as of the related Due
Date (prior to giving effect to any Scheduled Payment due on such Mortgage
Loan on such Due Date) minus (2) any related reductions required by Section
4.02(d) hereof. On the Closing Date, the amount deposited in the Capitalized
Interest Account shall be $73,558.79 of which $24,134.07 shall be allocated to
Loan Group 1 and $49.424.72 shall be allocated to Loan Group 2.
Certificate: Any one of the Certificates executed by the
Trustee in substantially the forms attached hereto 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 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 2004-J2, Mortgage Pass-Through Certificates, Series
2004-J2."
Certificate Balance: With respect to any Certificate at any
date, the maximum dollar amount of principal to which the Holder thereof is
then entitled hereunder, such amount being equal to the Denomination thereof
(A) plus any increase in the Certificate Balance of such Certificate pursuant
to Section 4.02 due to the receipt of Subsequent Recoveries, (B) minus the sum
of (i) all distributions of principal previously made with respect thereto and
(ii) all Realized Losses allocated thereto and, in the case of any
Subordinated Certificates, all other reductions in Certificate Balance
previously allocated thereto pursuant to Section 4.03 and (C) in the case of
any Class of Accrual Certificates, increased by the Accrual Amount added to
the Class Certificate Balance of such Class prior to such date.
Certificate Group: The Group 1 Certificates, Group 2
Certificates, Group 3 Certificates, Group 4, Certificates, Group 5
Certificates, Group 6 Certificates or Group 7 Certificates, as the context
requires.
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 hereunder, 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 hereof.
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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 hereof (other than the second sentence of Section 10.01 hereof) that
requires the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. 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.
Class: All Certificates bearing the same class designation
as set forth in the Preliminary Statement.
Class Certificate Balance: With respect to any Class and as
to any date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and
Class, the amount by which the amount described in clause (i) of the
definition of Class Optimal Interest Distribution Amount for such Class
exceeds the amount of interest actually distributed on such Class on such
Distribution Date pursuant to such clause (i).
Class Optimal Interest Distribution Amount: With respect to
any Distribution Date and interest bearing Class or, with respect to any
interest bearing Component, the sum of (i) one month's interest accrued during
the related Interest Accrual Period at the Pass-Through Rate for such Class on
the related Class Certificate Balance, Component Balance, Notional Amount or
Component Notional Amount, as applicable, subject to reduction as provided in
Section 4.02(d) and (ii) any Class Unpaid Interest Amounts for such Class or
Component.
Class PO Component: The Class PO-1 Component, Class PO-2
Component, Class PO-3 Component, Class PO-4 Component, Class PO-5 Component,
Class PO-6 Component or the Class PO-7 Component, as applicable.
Class PO Deferred Amount: As to any Distribution Date and
Loan Group, the aggregate of the applicable PO Percentage of each Realized
Loss, other than any Excess Loss, on a Discount Mortgage Loan in that Loan
Group to be allocated to the related Class PO Component on such Distribution
Date on or prior to the Senior Credit Support Depletion Date or previously
allocated to that Class PO Component and not yet paid to the Holders of the
Class PO Certificates.
Class Subordination Percentage: With respect to any
Distribution Date and each Class of Subordinated Certificates, the quotient
(expressed as a percentage) of (a) the Class Certificate Balance of such Class
of Certificates immediately prior to such Distribution Date divided by (b) the
aggregate of the Class Certificate Balances immediately prior to such
Distribution Date of all Classes of Certificates.
Class Unpaid Interest Amounts: As to any Distribution Date
and Class of interest bearing Certificates, the amount by which the aggregate
Class Interest Shortfalls for such Class on prior Distribution Dates exceeds
the amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
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Closing Date: March 30, 2004.
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.
Combined Certificates: As specified in the Preliminary
Statement.
Combined Certificates Payment Rule: Not applicable.
Compensating Interest: As to any Distribution Date and Loan
Group an amount equal to the product of one-twelfth of 0.125% and the
aggregate Stated Principal Balance of the Mortgage Loans in such Loan Group as
of the Due Date in the prior calendar month.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Component and any
Distribution Date, the Initial Component Balance thereof on the Closing Date,
(A) plus any increase in the Component Balance of such Component pursuant to
Section 4.02 due to the receipt of Subsequent Recoveries, (B) minus the sum of
all amounts applied in reduction of the principal balance of such Component
and Realized Losses allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary
Statement.
Component Notional Amount: Not applicable.
Conveyance Period: The period from the Closing Date until
the earliest of (i) the date on which the amount on deposit in the
Supplemental Loan Account for each of Loan Group 1 and Loan Group 2 is equal
to or less than $150,000, (ii) an Event of Default occurs or (iii) April 30,
2004.
Conveyance Period Distribution Date: Each Distribution Date
during the Conveyance Period and, if the Conveyance Period ends after the
Distribution Date in a month, the immediately succeeding Distribution Date.
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.
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.
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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 2004-J2, facsimile no. (000) 000-0000), and which is the address
to which notices to and correspondence with the Trustee should be directed.
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.
Cut-off Date: In the case of any Initial Mortgage Loan, the
Initial Cut-off Date, and in the case of any Supplemental Mortgage Loan, the
related Supplemental Cut-off Date.
Cut-off Date Pool Principal Balance: An amount equal to the
sum of (x) the Initial Cut-off Date Pool Principal Balance plus (y) with
respect to Loan Group 1 and Loan Group 2, the amount, if any, deposited in the
Supplemental Loan Account on the Closing Date related to that Loan Group.
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 which 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 which 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.
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)
hereof.
Delay Delivery Mortgage Loans: The Mortgage Loans for which
all or a portion of a related Mortgage File is not delivered to Trustee on the
Closing Date or Supplemental Transfer Date, as applicable. The number of Delay
Delivery Mortgage Loans for any Loan Group on the Closing Date shall not
exceed 50% of the aggregate number of Initial Mortgage Loans in such Loan
Group. The number of Delay Delivery Mortgage Loans for any loan group and
related Supplemental Transfer Date shall not exceed 90% of the number of
Supplemental Mortgage Loans conveyed to such Loan Group on
I-8
such Supplemental Transfer Date. To the extent that Countrywide Home Loans
Servicing LP 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 Home Loans Servicing LP 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) hereof.
Denomination: With respect to each Certificate, the amount
set forth on the face thereof 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.
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.
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
which is two Business Days preceding such Distribution Date.
Discount Mortgage Loan: Any Mortgage Loan in a Loan Group
with an Adjusted Net Mortgage Rate that is less than the Required Coupon for
that Loan Group.
Distribution Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.05 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 2004-J2,
Mortgage Pass-Through Certificates, Series 2004-J2." 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 April, 2004.
Due Date: With respect to any Distribution Date, the related
Due Date is the first day of the month in which that Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts
maintained with a federal or state chartered depository institution or trust
company, the short-term unsecured debt obligations of which (or, in the case
of a depository institution or trust company that is the principal subsidiary
of a holding company, the debt obligations of such holding company) have the
highest short-term ratings of Xxxxx'x
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or Fitch and one of the two highest short-term ratings of S&P, if S&P is a
Rating Agency, at the time any amounts are held on deposit therein, or (ii) an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and
the uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii) a
trust account or accounts maintained with (a) the trust department of a
federal or state chartered depository institution or (b) a trust company,
acting in its fiduciary capacity or (iv) 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.
Eligible Repurchase Month: As defined in Section 3.11 hereof.
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) hereof.
Event of Default: As defined in Section 7.01 hereof.
Excess Loss: The amount of any (i) Fraud Loss realized after
the Fraud Loss Coverage Termination Date, (ii) Special Hazard Loss realized
after the Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss
realized after the Bankruptcy Coverage Termination 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.
Expense Rate: As to each Mortgage Loan, the sum of the Master
Servicing Fee Rate and the Trustee Fee Rate.
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 thereto.
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Final Certification: As defined in Section 2.02(a) hereof.
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 thereto.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud
Loss has occurred.
Fraud Loss Coverage Amount: As of the Closing Date,
$8,099,108 subject to reduction from time to time, by the amount of Fraud
Losses allocated to the Certificates. In addition, on each anniversary of the
Cut-off Date, the Fraud Loss Coverage Amount will be reduced as follows: (a)
on the first, second, third and fourth anniversaries of the Cut-off Date, to
an amount equal to the lesser of (i) 1%, in the case of the first, second
third and fourth anniversaries of the then current Pool Stated Principal
Balance on such anniversary and (ii) the excess of the Fraud Loss Coverage
Amount as of the preceding anniversary of the Cut-off Date over the cumulative
amount of Fraud Losses allocated to the Certificates since such preceding
anniversary; and (b) on the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at
which the Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which
a loss is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Insurance
Policy because of such fraud, dishonesty or misrepresentation.
Group 1 Senior Certificates: As specified in the Preliminary
Statement.
Group 2 Senior Certificates: As specified in the Preliminary
Statement.
Index: With respect to any Interest 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 Interest 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 Bankruptcy Coverage Amount: $111,055.
Initial Certification: As defined in Section 2.02(a) hereof.
Initial Component Balance: As specified in the Preliminary
Statement.
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Initial Cut-off Date: With respect to any Initial Mortgage
Loan, the later of (i) the date of origination of such Mortgage Loan and (ii)
March 1, 2004.
Initial Cut-off Date Pool Principal Balance: $404,955,380.51.
Initial Mortgage Loan: With respect to (i) any Mortgage Loan
included in Loan Group 1 and Loan Group 2, any Mortgage Loan conveyed to the
Trust Fund on the Closing Date pursuant to this Agreement as identified on the
Mortgage Loan Schedule delivered to the Trustee on the Closing Date and (ii)
any Mortgage Loan included in any other Loan Group, all such Mortgage Loans.
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 Accrual Period: With respect to each Class of Delay
Certificates, its corresponding Subsidiary REMIC Regular Interest and any
Distribution Date, the calendar month prior to the month of such Distribution
Date. With respect to any Class of Non-Delay Certificates, its corresponding
Subsidiary REMIC Regular Interest and any Distribution Date, the one month
period commencing on the 25th day of the month preceding the month in which
such Distribution Date occurs (other than the first Distribution Date, for
which it is the Closing Date) and ending on the 24th day of the month in which
such Distribution Date occurs.
Interest Determination Date: With respect to (a) any
Interest Accrual Period for any LIBOR Certificates and (b) any Interest
Accrual Period for the COFI Certificates for which the applicable Index is
LIBOR, the second Business Day prior to the first day of such Interest Accrual
Period.
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 borrower) acquires the Primary Insurance Policy
and charges the related borrower 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.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property) which 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 Group: Any of Loan Group 1 or Loan Group 2, as
applicable.
Loan Group 1: All Mortgage Loans identified as Loan Group 1
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Loan Group 2
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 3: All Mortgage Loans identified as Loan Group 3
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 4: All Mortgage Loans identified as Loan Group 4
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 5: All Mortgage Loans identified as Loan Group 5
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 6: All Mortgage Loans identified as Loan Group 6
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group 7: All Mortgage Loans identified as Loan Group 7
Mortgage Loans on the Mortgage Loan Schedule.
Loan Group Principal Balance: As to any Distribution Date
and Loan Group, (x) the aggregate Stated Principal Balance of the Mortgage
Loans in that Loan Group as of the Due Date in the month preceding the month
of the Distribution Date (after giving effect to Principal Prepayments
received in the Prepayment Period related to such prior Due Date) plus (y)
with respect to Loan Group 1 and Loan Group 2, the amount, if any, on deposit
in the Supplemental Loan Account related to that Loan Group.
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
such 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.
Lower Tier REMIC: As described in the Preliminary Statement.
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.
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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, 0.25% per annum.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS
on the MERS System.
MERS(R)System: The system of recording transfers of
mortgages electronically maintained by MERS.
Middle Tier REMIC: As described in the Preliminary Statement.
MIN: The Mortgage Identification Number for any MERS
Mortgage Loan.
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
hereof 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 Loans: Such of the mortgage loans as from time to
time are transferred and assigned to the Trustee pursuant to the provisions
hereof and that are held as a part of the Trust Fund
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(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 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, the addition of any Supplemental Mortgage Loans
pursuant to the provisions of this Agreement and any Supplemental Transfer
Agreement 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 hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan by Loan Group:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the
Mortgaged Property, including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off
Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling
at the time of origination was represented to be
owner-occupied;
(x) a code indicating whether the residential dwelling
is either (a) a detached single family dwelling (b)
a dwelling in a de minimis PUD, (c) a condominium
unit or PUD (other than a de minimis PUD), (d) a
two- to four-unit residential property or (e) a
Cooperative Unit;
(xi) the Mortgage Rate;
(xii) a code indicating whether the Mortgage Loan is a
Countrywide Mortgage Loan or a Park Granada
Mortgage Loan;
(xiii) 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;
(xiv) the purpose for the Mortgage Loan;
(xv) the type of documentation program pursuant to which
the Mortgage Loan was originated;
(xvi) the direct servicer as of the Cut-off Date; and
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(xvii) a code indicating whether the Mortgage Loan is a
MERS Mortgage Loan.
Such schedule shall also set forth the total of the amounts described
under (iv) and (v) above for all of the Mortgage Loans and for each Loan
Group. Countrywide shall update the Mortgage Loan Schedule in connection with
each Supplemental Transfer Agreement within a reasonable period of time after
delivery to it of the Schedule of Supplemental Mortgage Loans attached to the
related Supplemental Transfer Agreement as Schedule A thereto.
Mortgage Loans: Such of the mortgage loans as from time to
time are transferred and assigned to the Trustee pursuant to the provisions
hereof and any Supplemental Transfer 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 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.
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 and Loan Group, the amount by which the aggregate of Prepayment Interest
Shortfalls for such Loan Group exceeds an amount equal to the sum of (a) the
Compensating Interest for such Loan Group and Distribution Date and (b) the
excess, if any, of the Compensating Interest for each of the other Loan Groups
for such Distribution Date over Prepayment Interest Shortfalls for the
Mortgage Loans in such other Loan Groups.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Non-Discount Mortgage Loan: Any Mortgage Loan in a Loan
Group with an Adjusted Net Mortgage Rate that is greater than or equal to the
Required Coupon for that Loan Group.
Non-PO Formula Principal Amount: As to any Distribution Date
and Loan Group, the sum of (i) the sum of (x) the applicable Non-PO Percentage
of (a) the principal portion of each Scheduled Payment (without giving effect,
prior to the Bankruptcy Coverage Termination Date, to any reductions thereof
caused by any Debt Service Reductions or Deficient Valuations) due on each
Mortgage Loan in the related Loan Group on the related Due Date, (b) the
Stated Principal Balance of each Mortgage Loan in the related Loan Group that
was repurchased by a 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 in such Loan Group
received with respect to such Distribution Date, (d) any Insurance Proceeds or
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans in
the related Loan Group 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 in a Loan Group
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that became a Liquidated Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the amount of the Liquidation Proceeds
allocable to principal received during the calendar month preceding the month
of such Distribution Date with respect to such Mortgage Loan, and (f) all
Principal Prepayments for such Loan Group received during the related
Prepayment Period, (ii) (A) any Subsequent Recoveries for such Loan Group
received during the calendar month preceding the month of such Distribution
Date, or (B) with respect to Subsequent Recoveries attributable to a Discount
Mortgage Loan in such Loan Group which incurred (1) an Excess Loss or (2) a
Realized Loss after the Senior Credit Support Depletion Date, the Non-PO
Percentage of any Subsequent Recoveries received during the calendar month
preceding the month of such Distribution Date, and (iii) with respect to Loan
Group 1 and Loan Group 2 and the last Conveyance Period Distribution Date, the
related Remaining Non-PO Supplemental Loan Amount.
Non-PO Percentage: As to any Discount Mortgage Loan in a
Loan Group, a fraction (expressed as a percentage) the numerator of which is
the Adjusted Net Mortgage Rate of such Discount Mortgage Loan and the
denominator of which is the Required Coupon for such Loan Group. As to any
Non-Discount Mortgage Loan, 100%.
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,
Subsequent Recoveries 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.
Notional Amount: With respect to any Distribution Date and
the Class 3-A-8 Certificates, an amount equal to the product of (x) a
fraction, the numerator of which is 2.00 and the denominator or which is 5.50
and (y) the aggregate Class Certificate Balance of the Class 3-A-1 and Class
3-A-2 Certificates immediately prior to such Distribution Date. With respect
to any Distribution Date and the Class 1-X Certificates, an amount equal to
the aggregate of the Stated Principal Balances of the Non-Discount Mortgage
Loans in Loan Group 1 as of the Due Date in the preceding month (after giving
effect to Principal Prepayments received in the Prepayment Period related to
such Due Date). With respect to any Distribution Date and the Class 2-X
Certificates, an amount equal to the aggregate of the Stated Principal
Balances of the Non-Discount Mortgage Loans in Loan Group 2 as of the Due Date
in the preceding month (after giving effect to Principal Prepayments received
in the Prepayment Period related to such Due Date). With respect to any
Distribution Date and the Class 3-X Certificates, an amount equal to the
aggregate of the Stated Principal Balances of the Non-Discount Mortgage Loans
in Loan Group 3 as of the Due Date in the preceding month (after giving effect
to Principal Prepayments received in the Prepayment Period related to such Due
Date). With respect to any Distribution Date and the Class 4-X Certificates,
an amount equal to the aggregate of the Stated Principal Balances of the
Non-Discount Mortgage Loans in Loan Group 4 as of the Due Date in the
preceding month (after giving effect to Principal Prepayments received in the
Prepayment Period related to such Due Date). With respect to any Distribution
Date and the Class 5-X Certificates, an amount equal to the aggregate of the
Stated Principal Balances of the Non-Discount Mortgage Loans in Loan Group 5
as of the Due Date in the preceding month (after giving effect to Principal
Prepayments received in the Prepayment Period related to such Due Date). With
respect to any Distribution Date and the Class 6-X Certificates, an amount
equal to the aggregate of the Stated Principal Balances of the Non-Discount
Mortgage Loans in Loan Group 6 as of the Due Date in the preceding month
(after giving effect to Principal Prepayments received in the Prepayment
Period related to such Due Date). With respect to any Distribution Date and
the Class 7-X Certificates, an amount equal to the aggregate of the Stated
Principal Balances of the Non-Discount
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Mortgage Loans in Loan Group 7 as of the Due Date in the preceding month
(after giving effect to Principal Prepayments received in the Prepayment
Period related to such Due Date).
Notional Amount Certificates: As specified in the Preliminary
Statement.
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 or (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.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for 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 the Depositor and the Master Servicer, (ii) not
have any direct financial interest in the Depositor or the Master Servicer or
in any affiliate of either, and (iii) not be connected with the Depositor or
the Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Optional Termination: The termination of the trust created
hereunder in connection with the purchase of the Mortgage Loans pursuant to
Section 9.01(a) hereof.
Original Applicable Credit Support Percentage: With respect
to each of the following Classes of Subordinated Certificates, the
corresponding percentage described below, as of the Closing Date:
Class M.......... 4.75%
Class B-1........ 2.75%
Class B-2........ 1.80%
Class B-3........ 1.25%
Class B-4........ 0.70%
Class B-5........ 0.30%
Original Mortgage Loan: The mortgage loan refinanced in
connection with the origination of a Refinancing Mortgage Loan.
Original Subordinate Principal Balance: On or prior to the
sixth Senior Termination Date, the Subordinated Percentage for a Loan Group of
the aggregate of the applicable Non-PO Percentage of the Stated Principal
Balances of the Mortgage Loans in such Loan Group, in each case as of the
Cut-off Date; or if such date is after the sixth Senior Termination Date, the
aggregate of the Class Certificate Balances of the Subordinated Certificates
as of the Closing Date.
OTS: The Office of Thrift Supervision.
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Outside Reference Date: As to any Interest 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
(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 such Due Date or during the
Prepayment Period related to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Group: As defined in Section 4.05.
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 Loans Schedule for which Park Granada is the
applicable Seller.
Pass-Through Rate: For any interest bearing Class of
Certificates or Component, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
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.
Permitted Investments: At any time, any one or more of the
following obligations and securities:
(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
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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
(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
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)(l) 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
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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
hereunder 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, limited liability company, association, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificate: As specified in the Preliminary
Statement.
Planned Balance: With respect to any group of Planned
Principal Classes or Components in the aggregate and any Distribution Date
appearing in Schedule V hereto, the Aggregate Planned Balance for such group
and Distribution Date. With respect to any other Planned Principal Class or
Component and any Distribution Date appearing in Schedule V hereto, the
applicable amount appearing opposite such Distribution Date for such Class or
Component.
Planned Principal Classes: As specified in the Preliminary
Statement.
PO Formula Principal Amount: As to any Distribution Date and
Class PO Component, the sum of (i) the sum of the applicable PO Percentage of
(a) the principal portion of each Scheduled Payment (without giving effect,
prior to the Bankruptcy Coverage Termination Date, to any reductions thereof
caused by any Debt Service Reductions or Deficient Valuations) due on each
Mortgage Loan in the related Loan Group on the related Due Date, (b) the
Stated Principal Balance of each Mortgage Loan in the related Loan Group that
was repurchased by a 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 in the related Loan Group
received with respect to such Distribution Date, (d) any Insurance Proceeds or
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans in
the related Loan Group 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 in the related Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the amount of Liquidation Proceeds allocable to principal
received with respect to such Mortgage Loan during the calendar month
preceding the month of such Distribution Date with respect to such Mortgage
Loan and (f) all Principal Prepayments with respect to the Mortgage Loans in
the related Loan Group received during the related Prepayment Period, and (ii)
with respect to Subsequent Recoveries attributable to a Discount Mortgage Loan
in the related Loan Group which incurred (1) an Excess Loss or (2) a Realized
Loss after the Senior Credit Support Depletion Date, the PO Percentage of any
Subsequent Recoveries on the Mortgage Loans in such Loan Group received during
the calendar month preceding the month of such Distribution Date.
PO Percentage: As to any Discount Mortgage Loan in a Loan
Group, a fraction (expressed as a percentage) the numerator of which is the
excess of the Required Coupon for such Loan Group over the Adjusted Net
Mortgage Rate of such Discount Mortgage Loan and the denominator of which is
such Required Coupon. As to any Non-Discount Mortgage Loan, 0%.
Pool Characteristics: With respect to the Group 1 Mortgage
Loans and the Group 2 Mortgage Loans as of the Cut-off Date, the
characteristics set forth in the fifth bullet point under "The
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Mortgage Pool--Conveyance of Supplemental Mortgage Loans" for such Loan Group,
set forth on page S-49 of the Prospectus Supplement.
Pool Stated Principal Balance: As of any date of
determination, the aggregate of the Stated Principal Balances of the
Outstanding Mortgage Loans.
Prepayment Interest Excess: As to any Principal Prepayment
received by Countrywide Servicing from the first day through the fifteenth day
of any calendar month (other than the calendar month in which the Initial
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 (a) by Countrywide Servicing
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
March 1, 2004) and on or before the last day of the month preceding the month
of such Distribution Date or (b) by any other servicer during 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 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 (i) with respect to any Mortgage Loan directly serviced by
Countrywide Home Loans Servicing LP, the period from the 16th day of a
calendar month (or, in the case of the first Distribution Date, from March 1,
2004) through the 15th day of the following calendar month and (ii) with
respect to any other Mortgage Loan, the calendar month immediately preceding
the month of that Distribution Date.
Prepayment Shift Percentage: Not applicable.
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.
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.
Priority Amount: Not applicable
Priority Percentage: Not applicable.
Private Certificate: As specified in the Preliminary
Statement.
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Pro Rata Share: As to any Distribution Date, the
Subordinated Principal Distribution Amount and any Class of Subordinated
Certificates, the portion of the Subordinated Principal Distribution Amount
allocable to such Class, equal to the product of the Subordinated Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Certificate Balance thereof and the denominator of
which is the aggregate of the Class Certificate Balances of the Subordinated
Certificates.
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 Supplement: The Prospectus Supplement dated March
29, 2004 relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required
to be purchased by a Seller pursuant to Section 2.02 or 2.03 hereof 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, and (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 hereof 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, as is designated by the
Depositor, notice of which designation shall be given to the Trustee.
References herein 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
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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.
To the extent the Master Servicer receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the Realized Loss
with respect to that Mortgage Loan will be reduced by 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, the
close of business on the last Business Day of the month preceding the month in
which such Distribution Date occurs.
Reference Bank: As defined in Section 4.07.
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.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reductions: With respect to any Distribution Date
and any Mortgage Loan as to which there has been a reduction in the amount of
interest collectible thereon for the most recently ended calendar month as a
result of the application of the Relief Act, the amount, if any, by which (i)
interest collectible on such Mortgage Loan for the most recently ended
calendar month is less than (ii) interest accrued thereon for such month
pursuant to the Mortgage Note.
Remaining Non-PO Supplemental Loan Amount: With respect to
the last Conveyance Period Distribution Date, the excess of the amount on
deposit in the Supplemental Loan Account for Loan Group 1 or Loan Group 2, as
applicable, on such date, over the related Remaining PO Supplemental Loan
Amount.
Remaining PO Supplemental Loan Amount: With respect to the
last Conveyance Period Distribution Date and Loan Group 1 or Loan Group 2, the
excess of $43,129, or $1,981, respectively, over the product of the applicable
PO Percentage of the Stated Principal Balance of each Supplemental Mortgage
Loan in Loan Group 1 or Loan Group 2, respectively, as of the related
Supplemental Cut-off Date.
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.
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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.
Request for Release: The Request for Release submitted by
the Master Servicer to the Trustee, substantially in the form of Exhibits M
and N, as appropriate.
Required Coupon: With respect to the Mortgage Loans in Loan
Group 1, 6.00% per annum, with respect to the Mortgage Loans in Loan Group 2,
6.50% per annum, with respect to the Mortgage Loans in Loan Group 3, 5.50% per
annum, with respect to the Mortgage Loans in Loan Group 4, 6.00% per annum,
with respect to the Mortgage Loans in Loan Group 5, 5.00% per annum, with
respect to the Mortgage Loans in Loan Group 6, 5.00% per annum and with
respect to the Mortgage Loans in Loan Group 7, 6.00% per annum.
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.
Restricted Classes: As defined in Section 4.02(e).
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.
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 herein, 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.
Scheduled Principal Distribution Amount: Not applicable.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide or Park Granada, as applicable.
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Senior Certificates: As specified in the Preliminary
Statement.
Senior Credit Support Depletion Date: The date on which the
Class Certificate Balance of each Class of Subordinated Certificates has been
reduced to zero.
Senior Percentage: As to any Senior Certificate Group and
Distribution Date, the percentage equivalent of a fraction the numerator of
which is the aggregate of the Class Certificate Balances of each Class of
Senior Certificates (other than the related Class PO Component, if any, and
Notional Amount Certificates) in such Senior Certificate Group immediately
prior to such Distribution Date and the denominator of which is the aggregate
of the applicable Non-PO Percentage of the Stated Principal Balance of each
Mortgage Loan in the related Loan Group as of the Due Date occurring in the
month prior to the month of such Distribution Date (after giving effect to
prepayments received in the Prepayment Period related to such prior Due Date);
provided, however, that on any Distribution Date after the sixth Senior
Termination Date, the Senior Percentage for the Senior Certificates of the
remaining Senior Certificate Group is the percentage equivalent of a fraction,
the numerator of which is the aggregate of the Class Certificate Balances of
each such Class of Senior Certificates (other than the related Class PO
Component, if any, and Notional Amount Certificates) of such remaining Senior
Certificate Group immediately prior to such Distribution Date and the
denominator is the aggregate of the Class Certificate Balances of all Classes
of Certificates (other than the Class PO Certificates and the Notional Amount
Certificates), immediately prior to such Distribution Date.
Senior Prepayment Percentage: As to a Senior Certificate
Group and any Distribution Date during the five years beginning on the first
Distribution Date, 100%. The Senior Prepayment Percentage for any Distribution
Date occurring on or after the fifth anniversary of the first Distribution
Date will, except as provided herein, be as follows: for any Distribution Date
in the first year thereafter, the related Senior Percentage plus 70% of the
related Subordinated Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the related Senior Percentage
plus 60% of the related Subordinated Percentage for such Distribution Date;
for any Distribution Date in the third year thereafter, the related Senior
Percentage plus 40% of the related Subordinated Percentage for such
Distribution Date; for any Distribution Date in the fourth year thereafter,
the related Senior Percentage plus 20% of the related Subordinated Percentage
for such Distribution Date; and for any Distribution Date thereafter, the
related Senior Percentage for such Distribution Date (unless on any
Distribution Date the Senior Percentage exceeds the initial Senior Percentage
of such Senior Certificate Group, in which case the Senior Prepayment
Percentage for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in any Senior Prepayment Percentage
will occur unless both of the Senior Step Down Conditions are satisfied with
respect to all of the Loan Groups.
Senior Principal Distribution Amount: As to any Distribution
Date and Senior Certificate Group, the sum of (i) the sum, not less than zero,
of the related Senior Percentage of the applicable Non-PO Percentage of all
amounts described in subclauses (a) through (d) of clause (i) of the
definition of "Non-PO Formula Principal Amount" with respect to the related
Loan Group for such Distribution Date, (ii) with respect to any Mortgage Loan
in the related Loan Group that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the lesser of
(x) the related Senior Percentage of the applicable Non-PO Percentage of the
Stated Principal Balance of such Mortgage Loan and (y) either (A) the related
Senior Prepayment Percentage of the applicable Non-PO Percentage of the amount
of the Liquidation Proceeds allocable to principal received on the Mortgage
Loan or (B) if an Excess Loss was sustained with respect to such Liquidated
Mortgage Loan during such prior calendar month, the related Senior Percentage
of the applicable Non-PO Percentage of the amount of the Liquidation Proceeds
allocable to principal received with respect to such Mortgage Loan, and (iii)
the sum of (x) the related Senior Prepayment Percentage of the applicable
Non-PO Percentage of the amounts described in subclause (f) of clause (i) of
the definition of "Non-PO Formula Principal Amount"
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with respect to the related Loan Group for such Distribution Date plus (y)
with respect to Loan Group 1 and Loan Group 2, on the last Conveyance Period
Distribution Date, the amount, if any, of the related Remaining Non-PO
Supplemental Loan Amount not applied in clause (i) hereof plus (z) the related
Senior Prepayment Percentage of any Subsequent Recoveries described in clause
(ii) of the definition of "Non-PO Formula Principal Amount" for such
Distribution Date; provided, however that if a Bankruptcy Loss that is an
Excess Loss is sustained with respect to a Mortgage Loan in the related Loan
Group that is not a Liquidated Mortgage Loan, the Senior Principal
Distribution Amount will be reduced on the related Distribution Date by the
related Senior Percentage of the applicable Non-PO Percentage of the principal
portion of such Bankruptcy Loss; provided further, however, on any
Distribution Date after the sixth Senior Termination Date, the Senior
Principal Distribution Amount for the remaining Senior Certificate Group will
be calculated pursuant to the above formula based on all the Mortgage Loans in
the Mortgage Pool, as opposed to the Mortgage Loans in the related Loan Group
and, if such Distribution Date is after the sixth Senior Termination Date,
shall be reduced by the amount of the principal distribution made pursuant to
(a) if the Group 1 Senior Certificates are reduced to zero on such date,
Section 4.02(a)(1)(iv)(y), (b) if the Group 2 Senior Certificates are reduced
to zero on such date, Section 4.02(a)(2)(iv)(y), (c) if the Group 3 Senior
Certificates are reduced to zero on such date, Section 4.02(a)(3)(iv)(y), (d)
if the Group 4 Senior Certificates are reduced to zero on such date, Section
4.02(a)(4)(iv)(y), (e) if the Group 5 Senior Certificates are reduced to zero
on such date, Section 4.02(a)(5)(iv)(y), (f) if the Group 6 Senior
Certificates are reduced to zero on such date, Section 4.02(a)(6)(iv)(y) and
(g) if the Group 7 Senior Certificates are reduced to zero on such date,
Section 4.02(a)(7)(iv)(y).
Senior Step Down Conditions: With respect to all Mortgage
Loans: (i) the outstanding principal balance of all Mortgage Loans delinquent
60 days or more (including Mortgage Loans in foreclosure, REO Property and
Mortgage Loans the mortgagors of which are in bankruptcy) (averaged over the
preceding six month period), as a percentage of (a) if such date is on or
prior to the sixth Senior Termination Date, the Subordinated Percentage for
such Loan Group of the aggregate of the applicable Non-PO Percentage of the
aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group,
or (b) if such date is after the sixth Senior Termination Date, the aggregate
Class Certificate Balance of the Subordinated Certificates, does not equal or
exceed 50%, and (ii) cumulative Realized Losses on the Mortgage Loans in each
Loan Group do not exceed: (a) for the Distribution Date on the fifth
anniversary of the first Distribution Date, 30% of the Original Subordinate
Principal Balance, (b) for the Distribution Date on the sixth anniversary of
the first Distribution Date, 35% of the Original Subordinate Principal
Balance, (c) for the Distribution Date on the seventh anniversary of the first
Distribution Date, 40% of the Original Subordinate Principal Balance, (d) for
the Distribution Date on the eighth anniversary of the first Distribution
Date, 45% of the Original Subordinate Principal Balance, and (e) for the
Distribution Date on the ninth anniversary of the first Distribution Date, 50%
of the Original Subordinate Principal Balance.
Senior Termination Date: For any Senior Certificate Group,
the Distribution Date on which the aggregate Class Certificate Balance of the
Senior Certificates in such Senior Certificate Group (other than the related
Class PO Component, if any) has been reduced to zero.
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 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
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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.
Shift Percentage: Not applicable.
Special Hazard Coverage Termination Date: The point in time
at which the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a
Mortgaged Property on account of direct physical loss but not including (i)
any loss of a type covered by a hazard insurance policy or a flood insurance
policy required to be maintained with respect to such Mortgaged Property
pursuant to Section 3.09 to the extent of the amount of such loss covered
thereby, or (ii) any loss caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the
part of the Trustee, the Master Servicer or any of their agents or
employees (without regard to any portion of the loss not covered by
any errors and omissions policy);
(c) errors in design, faulty workmanship or faulty
materials, unless the collapse of the property or a part thereof
ensues and then only for the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation
or radioactive or chemical contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate
or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss;"
(e) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against an
actual, impending or expected attack:
1. by any government or sovereign power, de
jure or de facto, or by any authority maintaining or using
military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power,
authority or forces;
(f) any weapon of war employing nuclear fission, fusion
or other radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war,
usurped power or action taken by governmental authority in hindering,
combating or defending against such an occurrence, seizure or
destruction under quarantine or customs regulations, confiscation by
order of any government or public authority or risks of contraband or
illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the
first Distribution Date, $4,049,554. With respect to any Distribution Date
after the first Distribution Date, the lesser of (a) the greatest of (i) 1% of
the aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged Properties
located in the single California postal zip code area having the
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highest aggregate principal balance of any such zip code area and (b) the
Special Hazard Loss Coverage Amount as of the Closing Date less the amount, if
any, of Special Hazard Losses allocated to the Certificates since the Closing
Date. All principal balances for the purpose of this definition will be
calculated as of the first day of the calendar month preceding the month of
such Distribution Date after giving effect to Scheduled Payments on the
Mortgage Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as
to which a Special Hazard Loss has occurred.
SR-A-R Interest: Not applicable.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due
Date, the unpaid principal balance of such Mortgage Loan as of such Due Date,
as specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to the sum of: (i) the
payment of principal due on such Due Date and irrespective of any delinquency
in payment by the related mortgagor and (ii) any 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.
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.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordinated Percentage: As to any Distribution Date on or
prior to the sixth Senior Termination Date and any Loan Group, 100% minus the
Senior Percentage for the Senior Certificate Group relating to such Loan Group
for such Distribution Date. As to any Distribution Date after the sixth Senior
Termination Date, 100% minus the Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution
Date and Loan Group, 100% minus the related Senior Prepayment Percentage for
such Distribution Date.
Subordinated Principal Distribution Amount: With respect to
any Distribution Date and Loan Group, an amount equal to the excess of (A) the
sum, not less than zero, of the sum of (i) the Subordinated Percentage of the
applicable Non-PO Percentage for such Loan Group of all amounts described in
subclauses (a) through (d) of clause (i) of the definition of "Non-PO Formula
Principal Amount" for such Distribution Date, (ii) with respect to each
Mortgage Loan that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the applicable Non-PO
Percentage of the amount of the Liquidation Proceeds allocated to principal
received with respect thereto remaining after application thereof pursuant to
clause (ii) of the definition of Senior Principal Distribution Amount, up to
the Subordinated Percentage for such Loan Group of the applicable Non-PO
Percentage of the Stated Principal Balance of such Mortgage Loan, and (iii)
the Subordinated Prepayment Percentage of the applicable Non-PO Percentage of
all amounts described in subclause (f) of clause (i) of the definition of
"Non-PO Formula Principal Amount" for such Loan Group and Distribution Date,
and
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(iv) the Subordinated Prepayment Percentage of any Subsequent Recoveries
described in clause (ii) of the definition of "Non-PO Formula Principal
Amount" for such Distribution Date, over (B) the amount of any payments in
respect of Class PO Deferred Amounts for the related Class PO Component on the
related Distribution Date, provided, however, that on any Distribution Date
after the sixth Senior Termination Date, the Subordinated Principal
Distribution Amount will not be calculated by Loan Group but will equal the
amount calculated pursuant to the formula set forth above based on the
applicable Subordinated Percentage for the Subordinated Certificates for such
Distribution Date with respect to all of the Mortgage Loans as opposed to the
Mortgage Loans in the related Loan Group.
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.
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 hereof.
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) not be a
Cooperative Loan unless the Deleted Mortgage Loan was a Cooperative Loan and
(vi) comply with each representation and warranty set forth in Section 2.03
hereof.
Substitution Adjustment Amount: The meaning ascribed to such
term pursuant to Section 2.03.
Supplemental Amount: The amount deposited in the
Supplemental Loan Account on the Closing Date, which shall equal
$13,647,973.89, of which $4,759,108.07 shall be allocated to purchase
Supplemental Mortgage Loans for Loan Group 1 (the "Loan Group 1 Supplemental
Loan Amount") and $8,888,865.82 shall be allocated to purchase Supplemental
Mortgage Loans for Loan Group 2 (the "Loan Group 2 Supplemental Loan Amount").
Supplemental Cut-off Date: With respect to any Supplemental
Mortgage Loan, the later of (i) the date of origination of such Mortgage Loan
and (ii) the first day of the month in which the related Supplemental Transfer
Date occurs.
Supplemental Loan Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Section 3.05 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 CWALT, Inc., Mortgage
Pass-Through Certificates, Series 2004-J2." Funds in the Supplemental Loan
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement and shall not be a part of any REMIC
created hereunder; provided, however, that any investment income earned from
Permitted Investments made with funds in the Supplemental Loan Account shall
be for the account of the Depositor.
Supplemental Mortgage Loan: Any Mortgage Loan in Loan Group
1 or Loan Group 2, other than an Initial Mortgage Loan, conveyed to the Trust
Fund pursuant to Section 2.01 hereof and to a
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Supplemental Transfer Agreement, which Mortgage Loan shall be included in such
Loan Group and shall be listed on the revised Mortgage Loan Schedule delivered
pursuant to this Agreement and on Schedule A to such Supplemental Transfer
Agreement. When used with respect to a single Supplemental Transfer Date,
Supplemental Mortgage Loan shall mean a Supplemental Mortgage Loan conveyed to
the Trust Fund on that Supplemental Transfer Date.
Supplemental Transfer Agreement: A Supplemental Transfer
Agreement substantially in the form of Exhibit P hereto, executed and
delivered by the related Seller or Sellers, the Master Servicer, the Depositor
and the Trustee as provided in Section 2.01 hereof.
Supplemental Transfer Date: For any Supplemental Transfer
Agreement, the date the related Supplemental Mortgage Loans are transferred to
the Trust Fund pursuant to the related Supplemental Transfer Agreement.
Targeted Balance: With respect to any group of Targeted
Principal Classes or Components in the aggregate and any Distribution Date
appearing in Schedule V hereto, the Aggregate Targeted Balance for such group
and Distribution Date. With respect to any other Targeted Principal Class or
Component and any Distribution Date appearing in Schedule V hereto, the
applicable amount appearing opposite such Distribution Date for such Class or
Component.
Targeted Principal Classes: As specified in the Preliminary
Statement.
Tax Matters Person: The person designated as "tax matters
person" in the manner provided under Treasury regulationss.1.860F-4(d) and
temporary Treasury regulationss.301.6231(a)(7)1T. Initially, the Tax Matters
Person shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate
with a Denomination of $0.01.
Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Trust Fund: The corpus of the trust created hereunder
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 thereof; (ii) the Certificate
Account, the Distribution Account, the Supplemental Loan Account and the
Capitalized Interest Account 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 hereunder, 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 sum of (i) the Pool
Stated Principal Balance plus (ii) any amounts remaining in the Supplemental
Loan Account (excluding any investment earnings thereon) with respect to such
Distribution Date.
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Trustee Fee Rate: With respect to each Mortgage Loan, the
per annum rate agreed upon in writing on or prior to the Closing Date by the
Trustee and the Depositor.
Undercollateralized Group: As defined in Section 4.05.
Underwriter's Exemption: Prohibited Transaction Exemption
2002-41, 67 Fed. Reg. 54487 (2002), as amended (or any successor thereto), or
any substantially similar administrative exemption granted by the U.S.
Department of Labor.
Underwriter: As specified in the Preliminary Statement.
Unscheduled Principal Distribution Amount: Not applicable.
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), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on
such date.
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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
hereof, 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 Initial Mortgage Loans including all interest and
principal received or receivable by such Seller on or with respect to the
applicable Initial Mortgage Loans after the Initial Cut-off Date and all
interest and principal payments on the related Initial Mortgage Loans received
prior to the Initial 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 Initial Mortgage Loans on or before the Initial
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 both Countrywide Mortgage Loans and Park
Granada Mortgage Loans), such delivery may take place within thirty (30) days
following the Closing Date or twenty (20) days following the applicable
Supplemental Transfer Date, as applicable). 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 Initial Mortgage Loan that does not have a first payment
date on or before the Due Date in the month of the first Distribution Date or
any Supplemental Mortgage Loan that does not have a first payment date on or
before the Due Date in the month after the related Supplemental Transfer Date,
Countrywide shall deposit into the Distribution Account on or before the
Distribution Account Deposit Date relating to the first applicable
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 Initial 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
herein 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 that are
Initial Mortgage Loans will deliver or cause to be delivered to the Trustee
within thirty (30) days following the Closing Date and in the case of the
Delay Delivery Mortgage Loans that are Supplemental Mortgage Loans, will
deliver or cause to be delivered to the Trustee within twenty (20) days
following the applicable Supplemental Transfer 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
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(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 certified by Countrywide as being a true and
complete copy of the Mortgage (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, 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 (which may
be included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of such
mortgage (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 duplicate
original 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;
(E) The executed UCC-1 financing statement with
evidence of recording thereon which have been filed in all
places required to perfect the 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).
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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(R) 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 (and any Supplemental Transfer Agreement, as
applicable) 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(R) 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, (b) all interim recorded assignments or (c) the 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 hereof 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 such interim
assignment, 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.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, the Trustee
shall (i) as the assignee thereof, affix the following language to each
assignment of Mortgage: "CWALT Series 0000-X0, Xxx Xxxx xx Xxx Xxxx, as
trustee", (ii) cause such assignment to be in proper form for recording in the
appropriate public office for real property records and (iii) 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, 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
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recording shall be as soon as practicable after receipt of such information
and in any event within thirty (30) days after receipt thereof and that the
Trustee need not cause to be recorded any assignment which relates to a
Mortgage Loan (a) the Mortgaged Property and Mortgage File relating to which
are located in California or (b) in any other jurisdiction (including Puerto
Rico) under the laws of which in the opinion of counsel the recordation of
such assignment is not necessary to protect the Trustee's and the
Certificateholders' interest in the related Mortgage Loan.
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 hereof.
Notwithstanding anything to the contrary in this Agreement,
within thirty (30) days after the Closing Date with respect to the Initial
Mortgage Loans sold to the Depositor, Countrywide (on its own behalf and on
behalf of Park Granada) 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) 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) 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.
Notwithstanding anything to the contrary in this Agreement, within
twenty (20) days after a Supplemental Transfer Date with respect to all of the
Supplemental Mortgage Loans sold to the Depositor on such Supplemental
Transfer Date, Countrywide (on its own behalf and on behalf of Park Granada)
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) (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 twenty (20) day period provided in
the prior sentence, Countrywide (on its own behalf and on behalf of Park
Granada) 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) shall have five (5) Business Days to cure such failure to deliver. At
the end of such twenty (20) day period the Trustee shall send a Delay Delivery
Certification for the Delay
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Delivery Mortgage Loans delivered during such twenty (20) day period in
accordance with the provisions of Section 2.02.
(d) Subject to the execution and delivery of the related
Supplemental Transfer Agreement as provided in Section 2.01(e) hereof and the
terms and conditions of this Agreement, each Seller sells, transfers, assigns,
sets over and otherwise conveys to the Depositor, without recourse, on each
Supplemental Transfer Date, with respect to each Supplemental Mortgage Loan
sold by such Seller to the Depositor, all the right, title and interest of
that Seller in and to the Supplemental Mortgage Loans sold by it identified in
such Supplemental Transfer Agreement, including all interest and principal
received and receivable by such Seller on or with respect to the related
Supplemental Mortgage Loans on and after the related Supplemental Cut-off Date
(to the extent not applied in computing the Cut-off Date Principal Balance
thereof) or deposited into the Certificate Account by the related Seller,
other than principal and interest due on such Supplemental Mortgage Loans
prior to the related Supplemental Cut-off Date.
Immediately upon the conveyance of the Supplemental Mortgage Loans
referred to in the preceding paragraph, the Depositor sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for benefit of the
Certificateholders, without recourse, all right title and interest in all of
the Supplemental Mortgage Loans.
Each Seller has entered into this Agreement in consideration for the
purchase of the Mortgage Loans sold by such Seller to the Depositor and has
agreed to take the actions specified herein. The Depositor, concurrently with
the execution and delivery of this Agreement, hereby sells, transfers, assigns
and otherwise conveys to the Trustee for the use and benefit of the
Certificateholders, without recourse, all right title and interest in the
portion of the Trust Fund not otherwise conveyed to the Trust Fund pursuant to
Sections 2.01(a) or (b).
(e) Upon five (5) Business Days written notice to the
Trustee, the Depositor, the Master Servicer (if the Master Servicer is not a
Seller) and the Rating Agencies, on any other Business Day during the
Conveyance Period designated by Countrywide; Countrywide and Park Granada, if
applicable, the Depositor and the Trustee shall complete, execute and deliver
a Supplemental Transfer Agreement so long as no Rating Agency has provided
notice that the execution and delivery of such Supplemental Transfer Agreement
will result in a reduction or withdrawal of the any ratings assigned to the
Certificates. After the execution and delivery of such Supplemental Transfer
Agreement, on the Supplemental Transfer Date, the Trustee shall set aside in
the Supplemental Loan Account an amount equal to the Aggregate Supplemental
Purchase Amount.
The transfer of Supplemental Mortgage Loans and the other property
and rights relating to them on a Supplemental Transfer Date is subject to the
satisfaction of each of the following conditions:
(i) each Supplemental Mortgage Loan conveyed on such
Supplemental Transfer Date satisfies the representations and
warranties applicable to it under this Agreement; provided, however,
that with respect to a breach of a representation and warranty with
respect to a Supplemental Mortgage Loan, the obligation under Section
2.03(c) of this Agreement of Countrywide and Park Granada, if
applicable, to cure, repurchase or replace such Supplemental Mortgage
Loan shall constitute the sole remedy against such Seller respecting
such breach available to Certificateholders, the Depositor or the
Trustee;
II-5
(ii) the Trustee, the Underwriter and the Rating Agencies
are provided with an Opinion of Counsel or Opinions of Counsel with
respect to the tax treatment of the Trust Fund, to be delivered as
provided pursuant to Section 2.01(f);
(iii) the Rating Agencies and the Underwriter are provided
with an Opinion of Counsel or Opinions of Counsel with respect to the
validity of the conveyance of the Supplemental Mortgage Loans
conveyed on such Supplemental Transfer Date, to be delivered as
provided pursuant to Section 2.01(f);
(iv) the execution and delivery of such Supplemental
Transfer Agreement or conveyance of the related Supplemental Mortgage
Loans does not result in a reduction or withdrawal of any ratings
assigned to the Certificates by the Rating Agencies;
(v) the Supplemental Mortgage Loans conveyed on such
Supplemental Transfer Date were selected in a manner reasonably
believed not to be adverse to the interests of the
Certificateholders;
(vi) no Supplemental Mortgage Loan conveyed on such
Supplemental Transfer date was 30 or more days delinquent;
(vii) the aggregate PO Percentage of the Stated Principal
Balance of all Supplemental Mortgage Loans shall not exceed the
related PO Sublimit;
(viii) following the conveyance of the Supplemental Mortgage
Loans on such Supplemental Transfer Date to the Trust Fund, the
characteristics of the Mortgage Loans in Loan Group 1 and Loan Group
2 will comply with the Pool Characteristics of the Mortgage Loans in
such Loan Group (including the permitted variances listed therein);
provided, that for the purpose of making these calculations, the
characteristics for any Initial Mortgage Loan made will be taken as
of the Initial Cut-off Date and the characteristics for any
Supplemental Mortgage Loan will be taken as of the related
Supplemental Cut-off Date;
(ix) none of the Sellers or the Depositor shall be insolvent
or shall be rendered insolvent as a result of such transfer; and
(x) the Depositor shall have delivered to the Trustee an
Officer's Certificate confirming the satisfaction of each of these
conditions precedent.
The Trustee shall not be required to investigate or
otherwise verify compliance with these conditions, except for its own receipt
of documents specified above, and shall be entitled to rely on the required
Officer's Certificate.
(f) Within seven Business Days after each Supplemental
Transfer Date, upon (1) delivery to the Trustee by the Depositor or
Countrywide of the Opinions of Counsel referred to in Sections 2.01(e)(ii) and
(iii), (2) delivery to the Trustee by Countrywide of a revised Mortgage Loan
Schedule reflecting the Supplemental Mortgage Loans conveyed on such
Supplemental Transfer Date to Loan Group 1 or Loan Group 2 and (3) delivery to
the Trustee by the Depositor of an Officer's Certificate confirming the
satisfaction of each of the conditions precedent set forth in this Section
2.01(e) and (f), the Trustee shall pay to each Seller the portion of the
Aggregate Supplemental Transfer Amount used to purchase Supplemental Mortgage
Loans from such Seller for a Loan Group from those funds that were set aside
in the Supplemental Loan Account pursuant to Section 2.01(e). The positive
difference, if any, between the Aggregate Supplemental Transfer Amount for a
Loan Group and the Aggregate
II-6
Supplemental Purchase Amount for a Loan Group shall be reinvested by the
Trustee in the Supplemental Loan Account and shall remain designated as a
portion of the Loan Group 1 Supplemental Loan Account or the Loan Group 2
Supplemental Loan Amount, as applicable.
The Trustee shall not be required to investigate or
otherwise verify compliance with the conditions set forth in the preceding
paragraph, except for its own receipt of documents specified above, and shall
be entitled to rely on the required Officer's Certificate.
Within thirty days after the final Supplemental Transfer
Date, the Depositor shall deliver to the Trustee a letter of a nationally
recognized firm of independent public accountants stating, on a Loan Group
basis, whether or not the Supplemental Mortgage Loans in Loan Group 1 or Loan
Group 2 conveyed on such Supplemental Transfer Date conform to the
characteristics in Section 2.01(e)(vi), (vii) and (viii).
(g) Neither the Depositor nor the Trust will acquire or hold
any Mortgage Loan that would violate the representations made by Countrywide
set forth in clauses (50) and (51) 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-1 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) an Initial Certification in the form annexed
hereto as Exhibit F-1. 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 such Initial
Mortgage Loan. 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) a Delay Delivery
Certification with respect to the Initial Mortgage Loans in the form annexed
hereto as Exhibit G-1, 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) a Final Certification with respect
to the Initial Mortgage Loans in the form annexed hereto as Exhibit H-1, 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 which 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
II-7
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) 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) 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) 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) 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) which 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 hereof, 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) 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) and shall
execute and deliver at Countrywide's (on its own behalf and on behalf of Park
Granada) 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), 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) repurchases an 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) or its designee and shall cause such Mortgage to be removed from
registration on the MERS(R) System in accordance with MERS' rules and
regulations or (ii) cause MERS to designate on the MERS(R) System Countrywide
(on its own behalf and on behalf of Park Granada) or its designee as the
beneficial holder of such Mortgage Loan.
(b) Upon delivery of the Supplemental Mortgage Loans
pursuant to a Supplemental Transfer Agreement, the Trustee shall acknowledge
receipt of the documents identified in any Supplemental Certification in the
form annexed hereto as Exhibit F-2 and declare that it will hold such
documents and the other documents delivered to it constituting the Mortgage
Files, and that it 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 Supplemental
Transfer Date to the Depositor, the Master Servicer and Countrywide (on its
own behalf and on behalf of Park
II-8
Granada) a Supplemental Certification in the form annexed hereto as Exhibit
F-2. Based on its review and examination, and only as to the documents
identified in such Supplemental Certification, the Trustee shall acknowledge
that such documents appear regular on their face and relate to such
Supplemental Mortgage Loan. 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 twentieth (20th) day after the Supplemental Transfer
Date, the Trustee shall deliver to the Depositor, the Master Servicer and
Countrywide (on its own behalf and on behalf of Park Granada) a Delay Delivery
Certification with respect to the Supplemental Mortgage Loans in the form
annexed hereto as Exhibit G-2, with any applicable exceptions noted thereon.
Not later than 90 days after the final Supplemental Transfer Date,
the Trustee shall deliver to the Depositor, the Master Servicer and
Countrywide (for itself and on behalf of Park Granada) a Final Certification
with respect to the Supplemental Mortgage Loans in the form annexed hereto as
Exhibit H-2, with any applicable exceptions noted thereon.
If, in the course of such review of the Mortgage Files relating to
the Supplemental Mortgage Loans, the Trustee finds any document constituting a
part of a Mortgage File which 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) 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) 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 or on behalf of
Park Granada) 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) 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) which
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
II-9
the delivery to the Trustee of the Opinion of Counsel required by Section 2.05
hereof, 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) 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) and shall
execute and deliver at Countrywide's (on its own behalf and on behalf of Park
Granada) 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) , or a 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) repurchases a Supplemental 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) and shall cause such Mortgage to be removed from registration on the
MERS(R) System in accordance with MERS' rules and regulations or (ii) cause
MERS to designate on the MERS(R) System Countrywide (on its own behalf and on
behalf of Park Granada) or its designee as the beneficial holder of such
Mortgage Loan.
(c) The Trustee shall retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. 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.
(d) 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 and Schedule II-B 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 Initial
Cut-off Date with respect to the all of the Initial Mortgage Loans and as of
the related Supplemental Cut-off Date with respect to all of the Supplemental
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 Initial Cut-off
Date with respect to the Initial Mortgage Loans that are Countrywide Mortgage
Loans and as of the related Supplemental Cut-off Date with respect to the
Supplemental 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
II-10
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 Initial
Cut-off Date with respect to the Initial Mortgage Loans that are Park Granada
Mortgage Loans and as of the related Supplemental Cut-off Date with respect to
the Supplemental Mortgage Loans that are Park Granada 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.
(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) or a breach of a representation or warranty with respect to
a Supplemental Mortgage Loan under Section 2.01(e)(i) 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. 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) and with respect to a breach of a
representation and warranty with respect to a Supplemental Mortgage Loan sold
by it under Section 2.01(e)(i) which 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
hereof, 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) 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
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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)(ii) 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), 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.
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) 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 Initial Mortgage Loan as of the date hereof or such other
date set forth herein that as of the Closing Date, and following the transfer
of the Initial Mortgage Loans to it by each Seller, the Depositor had good
title to the Initial Mortgage Loans and the Initial Mortgage Notes were
subject to no offsets, defenses or counterclaims.
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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)(ii) hereof, together with all rights of the
Depositor to require each 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.
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 each REMIC created hereunder 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.
In connection therewith, the Trustee shall require Countrywide (on its own
behalf and on behalf of Park Granada), 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 hereto in the same
manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty 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 best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
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
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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.
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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 hereof,
subject to the terms hereof (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, 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 hereunder
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(R) System, or cause the removal from
the registration of any Mortgage Loan on the MERS(R) 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.
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
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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 Servicers.
(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
hereunder. 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 and the Trustee in
Respect of the Master Servicer.
The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer hereunder and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the
Master Servicer hereunder and in connection with any such defaulted obligation
to exercise the related rights of the Master Servicer hereunder; provided that
the Master Servicer shall not be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee. Neither the
Trustee nor 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
hereunder or otherwise.
SECTION 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason
no longer be the Master Servicer hereunder (including by reason of an Event of
Default), the Trustee or its successor shall thereupon assume all of the
rights and obligations of the Master Servicer hereunder arising thereafter
(except that the Trustee shall not be (i) liable for losses of the Master
Servicer pursuant to Section 3.09 hereof or any acts or omissions of the
predecessor Master Servicer hereunder), (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 hereunder including, but not
limited to, repurchases or substitutions of Mortgage Loans pursuant to Section
2.02 or 2.03 hereof, (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 hereunder). Any such assumption shall be
subject to Section 7.02 hereof. If the Master Servicer shall for
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any reason no longer be the Master Servicer (including by reason of any Event
of Default), 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.
SECTION 3.05. Collection of Mortgage Loan Payments;
Certificate Account; Distribution Account.
(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 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. 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.
(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 the current
long-term credit rating of Countrywide is reduced below "A-" by S&P or Xxxxx,
xx "X0" by Xxxxx'x, 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 herein, 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 hereunder:
(i) all payments on account of principal on the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, net of the related Master Servicing Fee;
(iii) all Insurance Proceeds, Subsequent Recoveries and
Liquidation Proceeds, other than proceeds to be applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Master Servicer's normal servicing
procedures;
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(iv) any amount required to be 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;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.09(c) and in respect of net monthly
rental income from REO Property pursuant to Section 3.11 hereof;
(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 hereunder.
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.
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 prepayment
penalties, 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 herein 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) [Reserved].
(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 therein 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
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herein 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.
(e) Each institution at which the Certificate Account, the
Capitalized Interest 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 or the Capitalized Interest 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.
Each institution at which the Supplemental Loan Account is maintained shall
invest the funds therein in Permitted Investments that satisfy the
requirements of category (vi) of the definition thereof, which shall mature
and shall be reinvested daily. 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 herein. 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 amount of any losses in the
Supplemental Loan Account or the Capitalized Interest Account incurred in any
such account in respect of any such investments shall promptly be deposited by
the Depositor in the Supplemental Loan Account or Capitalized Interest
Account, as applicable. All income or gain (net of any losses) realized from
any such investment of funds on deposit in the Capitalized Interest Account
shall be credited to the Capitalized Interest Account. 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, the Supplemental Loan Account, the Capitalized Interest
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, the Supplemental Loan Account or the Capitalized
Interest Account prior to any change thereof.
(g) The Trustee shall establish and maintain, on behalf of
the Certificateholders, the Supplemental Loan Account. On the Closing Date
Countrywide shall remit the Supplemental Amount to the Trustee for deposit in
the Supplemental Loan Account. On each Supplemental Transfer Date, upon
satisfaction of the conditions for such Supplemental Transfer Date set forth
in Section 2.01(e), with respect to the related Supplemental Transfer
Agreement, the Trustee shall pay to each Seller selling Supplemental Loans to
the Depositor on such Supplemental Transfer Date the portion of the Aggregate
Supplemental Transfer Amount held in escrow pursuant to Section 2.01(e) as
payment of the purchase price for the Supplemental Mortgage Loans sold by such
Seller. If at any time the Depositor becomes aware that the Cut-off Date
Stated Principal Balance of Supplemental Mortgage Loans reflected on any
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Supplemental Transfer Agreement exceeds the actual Cut-off Date Stated
Principal Balance of the relevant Supplemental Mortgage Loans, the Depositor
may so notify the Trustee and the Trustee shall redeposit into the
Supplemental Loan Account the excess reported to it by the Depositor.
If any funds remain in the Supplemental Loan Account at the end of
the Conveyance Period, to the extent that they represent earnings on the
amounts originally deposited into the Supplemental Loan Account, the Trustee
shall distribute them to the order of the Depositor. The remaining funds shall
be transferred to the Distribution Account to be included as part of principal
distributions to the Group 2 Senior Certificates, to the extent of the
Remaining Supplemental Loan Amount.
(h) The Trustee shall establish and maintain, on behalf of
the Certificateholders, the Capitalized Interest Account. On the Closing Date
Countrywide shall remit the aggregate Capitalized Interest Requirement to the
Trustee for deposit in the Capitalized Interest Account. On each Distribution
Account Deposit Date related to a Conveyance Period Distribution Date, upon
satisfaction of the conditions for such Supplemental Transfer Date set forth
in Section 2.01(e), with respect to the related Supplemental Transfer
Agreement, the Trustee shall transfer from the Capitalized Interest Account to
the Distribution Account an amount equal to the Capitalized Interest
Requirement (which, to the extent required, may include investment earnings on
amounts on deposit therein) with respect to the amount remaining in the
Supplemental Loan Account for the related Distribution Date as identified by
Countrywide in the Supplemental Transfer Agreement.
(i) If any funds remain in the Capitalized Interest Account
at the end of the Conveyance Period, the Trustee shall make the transfer
described in the preceding paragraph if necessary for the remaining Conveyance
Period Distribution Date and the Trustee shall distribute any remaining funds
in the Capitalized Interest Account to the order of the Depositor.
SECTION 3.06. Collection of Taxes, Assessments and Similar
Items; Escrow Accounts.
(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 herein 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 hereof (with respect to taxes and
assessments and insurance premiums) and 3.09 hereof (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 hereof. The Escrow Accounts shall not be a part
of the Trust Fund.
(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
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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.
SECTION 3.07. Access to Certain Documentation and
Information Regarding the Mortgage Loans.
The Master Servicer shall afford each Seller, the Depositor
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.
SECTION 3.08. Permitted Withdrawals from the Certificate
Account and the Distribution Account.
(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;
(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) which 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 hereof;
(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 thereon
after the date of such purchase;
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(vii) to reimburse the Sellers, the Master Servicer or the
Depositor for expenses incurred by any of them and reimbursable
pursuant to Section 6.03 hereof;
(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date,
to withdraw an amount equal to the related Available Funds 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 hereof.
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 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 last paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Distribution Account for the following purposes:
(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 the Agreement pursuant to Section 9.01 hereof.
(c) [Reserved].
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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 Liquidation Proceeds or
Subsequent Recoveries to the extent permitted by Section 3.08 hereof. 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.
(b) 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 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
liquidation proceeds and Subsequent Recoveries.
(c) 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
III-9
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.
(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) hereof, 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
III-10
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.
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
Liquidation Proceeds (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 liquidation proceeds 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. 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 and may, incident to its conservation and
protection of the interests of the Certificateholders, rent the same, or any
part thereof, as the Master Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO Property. 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. The net
monthly rental income, if any, 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.
III-11
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 that event, 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, 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 rented (or 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 management
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.
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 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 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
III-12
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 hereunder 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 hereto, 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) The Master Servicer may agree to a modification of any
Mortgage Loan (the "Modified Mortgage Loan") if (i) the modification is in
lieu of a refinancing and (ii) the Mortgage Rate on the Modified Mortgage Loan
is approximately a prevailing market rate for newly-originated mortgage loans
having similar terms and (iii) the Master Servicer purchases the Modified
Mortgage Loan from the Trust Fund 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 the Master
Servicer 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 the Master Servicer. 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.
The Master Servicer shall deposit the Purchase Price for any
Modified Mortgage Loan in 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 the Master Servicer 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 the Master Servicer any Modified Mortgage Loan previously
transferred and assigned pursuant hereto. The Master Servicer 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 the Master Servicer (but such obligation shall not prevent
the Master Servicer or any other appropriate Person from in good faith
contesting any such tax in appropriate proceedings and shall not prevent the
Master Servicer from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The Master Servicer shall have no
right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that
III-13
the amount of any tax, interest, and penalties, together with interest
thereon, is refunded to the Trust Fund or the Master Servicer.
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. 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 thereon. 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.
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
III-14
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
on all of the Mortgage Loans, if any, with respect to such Distribution Date,
but not to exceed the Compensating Interest for such 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.
Additional servicing compensation in the form of Excess
Proceeds, Prepayment Interest Excess, prepayment penalties, assumption fees,
late payment charges and all income and gain net of any losses realized from
Permitted Investments shall be retained by the Master Servicer to the extent
not required to be deposited in the Certificate Account pursuant to Section
3.05 hereof. 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.
The Master Servicer shall deliver to the Depositor and the
Trustee on or before 80 days after the end of the Master Servicer's fiscal
year, commencing with its 2004 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 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 throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. The Trustee shall forward a copy of
each such statement to each Rating Agency.
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SECTION 3.17. Annual Independent Public Accountants'
Servicing Statement; Financial Statements.
On or before 80 days after the end of the Master Servicer's
fiscal year, commencing with its 2004 fiscal year, the Master Servicer at its
expense shall cause a nationally or regionally recognized firm of independent
public accountants (who may also render other services to the Master Servicer,
a Seller or any affiliate thereof) which is a member of the American Institute
of Certified Public Accountants to furnish a statement to the Trustee and the
Depositor to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement
or of mortgage loans under pooling and servicing agreements substantially
similar to this Agreement (such statement to have attached thereto a schedule
setting forth the pooling and servicing agreements covered thereby) and that,
on the basis of such examination, conducted substantially in compliance with
the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC, such servicing has been
conducted in compliance with such pooling and servicing agreements except for
such significant exceptions or errors in records that, in the opinion of such
firm, the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC requires it to report. In
rendering such statement, such firm may rely, as to matters relating to direct
servicing of mortgage loans by Subservicers, upon comparable statements for
examinations conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FNMA and FHLMC (rendered within one year of such statement) of
independent public accountants with respect to the related Subservicer. Copies
of such statement shall be provided by the Trustee to any Certificateholder
upon request at the Master Servicer's expense, provided that such statement is
delivered by the Master Servicer to the Trustee.
SECTION 3.18. 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.
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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 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.
(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
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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) (1) With respect to Available Funds for Loan Group 1, on
each Distribution Date, the Trustee shall withdraw the Available Funds from
the Distribution Account and apply such funds to distributions on the
specified Classes of Group 1 Certificates in the following order and priority
and, in each case, to the extent of Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 1
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount that would have been
distributed in the absence of such shortfall, provided that prior to
an Accrual Termination Date, the related Accrual Amount shall be
distributed as provided in Section 4.02(a)(1)(iii);
(iii) [Reserved];
(iv) to each Class of Group 1 Senior Certificates,
concurrently as follows:
(x) to the Class PO-1 Component, an amount allocable to
the related PO Formula Principal Amount, up to the
outstanding Component Balance thereof; and
(y) the related Non-PO Formula Principal
Amount, up to the amount of the Senior Principal
Distribution Amount for Loan Group 1 for such Distribution
Date, will be distributed sequentially, to the Class A-R and
Class 1-A-1 Certificates, in that order, until their
respective Class Certificate Balances are reduced to zero;
(v) to the Class PO-1 Component, any Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant
to clause (A) of the definition of the Subordinated Principal
Distribution Amount actually received or advanced for such
Distribution Date (with such amount to be allocated first from
amounts calculated pursuant to (A)(i) and (ii) then (iii) of the
definition of Subordinated Principal Distribution Amount);
(2) With respect to the Available Funds for Loan Group 2 on
each Distribution Date, the Trustee shall withdraw such Available Funds from
the Distribution Account and apply such funds to distributions on the
specified Classes of Group 2 Senior Certificates in the following order and
priority and, in each case, to the extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 2
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount, with respect to the Group
2 Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date,
the related Accrual Amount shall be distributed as provided in
Section 4.02(a)(2)(iii);
IV-2
(iii) [Reserved];
(iv) to each Class of Group 2 Senior Certificates,
concurrently as follows:
(x) to the Class PO-2 Component, an amount allocable to
principal equal to the related PO Formula Principal Amount,
up to the outstanding Component Balance thereof; and
(y) the related Non-PO Formula Principal Amount, up
to the amount of the Senior Principal Distribution Amount
for Loan Group 2 for such Distribution Date, will be
distributed to the Class 2-A-1 Certificates, until its Class
Certificate Balance is reduced to zero;
(v) to the Class PO-2 Component, any related Class PO
Deferred Amount, up to an amount not to exceed the amount calculated
pursuant to clause (A) of the definition of the Subordinated
Principal Distribution Amount actually received or advanced for such
Distribution Date (with such amount to be allocated first from
amounts calculated pursuant to (A)(i) and (ii) then (iii) of the
definition of Subordinated Principal Distribution Amount);
(3) With respect to the Available Funds for Loan Group 3 on
each Distribution Date, the Trustee shall withdraw such Available Funds from
the Distribution Account and apply such funds to distributions on the
specified Classes of Group 3 Senior Certificates in the following order and
priority and, in each case, to the extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 3
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount, with respect to the Group
3 Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date,
the related Accrual Amount shall be distributed as provided in
Section 4.02(a)(3)(iii);
(iii) [Reserved];
(iv) to each Class of Group 3 Senior Certificates,
concurrently as follows:
(x) to the Class PO-3 Component, an amount allocable to
principal equal to the related PO Formula Principal Amount,
up to the outstanding Component Balance thereof; and
(y) the related Non-PO Formula Principal Amount, up
to the amount of the Senior Principal Distribution Amount
for Loan Group 3 for such Distribution Date, will be
distributed sequentially in the following order of priority:
1. to the Class 3-A-1, Class 3-A-2 and
Class 3-A-3 Certificates, in an amount up to the
amount necessary to reduce their aggregate Class
Certificate Balance to their Aggregate Planned
Balance for that Distribution Date, applied
sequentially, to the Class 3-A-1, Class 3-A-2 and
Class 3-A-3 Certificates, in that order, until
their respective Class Certificate Balances are
reduced to zero;
IV-3
2. to the Class 3-A-4 Certificates, until
its Class Certificate Balance is reduced to zero;
3. concurrently, to the Class 3-A-5 and
Class 3-A-6 Certificates, pro rata, until their
respective Class Certificate Balances are reduced
to zero;
4. to the Class 3-A-7 Certificates, until
its Class Certificate Balance is reduced to zero;
and
5. sequentially, to the Class 3-A-1, Class
3-A-2 and Class 3-A-3 Certificates, in that order,
without regard to their Aggregate Planned Balance
for that Distribution Date, until their respective
Class Certificate Balances are reduced to zero;
(v) to the Class PO-3 Component, any related Class PO
Deferred Amount, up to an amount not to exceed the amount calculated
pursuant to clause (A) of the definition of the Subordinated
Principal Distribution Amount actually received or advanced for such
Distribution Date (with such amount to be allocated first from
amounts calculated pursuant to (A)(i) and (ii) then (iii) of the
definition of Subordinated Principal Distribution Amount);
(4) With respect to the Available Funds for Loan Group 4 on
each Distribution Date, the Trustee shall withdraw such Available Funds from
the Distribution Account and apply such funds to distributions on the
specified Classes of Group 4 Senior Certificates in the following order and
priority and, in each case, to the extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 4
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount, with respect to the Group
4 Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date,
the related Accrual Amount shall be distributed as provided in
Section 4.02(a)(4)(iii);
(iii) [Reserved];
(iv) to each Class of Group 4 Senior Certificates,
concurrently as follows:
(x) [Reserved]; and
(y) the related Non-PO Formula Principal Amount, up
to the amount of the Senior Principal Distribution Amount
for Loan Group 4 for such Distribution Date, will be
distributed to the Class 4-A-1 Certificates, until its Class
Certificate Balance is reduced to zero;
(v) [Reserved];
(5) With respect to the Available Funds for Loan Group 5 on
each Distribution Date, the Trustee shall withdraw such Available Funds from
the Distribution Account and apply such funds to
IV-4
distributions on the specified Classes of Group 5 Senior Certificates in the
following order and priority and, in each case, to the extent of such
Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 5
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount, with respect to the Group
5 Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date,
the related Accrual Amount shall be distributed as provided in
Section 4.02(a)(5)(iii);
(iii) [Reserved];
(iv) to each Class of Group 5 Senior Certificates,
concurrently as follows:
(x) to the Class PO-5 Component, an amount allocable to
principal equal to the related PO Formula Principal Amount,
up to the outstanding Component Balance thereof; and
(y) the related Non-PO Formula Principal Amount, up to
the amount of the Senior Principal Distribution Amount for
Loan Group 5 for such Distribution Date, will be distributed
to the Class 5-A-1 Certificates, until its Class Certificate
Balance is reduced to zero;
(v) to the Class PO-5 Component, any related Class PO
Deferred Amount, up to an amount not to exceed the amount calculated
pursuant to clause (A) of the definition of the Subordinated
Principal Distribution Amount actually received or advanced for such
Distribution Date (with such amount to be allocated first from
amounts calculated pursuant to (A)(i) and (ii) then (iii) of the
definition of Subordinated Principal Distribution Amount);
(6) With respect to the Available Funds for Loan Group 6 on
each Distribution Date, the Trustee shall withdraw such Available Funds from
the Distribution Account and apply such funds to distributions on the
specified Classes of Group 6 Senior Certificates in the following order and
priority and, in each case, to the extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 6
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount, with respect to the Group
6 Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date,
the related Accrual Amount shall be distributed as provided in
Section 4.02(a)(6)(iii);
(iii) [Reserved];
(iv) to each Class of Group 6 Senior Certificates,
concurrently as follows:
(x) [Reserved]; and
IV-5
(y) the related Non-PO Formula Principal Amount, up
to the amount of the Senior Principal Distribution Amount
for Loan Group 6 for such Distribution Date, will be
distributed to the Class 6-A-1 Certificates, until its Class
Certificate Balance is reduced to zero;
(v) [Reserved];
(7) With respect to the Available Funds for Loan Group 7 on
each Distribution Date, the Trustee shall withdraw such Available Funds from
the Distribution Account and apply such funds to distributions on the
specified Classes of Group 7 Senior Certificates in the following order and
priority and, in each case, to the extent of such Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 7
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of the
Class Optimal Interest Distribution Amount, with respect to the Group
7 Certificates that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date,
the related Accrual Amount shall be distributed as provided in
Section 4.02(a)(7)(iii);
(iii) [Reserved];
(iv) to each Class of Group 7 Senior Certificates,
concurrently as follows:
(x) to the Class PO-7 Component, an amount allocable to
principal equal to the related PO Formula Principal Amount,
up to the outstanding Component Balance thereof; and
(y) the related Non-PO Formula Principal Amount, up
to the amount of the Senior Principal Distribution Amount
for Loan Group 7 for such Distribution Date, will be
distributed to the Class 7-A-1 Certificates, until its Class
Certificate Balance is reduced to zero;
(v) to the Class PO-7 Component, any related Class PO
Deferred Amount, up to an amount not to exceed the amount calculated
pursuant to clause (A) of the definition of the Subordinated
Principal Distribution Amount actually received or advanced for such
Distribution Date (with such amount to be allocated first from
amounts calculated pursuant to (A)(i) and (ii) then (iii) of the
definition of Subordinated Principal Distribution Amount);
(8) each Distribution Date, after making the distributions
described in Section 4.02(a)(1), Section 4.02(a)(2), Section 4.02(a)(3),
Section 4.02(a)(4), Section 4.02(a)(5), Section 4.02(a)(6) and Section
4.02(a)(7) above, Available Funds from each Loan Group will be distributed to
the Senior Certificates to the extent provided in Section 4.05 hereof.
(9) On each Distribution Date, Available Funds from all of
the Loan Groups remaining after making the distributions described in Sections
4.02(a)(1), 4.02(a)(2), 4.02(a)(3), 4.02(a)(4), 4.02(a)(5), 4.02(a)(6),
4.02(a)(7) and 4.02(a)(8) above, will be distributed to the Subordinated
Certificates and the Class A-R Certificates in the following order and
priority and, in each case, to the extent of such funds remaining:
IV-6
(A) to the Class M Certificates, an amount allocable to
interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(B) to the Class M Certificates, an amount allocable to
principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(C) to the Class B-1 Certificates, an amount allocable
to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(D) to the Class B-1 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(E) to the Class B-2 Certificates, an amount allocable
to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(F) to the Class B-2 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(G) to the Class B-3 Certificates, an amount allocable
to interest equal to the amount of the Class Optimal
Interest Distribution Amount for such Class for such
Distribution Date;
(H) to the Class B-3 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(I) to the Class B-4 Certificates, an amount allocable
to interest equal to the amount of the Class Optimal
Interest Distribution Amount for such Class for such
Distribution Date;
(J) to the Class B-4 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(K) to the Class B-5 Certificates, an amount allocable
to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date; and
(L) to the Class B-5 Certificates, an amount allocable
to principal equal to its Pro Rata Share for such
Distribution Date until the Class Certificate Balance
thereof is reduced to zero; and
(M) to the Class A-R Certificates, any remaining funds
in the Trust Fund.
IV-7
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Component Balance of the related Class PO
Component.
On any Distribution Date, to the extent the Amount Available for
Senior Principal for a Loan Group is insufficient to make the full
distribution required to be made pursuant to Section 4.02(a)(1)(iv)(x),
4.02(a)(2)(iv)(x), 4.02(a)(3)(iv)(x), 4.02(a)(5)(iv)(x) or 4.02(a)(7)(iv)(x)
above, (A) the amount distributable on the related Class PO Component in
respect of principal pursuant to Section 4.02(a)(1)(iv)(x), 4.02(a)(2)(iv)(x),
4.02(a)(3)(iv)(x), 4.02(a)(5)(iv)(x) or 4.02(a)(7)(iv)(x), as applicable shall
be equal to the product of (1) the Amount Available for Senior Principal for
such loan group and (2) a fraction, the numerator of which is the related PO
Formula Principal Amount and the denominator of which is the sum of such PO
Formula Principal Amount and the applicable Senior Principal Distribution
Amount and (B) the amount distributable on the related Senior Certificates,
other than the applicable Class PO Component, in respect of principal pursuant
to such clause (iv)(y) shall be equal to the product of (1) such Amount
Available for Senior Principal and (2) a fraction, the numerator of which is
the Senior Principal Distribution Amount and the denominator of which is the
sum of such Senior Principal Distribution Amount and the related PO Formula
Principal Amount.
(b) On each Distribution Date prior to and including the
applicable Accrual Termination Date with respect to each Class or Component of
Accrual Certificates, the Accrual Amount for such Class or Component for such
Distribution Date shall not (except as provided in the second to last sentence
in this paragraph) be distributed as interest with respect to such Class or
Component of Accrual Certificates, but shall instead be added to the related
Class Certificate Balance of such Class on the related Distribution Date. With
respect to any Distribution Date prior to and including the applicable Accrual
Termination Date on which principal payments on any Class or Component of
Accrual Certificates are distributed pursuant to Section 4.02(a)(1)(iv)(y) or
Section 4.02(a)(2)(iv)(y), as applicable, the related Accrual Amount shall be
deemed to have been added on such Distribution Date to the related Class
Certificate Balance or Component Balance (and included in the amount
distributable on the related Class or Classes or Component of Accretion
Directed Certificates pursuant to Section 4.02(a)(1)(iii) or Section
4.02(a)(2)(iii), as applicable, for such Distribution Date) and the related
distribution thereon shall be deemed to have been applied concurrently towards
the reduction of all or a portion of the amount so added and, to the extent of
any excess, towards the reduction of the Class Certificate Balance or
Component Balance of such Class or Component of Accrual Certificates
immediately prior to such Distribution Date. Notwithstanding any such
distribution, each such Class or Component shall continue to be a Class of
Accrual Certificates on each subsequent Distribution Date until the applicable
Accrual Termination Date.
(c) On each Distribution Date on or after the Senior Credit
Support Depletion Date, notwithstanding the allocation and priority set forth
in Section 4.02(a)(3)(iv)(y), the portion of Available Funds available to be
distributed as principal of the Senior Certificates (other than the Class PO
Certificates) shall be distributed concurrently, as principal, on such Classes
(other than the Class 3-X Certificates), pro rata, on the basis of their
respective Class Certificate Balances, until the Class Certificate Balances
thereof are reduced to zero.
(d) On each Distribution Date, the amount referred to in
clause (i) of the definition of Class Optimal Interest Distribution Amount for
each Class of Certificates for such Distribution Date shall be reduced for
each Class of Senior Certificates of a Senior Certificate Group and each Class
of Subordinated Certificates by (i) the related Class' pro rata share of Net
Prepayment Interest Shortfalls for such Loan Group based (x) with respect to a
Class of Senior Certificates, on the related Class Optimal Interest
Distribution Amount and (y) with respect to a Class of Subordinated
Certificates on or prior to the sixth Senior Termination Date on the Assumed
Interest Amount and on or after such Senior Termination Date, the related
Class' Class Optimal Interest Distribution Amount for such Distribution Date,
without
IV-8
taking into account such Net Prepayment Interest Shortfalls and (ii) the
related Class' Allocable Share of (A) after the Special Hazard Coverage
Termination Date, with respect to each Mortgage Loan in the related Loan Group
(or, after the Senior Credit Support Depletion Date, any Mortgage Loan) that
became a Special Hazard Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the excess of one month's interest at the
related Adjusted Net Mortgage Rate on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in such month over the amount of Liquidation
Proceeds applied as interest on such Mortgage Loan with respect to such month,
(B) after the Bankruptcy Coverage Termination Date, with respect to each
Mortgage Loan that became subject to a Bankruptcy Loss during the calendar
month preceding the month of such Distribution Date, the interest portion of
the related Debt Service Reduction or Deficient Valuation, (C) each Relief Act
Reduction for the Mortgage Loans in the related Loan Group (or, after the
Senior Credit Support Depletion Date, any Mortgage Loan) incurred during the
calendar month preceding the month of such Distribution Date and (D) after the
Fraud Loss Coverage Termination Date, with respect to each Mortgage Loan in
the related Loan Group (or, after the Senior Credit Support Depletion Date,
any Mortgage Loan) that became a Fraud Loan during the calendar month
preceding the month of such Distribution Date, the excess of one month's
interest at the related Adjusted Net Mortgage Rate on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in such month over the amount
of Liquidation Proceeds applied as interest on such Mortgage Loan with respect
to such month.
(e) Notwithstanding the priority and allocation contained in
Section 4.02(a)(9), if, on any Distribution Date, with respect to any Class of
Subordinated Certificates (other than the Class of Subordinated Certificates
then outstanding with the highest priority of distribution), the sum of the
related Class Subordination Percentages of such Class and of all Classes of
Subordinated Certificates which have a higher numerical Class designation than
such Class (the "Applicable Credit Support Percentage") is less than the
Original Applicable Credit Support Percentage for such Class, no distribution
of Principal Prepayments will be made to any such Classes (the "Restricted
Classes") and the amount of such Principal Prepayments otherwise distributable
to the Restricted Classes shall be distributed to any Classes of Subordinated
Certificates having lower numerical Class designations than such Class, pro
rata, based on their respective Class Certificate Balances immediately prior
to such Distribution Date and shall be distributed in the sequential order
provided in Section 4.02(a)(9).
(f) If the amount of a Realized Loss on a Mortgage Loan has
been reduced by application of Subsequent Recoveries with respect to such
Mortgage Loan, the amount of such Subsequent Recoveries will be applied
sequentially, in the order of payment priority, to increase the Class
Certificate Balance of each Class of Certificates to which Realized Losses
have been allocated, but in each case by not more than the amount of Realized
Losses previously allocated to that Class of Certificates pursuant to Section
4.04. Holders of such Certificates will not be entitled to any payment in
respect of the Class Optimal Interest Distribution Amount on the amount of
such increases for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs. Any such increases shall be applied pro rata to
the Certificate Balance of each Certificate of such Class.
SECTION 4.03. [Reserved].
SECTION 4.04. Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee
shall determine the total amount of Realized Losses, including Excess Losses,
with respect to the related Distribution Date. For purposes of allocating
losses to the Subordinated Certificates, the Class M Certificates will be
deemed to have a lower numerical Class designation, and to be of a higher
relative payment priority, than each other Class of Subordinated Certificates.
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Realized Losses with respect to any Distribution Date shall
be allocated as follows:
(i) the applicable PO Percentage of any Realized Loss,
including any Excess Loss on a Mortgage Loan in a Loan Group, shall
be allocated to the related Class PO Component, if any, until the
Component Balance thereof is reduced to zero; and
(ii) (A) the applicable Non-PO Percentage of any Realized
Loss (other than an Excess Loss) on a Mortgage Loan in a Loan Group
shall be allocated first to the Subordinated Certificates in reverse
order of their respective numerical Class designations (beginning
with the Class of Subordinated Certificates then outstanding with the
highest numerical Class designation) until the respective Class
Certificate Balance of each such Class is reduced to zero, and second
to the Senior Certificates (other than any Notional Amount
Certificates, if applicable, and the related Class PO Component, if
any), pro rata on the basis of their respective Class Certificate
Balances or, in the case of any Class of Accrual Certificates or
Accrual Component, on the basis of the lesser of their respective
Class Certificate Balances or Component Balance, as applicable, and
their respective initial Class Certificate Balances or Component
Balance, as applicable, in each case immediately prior to the related
Distribution Date, until the respective Class Certificate Balance or
Component Balance of each such Class or Component is reduced to zero;
and
(B) the applicable Non-PO Percentage of any Excess
Losses on the Mortgage Loans in a Loan Group shall be allocated to
the Classes of Certificates of the related Senior Certificate Group
(other than any Notional Amount Certificates, if applicable, and the
related Class PO Component, if any) and the Subordinated Certificates
then outstanding as follows: with respect to such Senior
Certificates, the Senior Percentage thereof shall be allocated among
such Senior Certificates on the basis of their respective Class
Certificate Balances or, in the case of any Class of Accrual
Certificates or Accrual Components, on the basis of the lesser of
their respective Class Certificate Balances or Component Balances as
applicable, in each case immediately prior to the related
Distribution Date and, with respect to each Class of Subordinated
Certificates, the applicable Subordinated Percentage thereof shall be
allocated among the Subordinated Certificates on the basis of the
share of each Class of Subordinated Certificates of the applicable
Assumed Balance for each such Class relating to the Loan Group in
which such Realized Loss occurs. Each Class of Subordinated
Certificates share of the Assumed Balance for a Loan Group will be
based on the Class Certificate Balance of each Class of Subordinated
Certificates; provided, however, on any Distribution Date after the
sixth Senior Termination Date, such Excess Losses on the Mortgage
Loans in the related Loan Group will be allocated to the Subordinated
Certificates on the basis of their respective Class Certificate
Balances; and provided further that after the Senior Credit Support
Depletion Date, such Excess Losses shall be allocated pro rata to all
Senior Certificates (other than the Class PO Components and Notional
Amount Certificates) regardless of Senior Certificate Group on the
basis of their respective initial Class Certificate Balances, or, in
the case of any Class of Accrual Certificates or Accrual Components,
on the basis of the lesser of their respective Class Certificate
Balances or Component Balances, as applicable, and their respective
initial Class Certificate Balances or Component Balances, as
applicable, in each case immediately prior to the related
Distribution Date, until the respective Class Certificate Balances or
Component Balances of each such Class or Component are reduced to
zero.
(b) The Class Certificate Balance of the Class of
Subordinated Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the sum of (i) the
amount of any payments on the Class PO Certificates in respect of Class PO
Deferred Amounts and (ii) the amount, if any, by which the aggregate of the
Class Certificate Balances of all outstanding Classes of Certificates (after
giving effect to the distribution of principal and the allocation of Realized
Losses and Class PO Deferred Amounts on such Distribution Date) exceeds the
sum of the Pool
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Stated Principal Balance and any amounts on deposit in the Supplemental Loan
Account for the following Distribution Date.
(c) Any Realized Loss allocated to a Class of Certificates
or any reduction in the Class Certificate Balance of a Class of Certificates
pursuant to Section 4.04(a) above shall be allocated among the Certificates of
such Class in proportion to their respective Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or to
any Component or any reduction in the Certificate Balance of a Certificate,
pursuant to Section 4.04(a) above shall be accomplished by reducing the
Certificate Balance or Component Balance thereof, as applicable, immediately
following the distributions made on the related Distribution Date in
accordance with the definition of "Certificate Balance" or "Component
Balance," as the case may be. All Realized Losses or Excess Losses allocated
to a Class of Component Certificates will be allocated, pro rata, to the
related Components.
SECTION 4.05. Cross-Collateralization; Adjustments to
Available Funds.
(a) On each Distribution Date after the first Senior
Termination Date and prior to the earlier of the sixth Senior Termination Date
and the Senior Credit Support Depletion Date, the Trustee shall distribute the
principal portion of Available Funds on the Mortgage Loans relating to the
Senior Certificates that will have been paid in full to the holders of the
Senior Certificates of the other Certificate Groups, pro rata, based on Class
Certificate Balances.
(b) If on any Distribution Date the Class Certificate
Balance of Senior Certificates in a Certificate Group (other than the related
Class PO Component) is greater than the aggregate of the Non-PO Percentages of
the Stated Principal Balance of the Mortgage Loans in the related Loan Group
(the "Undercollateralized Group"), then the Trustee shall reduce the Available
Funds of the other Loan Groups that are not undercollateralized (the
"Overcollateralized Groups"), as follows:
(1) to add to the Available Funds of each Undercollateralized Group
an amount equal to the Available Funds of the Overcollateralized
Group(s) remaining after making distributions to the Senior
Certificates of the Overcollateralized Group(s) on such Distribution
Date pursuant to Section 4.02; and
(2) to the Senior Certificates of each Undercollateralized Group, to
the extent of the principal portion of Available Funds of the
Overcollateralized Group(s) remaining after making distributions to
the Senior Certificates of the Overcollateralized Group(s) on such
Distribution Date pursuant to Section 4.02, until the Class
Certificate Balance of the Senior Certificates of such
Undercollateralized Group(s) equals the aggregate of the Non-PO
Percentages of the Stated Principal Balance of the Mortgage Loans in
the related Loan Group(s).
(c) If more than one Overcollateralized Group exists on any
Distribution Date, reductions in the Available Funds of such groups to make
the payments required to be made pursuant to Section 4.05(b) on such
Distribution Date shall be made pro rata, based on the amount of payments
required to be made to the Undercollateralized Group(s).
SECTION 4.06. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall
prepare and cause to be forwarded by first class mail to each
Certificateholder, the Master Servicer, the Depositor and each Rating Agency a
statement setting forth with respect to the related distribution:
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(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments,
Liquidation Proceeds and Subsequent Recoveries included therein;
(ii) the amount thereof allocable to interest, any Class
Unpaid Interest Amounts included in such distribution and any
remaining Class Unpaid Interest Amounts after giving effect to such
distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable
to such Holders if there were sufficient funds available therefor,
the amount of the shortfall and the allocation thereof as between
principal and interest;
(iv) the Class Certificate Balance of each Class of
Certificates after giving effect to the distribution of principal on
such Distribution Date;
(v) the Pool Stated Principal Balance and each Loan Group
Principal Balance for the following Distribution Date;
(vi) each Senior Percentage and Subordinated Percentage for
the following Distribution Date;
(vii) the amount of the Master Servicing Fees paid to or
retained by the Master Servicer with respect to such Distribution
Date;
(viii) the Pass-Through Rate for each Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on
such Distribution Date and the aggregate amount of Advances
outstanding as of the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage
Loans in each Loan Group (A) delinquent (exclusive of Mortgage Loans
in foreclosure) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90 days
and (4) 91 or more days and (B) in foreclosure and delinquent (1) 1
to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more
days, as of the close of business on the last day of the calendar
month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number and
Stated Principal Balance of such Mortgage Loan as of the close of
business on the Determination Date preceding such Distribution Date
and the date of acquisition thereof;
(xii) the total number and principal balance of any REO
Properties in each Loan Group (and market value, if available) as of
the close of business on the Determination Date preceding such
Distribution Date;
(xiii) each Senior Prepayment Percentage for the following
Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred
during the preceding calendar month and the aggregate amount of
Subsequent Recoveries, if any, reducing Realized Losses from
preceding calendar months in each Loan Group;
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(xv) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case
as of the related Determination Date; and
(xvi) with respect to the second Conveyance Period
Distribution Date, the number and aggregate balance of any Delay
Delivery Mortgage Loans not delivered within thirty days after the
Closing Date, each Remaining Non-PO Supplemental Loan Amount and
Remaining PO Supplemental Loan Amount distributed as principal.
The Trustee may make the above information available to Certificateholders via
the Trustee's website at xxxx://xxx.xxxxxxxxxxxx.xxx.
(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.
(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 hereto.
(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 clauses (a)(i), (a)(ii) and (a)(vii)
of this Section 4.06 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 Interest Accrual Period after the initial Interest 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 Interest
Accrual Period following the initial Interest Accrual Period, the Trustee
shall not later than two Business Days prior to such Interest 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 Interest 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 Interest Accrual Period shall be COFI for the second calendar month
preceding the Outside Reference Date for such Interest Accrual Period. If at
the Outside Reference Date for any Interest 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 Interest Accrual Period
and for all subsequent Interest Accrual Periods shall be the National Cost of
Funds Index for the third calendar month preceding such Interest Accrual
Period (or the fourth preceding calendar month if such National Cost of Funds
Index for the third preceding calendar
IV-13
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 Interest Accrual Period has been published on or
before the related Outside Reference Date, then for such Interest Accrual
Period and for each succeeding Interest Accrual Period, the Index shall be
LIBOR, determined in the manner set forth below.
With respect to any Interest Accrual Period for which the
applicable Index is LIBOR, LIBOR for such Interest 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.
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 found on Telerate page 3750 as of 11:00
a.m. London time on each LIBOR Determination Date. "Telerate Page 3750" means
the display page currently so designated on the Moneyline Telerate Service
(formerly the Dow Xxxxx Markets) (or such other page as may replace that page
on that service for the purpose of displaying comparable rates or prices).
(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 Interest 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 Interest 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 Interest Accrual Period shall be whichever is the higher of
(i) LIBOR as determined on the previous Interest Determination Date
or (ii) the
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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.
(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.
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 Interest 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
footnotes corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
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.
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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 denominations, integral multiples in excess thereof
(except that one Certificate in each Class may be issued in a different amount
which must be in excess of the applicable minimum denomination) and aggregate
denominations per Class set forth in the Preliminary Statement.
Subject to Section 9.02 hereof 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 thereof.
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 hereof, 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 herein provided. 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
V-1
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 (the "Transferor Certificate")
and (i) deliver a letter in substantially the form of either Exhibit K (the
"Investment Letter") or Exhibit L (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. 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 and the Master
Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of 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, 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, nor 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
V-2
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 either the Trustee or the Trust Fund, addressed to the Trustee, 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 to any
obligation in addition to those expressly undertaken in this Agreement or to
any liability. 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 Opinion of Counsel 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
herein, any purported transfer of an ERISA-Restricted Certificate to or on
behalf of an employee benefit plan subject to ERISA or 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.
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) 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, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, 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.
(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.
(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
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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. 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.
(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
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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 herein 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.
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 Trustee and any agent of the Master
Servicer 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,
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and neither the Master Servicer, the Trustee nor any agent of the Master
Servicer 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.
V-6
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 herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
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 herein 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.
SECTION 6.03. Limitation on Liability of the Depositor, the
Sellers, the Master Servicer and Others.
None of the Depositor, the Master Servicer or any Seller or
any of the directors, officers, employees or agents of the Depositor, the
Master Servicer 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 or any Seller or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor, the Master Servicer or 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, each Seller and any director, officer, employee or agent of
the Depositor, the Master Servicer or each Seller may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, each Seller and any director, officer, employee or agent of the
Depositor, the Master Servicer 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
VI-1
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
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 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 and each Seller shall be
entitled to be reimbursed therefor out of the Certificate Account.
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 and receipt by the Trustee of a letter from each Rating Agency that
such a resignation and appointment will not result in a downgrade or
withdrawal of the rating of any 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 such resignation shall become effective until the Trustee
or a successor master servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities and obligations hereunder.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default," wherever used herein, 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 or the Depositor or to the Master Servicer 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, 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 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 thereof; 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
(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 at the
direction of 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),
terminate all of the rights and obligations of the Master Servicer under this
VII-1
Agreement and in and to the Mortgage Loans and the proceeds thereof, other
than its rights as a Certificateholder hereunder. 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 hereunder.
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 hereof, 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 herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof 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
hereof, 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
hereof or if it is otherwise unable to so act, appoint, or 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, 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
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 hereof 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. Pending appointment of a successor to the Master Servicer
hereunder, the
VII-2
Trustee, unless the Trustee is prohibited by law from so acting, shall,
subject to Section 3.04 hereof, 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
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.
Any successor to the Master Servicer as master servicer
shall give notice to 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(R) System to
the successor Master Servicer or (y) in causing MERS to designate on the
MERS(R) 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.
VII-3
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 hereof, 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 or not 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
VIII-1
of a Responsible Officer of the Trustee that (A) such Advance was not
made by the Master Servicer and (B) such Advance is not a
Nonrecoverable Advance.
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 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;
(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 any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless 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.
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SECTION 8.03. Trustee Not Liable for Certificates or
Mortgage Loans.
The recitals contained herein 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 herein, 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.
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
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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 hereof. 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.
If at any time 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 Depositor, or if at any time 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, or 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, then the
Depositor or the Master Servicer may remove the Trustee and appoint a
successor trustee 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 and one copy 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, in triplicate, 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 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 hereof.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07
hereof 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 herein. The Depositor, the
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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.
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 and its
appointment shall not adversely affect the then current rating of the
Certificates.
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 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 hereof without the execution
or filing of any paper or further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions 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 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.
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
VIII-5
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.
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
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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 REMIC status of any REMIC; (h) pay, from the sources
specified in the last 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.
In order to enable the Trustee to perform its duties as set
forth herein, 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 herein. 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
VIII-7
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).
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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 of all Mortgage Loans (and REO Properties)
remaining in the Trust Fund at the price equal to the sum of (i) 100% of the
Stated Principal Balance of each Mortgage Loan plus one month's accrued
interest thereon at the applicable Adjusted Mortgage Rate, (ii) the lesser of
(x) the appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the Stated Principal
Balance of each Mortgage Loan related to any REO Property and (iii) 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 (45) on Schedule III-A, in all cases plus accrued
and unpaid interest thereon at the applicable Adjusted Mortgage Rate 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
Certificateholders of all amounts required to be distributed to them pursuant
to this Agreement. In no event shall the trusts created hereby continue beyond
the earlier of (i) the expiration of 21 years from the death of the 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 Master Servicer shall have the right to purchase all
Mortgage Loans and REO Properties in the Trust Fund pursuant to clause (a) in
the preceding paragraph of this Section 9.01 only on or after the date on
which 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.
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 Master Servicer 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 Master
Servicer 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
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applicable, distributions being made only upon presentation and surrender of
the Certificates at the office therein specified. The Master Servicer will
give such notice to each Rating Agency at the time such notice is given to
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 (a)
accrued interest thereon (or on their Notional Amount, if applicable) in the
case of an interest bearing Certificate and (b) any Class PO Deferred Amounts
in the case of Class PO Certificates, 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 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, the Class A-R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
SECTION 9.03. Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase
option as provided in Section 9.01, the Trust Fund 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 Master
Servicer, 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 to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(1) Within 90 days prior to the final Distribution
Date set forth in the notice given by the Master Servicer
under Section 9.02, the Master Servicer shall prepare and
the Trustee, at the expense of the "tax matters person,"
shall adopt a plan of complete liquidation within the
meaning of section 860F(a)(4) of the Code which, as
evidenced by an Opinion of Counsel (which opinion shall
not be
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an expense of the Trustee or the Tax Matters Person),
meets the requirements of a qualified liquidation; 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 the Trust Fund to the Master
Servicer for cash in accordance with Section 9.01.
(b) The Trustee, as agent for any REMIC created under this
Agreement, 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 Master
Servicer.
(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.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the
Depositor, 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 herein or to supplement any provision herein which may
be inconsistent with any other provision herein, (iii) to conform this
Agreement to the 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 add any other
provisions with respect to matters or questions arising hereunder or (vi) 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 (v)
or (vi) 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 not be deemed
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. The Trustee, 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, 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.
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
X-1
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 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 herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 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.
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 each Seller or the Depositor, as the case may be,
or if for any other reason this Agreement or any Supplemental Transfer
Agreement is held or deemed to create a
X-2
security interest in either such assets, then (i) this Agreement or any
Supplemental Transfer 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 or any Supplemental Transfer
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, 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 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.
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly
provide notice to each Rating Agency 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;
5. The final payment to Certificateholders; and
6. Any rating action involving the long-term credit rating
of the Master Servicer , which notice shall be made by first-class
mail within two Business Days after the Trustee gains actual
knowledge thereof.
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 3.17; 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: Xxxxx X. Xxxxxxx, (2) in the case
of Countrywide, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, facsimile number:
X-3
(000) 000-0000, Attention: Xxxxx X. Xxxxxxx 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: Xxxxx X. Xxxxxxx 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 the Master Servicer, Countrywide Home Loans
Servicing LP, 000 Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx, 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, (5) 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 2004-J2, or
such other address as the Trustee may hereafter furnish to the Depositor or
Master Servicer and (6) in the case of the Rating Agencies, the address
specified therefor in the definition corresponding to the name of such Rating
Agency. Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
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 thereof.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained herein,
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
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 hereby, 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 herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth 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 hereof.
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
herein provided, 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
X-4
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 herein provided 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.
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 after the
Certificates have been paid.
* * * * * *
X-5
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/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.,
as a Seller
By: /s/ Xxxxxxx Xxxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
PARK GRANADA LLC,
as a Seller
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Acknowledged solely with respect to its
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 2004-J2
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, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as depositor, 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 and service 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-2
(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 2004-J2
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, 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 III-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2004-J2
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 the Initial
Mortgage Loans as of the Closing Date, or if so specified herein, as of the
Initial Cut-off Date and with respect to all of the Supplemental Mortgage
Loans as of the related Supplemental Transfer Date or if so specified herein,
, as of the related Supplemental Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule III 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, Countrywide Home Loans Servicing LP, as
master servicer, CWMBS, 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 Initial Mortgage Loan is
true and correct in all material respects as of the Closing Date and
with respect to each Supplemental Mortgage Loan is true and correct
in all material respects as of the related Supplemental Transfer
Date.
(2) As of the Closing Date, all payments due with respect to
each Initial Mortgage Loan prior to the Initial Cut-off Date have
been made; and as of the Initial Cut-off Date, no Initial Mortgage
Loan has been contractually delinquent for 30 or more days during the
twelve months prior to the Initial Cut-off Date. As of each
Supplemental Transfer Date, all payments due with respect to each
related Supplemental Mortgage Loan prior to the related Supplemental
Cut-off Date will have been made; as of each Supplemental Cut-off
Date, no related Supplemental Mortgage Loan will have been
contractually delinquent for 30 or more days during the twelve months
prior to that Supplemental Cut-off Date.
(3) No Initial Mortgage Loan had a Loan-to-Value Ratio at
origination in excess of 95.00%.
(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.
S-III-A-1
(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.
(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 with respect to the Initial
Mortgage Loans and as of the related Supplemental Transfer Date, with respect
to the Supplemental Mortgage Loans, 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 in the case of the Initial
Mortgage Loans and as of the related Supplemental Transfer Date with respect
to the Supplemental Mortgage Loans, 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; 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) 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.
(14) 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.
S-III-A-2
(15) 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.
(16) 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.
(17) 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.
(18) 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.
(19) 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.
(20) 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.
(21) 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.
(22) 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.
(23) There is no pledged account or other security other than
real estate securing the Mortgagor's obligations.
(24) No Mortgage Loan has a shared appreciation feature, or
other contingent interest feature.
S-III-A-3
(25) Each Mortgage Loan contains a customary "due on sale"
clause.
(26) Two of the Initial Mortgage Loans provide for a
prepayment penalty.
(27) Each Mortgage Loan which 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 percentage 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%. 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.
(28) As of the Closing Date or the related Supplemental
Transfer 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 (29) 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.
(29) 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.
(30) 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.
(31) 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,
S-III-A-4
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 the Seller
has not waived any default, breach, violation or event of acceleration.
(32) 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.
(33) Each Mortgage Loan is being master serviced by the
Master Servicer.
(34) 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.
(35) 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.
(36) 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.
(37) None of the Initial Mortgage Loans are graduated payment
mortgage loans or a growing equity mortgage loans, and none of the Initial
Mortgage Loans are subject to a buydown or similar arrangement.
(38) 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.
(39) The Mortgage Loans were selected from among the
outstanding fixed-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.
S-III-A-5
(40) Approximately 0.73%, 0.64%, 0.61%, 27.40%, 18.53% and
4.03% of the Mortgage Loans in Loan Group 1, Loan Group 2, Loan Group 3, Loan
Group 4, Loan Group 5 and Loan Group 6, respectively were underwritten in all
material respects in accordance with the RBC Mortgage Company underwriting
guidelines as set forth in the Prospectus Supplement. Approximately 89.00%,
79.88%, 67.48%, 62.20% and 70.03% of the Mortgage Loans in Loan Group 1, Loan
Group 2, Loan Group 3, Loan Group 4 and Loan Group 5, respectively, were
underwritten in all material respects in accordance with the National City
Mortgage underwriting guidelines as set forth in the Prospectus Supplement.
Each of the remaining Mortgage Loans were underwritten in all material
respects in accordance with the procedures set forth in the Prospectus under
"Mortgage Loan Program - Underwriting Process".
(41) Each Mortgage Loan has a payment date on or before the
Due Date in the month of the first Distribution Date.
(42) 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.
(43) The Mortgage Loans, individually and in the aggregate,
conform in all material respects to the descriptions thereof in the Prospectus
Supplement.
(44) The aggregate principal balance of the Discount Mortgage
Loans in each Loan Group will not exceed $17,389,947.69, $587,555.29,
$27,016,031.47, $0.00, $2,276,039.60, $0.00 and $2,495,964.07, respectively.
(45) Each Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance company,
or mortgage banking company which is supervised and examined by a federal or
state authority, or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 2.03 and 2.11 of the National Housing
Act.
(46) Each Mortgage Loan was (A) originated no earlier than
six months prior to the time Countrywide purchased such Mortgage Loan pursuant
to a mortgage loan purchase agreement or other similar agreement and (B)
underwritten or reunderwritten by Countrywide in accordance with Countrywide's
underwriting guidelines in effect at the time the loan was underwritten or
reunderwritten, as applicable.
(47) None of the Mortgage Loans are subject to the Georgia
Fair Lending Act, as amended.
(48) None of the Mortgage Loans are "high cost" loans as
defined by applicable predatory and abusive lending laws.
(49) None of the Mortgage Loans are covered by the Home
Ownership and Equity Protection Act of 1994 ("HOEPA").
S-III-A-6
(50) 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.).
(51) 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. xx.xx. 58-21a-1 et seq.).
S-III-A-7
SCHEDULE III-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2004-J2
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 that are Initial Mortgage Loans as of the Closing
Date, or if so specified herein, as of the Initial Cut-off Date, and with
respect to the Countrywide Mortgage Loans that are Supplemental Mortgage Loans
as of the related Supplemental Transfer Date or if so specified herein, as of
the related Supplemental Cut-off 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, Countrywide Home Loans Servicing LP, as
master servicer, CWMBS, 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 2004-J2
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 that are Initial Mortgage Loans as of the Closing Date,
or if so specified herein, as of the Initial Cut-off Date, and with respect to
the Park Granada Mortgage Loans that are Supplemental Mortgage Loans as of the
related Supplemental Transfer Date or if so specified herein, as of the
related Supplemental Cut-off 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, as a seller, Countrywide Home Loans Servicing LP,
as master servicer, CWMBS, 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 IV
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2004-J2
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, 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
***See Principal Balances Schedule in the Prospectus Supplement.
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
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, OR 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 ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR TO 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
A-2
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" and,
together with CHL, 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.
[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 subject to
Section 4975 of the Code, nor a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Trustee or the Master Servicer, or (ii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or 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 any such plan, an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer to the effect that the purchase or 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 or the Master Servicer. 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 on
behalf of an employee benefit plan subject to ERISA or to 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 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, OR IF SUCH
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF OR
WITH PLAN ASSETS OF SUCH A PLAN, OR THAT SUCH TRANSFEREE IS AN INSURANCE
COMPANY WHICH IS PURCHASING CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE
COMPANY GENERAL ACCOUNTS" 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
B-1
REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTION I AND III OF PTCE 95-60 OR 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 TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
B-2
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
B-3
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" and, together with CHL, 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.
[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 subject to
Section 4975 of the Code, nor a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Trustee or the Master Servicer, (ii) if such certificate has been the
subject of an ERISA Qualifying Underwriting and 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 (iii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or 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 any such plan, an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer to the effect that the purchase or
B-4
holding of such Certificate will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, will not result in the
assets of the Trust Fund being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject
the Trustee to any obligation in addition to those undertaken in the
Agreement, which Opinion of Counsel shall not be an expense of the Trustee or
the Master Servicer. 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 to 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.
* * *
B-5
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
B-6
EXHIBIT C
[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 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, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY WHICH
IS PURCHASING CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY
GENERAL ACCOUNTS" 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
SECTION I AND III OF PTCE 95-60 OR 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 TO 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
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 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
C-2
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" and together with CHL, 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.
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 subject to
Section 4975 of the Code, nor a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Trustee or the Master Servicer, (ii) or that such Transferee 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 (iii) an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer to the effect that
the purchase or holding of such Class A-R 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 this Agreement, which Opinion of
Counsel shall not be an expense of the Trustee or the Master Servicer.
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 to 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
C-3
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.
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-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-5
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
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, OR 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 ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR TO 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 Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
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
D-2
"Agreement") among the Depositor, Countrywide Home Loans, Inc., as a
seller ("CHL"), Park Granada LLC, as a seller ("Park Granada" and, together
with CHL, 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.
[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 subject to
Section 4975 of the Code, nor a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Trustee or the Master Servicer, or (ii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or 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 any such plan, an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer to the effect that the purchase or 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 or the Master Servicer. 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 on
behalf of an employee benefit plan subject to ERISA or to 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
E-1
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.
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
E-2
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.
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____________.
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-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[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,
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 Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial 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.
F-1-1
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 Initial Mortgage Loans identified on the
Mortgage Loan Schedule, or (ii) the collectability, insurability,
effectiveness or suitability of any such Initial Mortgage Loan.
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-1-2
EXHIBIT F-2
FORM OF INITIAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[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,
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") and the
Supplemental Transfer Agreement, dated as of [month] ____, 200_, the
undersigned, as Trustee, hereby certifies that, as to each Supplemental
Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Supplemental 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 the Seller 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
F-2-1
or genuineness of any of the documents contained in each Mortgage File of any
of the Supplemental Mortgage Loans identified on the Mortgage Loan Schedule,
or (ii) the collectability, insurability, effectiveness or suitability of any
such Supplemental Mortgage Loan.
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-2-1
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
---------------------
---------------------
Re: Pooling and Servicing Agreement among
CWALT, Inc., as Depositor, Countrywide
Home Loans, Inc., as a Seller ("Countrywide"),
Park Granada 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 Initial Mortgage Loan listed
on Schedule A attached hereto (other than any Initial 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 Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the
case of each Initial Mortgage Loan that is a MERS Mortgage
Loan, the original Mortgage, noting thereon the presence of
the MIN of the Initial Mortgage Loan and language indicating
that the Initial Mortgage Loan is a MOM Loan if the Initial
Mortgage Loan is a MOM Loan,
G-1-1
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 Initial 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, 2004, without
recourse", or, in the case of each Initial 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 Initial 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
Initial 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
G-1-2
File of any of the Initial 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.
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-1-3
EXHIBIT G-2
FORM OF DELAY DELIVERY CERTIFICATION
(SUPPLEMENTAL MORTGAGE LOANS)
[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,
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 [month] __,
200_ (such date being the related "Supplemental Transfer 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 Supplemental Mortgage Loan listed on Schedule A
attached hereto (other than any Supplemental Mortgage Loan paid in full or
listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller 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 the
Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit
from the Seller, 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 Supplemental Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage, [and in
the case of each Supplemental
G-2-1
Mortgage Loan that is a MERS Mortgage Loan, the original
Mortgage, noting thereon the presence of the MIN of the
Supplemental Mortgage Loan and language indicating that the
Supplemental Mortgage Loan is a MOM Loan if the Supplemental
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];
(iii) in the case of each Supplemental 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, 2004,
without recourse", or, in the case of each Supplemental
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 the Seller 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 the Seller,
the applicable title company, escrow agent or attorney, or the originator of
such Supplemental 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
Supplemental Mortgage Loan, and (ii) the information set forth in items (i),
(iv), (v), (vi), (viii), (xi) and (xiv) of the definition of the
G-2-2
"Mortgage Loan Schedule" in Section 1.01 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 Supplemental 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.
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-2-3
EXHIBIT H-1
FORM OF FINAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
------------------------
------------------------
Re: Pooling and Servicing Agreement among
CWALT, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller ("Countrywide"),
Park Granada 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 Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial 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 Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the
case of each Initial Mortgage Loan that is a MERS Mortgage
Loan, the original Mortgage, noting thereon the presence of
H-1-1
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];
(iii) in the case of each Initial 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, 2004, without
recourse", or, in the case of each Initial 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 Initial 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 Initial 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 Initial 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
Initial 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-1-2
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 Initial 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 Initial
Mortgage Loan.
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:
X-0-0
XXXXXXX X-0
FORM OF FINAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[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,
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 Supplemental Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Supplemental Mortgage Loan paid
in full or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by the Seller 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 the
Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit
from the Seller, 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 Supplemental Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage, [and in
the case of each Supplemental 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
H-2-1
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];
(iii) in the case of each Supplemental 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, 2004,
without recourse", or, in the case of each Supplemental
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 Supplemental 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 Supplemental Mortgage Loan
that is not a MERS Mortgage Loan the Seller 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 the Seller, the applicable title company, escrow agent or
attorney, or the originator of such Supplemental 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
Supplemental 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 Section 1.01 of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
H-2-2
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 Supplemental 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 Supplemental Mortgage Loan.
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-2-3
EXHIBIT I
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, (the
"Agreement"), relating to the above-referenced Series, by and among CWALT,
Inc., as depositor (the "Depositor"), Countrywide Home Loans, Inc., as a
seller, Park Granada LLC, as a seller, 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, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account or as the nominee,
trustee or agent of another Person, in which case the Transferee has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such
I-1
record holder is a Permitted Transferee and the pass-through entity does not
have actual knowledge that such affidavit is false. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (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 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 Certificate.
8. The Transferee's taxpayer identification number is ____________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee anticipates that it will, so long as it holders
the Class A-R Certificates, have sufficient assets to pay any taxes owed by
the holder of such Class A-R Certificates, and hereby represents to and for
the benefit of the person from whom it acquired the Class A-R Certificates
that the Transferee intends to pay taxes associated with holding such Class
A-R Certificates as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class A-R
Certificates. The Transferee has provided financial
I-2
statements or other financial information requested by the Transferor in
connection with the transfer of the Class A-R Certificates to permit the
Transferor to assess the financial capability of the Transferee to pay such
taxes. The Transferee is not an employee benefit plan that is subject to ERISA
or a plan that is subject to Section 4975 of the Code, and the Transferee is
not acting on behalf of such a plan.
12. Either (i) the Transferee is not an employee benefit plan subject
to Section 406 of ERISA or Section 4975 of the Code, nor a person acting on
behalf of any such plan or using the assets of such plan to effect such
acquisition, or, (ii) the source of funds for the purchase of such Class A-R
Certificate is an "insurance company general account" within the meaning of
Prohibited Transaction Class Exemption 95-60 (PTCE 95-60"), 60 Fed. Reg. 35925
(July 12, 1995), and the terms and conditions of Sections I and III of PTCE
95-60 are applicable to the acquisition and holding of such Class A-R
Certificate.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ___ day of _______________, 20__.
-------------------------------------
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
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"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 Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) 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 or any
political subdivision thereof, 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 the authority to control all
substantial decisions of the trust, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, 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
the Trust Fund to fail to qualify as a REMIC at any time that certain
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, 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-5
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:
(i) 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.
(ii) 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, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, 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.
(iii) EachPerson 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.
(iv) 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, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter.
I-6
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.
(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 Class A-R Certificate to any
Holder who is not a Permitted Transferee.
I-7
EXHIBIT J-1
FORM OF TRANSFEROR CERTIFICATE
(RESIDUAL)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
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 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: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
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: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
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
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, 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
any such plan or arrangement, nor are we using the assets of any such 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 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 the purchase and holding of such Certificates satisfy the
requirements for
K-1
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-2
EXHIBIT L
FORM OF RULE 144A LETTER
--------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
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, 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 any
such plan or arrangement, nor are we using the assets of any such 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 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 the purchase and holding of such Certificates satisfy the
L-1
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-2
ANNEX 1 TO EXHIBIT L
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-3
___ 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,
L-4
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.
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-5
ANNEX 2 TO EXHIBIT L
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-6
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 Buyer
Date:
---------------------------------------
L-7
EXHIBIT M
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, 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
M-1
_________________________ of official records at page/image
_______________________________.
( ) 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
M-2
Documents and any proceeds separate and distinct from all other property in
the Master Servicer's possession, custody or control.
COUNTRYWIDE HOME LOANS
SERVICING LP
By
-----------------------------------------
Its
----------------------------------------
Date:_________________, 20__
M-3
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York Attn: Mortgage Custody
Services
Re: The Pooling & Servicing Agreement dated [month] 1, 2004,
among Countrywide Home Loans, Inc., as a Seller, Park
Granada 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. 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 or 4 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:
----------------------------------------------
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Date:
----------------------------------------------
N-2
EXHIBIT O
[FORM OF FINANCIAL GUARANTY INSURANCE POLICY]
[RESERVED]
O-1
EXHIBIT P
FORM OF SUPPLEMENTAL TRANSFER AGREEMENT
THIS SUPPLEMENTAL TRANSFER AGREEMENT, dated as of ____________, 200_
(this "Supplemental Transfer Agreement"), among CWALT, INC., a Delaware
corporation, as depositor (the "Depositor"), COUNTRYWIDE HOME LOANS, INC.
("CHL"), a New York corporation, as a seller, PARK GRANADA LLC, a Delaware
limited liability company, as a seller ("Park Granada" and, together with CHL,
the Sellers") under the Pooling and Servicing Agreement referred to below, and
THE BANK OF NEW YORK, a New York banking corporation, as trustee (the
"Trustee");
WHEREAS, the Depositor, the Sellers, the Trustee and Countrywide Home
Loans Servicing LP, as Master Servicer, have entered in the Pooling and
Servicing Agreement, dated as of [month] 1, 2003 (the "Pooling and Servicing
Agreement"), in relation to the CHL Mortgage Pass-Through Trust 200_-_,
Mortgage Pass-Through Certificates, Series 200_-_;
WHEREAS, Section 2.01(e) of the Pooling and Servicing Agreement
provides for the parties hereto to enter into this Supplemental Transfer
Agreement in accordance with the terms and conditions of the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt and adequacy of which are hereby
acknowledged the parties hereto agree as follows:
(a) The "Supplemental Transfer Date" with respect to this
Supplemental Transfer Agreement shall be ________, 200_.
(b) The "Aggregate Supplemental Purchase Amount" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Supplemental Loan
Account.
(c) The "Capitalized Interest Requirement" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Capitalized Interest
Account.
(d) [Reserved]
(e) In case any provision of this Supplemental Transfer Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions or obligations shall not in any way
be affected or impaired thereby.
(f) In the event of any conflict between the provisions of this
Supplemental Transfer Agreement and the Pooling and Servicing Agreement, the
provisions of the Pooling and Servicing Agreement shall prevail.
P-1
(g) This Supplemental Transfer Agreement shall be governed by, and
shall be construed and enforced in accordance with the laws of the State of
New York.
(h) The Supplemental Transfer Agreement may be executed in one or
more counterparts, each of which so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
P-2
IN WITNESS WHEREOF, the parties to this Supplemental Transfer
Agreement 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:
---------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.,
as Seller
By:
---------------------------------------
Name:
Title:
PARK GRANADA LLC,
as a Seller
By:
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:
---------------------------------------
Name:
Title:
P-3
Acknowledged and Agreed:
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: _____________________________
Name:
Title:
