The Pooling and Servicing Agreement
EXHIBIT
99.1
EXECUTION
COPY
CWALT,
INC.,
Depositor
COUNTRYWIDE
HOME LOANS, INC.,
Seller
PARK
GRANADA LLC,
Seller
PARK
MONACO INC.,
Seller
PARK
SIENNA LLC,
Seller
COUNTRYWIDE
HOME LOANS SERVICING LP,
Master
Servicer
and
THE
BANK
OF NEW YORK,
Trustee
___________________________________
Dated
as
of February 1, 2007
___________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-7T2
Table
of Contents
Page
|
ARTICLE
I DEFINITIONS
|
||
|
SECTION
1.01.
|
Defined
Terms
|
I-1
|
|
SECTION
1.02.
|
Certain
Interpretive Provisions
|
I-30
|
|
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-4
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Sellers and Master
Servicer.
|
II-6
|
|
SECTION
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
II-8
|
|
SECTION
2.05.
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
II-9
|
|
SECTION
2.06.
|
Execution
and Delivery of Certificates.
|
II-9
|
|
SECTION
2.07.
|
REMIC
Matters.
|
II-9
|
|
SECTION
2.08.
|
Covenants
of the Master Servicer.
|
II-10
|
|
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 Subservicers.
|
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;
the
Supplemental Interest Trust and Corridor Contract Reserve
Fund.
|
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-6
|
|
SECTION
3.08.
|
Permitted
Withdrawals from the Certificate Account, the Distribution Account
and the
Corridor Contract Reserve Fund.
|
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-16
|
|
SECTION
3.17.
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
III-16
|
|
SECTION
3.18.
|
The
Corridor Contracts.
|
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-6
|
|
SECTION
4.04.
|
Allocation
of Realized Losses.
|
IV-6
|
|
SECTION
4.05.
|
[Reserved]
|
IV-7
|
|
SECTION
4.06.
|
Monthly
Statements to Certificateholders.
|
IV-7
|
|
SECTION
4.07.
|
Determination
of Pass-Through Rates for COFI Certificates.
|
IV-8
|
|
SECTION
4.08.
|
Determination
of Pass-Through Rates for LIBOR Certificates.
|
IV-9
|
|
SECTION
4.09.
|
Distributions
from the Corridor Contract Reserve Fund.
|
IV-10
|
|
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-6
|
|
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-3
|
|
SECTION
7.03.
|
Notification
to Certificateholders.
|
VII-4
|
|
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-5
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
VIII-5
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
VIII-5
|
|
SECTION
8.11.
|
Tax
Matters.
|
VIII-7
|
|
SECTION
8.12.
|
Monitoring
of Significance Percentage.
|
VIII-8
|
ii
|
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-4
|
|
SECTION
10.06.
|
Severability
of Provisions.
|
X-5
|
|
SECTION
10.07.
|
Assignment.
|
X-5
|
|
SECTION
10.08.
|
Limitation
on Rights of Certificateholders.
|
X-5
|
|
SECTION
10.09.
|
Inspection
and Audit Rights.
|
X-6
|
|
SECTION
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
X-6
|
|
SECTION
10.11.
|
[Reserved]
|
X-6
|
|
SECTION
10.12.
|
Protection
of Assets.
|
X-6
|
|
ARTICLE
XI EXCHANGE ACT REPORTING
|
||
|
SECTION
11.01.
|
Filing
Obligations.
|
XI-1
|
|
SECTION
11.02.
|
Form
10-D Filings.
|
XI-1
|
|
SECTION
11.03.
|
Form
8-K Filings.
|
XI-2
|
|
SECTION
11.04.
|
Form
10-K Filings.
|
XI-2
|
|
SECTION
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
XI-2
|
|
SECTION
11.06.
|
Form
15 Filing.
|
XI-3
|
|
SECTION
11.07.
|
Report
on Assessment of Compliance and Attestation.
|
XI-3
|
|
SECTION
11.08.
|
Use
of Subservicers and Subcontractors.
|
XI-4
|
|
SECTION
11.09.
|
Amendments.
|
XI-5
|
|
SECTION
11.10.
|
Reconciliation
of Accounts.
|
XI-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
II-C
|
Representations
and Warranties of Park Monaco Inc.
|
S-II-C-1
|
|
Schedule
II-D
|
Representations
and Warranties of Park Sienna LLC
|
S-II-D-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
III-D
|
Representations
and Warranties of Park Monaco Inc. as to the Park Monaco Inc.
Mortgage
Loans
|
S-III-D-1
|
|
Schedule
III-E
|
Representations
and Warranties of Park Sienna LLC as to the Park Sienna LLC Mortgage
Loans
|
S-III-E-1
|
iii
|
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
|
|
Schedule
VII:
|
Schedule
of Available Exchanges of Depositable Certificates for Exchangeable
Certificates
|
S-VII-I
|
iv
EXHIBITS
|
Exhibit
A:
|
Form
of Senior Certificate or Exchangeable Certificate (excluding Notional
Amount Certificates)
|
A-1
|
|
Exhibit
B:
|
Form
of Subordinated Certificate
|
B-1
|
|
Exhibit
C-1:
|
Form
of Class A-R Certificate
|
C-1-1
|
|
Exhibit
C-2:
|
[Reserved]
|
C-2-1
|
|
Exhibit
C-3:
|
[Reserved]
|
C-3-1
|
|
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
|
F-1-1
|
|
Exhibit
F-2:
|
[Reserved]
|
F-2-1
|
|
Exhibit
G-1:
|
Form
of Delay Delivery Certification of Trustee
|
G-1-1
|
|
Exhibit
G-2:
|
[Reserved]
|
G-2-1
|
|
Exhibit
H-1:
|
Form
of Final Certification of Trustee
|
X-0-0
|
|
Xxxxxxx
X-0:
|
[Reserved]
|
H-2-1
|
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
I-1
|
|
Exhibit
J-1:
|
Form
of Transferor Certificate (Residual)
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Transferor Certificate (Private)
|
J-2-1
|
|
Exhibit
K:
|
Form
of Investment Letter [Non-Rule 144A]
|
K-1
|
|
Exhibit
L-1:
|
Form
of Rule 000X Xxxxxx
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of ERISA Letter (Covered Certificates)
|
L-2-1
|
|
Exhibit
M:
|
Form
of Request for Release (for Trustee)
|
M-1
|
|
Exhibit
N:
|
Form
of Request for Release of Documents (Mortgage Loan - Paid in
Full, Repurchased and Replaced)
|
N-1
|
|
Exhibit
O:
|
[Reserved]
|
O-1
|
|
Exhibit
P:
|
[Reserved]
|
P-1
|
|
Exhibit
Q:
|
The
then current version of Standard & Poor’s LEVELS® Version 5.7 Glossary
Revised, Appendix E
|
Q-1
|
|
Exhibit
R:
|
Form
of Corridor Contract
|
R-1
|
|
Exhibit
S-1:
|
[Reserved]
|
S-1-1
|
|
Exhibit
S-2:
|
[Reserved]
|
S-2-1
|
|
Exhibit
T:
|
[Reserved]
|
T-1
|
|
Exhibit
U:
|
Monthly
Report
|
U-1
|
|
Exhibit
V-1:
|
Form
of Performance Certification (Subservicer)
|
V-1-1
|
|
Exhibit
V-2:
|
Form
of Performance Certification (Trustee)
|
V-2-1
|
|
Exhibit
W:
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
W-1
|
|
Exhibit
X:
|
List
of Item 1119 Parties
|
X-1
|
|
Exhibit
Y:
|
Form
of Xxxxxxxx-Xxxxx Certification (Replacement of Master
Servicer)
|
Y-1
|
v
THIS
POOLING AND SERVICING AGREEMENT, dated as of February 1, 2007, among CWALT,
INC., a Delaware corporation, as depositor (the “Depositor”), COUNTRYWIDE HOME
LOANS, INC. (“Countrywide”), a New York corporation, as a seller (a “Seller”),
PARK GRANADA LLC (“Park Granada”), a Delaware limited liability company, as a
seller (a “Seller”), PARK MONACO INC. (“Park Monaco”), a Delaware corporation,
as a seller (a “Seller”), PARK SIENNA LLC (“Park Sienna”), a Delaware limited
liability company, as a seller (a “Seller”), COUNTRYWIDE HOME LOANS SERVICING
LP, a Texas limited partnership, as master servicer (the “Master Servicer”), and
THE BANK OF NEW YORK, a banking corporation organized under the laws of the
State of New York, as trustee (the “Trustee”).
WITNESSETH
THAT
In
consideration of the mutual agreements 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 Trustee
shall treat the Trust Fund as consisting of, among other things, a trust
(the
“ES Trust”) beneath which are two real estate mortgage investment conduits (or
in the alternative, the “Lower Tier REMIC” and the “Master REMIC”) and shall
make all elections as necessary for such treatment. The Lower Tier REMIC
will
hold all the assets of the Trust Fund and will issue several classes of
uncertificated Lower Tier REMIC Interests. The Class LTR-A-R Interest is
hereby
designated as the residual interest in the Lower Tier REMIC and each other
Lower
Tier REMIC Interest is hereby designated as a regular interest in the Lower
Tier
REMIC. The Master REMIC will hold all the regular interests in the Lower
Tier
REMIC and will issue several classes of uncertificated Master REMIC Interests.
The Class A-R Interest is hereby designated as the residual interest in the
Master REMIC and each other Master REMIC Interest is hereby designated as
a
regular interest in the Master REMIC. The “latest possible maturity date,” for
federal income tax purposes, of all REMIC regular interests created hereby
will
be the Latest Possible Maturity Date.
The
ES
Trust shall hold the LTR-A-R Interest, the MR-A-R Interest, all Master REMIC
regular interests and shall issue the Certificates. Each Certificate, other
than
the Class A-R Certificate, will represent ownership of one or more of the
Master
REMIC regular interests held by the ES Trust. The Class A-R Certificate will
represent ownership of the LTR-A-R Interest and the MR-A-R Interest, which
are,
respectively, the sole Classes of REMIC residual interest in each of the
Lower
Tier REMIC and the Master REMIC.
For
federal income tax purposes the Trustee shall treat the ES Trust as a Grantor
Trust and shall treat each Holder of an ES Trust Certificate as the owner
of the
individual, underlying assets represented by such ES Trust Certificate. In
addition, to the fullest extent possible, ownership of an ES Trust Certificate
shall be treated as direct ownership of the individual, underlying assets
represented by such ES Trust Certificate for federal income tax reporting
purposes.
The
ES
Trust, the Corridor Contracts, the Supplemental Interest Trust and the Corridor
Contract Reserve Fund will not form part of any REMIC.
vi
The
following table sets forth characteristics of the ES Trust 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):
|
Class
Designation
|
Initial
Maximum
Class Certificate Balance |
Pass-
Through Rate
(per
annum)
|
Minimum
Denomination |
Integral
Multiples in Excess of Minimum |
Classes
of
Master REMIC Interests Represented (12)
|
|||||||||||||
|
Class
A-1
|
$
|
5,848,500
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-1
|
|||||||||
|
Class
A-2
|
$
|
98,360,000
|
5.75
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-2
|
|||||||||
|
Class
A-3
|
$
|
55,000,000
|
(1
|
)
|
$
|
25,000
|
$
|
1
|
MR-A-3
|
|||||||||
|
Class
A-4
|
$
|
55,000,000
|
(2)
|
(3
|
)
|
$
|
25,000
|
(4)
|
$
|
1(4
|
)
|
XX-X-0
|
||||||
|
Xxxxx
X-0
|
$
|
1,241,686
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-5
|
|||||||||
|
Class
A-6
|
$
|
20,000,000
|
(5
|
)
|
$
|
25,000
|
$
|
1
|
MR-A-6
|
|||||||||
|
Class
A-7
|
$
|
20,000,000
|
(2)
|
(6
|
)
|
$
|
25,000
|
(4)
|
$
|
1(4
|
)
|
XX-X-0
|
||||||
|
Xxxxx
X-0
|
$
|
41,225,254
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
XX-X-0-X,
XX-X-0-X, XX-X-0-X, XX-X-0-X.
|
|||||||||
|
Class
A-9
|
$
|
69,789,245
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
XX-X-0-X,
XX-X-0-X, XX-X-0-X.
|
|||||||||
|
Class
A-10
|
$
|
1,496,264
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-10
|
|||||||||
|
Class
A-11
|
$
|
25,378
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-11
|
|||||||||
|
Class
A-12
|
$
|
18,391,775
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
XX-X-00-X,
XX-X-00-X,
XX-X-00-X.
|
|||||||||
|
Class
A-13
|
$
|
1,608,225
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-13
|
|||||||||
|
Class
A-14
|
$
|
404,040
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-14
|
|||||||||
|
Class
A-15
|
$
|
24,590,000
|
(7
|
)
|
$
|
25,000
|
$
|
1
|
MR-A-15
|
|||||||||
|
Class
A-16
|
$
|
24,590,000
|
(2)
|
(8
|
)
|
$
|
25,000
|
(4)
|
$
|
1(4
|
)
|
MR-A-16
|
||||||
|
Class
A-17
|
$
|
8,315,000
|
6.00
|
%
|
$
|
25,000
|
(6)
|
$
|
1(6
|
)
|
MR-A-17
|
|||||||
|
Class
A-18
|
$
|
453,478
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-18
|
|||||||||
|
Class
A-19
|
$
|
18,391,775
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-12-A
|
|||||||||
|
Class
A-20
|
$
|
1,532,647
|
(2)
|
6.00
|
%
|
$
|
25,000
|
(4)
|
$
|
1(4
|
)
|
MR-A-12-B,
and /or MR-A-12-C.
|
||||||
|
Class
A-21
|
$
|
41,225,254
|
5.75
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-8-A
|
|||||||||
|
Class
A-22
|
$
|
41,225,254
|
5.80
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-8-A
and MR-A-8-B.
|
|||||||||
|
Class
A-23
|
$
|
41,225,254
|
5.85
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-8-A
and MR-A-8-C or MR-A-8-D.
|
|||||||||
|
Class
A-24
|
$
|
41,225,254
|
5.90
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-8-A,
MR-A-8-B and MR-A-8-C or MR-A-8-D.
|
|||||||||
|
Class
A-25
|
$
|
41,225,254
|
5.95
|
%
|
$
|
25,000
|
$
|
0
|
XX-X-0-X,
XX-X-0-X and MR-A-8-D.
|
|||||||||
|
Class
A-26
|
$
|
1,717,718
|
(2)
|
6.00
|
%
|
$
|
25,000
|
(4)
|
$
|
1(4
|
)
|
MR-A-8-B
and/or MR-A-8-C and/or MR-A-8-D
|
||||||
|
Class
A-27
|
$
|
122,950,000
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
XX-X-0,
XX-X-00 and MR-A-16.
|
|||||||||
|
Class
A-28
|
$
|
69,789,245
|
5.50
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-9-A
|
|||||||||
|
Class
A-29
|
$
|
69,789,245
|
5.75
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-9-A
and MR-A-9-B or MR-A-9-C.
|
|||||||||
|
Class
A-30
|
$
|
5,815,770
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-9-B
and/or MR-A-9-C.
|
|||||||||
|
Class
A-31
|
$
|
137,990,686
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
XX-X-0,
XX-X-0, XX-X-0, XX-X-00, XX-X-00, XX-X-00.
|
|||||||||
|
Class
A-32
|
$
|
18,391,775
|
5.75
|
%
|
$
|
25,000
|
$
|
1
|
MR-A-12-A
and MR-A-12-B or MR-A-12-C
|
|||||||||
|
Class
X
|
$
|
356,215,087
|
(2)
|
(9
|
)
|
$
|
25,000
|
(4)
|
$
|
1(4
|
)
|
MR-X
|
||||||
|
Class
PO
|
$
|
456,830
|
(10
|
)
|
$
|
25,000
|
$
|
1
|
MR-PO
|
|||||||||
|
Class A-R(11)
|
$
|
100
|
6.00
|
%
|
(11
|
)
|
(11
|
)
|
LTR-A-R
and MR-A-R
|
|||||||||
|
Class
M
|
$
|
12,241,457
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-M
|
|||||||||
|
Class
B-1
|
$
|
4,080,485
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-B-1
|
|||||||||
|
Class
B-2
|
$
|
2,596,672
|
6.00
|
%
|
$
|
25,000
|
$
|
1
|
MR-B-2
|
|||||||||
|
Class
B-3
|
$
|
2,225,719
|
6.00
|
%
|
$
|
100,000
|
$
|
1
|
MR-B-3
|
|||||||||
|
Class
B-4
|
$
|
1,669,289
|
6.00
|
%
|
$
|
100,000
|
$
|
1
|
MR-B-4
|
|||||||||
|
Class
B-5
|
$
|
1,298,338
|
6.00
|
%
|
$
|
100,000
|
$
|
1
|
MR-B-5
|
|||||||||
vii
__________________________________________
|
(1)
|
The
Class A-3 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate of LIBOR plus 0.60%, subject to a maximum
and
minimum Pass-Through Rate of 6.00% and 0.60% per annum, respectively.
The
Pass-Through Rate for the Class A-3 Certificates for the Interest
Accrual
Period for the first Distribution Date is 5.92% per
annum.
|
|
(2)
|
This
Class will be a Class of Notional Amount Certificates, will have
no Class
Certificate Balance and will bear interest on its Notional
Amount.
|
|
(3)
|
The
Class A-4 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate of 5.40% minus LIBOR, subject to a maximum
and
minimum Pass-Through Rate of 5.40% and 0.00% per annum, respectively.
The
Pass-Through Rate for the Class A-4 Certificates for the Interest
Accrual
Period for the first Distribution Date is 0.08% per
annum.
|
|
(4)
|
Minimum
denomination is based on the Notional Amount of such
Class.
|
|
(5)
|
The
Class A-6 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate of LIBOR plus 0.40%, subject to a maximum
and
minimum Pass-Through Rate of 6.00% and 0.40% per annum, respectively.
The
Pass-Through Rate for the Class A-6 Certificates for the Interest
Accrual
Period for the first Distribution Date is 5.72% per
annum.
|
|
(6)
|
The
Class A-7 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate of 5.60% minus LIBOR, subject to a maximum
and
minimum Pass-Through Rate of 5.60% and 0.00% per annum, respectively.
The
Pass-Through Rate for the Class A-7 Certificates for the Interest
Accrual
Period for the first Distribution Date is 0.28% per
annum.
|
|
(7)
|
The
Class A-15 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate of LIBOR plus 0.32%, subject to a maximum
and
minimum Pass-Through Rate of 7.00% and 0.32% per annum, respectively.
The
Pass-Through Rate for the Class A-15 Certificates for the Interest
Accrual
Period for the first Distribution Date is 5.64% per
annum.
|
|
(8)
|
The
Class A-16 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate of 6.68% minus LIBOR, subject to a maximum
and
minimum Pass-Through Rate of 6.68% and 0.00% per annum, respectively.
The
Pass-Through Rate for the Class A-16 Certificates for the Interest
Accrual
Period for the first Distribution Date is 1.36% per
annum.
|
|
(9)
|
The
Pass-Through Rate for the Class X Certificates for the Interest
Accrual
Period for any Distribution Date will be equal to the excess of
(a) the
weighted average of the Adjusted Net Mortgage Rates of the Non-Discount
Mortgage Loans, weighted on the basis of the Stated Principal Balance
thereof as of the Due Date in the preceding calendar month (after
giving
effect to Principal Prepayments received in the Prepayment Period
related
to such prior Due Date), over (b) 6.00%. The Pass-Through Rate
for the
Class X Certificates for the Interest Accrual Period for the first
Distribution Date is 0.6244619% per
annum.
|
|
(10)
|
The
Class PO Certificates are Principal Only Certificates and will
not receive
any distributions of interest.
|
|
(11)
|
The
Class A-R Certificates represent the sole Class of residual interest
in
the Master REMIC and in Lower Tier REMIC. The Class A-R Certificate
shall be issued by the ES Trust 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.
|
|
(12)
|
See
Schedule VII for information regarding the Recombinations of the
Depositable and Exchangeable Certificates related to these uncertificated
Master REMIC Interests.
|
viii
The
following table specifies the class designation, interest rate, and principal
amount for each class of Master REMIC Interest:
|
Master
REMIC Interest
|
Initial
Principal Balance
|
Interest
Rate
|
Possible
Corresponding ES Trust Certificates
|
|||||||
|
MR-A-1
|
$
|
5,848,500
|
6.00
|
%
|
X-0,
X-00
|
|||||
|
XX-X-0
|
$
|
98,360,000
|
5.75
|
%
|
X-0,
X-00, X-00
|
|||||
|
XX-X-0
|
$
|
55,000,000
|
(1
|
)
|
X-0
|
|||||
|
XX
X-0
|
$
|
55,000,000
|
(2)
|
(3
|
)
|
X-0
|
||||
|
XX-X-0
|
$
|
1,241,686
|
6.00
|
%
|
X-0,
X-00
|
|||||
|
XX-X-0
|
$
|
20,000,000
|
(4
|
)
|
X-0
|
|||||
|
XX-X-0
|
$
|
20,000,000
|
(2)
|
(5
|
)
|
X-0
|
||||
|
XX-X-0-X
|
$
|
41,225,254
|
5.75
|
%
|
X-0,
X-00, X-00, X-00, X-00, X-00
|
|||||
|
XX-X-0-X
|
$
|
41,225,254
|
.05
|
%
|
X-0,
X-00, X-00, X-00
|
|||||
|
XX-X-0-X
|
$
|
41,225,254
|
.10
|
%
|
X-0,
X-00, X-00, X-00, X-00
|
|||||
|
XX-X-0-X
|
$
|
41,225,254
|
.10
|
%
|
X-0,
X-00, X-00, X-00, X-00
|
|||||
|
XX-X-0-X
|
$
|
69,789,245
|
5.50
|
%
|
X-0,
X-00, X-00
|
|||||
|
XX-X-0-X
|
$
|
69,789,245
|
(4)
|
.25
|
%
|
X-0,
X-00, X-00
|
||||
|
XX-X-0-X
|
$
|
69,789,245
|
(4)
|
.25
|
%
|
X-0,
X-00, X-00
|
||||
|
XX-X-00
|
$
|
1,496,264
|
6.00
|
%
|
X-00
|
|||||
|
XX-X-00
|
$
|
25,378
|
6.00
|
%
|
X-00
|
|||||
|
XX-X-00-X
|
$
|
18,391,775
|
5.50
|
%
|
X-00,
X-00, X-00
|
|||||
|
XX-X-00-X
|
$
|
18,391,775
|
(4)
|
.25
|
%
|
X-00,
X-00, X-00
|
||||
|
XX-X-00-X
|
$
|
18,391,775
|
(4)
|
.25
|
%
|
X-00,
X-00, X-00
|
||||
|
XX-X-00
|
$
|
1,608,225
|
6.00
|
%
|
X-00
|
|||||
|
XX-X-00
|
$
|
404,040
|
6.00
|
%
|
X-00
|
|||||
|
XX-X-00
|
$
|
24,590,000
|
(6
|
)
|
X-00,
X-00, X-00
|
|||||
|
XX-X-00
|
$
|
24,590,000
|
(2)
|
(7
|
)
|
X-00,
X-00, X-00
|
||||
|
XX-X-00
|
$
|
8,315,000
|
6.00
|
%
|
X-00,
X-00
|
|||||
|
XX-X-00
|
$
|
453,478
|
6.00
|
%
|
A-18
|
|||||
|
MR-X
|
(2
|
)
|
(8
|
)
|
X
|
|||||
|
MR-PO
|
$
|
456,830
|
(9
|
)
|
PO
|
|||||
|
MR-M
|
$
|
12,241,457
|
6.00
|
%
|
M
|
|||||
|
MR-B-1
|
$
|
4,080,485
|
6.00
|
%
|
B-1
|
|||||
|
MR-B-2
|
$
|
2,596,672
|
6.00
|
%
|
B-2
|
|||||
|
MR-B-3
|
$
|
2,225,719
|
6.00
|
%
|
B-3
|
|||||
|
MR-B-4
|
$
|
1,669,289
|
6.00
|
%
|
B-4
|
|||||
|
MR-B-5
|
$
|
1,298,338
|
6.00
|
%
|
B-5
|
|||||
|
MR-A-R
(10)
|
$
|
100
|
6.00
|
%
|
A-R
|
|||||
|
(1)
|
The
Class MR-A-3 Master REMIC Interests will bear interest during each
Interest Accrual Period at a per annum rate of LIBOR plus 0.60%,
subject
to a maximum and minimum Pass-Through Rate of 6.00% and 0.60% per
annum,
respectively. The Pass-Through Rate for the Class MR-A-3 Master
REMIC
Interests for the Interest Accrual Period for the first Distribution
Date
is 5.92% per annum.
|
ix
|
(2)
|
This
Class will be a Class of Notional Amount Master REMIC Interests,
will have
no Class Certificate Balance and will bear interest on its Notional
Amount.
|
|
(3)
|
The
Class MR-A-4 Master REMIC Interests will bear interest during each
Interest Accrual Period at a per annum rate of 5.40% minus LIBOR,
subject
to a maximum and minimum Pass-Through Rate of 5.40% and 0.00% per
annum,
respectively. The Pass-Through Rate for the Class MR-A-4 Master
REMIC
Interests for the Interest Accrual Period for the first Distribution
Date
is 0.08% per annum.
|
|
(4)
|
The
Class MR-A-6 Master REMIC Interests will bear interest during each
Interest Accrual Period at a per annum rate of LIBOR plus 0.40%,
subject
to a maximum and minimum Pass-Through Rate of 6.00% and 0.40% per
annum,
respectively. The Pass-Through Rate for the Class MR-A-6 Master
REMIC
Interests for the Interest Accrual Period for the first Distribution
Date
is 5.72% per annum.
|
|
(5)
|
The
Class MR-A-7 Master REMIC Interests will bear interest during each
Interest Accrual Period at a per annum rate of 5.60% minus LIBOR,
subject
to a maximum and minimum Pass-Through Rate of 5.60% and 0.00% per
annum,
respectively. The Pass-Through Rate for the Class MR-A-7 Master
REMIC
Interests for the Interest Accrual Period for the first Distribution
Date
is 0.28% per annum.
|
|
(6)
|
The
Class MR-A-15 Master REMIC Interests will bear interest during
each
Interest Accrual Period at a per annum rate of LIBOR plus 0.32%,
subject
to a maximum and minimum Pass-Through Rate of 7.00% and 0.32% per
annum,
respectively. The Pass-Through Rate for the Class MR-A-15 Master
REMIC
Interests for the Interest Accrual Period for the first Distribution
Date
is 5.64% per annum.
|
|
(7)
|
The
Class MR-A-16 Master REMIC Interests will bear interest during
each
Interest Accrual Period at a per annum rate of 6.68% minus LIBOR,
subject
to a maximum and minimum Pass-Through Rate of 6.68% and 0.00% per
annum,
respectively. The Pass-Through Rate for the Class MR-A-16 Master
REMIC
Interests for the Interest Accrual Period for the first Distribution
Date
is 1.36% per annum.
|
|
(8)
|
This
class of Master REMIC Interest pays no principal. The MR-X Master REMIC
Interest is entitled to receive on each Distribution Date all amounts
payable with respect to the LTR-X Lower Tier REMIC
Interest.
|
|
(9)
|
This
Class of Master REMIC Interest pays no interest.
|
|
(10)
|
The
Class MTR-A-R Master REMIC Interest represents the sole Class of
residual
interest in the Master REMIC.
|
x
The
following table specifies the class designation, interest rate, and principal
amount for each class of Lower Tier REMIC Interests:
|
Lower
Tier REMIC
Interest |
Initial
Principal Balance
|
Interest
Rate
|
Corresponding
Master
REMIC Interest |
|||||||
|
LTR-A-1
|
$
|
5,484,000
|
6.00
|
%
|
XX-X-0
|
|||||
|
XXX
X-0
|
$
|
98,360,600
|
5.75
|
%
|
XX-X-0
|
|||||
|
XXX-X-0
|
$
|
55,000,000
|
6.00
|
%
|
MR-A-3,
Class A-4(1)
|
|
||||
|
LTR-A-5
|
$
|
1,241,686
|
6.00
|
%
|
XX-X-0
|
|||||
|
XXX-X-0
|
$
|
20,000,000
|
6.00
|
%
|
MR-A-6,
Class A-7(2)
|
|
||||
|
LTR-A-8
|
$
|
41,225,254
|
6.00
|
%
|
XX-X-0-X,
XX-X-0-X, XX-X-0-X, XX-X-0-X (3)
|
|
||||
|
LTR-A-9
|
$
|
69,789,245
|
6.00
|
%
|
XX-X-0-X,
XX-X-0-X, XX-X-0-X (4)
|
|
||||
|
LTR-A-10
|
$
|
1,496,264
|
6.00
|
%
|
XX-X-00
|
|||||
|
XXX-X-00
|
$
|
25,378
|
6.00
|
%
|
XX-X-00
|
|||||
|
XXX-X-00
|
$
|
18,391,775
|
6.00
|
%
|
XX-X-00-X,
XX-X-00-X, XX-X-00-X (5).
|
|||||
|
LTR-A-13
|
$
|
1,608,225
|
6.00
|
%
|
XX-X-00
|
|||||
|
XXX-X-00
|
$
|
404,040
|
6.00
|
%
|
XX-X-00
|
|||||
|
XXX-X-00
|
$
|
25,590,400
|
7.00
|
%
|
MR-A-15,
Class A-16(6)
|
|
||||
|
LTR-A-17
|
$
|
8,315,000
|
6.00
|
%
|
XX-X-00
|
|||||
|
XXX-X-00
|
$
|
435,478
|
6.00
|
%
|
MR-A-18
|
|||||
|
LTR-X
|
(7
|
)
|
(8
|
)
|
MR-X
|
|||||
|
LTR-1-$100
|
$
|
100
|
6.00
|
%
|
MR-A-R
|
|||||
|
LTR-PO
|
$
|
456,830
|
(9
|
)
|
MR-PO
|
|||||
|
LTR-M
|
$
|
12,241,457
|
6.00
|
%
|
MR-M
|
|||||
|
LTR-B-1
|
$
|
4,080,485
|
6.00
|
%
|
XX-X-0
|
|||||
|
XXX-X-0
|
$
|
2,596,672
|
6.00
|
%
|
XX-X-0
|
|||||
|
XXX-X-0
|
$
|
2,225,719
|
6.00
|
%
|
XX-X-0
|
|||||
|
XXX-X-0
|
$
|
1,669,289
|
6.00
|
%
|
XX-X-0
|
|||||
|
XXX-X-0
|
$
|
1,298,338
|
6.00
|
%
|
MR-B-5
|
|||||
|
LTR-A-R
|
(10
|
)
|
(10
|
)
|
N/A
|
|||||
|
(1)
|
The
Class MR-A-4
Master REMIC Interests are entitled to receive on each Distribution
Date a
specified portion of the interest payable on the Class LTR-A-3
Lower Tier
REMIC Interest. Specifically, for each Interest Accrual Period,
the Class
MR-A-4
Master REMIC Interests are entitled to interest accruals on the
Class
LTR-A-3 Lower Tier REMIC Interest at a per annum rate equal to
5.40% minus
LIBOR, but not less than 0.00% per
annum.
|
|
(2)
|
The
Class MR-A-7
Master REMIC Interests are entitled to receive on each Distribution
Date a
specified portion of the interest payable on the Class LTR-A-6
Lower Tier
REMIC Interest. Specifically, for each Interest Accrual Period,
the Class
MR-A-7
Master REMIC Interests are entitled to interest accruals on the
Class
LTR-A-6 Lower Tier REMIC Interest at a per annum rate equal to
5.60% minus
LIBOR, but not less than 0.00% per
annum.
|
|
(3)
|
For
each Distribution Date, each of the Class MR-A-8-B, Class MR-A-8-C
and
Class MR-A-8-D Master REMIC Interest is entitled to a specified
portion of
the interest payable on the LTR-A-8 Lower Tier REMIC Interest.
Specifically, for each related Distribution Date, the Class MR-A-8-B
Master REMIC Interest is entitled to interest payable on the LTR-A-8
Lower
Tier REMIC Interest at a per annum rate equal to 0.05%, and each
of the
Class MR-A-8-C and Class MR-A-8-D Master REMIC Interest is entitled
to
interest payable on the LTR-A-8 Lower Tier REMIC Interest at a
per annum
rate equal to 0.10%.
|
|
(4)
|
For
each Distribution Date, each of the Class MR-A-9-B and Class MR-A-8-C
Master REMIC Interest is entitled to a specified portion of the
interest
payable on the LTR-A-9 Lower Tier REMIC Interest. Specifically,
for each
related Distribution Date, each of the Class MR-A-9-B and Class
MR-A-9-C
Master REMIC Interest is entitled to interest payable on the LTR-A-9
Lower
Tier REMIC Interest at a per annum rate equal to
0.25%
|
|
(5)
|
For
each Distribution Date, each of the Class MR-A-12-B and Class MR-A-12-C
Master REMIC Interest is entitled to a specified portion of the
interest
payable on the LTR-A-12 Lower Tier REMIC Interest. Specifically,
for each
related Distribution Date, each of the Class MR-A-12-B and Class
MR-A-12-C
Master REMIC Interest is entitled to interest payable on the LTR-A-12
Lower Tier REMIC Interest at a per annum rate equal to
0.25%
|
|
(6)
|
The
Class MR-A-16
Master REMIC Interests are entitled to receive on each Distribution
Date a
specified portion of the interest payable on the Class LTR-A-15
Lower Tier
REMIC Interest. Specifically, for each Interest Accrual Period,
the Class
MR-A-16
Master REMIC Interests are entitled to interest accruals on the
Class
LTR-A-15 Lower Tier REMIC Interest at a per annum rate equal to
6.68%
minus LIBOR, but not less than 0.00% per
annum.
|
| (7) |
This
Class of Lower Tier REMIC Interest pays no
principal.
|
| (8) |
For
each Distribution Date, the Class LTR-X Lower Tier REMIC Interest
is
entitled to a specified
portion of the interest payable on the Non-Discount Mortgage Loans.
Specifically, for each
related Distribution Date, the Class LTR-X Lower Tier REMIC Interest
is
entitled to interest
accruals on each such Non-Discount Mortgage Loan in excess of an
Adjusted
Net Mortgage
Rate of 6.00% per annum.
|
| (9) |
This
Class of Lower Tier REMIC Interest pays no
interest.
|
|
(10)
|
The
LT-A-R is the sole class of residual interest in the Lower Tier
REMIC. It pays no interest or
principal.
|
On
each
Distribution Date, interest shall be payable on the Lower Tier REMIC Interests
according the formulas described above, and principal, Realized Losses and
Subsequent Recoveries shall be allocated among the Lower Tier REMIC Interests
in
the same manner that such items are allocated among their corresponding
Certificate Classes.
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Master REMIC as cash flow on a REMIC regular
interest, without creating any shortfall-actual or potential (other than
for
credit losses) to any REMIC regular interest.
Set
forth
below are designations of Classes or Components of Certificates and other
defined terms to the categories used herein:
2
|
Accretion
Directed Certificates
|
Class
A-3 and Class A-10 Certificates.
|
|
Accretion
Directed Components
|
None.
|
|
Accrual
Certificates
|
Class
A-10 and Class A-11 Certificates.
|
|
Accrual
Components.
|
None.
|
|
Book-Entry
Certificates.
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
COFI
Certificates.
|
None.
|
|
Combined
Certificates
|
None.
|
|
Component
Certificates.
|
None.
|
|
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:
|
|
Designation
|
Initial
Component
Balance
|
Pass-Through
Rate
|
||
|
N/A
|
N/A
|
N/A
|
||
|
Delay
Certificates
|
All
interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
|
|
Depositable
Certificates
|
Class
A-1, Class A-2, Class A-5, Class A-8, Class A-9, Class A-12, Class
A-13,
Class A-15, Class A-16 and Class A-17 Certificates.
|
|
ERISA-Restricted
Certificates.
|
The
Residual Certificates and Private Certificates; until an ERISA-Qualifying
Underwriting has occurred with respect to such Class, the Class
PO and
Class X Certificates; and
any Certificate of a Class that does not have or no longer has
a rating of
at least BBB- or its equivalent from at least one Rating
Agency.
|
|
Exchangeable
Certificates
|
Class
A-19, Class A-20, Class A-21, Class A-22, Class A-23, Class A-24,
Class
A-25, Class A-26, Class A-27, Class A-28, Class A-29, Class A-30,
Class
A-31 and Class A-32 Certificates.
|
|
Floating
Rate Certificates.
|
Class
A-3, Class A-6 and Class A-15
Certificates.
|
3
|
Inverse
Floating Rate Certificates.
|
Class
A-4, Class A-7 and Class A-16 Certificates.
|
|
LIBOR
Certificates.
|
Floating
Rate Certificates and Inverse Floating Rate
Certificates.
|
|
Non-Delay
Certificates.
|
LIBOR
Certificates.
|
|
Notional
Amount Certificates.
|
Class
A-4, Class A-7, Class A-16, Class A-20, Class A-26, Class A-30
and Class 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
A-9 Certificates.
|
|
Principal
Only Certificates.
|
Class
PO Certificates.
|
|
Private
Certificates.
|
Class B-3,
Class B-4 and Class B-5 Certificates.
|
|
Rating
Agencies.
|
Fitch
and S&P.
|
|
Regular
Certificates.
|
All
Classes of Certificates, other than the Residual
Certificates.
|
|
Residual
Certificates.
|
Class A-R
Certificates.
|
|
Senior
Certificates.
|
Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11, Class
A-12,
Class A-14, Class A-15, Class A-16,
Class A-17, Class A-18, Class 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.
|
Class
A-3 Certificates.
|
|
Underwriter
|
Each
of HSBC Securities (USA) Inc. (Senior) and Xxxxxx Brothers
Inc.
|
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.
4
ARTICLE
I
DEFINITIONS
SECTION
1.01. Defined
Terms
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Account:
Any
Escrow Account, the Certificate Account, the Distribution Account, the Corridor
Contract Reserve Fund, the Exchangeable Certificates Distribution Account
or any
other account related to the Trust Fund or the Mortgage Loans.
Accretion
Directed Certificates:
As
specified in the Preliminary Statement.
Accretion
Direction Rule:
The
Class A-10 Accretion Direction Rule or the Class A-11 Accretion Direction
Rule,
as applicable.
Accrual
Amount:
With
respect to any Class of Accrual Certificates and any Distribution Date prior
to
the Accrual Termination Date, the amount allocable to interest on such Class
of
Accrual Certificates with respect to such Distribution Date pursuant to Section
4.02(a)(ii).
Accrual
Certificates:
As
specified in the Preliminary Statement.
Accrual
Components:
As
specified in the Preliminary Statement.
Accrual
Termination Date:
The
Class A-10 Accrual Termination Date or the Class A-11 Accrual Termination
Date,
as applicable.
Additional
Designated Information:
As
defined in Section 11.02.
Adjusted
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the Mortgage
Rate less the Master Servicing Fee Rate.
Adjusted
Net Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the Mortgage
Rate less the 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:
The
payment required to be made by the Master Servicer with respect to any
Distribution Date pursuant to Section 4.01, the amount of any such payment
being
equal to the aggregate of payments of principal and interest (net of the
Master
Servicing Fee) on the Mortgage Loans that were due on the related Due Date
and
not received by the Master Servicer as of the close of business on the related
Determination Date, together with an amount equivalent to interest on each
Mortgage Loan as to which the related Mortgaged Property is an REO Property
(net
of any net income from such REO Property), less the aggregate amount of any
such
delinquent payments that the Master Servicer has determined would constitute
a
Nonrecoverable Advance, if advanced.
I-1
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.
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 Certificates, zero, (ii) with respect to the Class X Certificates, (a)
the ratio that the excess, if any, of the Adjusted Net Mortgage Rate with
respect to such Mortgage Loan, over the Required Coupon bears to such Adjusted
Net Mortgage Rate with respect to such Mortgage Loan, over the 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 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 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 for such Class 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
amount pursuant to Section 4.02(d)).
Amount
Available for Senior Principal:
As to
any Distribution Date, Available Funds for such Distribution Date, reduced
by
the aggregate amount distributable (or allocable to the Accrual Amount, if
applicable) on such Distribution Date in respect of interest on the Senior
Certificates pursuant to Section 4.02(a)(ii).
Amount
Held for Future Distribution:
As to
any Distribution Date, the aggregate amount held in the Certificate Account
at
the close of business on the related Determination Date on account of (i)
Principal Prepayments received after the related Prepayment Period and
Liquidation Proceeds and Subsequent Recoveries received in the month of such
Distribution Date and (ii) all Scheduled Payments due after the related Due
Date.
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 sale price of the Mortgaged Property at the time of the origination of
such
Mortgage Loan; (ii) with respect to a Refinancing Mortgage Loan other than
a
Streamlined Documentation Mortgage Loan, the value of the Mortgaged Property
based upon the appraisal made-at the time of the origination of such Refinancing
Mortgage Loan; and (iii) with respect to a Streamlined Documentation Mortgage
Loan, (a) if the loan-to-value ratio with respect to the Original Mortgage
Loan
at the time of the origination thereof was 80% or less and the loan amount
of
the new mortgage loan is $650,000 or less, the value of the Mortgaged Property
based upon the appraisal made at the time of the origination of the Original
Mortgage Loan and (b) if the loan-to-value ratio with respect to the Original
Mortgage Loan at the time of the origination thereof was greater than 80%
or the
loan amount of the new 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.
I-2
Available
Funds:
As to
any Distribution Date, the sum of (a) the aggregate amount held in the
Certificate Account at the close of business on the related Determination
Date,
including any Subsequent Recoveries, net of the Amount Held for Future
Distribution and net of amounts permitted to be withdrawn from the Certificate
Account pursuant to clauses (i)-(viii), inclusive, of Section 3.08(a) and
amounts permitted to be withdrawn from the Distribution Account pursuant
to
clauses (i)-(v) inclusive of Section 3.08(b), (b) the amount of the related
Advance and (c) in connection with Defective Mortgage Loans, as applicable,
the
aggregate of the Purchase Prices and Substitution Adjustment Amounts deposited
on the related Distribution Account Deposit Date.
Bankruptcy
Code:
The
United States Bankruptcy Reform Act of 1978, as amended.
Book-Entry
Certificates:
As
specified in the Preliminary Statement.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which banking
institutions in the City of New York, New York, or the States of California
or
Texas or the city in which the Corporate Trust Office of the Trustee is located
are authorized or obligated by law or executive order to be closed.
Ceiling
Rate:
With
respect to each Class of Covered Certificates, the applicable percentage
set
forth below:
|
Class
of Certificates
|
Ceiling
Rate
|
|
Class
A-3
|
8.90%
|
|
Class
A-6
|
9.10%
|
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, initially
Countrywide Bank, N.A., in the name of the Master Servicer for the benefit
of
the Trustee on behalf of Certificateholders and designated “Countrywide Home
Loans Servicing LP, in trust for the registered holders of Alternative Loan
Trust 2007-7T2, Mortgage Pass-Through Certificates, Series
2007-7T2.”
Certificate
Balance:
With
respect to any Certificate (other than a Notional Amount 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 4.04 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. The Notional Amount Certificates
have
no Certificate Balances.
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.
I-3
Certificate
Register:
The
register maintained pursuant to Section 5.02 hereof.
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.
Certification
Party:
As
defined in Section 11.05.
Certifying
Person:
As
defined in Section 11.05.
Class:
All
Certificates bearing the same class designation as set forth in the
Preliminary Statement.
Class
A-10 Accretion Direction Rule:
On each
Distribution Date up to and including the Class A-10 Accrual Termination
Date,
the Accrual Amount for the Class A-10 Certificates will be distributed as
principal in the following order:
(1)
to
the Class A-3 Certificates, in an amount up to the amount necessary to reduce
its Class Certificate Balance to its Targeted Balance for that Distribution
Date; and
(2)
to
the
Class A-10 Certificates, until its Class Certificate Balance is reduced to
zero.
Class
A-11 Accretion Direction Rule:
On each
Distribution Date up to and including the Class A-11 Accrual Termination
Date,
the Accrual Amount for the Class A-11 Certificates will be distributed as
principal in the following order:
(1)
to
the Class A-3 Certificates, in an amount up to the amount necessary to reduce
its Class Certificate Balance to its Targeted Balance for that Distribution
Date;
(2)
to
the
Class A-10 Certificates, until its Class Certificate Balance is reduced to
zero;
(3)
to
the Class A-3 Certificates, without regard to its Targeted Balance for that
Distribution Date, until its class certificate balance is reduced to zero;
and
(4)
to
the
Class A-11 Certificates, until its Class Certificate Balance is reduced to
zero.
I-4
Class
A-10 Accrual Termination Date:
The
earlier of the Senior Credit Support Depletion Date and the Distribution
Date on
which the Class Certificate Balance of the Class A-3 Certificates is reduced
to
zero.
Class
A-11 Accrual Termination Date:
The
earlier of the Senior Credit Support Depletion Date and the Distribution
Date on
which the aggregate Class Certificate Balance of the Class
A-3
and
Class A-10 Certificates is reduced to zero.
Class
A-1 and Class A-17 Priority Amount:
For any
Distribution Date, an amount equal to the sum of (i) the product of (A) the
Scheduled Principal Distribution Amount, (B) the Shift Percentage and (C)
the
Class A-1 and Class A-17 Priority Percentage and (ii) the product of (A)
the
Unscheduled Principal Distribution Amount, (B) the Prepayment Shift Percentage
and (C) the Class A-1 and Class A-17 Priority Percentage.
Class
A-8 and Class A-18 Priority Amount:
For any
Distribution Date, an amount equal to the sum of (i) the product of (A) the
Scheduled Principal Distribution Amount, (B) the Shift Percentage and (C)
the
Class A-8 and Class A-18 Priority Percentage and (ii) the product of (A)
the
Unscheduled Principal Distribution Amount, (B) the Prepayment Shift Percentage
and (C) the Class A-8 and Class A-18 Priority Percentage.
Class
A-1 and Class A-17 Priority Percentage:
As to
any Distribution Date, the percentage equivalent of a fraction, the numerator
of
which is the aggregate Class Certificate Balance of the Class A-1 and Class
A-17
Certificates immediately prior to such Distribution Date and the denominator
of
which is the aggregate Class Certificate Balance of the Senior Certificates
and
Subordinated Certificates (other than the Class PO Certificates) immediately
prior to that Distribution Date.
Class
A-1 and Class A-17 Priority Percentage:
As to
any Distribution Date, the percentage equivalent of a fraction, the numerator
of
which is the aggregate Class Certificate Balance of the Class A-1 and Class
A-17
Certificates immediately prior to such Distribution Date and the denominator
of
which is the aggregate Class Certificate Balance of the Senior Certificates
and
Subordinated Certificates (other than the Class PO Certificates) immediately
prior to that Distribution Date.
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) 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, immediately
prior
to such Distribution Date subject to reduction as provided in Section 4.02(d)
and (ii) any Class Unpaid Interest Amounts for such Class or
Component. Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
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Class PO
Deferred Amount:
As to
any Distribution Date, the aggregate of the applicable PO Percentage of each
Realized Loss to be allocated to the Class PO Certificates on such
Distribution Date on or prior to the Senior Credit Support Depletion Date
or
previously allocated to the Class PO Certificates 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 Subordinated 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.
Closing
Date:
February 27, 2007.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
COFI:
The
Monthly Weighted Average Cost of Funds Index for the Eleventh District Savings
Institutions published by the Federal Home Loan Bank of San
Francisco.
COFI
Certificates:
As
specified in the Preliminary Statement.
Combined
Certificates:
As
specified in the Preliminary Statement.
Combined
Certificates Payment Rule:
Not
applicable.
Commission:
The
U.S. Securities and Exchange Commission.
Compensating
Interest:
As to
any Distribution Date, an amount equal to the product of one-twelfth of 0.125%
and the aggregate Stated Principal Balance of the Mortgage Loans 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.
Confirmation:
With
respect to the Class A-3 Certificates, the confirmation (reference #FXNEC9197),
dated February 27, 2007, evidencing a transaction between the Trustee and
Bear
Xxxxxxx Financial Products Inc. With respect to the Class A-6 Certificates,
the
confirmation (reference #FXNEC9234), dated February 27, 2007, evidencing
a
transaction between the Trustee and Bear Xxxxxxx Financial Products Inc.
I-6
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.
Corporate
Trust Office:
The
designated office of the Trustee in the State of New York at which at any
particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000
(Attn:
Mortgage-Backed Securities Group, CWALT, Inc. Series 2007-7T2), facsimile
no. (000) 000-0000, and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corridor
Contracts:
The
transactions evidenced by the related Confirmation, a form of which is attached
hereto as Exhibit R.
Corridor
Contract Counterparty:
Bear
Xxxxxxx Financial Products Inc.
Corridor
Contract Reserve Fund:
The
separate fund created and initially maintained by the Supplemental Interest
Trustee pursuant to Section 3.05(i) in the name of the Supplemental Interest
Trustee for the benefit of the Holders of the Covered Certificates and
designated “The Bank of New York in trust for registered holders of CWALT, Inc.,
Alternative Loan Trust 2007-7T2, Mortgage Pass-Through Certificates, Series
2007-7T2.” Funds in the Corridor Contract Reserve Fund shall be held in trust
for the Holders of the Covered Certificates for the uses and purposes set
forth
in this Agreement. For all federal income tax purposes, the Corridor Contract
Reserve Fund will be beneficially owned by the Underwriter
(Senior).
Corridor
Contract Scheduled Termination Date:
With
respect to the Class A-3 Certificates the Distribution Date in July 2009
and
with respect to the Class A-6 Certificates, the Distribution Date in November
2009.
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.
Covered
Certificates:
The
Class A-3 and Class A-6 Certificates.
I-7
Cut-off
Date:
In the
case of any Mortgage Loan, the later of (i) the date of origination of such
Mortgage Loan and (ii) February 1, 2007.
Cut-off
Date Pool Principal Balance:
$370,953,236.45.
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 the Trustee on the Closing Date. The number of Delay Delivery
Mortgage Loans shall not exceed 50% of the aggregate number of Mortgage Loans
as
of the Closing 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.
Depositable
Certificates:
As
specified in the Preliminary Statement.
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.
I-8
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 with an Adjusted Net Mortgage Rate that is less than the Required
Coupon.
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 2007-7T2, Mortgage Pass-Through Certificates,
Series 2007-7T2.” 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 March 2007.
Due
Date:
With
respect to any Distribution Date, the first day of the month in which that
Distribution Date occurs.
XXXXX:
The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Eligible
Account:
Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings
of
Xxxxx’x 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.
I-9
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 an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
As
specified in the Preliminary Statement.
ES
Trust:
The
separate trust created under this Agreement pursuant to Section
5.07(a).
ES
Trust Certificate:
Any
Class of Certificates issued by the ES Trust and representing beneficial
ownership of one or more uncertificated Master REMIC Interests held by such
ES
Trust.
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
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.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exchange
Act Reports:
Any
reports on Form 10-D, Form 8-K and Form 10-K required to be filed by the
Depositor with respect to the Trust Fund under the Exchange Act.
Exchange
Fee:
As
defined in Section 5.07(e).
Exchangeable
Certificates:
As
specified in the Preliminary Statement.
Exchangeable
Certificates Distribution Account:
The
separate Eligible Account created and maintained by the Trustee on behalf
of the
ES Trust pursuant to Section 5.07(a) in the name of the Trustee for the benefit
of the Holders of the Exchangeable Certificates and designated “The Bank of New
York in trust for registered Holders of Alternative Loan Trust 2007-7T2,
Mortgage Pass-Through Certificates, Series 2007-7T2.” Funds in the Exchangeable
Certificates Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Expense
Rate:
As to
each Mortgage Loan, the sum of the Master Servicing Fee Rate and the Trustee
Fee
Rate.
I-10
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.
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.
Form
10-D Disclosure Item:
With
respect to any Person, any material litigation or governmental proceedings
pending (a) against such Person, or (b) against any of the Trust Fund, the
Depositor, the Trustee, the co-trustee, the Master Servicer or any Subservicer
if such Person has actual knowledge thereof.
Form
10-K Disclosure Item:
With
respect to any Person, (a) any Form 10-D Disclosure Item and (b) any
affiliations or relationships between such Person and any Item 1119
Party.
Grantor
Trust:
A trust
described in Section 671 of the Code, the items of income, deductions and
credits of which must be included in computing the taxable income and credits
of
the person treated as the owner of such trust (either the grantor or other
person designated under the Code).
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
Certification:
As
defined in Section 2.02(a) hereof.
Initial
Component Balance:
As
specified in the Preliminary Statement.
Initial
LIBOR Rate:
5.32%.
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.
I-11
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 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.
Interest
Distribution Amount:
Not
applicable.
Item
1119 Party:
The
Depositor, any Seller, the Master Servicer, the Trustee, any Subservicer,
any
originator identified in the Prospectus Supplement and any other material
transaction party, as identified in Exhibit X hereto, as updated pursuant
to
Section 11.04.
Latest
Possible Maturity Date:
The
Distribution Date following the third anniversary of the scheduled maturity
date
of the Mortgage Loan having the latest scheduled maturity date as of the
Cut-off
Date.
Lender
PMI Mortgage Loan:
Certain
Mortgage Loans as to which the lender (rather than the 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.
Limited
Exchange Act Reporting Obligations:
The
obligations of the Master Servicer under Section 3.16(b), Section 6.02 and
Section 6.04 with respect to notice and information to be provided to the
Depositor and Article XI (except Section 11.07(a)(1) and (2)).
Liquidated
Mortgage Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan (including any
REO
Property) 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.
Liquidation
Proceeds:
Amounts, including Insurance Proceeds, received in connection with the partial
or complete liquidation of defaulted Mortgage Loans, whether through trustee’s
sale, foreclosure sale or otherwise or amounts received in connection with
any
condemnation or partial release of a Mortgaged Property and any other proceeds
received in connection with an REO Property, less the sum of related
unreimbursed Master Servicing Fees, Servicing Advances and
Advances.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan and as to any date of determination, the fraction
(expressed as a percentage) the numerator of which is the principal balance
of
the related Mortgage Loan at such date of determination and the denominator
of
which is the Appraised Value of the related Mortgaged Property.
I-12
Lost
Mortgage Note:
Any
Mortgage Note the original of which was permanently lost or destroyed and
has
not been replaced.
Lower
Tier REMIC:
As
specified in the Preliminary Statement.
Lower
Tier REMIC Interest:
As
specified in the Preliminary Statement.
Lower
Tier REMIC Regular Interest:
As
specified in the Preliminary Statement.
LTR-A-R
Interest:
As
specified 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.
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, 0.200% 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
®
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
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.
I-13
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 (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 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:
(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;
I-14
(xii) a
code
indicating whether the Mortgage Loan is a Countrywide Mortgage Loan, a Park
Granada Mortgage Loan, a Park Monaco Mortgage Loan or a Park Sienna Mortgage
Loan;
(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;
and
(xvi) 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.
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.
MTR-A-R
Interest:
As
specified in the Preliminary Statement.
National
Cost of Funds Index:
The
National Monthly Median Cost of Funds Ratio to SAIF-Insured Institutions
published by the Office of Thrift Supervision.
Net
Prepayment Interest Shortfalls:
As to
any Distribution Date, the amount by which the aggregate of the Prepayment
Interest Shortfalls during the related Prepayment Period exceeds the
Compensating Interest for that Distribution Date.
Non-Delay
Certificates:
As
specified in the Preliminary Statement.
Non-Discount
Mortgage Loan:
Any
Mortgage Loan with an Adjusted Net Mortgage Rate that is greater than or
equal
to the Required Coupon.
Non-PO
Formula Principal Amount:
As to
any Distribution Date, the sum of (i) the sum of the applicable Non-PO
Percentage of (a) the principal portion of each Scheduled Payment (without
giving effect to any reductions thereof caused by any Debt Service Reductions
or
Deficient Valuations) due on each Mortgage Loan on the related Due Date,
(b) the
Stated Principal Balance of each Mortgage Loan 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 received with respect to such Distribution Date, (d)
any
Insurance Proceeds or Liquidation Proceeds allocable to recoveries of principal
of Mortgage Loans that are not yet Liquidated Mortgage Loans received during
the
calendar month preceding the month of such Distribution Date, (e) with respect
to each Mortgage Loan that became a Liquidated Mortgage Loan during the 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 received during the related Prepayment
Period, and (ii) (A) any Subsequent Recoveries 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 which incurred
a
Realized Loss after the Senior Credit Support Depletion Date, the Non-PO
Percentage of any such Subsequent Recoveries received during the calendar
month
preceding the month of such Distribution Date.
I-15
Non-PO
Percentage:
As to
any Discount Mortgage Loan, 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. 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 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: (i) the Class A-4 Certificates, an
amount
equal to the Class Certificate Balance of the Class A-3 Certificates immediately
prior to such Distribution Date; (ii) the Class A-7 Certificates, an amount
equal to the Class Certificate Balance of the Class A-6 Certificates immediately
prior to such Distribution Date; (iii) the Class A-16 Certificates, an amount
equal to the Class Certificate Balance of the Class A-15 Certificates
immediately prior to such Distribution Date; (iv) the Class A-20 Certificates,
an amount equal to the sum of (I) the product of (a) a fraction, the numerator
of which is o.50 and the denominator of which is 6.00 and (b) the Class
Certificate Balance of the Class A-19 Certificates immediately prior to such
Distribution Date and (II) the product of (a) a fraction, the numerator of
which
is 0.25 and the denominator of which is 6.00 and (b) the Class Certificate
Balance of the Class A-32 Certificates immediately prior to such Distribution
Date; (v) the Class A-26 Certificates, an amount equal to the sum of (I)
the
product of (a) the Class Certificate Balance of the Class A-21 Certificates
immediately prior to such Distribution Date and (b) a fraction, the numerator
of
which is 0.25 and the denominator of which is 6.00, (II) the product of (a)
the
Class Certificate Balance of the Class A-22 Certificates immediately prior
to
such Distribution Date and (b) a fraction, the numerator of which is 0.20
and
the denominator of which is 6.00, (III) the product of (a) the Class Certificate
Balance of the Class A-23 Certificates immediately prior to such Distribution
Date and (b) a fraction, the numerator of which is 0.15 and the denominator
of
which is 6.00, (IV) the product of (a) the Class Certificate Balance of the
Class A-24 Certificates immediately prior to such Distribution Date and (b)
a
fraction, the numerator of which is 0.10 and the denominator of which is
6.00
and (V) the product of (a) the Class Certificate Balance of the Class A-25
Certificates immediately prior to such Distribution Date and (b) a fraction,
the
numerator of which is 0.05 and the denominator of which is 6.00; (vi) the
Class
A-30 Certificates, an amount equal to the sum of (I) the product of (a) the
Class Certificate Balance of the Class A-28 Certificates immediately prior
to
such Distribution Date and (b) a fraction, the numerator of which is 0.50
and
the denominator of which is 6.00, and (II) the product of (a) the Class
Certificate Balance of the Class A-29 Certificates immediately prior to such
Distribution Date and (b) a fraction, the numerator of which is 0.25 and
the
denominator of which is 6.00; and (vii) the Class X Certificates, an amount
equal to the aggregate of the Stated Principal Balances of the Non-Discount
Mortgage Loans as of the Due Date in the preceding calendar month (after
giving
effect to Principal Prepayments received in the Prepayment Period related
to
such Due Date).
I-16
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, (iii) if provided
for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required
by
this Agreement or (iv) in the case of any other Person, signed by an authorized
officer of such Person.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for a Seller, the Depositor
or
the Master Servicer, including, in-house counsel, reasonably acceptable to
the
Trustee; provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (i) in fact be
independent of a Seller, the Depositor and the Master Servicer, (ii) not
have
any direct financial interest in a Seller, the Depositor or the Master Servicer
or in any affiliate thereof, and (iii) not be connected with a Seller, the
Depositor or the Master Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Optional
Termination:
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 Certificates, the corresponding
percentage described below, as of the Closing Date:
|
Class
M
|
6.50%
|
|
Class B-1
|
3.20%
|
|
Class B-2
|
2.10%
|
|
Class B-3
|
1.40%
|
|
Class B-4
|
0.80%
|
|
Class B-5
|
0.35%
|
Original
Mortgage Loan:
The
mortgage loan refinanced in connection with the origination of a Refinancing
Mortgage Loan.
Original
Subordinate Principal Balance:
The
aggregate of the Class Certificate Balances of the Subordinated
Certificates as of the Closing Date.
OTS:
The
Office of Thrift Supervision.
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-17
|
(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.
Ownership
Interest:
As to
any Residual Certificate, any ownership interest in such Certificate including
any interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
Park
Granada:
Park
Granada LLC, a Delaware limited liability company, and its successors and
assigns, in its capacity as the seller of the Park Granada Mortgage Loans
to the
Depositor.
Park
Granada Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which
Park
Granada is the applicable Seller.
Park
Monaco:
Park
Monaco Inc., a Delaware corporation, and its successors and assigns, in its
capacity as the seller of the Park Monaco Mortgage Loans to the
Depositor.
Park
Monaco Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which
Park
Monaco is the applicable Seller.
Park
Sienna:
Park
Sienna LLC, a Delaware limited liability company, and its successors and
assigns, in its capacity as the seller of the Park Sienna Mortgage Loans
to the
Depositor.
Park
Sienna Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which
Park
Sienna is the applicable Seller.
Pass-Through
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.
Performance
Certification:
As
defined in Section 11.05.
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;
|
I-18
|
(iii)
|
commercial
or finance company paper which is then receiving the highest commercial
or
finance company paper rating of each Rating Agency, or such lower
rating
as will not result in the downgrading or withdrawal of the ratings
then
assigned to the Certificates by each Rating Agency;
|
|
(iv)
|
certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the
laws of the
United States or of any state thereof and subject to supervision
and
examination by federal and/or state banking authorities, provided
that the
commercial paper and/or long term unsecured debt obligations of
such
depository institution or trust company (or in the case of the
principal
depository institution in a holding company system, the commercial
paper
or long-term unsecured debt obligations of such holding company,
but only
if Xxxxx’x is not a Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each Rating Agency
for
such securities, or such lower ratings as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates
by either Rating Agency;
|
|
(v)
|
repurchase
obligations with respect to any security described in clauses (i)
and (ii)
above, in either case entered into with a depository institution
or trust
company (acting as principal) described in clause (iv) above;
|
|
(vi)
|
units
of a taxable money-market portfolio having the highest rating assigned
by
each Rating Agency (except if Fitch is a Rating Agency and has
not rated
the portfolio, the highest rating assigned by Moody’s) and restricted to
obligations issued or guaranteed by the United States of America
or
entities whose obligations are backed by the full faith and credit
of the
United States of America and repurchase agreements collateralized
by such
obligations; and
|
|
(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
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.
I-19
Person:
Any
individual, corporation, partnership, association, joint venture, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificate:
As
specified in the Preliminary Statement.
Plan:
An
“employee benefit plan” as defined in section 3(3) of ERISA that is subject to
Title I of ERISA, a “plan” as defined in section 4975 of the Code that is
subject to section 4975 of the Code, or any Person investing on behalf of
or
with plan assets (as defined in 29 CFR §2510.3-101 or otherwise under ERISA) of
such an employee benefit plan or plan.
Planned
Principal Classes:
As
specified in the Preliminary Statement.
PO
Formula Principal Amount:
As to
any Distribution Date, the sum of (i) the sum of the applicable PO Percentage
of
(a) the principal portion of each Scheduled Payment (without giving effect
to
any reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on each Mortgage Loan on the related Due Date, (b) the Stated
Principal Balance of each Mortgage Loan that was repurchased by the applicable
Seller or purchased by the Master Servicer pursuant to this Agreement as
of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with
any
Deleted Mortgage Loan received with respect to such Distribution Date, (d)
any
Insurance Proceeds or Liquidation Proceeds allocable to recoveries of principal
of Mortgage Loans that are not yet Liquidated Mortgage Loans received during
the
calendar month preceding the month of such Distribution Date, (e) with respect
to each Mortgage Loan that became a Liquidated Mortgage Loan during the calendar
month preceding the month of such Distribution Date, the amount of Liquidation
Proceeds allocable to principal received during the month preceding the month
of
such Distribution Date with respect to such Mortgage Loan, and (f) all Principal
Prepayments received during the related Prepayment Period and (ii) with respect
to Subsequent Recoveries attributable to a Discount Mortgage Loan which incurred
a Realized Loss after the Senior Credit Support Depletion Date, the PO
Percentage of any such Subsequent Recoveries received during the calendar
month
preceding the month of such Distribution Date.
PO
Percentage:
As to
any Discount Mortgage Loan, a fraction (expressed as a percentage) the numerator
of which is the excess of the Required Coupon 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%.
I-20
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 the Master Servicer from the first day
through the fifteenth day of any calendar month (other than the calendar
month
in which the Cut-off Date occurs), all amounts paid by the related Mortgagor
in
respect of interest on such Principal Prepayment. All Prepayment Interest
Excess
shall be paid to the Master Servicer as additional master servicing
compensation.
Prepayment
Interest Shortfall:
As to
any Distribution Date, Mortgage Loan and Principal Prepayment received on
or
after the sixteenth day of the month preceding the month of such Distribution
Date (or, in the case of the first Distribution Date, on or after February
1,
2007) and on or before the last day of the month preceding the month of such
Distribution Date, the amount, if any, by which one month’s interest at the
related Mortgage Rate, net of the Master Servicing Fee Rate, on such Principal
Prepayment exceeds the amount of interest paid in connection with such Principal
Prepayment.
Prepayment
Period:
As to
any Distribution Date and the related Due Date, the period from the 16th
day of
the calendar month (or, in the case of the first Distribution Date, from
February 1, 2007) through the 15th day of the calendar month of such
Distribution Date.
Prepayment
Shift Percentage:
As to
any Distribution Date occurring during the five years beginning on the first
Distribution Date, 0%. For any Distribution Date occurring on or after fifth
anniversary of the first Distribution Date, as follows: for any Distribution
Date in the first year thereafter, 30%; for any Distribution Date in the
second
year thereafter, 40%; for any Distribution Date in the third year thereafter,
60%; for any Distribution Date in the fourth year thereafter, 80%; and for
any
Distribution Date thereafter, 100%.
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
Only Certificates:
As
specified in the Preliminary Statement.
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.
Private
Certificate:
As
specified in the Preliminary Statement.
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.
I-21
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Coop Shares.
Prospectus:
The
Prospectus dated November 14, 2006 generally relating to mortgage pass-through
certificates to be sold by the Depositor.
Prospectus
Supplement:
The
Prospectus Supplement, dated February 26, 2007, 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, (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, identified as a rating agency under the Underwriter’s Exemption, as is
designated by the Depositor, notice of which designation shall be given to
the
Trustee. References 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 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.
I-22
To
the
extent the Master Servicer receives Subsequent Recoveries with respect to
any
Liquidated 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.
Recombination
Group:
The
Class or Classes of Depositable Certificates and the related Class or Classes
of
Exchangeable Certificates included within any particular “Recombination”
specified in Schedule VII.
Record
Date:
As 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 4.08(b).
Refinancing
Mortgage Loan:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
Regular
Certificates:
As
specified in the Preliminary Statement.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relief
Act:
The
Servicemembers Civil Relief Act.
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
or any similar state laws, 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.
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.
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.
I-23
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Reportable
Event:
Any
event required to be reported on Form 8-K, and in any event, the following:
(a) entry
into a definitive agreement related to the Trust Fund, the Certificates or
the
Mortgage Loans, or an amendment to a Transaction Document, even if the Depositor
is not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination
of a Transaction Document (other than by expiration of the agreement on its
stated termination date or as a result of all parties completing their
obligations under such agreement), even if the Depositor is not a party to
such
agreement (e.g., a servicing agreement with a servicer contemplated by Item
1108(a)(3) of Regulation AB);
(c) with
respect to the Master Servicer only, if the Master Servicer becomes aware
of any
bankruptcy or receivership with respect to Countrywide, the Depositor, the
Master Servicer, any Subservicer, the Trustee, any enhancement or support
provider contemplated by Items 1114(b) or 1115 of Regulation AB, or any other
material party contemplated by Item 1101(d)(1) of Regulation AB;
(d) with
respect to the Trustee, the Master Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) the
resignation, removal, replacement, substitution of the Master Servicer, any
Subservicer or the Trustee;
(f) with
respect to the Master Servicer only, if the Master Servicer becomes aware
that
(i) any material enhancement or support specified in Item 1114(a)(1) through
(3)
of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more Classes of the Certificates has terminated other than
by
expiration of the contract on its stated termination date or as a result
of all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or
Item
1115 of Regulation AB has been added with respect to one or more Classes
of the
Certificates; or (iii) any existing material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(g) with
respect to the Trustee, the Master Servicer and the Depositor only, a required
distribution to Holders of the Certificates is not made as of the required
Distribution Date under this Agreement.
Reporting
Subcontractor:
With
respect to the Master Servicer or the Trustee, any Subcontractor determined
by
such Person pursuant to Section 11.08(b) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB. References to a
Reporting Subcontractor shall refer only to the Subcontractor of such Person
and
shall not refer to Subcontractors generally.
I-24
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:
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).
Xxxxxxxx-Xxxxx
Certification:
As
defined in Section 11.05.
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.
Schedule:
The
Schedule set forth in Schedule V hereto.
Scheduled
Balances:
With
respect to any Scheduled 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.
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:
As to
any Distribution Date, an amount equal to the sum of the Non-PO Percentage
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.
Securities
Act:
The
Securities Act of 1933, as amended.
Seller:
Countrywide, Park Granada, Park Monaco or Park Sienna, as
applicable.
Senior
Certificates:
As
specified in the Preliminary Statement.
Senior
Credit Support Depletion Date:
The
date on which the Class Certificate Balance of each Class of
Subordinated Certificates has been reduced to zero.
I-25
Senior
Percentage:
As to
any Distribution Date, the percentage equivalent of a fraction, not in excess
of
100%, the numerator of which is the aggregate of the Class Certificate Balances
of each Class of Senior Certificates (other than the Class PO Certificates)
immediately prior to such Distribution Date and the denominator of which
is the
aggregate of the Class Certificate Balances of all Classes of Certificates
(other than the Class PO Certificates) immediately prior to such Distribution
Date.
Senior
Prepayment Percentage:
For 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 Senior Percentage plus 70% of the Subordinated Percentage
for
such Distribution Date; for any Distribution Date in the second year thereafter,
the Senior Percentage plus 60% of the Subordinated Percentage for such
Distribution Date; for any Distribution Date in the third year thereafter,
the
Senior Percentage plus 40% of the Subordinated Percentage for such Distribution
Date; for any Distribution Date in the fourth year thereafter, the Senior
Percentage plus 20% of the Subordinated Percentage for such Distribution
Date;
and for any Distribution Date thereafter, the Senior Percentage for such
Distribution Date (unless on any Distribution Date the Senior Percentage
exceeds
the initial Senior Percentage, in which case the Senior Prepayment Percentage
for such Distribution Date will once again equal 100%). Notwithstanding the
foregoing, no decrease in the Senior Prepayment Percentage will occur unless
both of the Senior Step Down Conditions are satisfied.
Senior
Principal Distribution Amount:
As to
any Distribution Date, the sum, not less than zero, of (i) the 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”
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 lesser of (x) the Senior Percentage of the applicable
Non-PO Percentage of the Stated Principal Balance of such Mortgage Loan and
(y)
the Senior Prepayment 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 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” for such
Distribution Date plus (y) the Senior Prepayment Percentage of any Subsequent
Recoveries described in clause (ii) of the definition of “Non-PO Formula
Principal Amount” for such Distribution Date.
Senior
Step Down Conditions:
As of
the first Distribution Date as to which any decrease in the Senior Prepayment
Percentage applies, (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 the aggregate Class
Certificate Balance of the Subordinated Certificates on such Distribution
Date,
does not equal or exceed 50% and (ii) cumulative Realized Losses with respect
to
the Mortgage Loans do not exceed (a) commencing with the Distribution Date
on
the fifth anniversary of the first Distribution Date, 30% of the Original
Subordinate Principal Balance, (b) commencing with the Distribution Date
on the
sixth anniversary of the first Distribution Date, 35% of the Original
Subordinate Principal Balance, (c) commencing with the Distribution Date
on the
seventh anniversary of the first Distribution Date, 40% of the Original
Subordinate Principal Balance, (d) commencing with the Distribution Date
on the
eighth anniversary of the first Distribution Date, 45% of the Original
Subordinate Principal Balance, and (e) commencing with the Distribution Date
on
the ninth anniversary of the first Distribution Date, 50% of the Original
Subordinate Principal Balance.
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.
I-26
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB.
Servicing
Officer:
Any
officer of the Master Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and facsimile
signature appear on a list of servicing officers furnished to the Trustee
by the
Master Servicer on the Closing Date pursuant to this Agreement, as such list
may
from time to time be amended.
Shift
Percentage:
As to
any Distribution Date occurring during the five years beginning on the first
Distribution Date, 0%. For any Distribution Date occurring on or after the
fifth
anniversary of the first Distribution Date, 100%.
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) minus the sum of: (i)
any
previous partial Principal Prepayments and the payment of principal due on
such
Due Date, irrespective of any delinquency in payment by the related Mortgagor,
(ii) Liquidation Proceeds allocable to principal (other than with respect
to any
Liquidated Mortgage Loan) received in the prior calendar month and Principal
Prepayments received through the last day of the related Prepayment Period,
in
each case with respect to that Mortgage Loan and (iii) any Realized Loss
previously incurred in connection with a Deficient Valuation. The Stated
Principal Balance of any Mortgage Loan that becomes a Liquidated Mortgage
Loan
will be zero on each date following the Due Period in which such Mortgage
Loan
becomes a Liquidated Mortgage Loan.
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.
Strike
Rate:
With
respect to each Class of Covered Certificates, the applicable percentage
set
forth below:
|
Class
of Certificates
|
Strike
Rate
|
|
Class
A-3
|
5.40%
|
|
Class
A-6
|
5.60%
|
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Master Servicer or
a
Subservicer or the Trustee, as the case may be.
Subordinated
Certificates:
As
specified in the Preliminary Statement.
I-27
Subordinated
Percentage:
As to
any Distribution Date, 100% minus the Senior Percentage for such Distribution
Date.
Subordinated
Prepayment Percentage:
As to
any Distribution Date, 100% minus the Senior Prepayment Percentage for such
Distribution Date.
Subordinated
Principal Distribution Amount:
With
respect to any Distribution Date, an amount equal to the excess of (A) the
sum,
not less than zero, of (i) the Subordinated 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 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 of the applicable Non-PO Percentage
of
the Stated Principal Balance of such Mortgage Loan, (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 Distribution Date, and (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
on
the related Distribution Date.
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 a 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
Interest Trust:
The
separate trust created under this Agreement pursuant to Section
3.05(i).
Supplemental
Interest Trustee:
The
Bank of New York, a New York banking corporation, not in its individual
capacity, but solely in its capacity as trustee of the Supplemental Interest
Trust for the benefit of the Holders of the Covered Certificates under this
Agreement, and any successor thereto, and any corporation or national banking
association resulting from or surviving any consolidation or merger to which
it
or its successors may be a party and any successor trustee as may from time
to
time be serving as successor trustee hereunder.
I-28
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
regulation § 1.860F-4(d) and Treasury regulation § 301.6231(a)(7)-1. Initially,
the Tax Matters Person shall be the Trustee.
Tax
Matters Person Certificate:
The
Class A-R Certificate with a Denomination of $0.01.
Transaction
Documents:
This
Agreement, the Corridor Contract, and any other document or agreement entered
into in connection with the Trust Fund, the Certificates or the Mortgage
Loans.
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
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 and
the
Exchangeable Certificates Distribution 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.
For the avoidance of doubt, the ES Trust, the Master REMIC and the Lower
Tier
REMIC and the assets held or deemed held thereby shall constitute a part
of the
Trust Fund.
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 Pool Stated Principal Balance with respect to such
Distribution Date.
Trustee
Fee Rate:
With
respect to each Mortgage Loan, 0.009% per annum.
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.
I-29
Underwriter:
As
specified in the Preliminary Statement.
Unscheduled
Principal Distribution Amount:
As to
any Distribution Date, an amount equal to the sum of (i) 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 Liquidation Proceeds allocable to the principal received with respect
to
such Mortgage Loan, (ii) the applicable Non-PO Percentage of the amount
described in subclause (f) of clause (i) of the definition of “Non-PO Formula
Principal Amount” for such Distribution Date and (iii) any Subsequent Recoveries
described in clause (ii) of the definition of “Non-PO Formula Principal Amount”
for such Distribution Date.
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 Senior Certificates that is a
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 such
Class)
shall be allocated among Holders of the remaining Classes of Senior and
Subordinated Certificates in proportion to the Certificate Balances of their
respective Certificates on such date. Each Class of Exchangeable Certificates
shall be allocated a proportionate share of the Voting Rights allocated to
the
related Classes of Depositable Certificates that have been
surrendered.
Yield
Supplement Amount:
For any
Distribution Date, interest for the related Interest Accrual Period on the
Class
Certificate Balance of the related Class of Covered Certificates immediately
prior to such Distribution Date at a rate equal to the excess, if any, of
(i)
the lesser of LIBOR and the applicable Ceiling Rate over (ii) the applicable
Strike Rate.
SECTION
1.02. Certain
Interpretive Provisions
All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate, agreement or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires:
(a)
accounting terms not otherwise defined in this Agreement, and accounting
terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (b) the words “hereof,” “herein” and “hereunder” and words of
similar import refer to this Agreement (or the certificate, agreement or
other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate, agreement or document); (c) references
to any Section, Schedule or Exhibit are references to Sections, Schedules
and
Exhibits in or to this Agreement, and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term “including” means “including without limitation”; (e)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (f) references
to
any agreement refer to that agreement as amended from time to time; (g)
references to any Person include that Person’s permitted successors and assigns;
and (h) a Mortgage Loan is “30 days delinquent” if any Scheduled Payment has not
been received by the close of business on the day immediately preceding the
Due
Date on which the next Scheduled Payment is due. Similarly for “60 days
delinquent,” “90 days delinquent” and so on.
I-30
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
Mortgage Loans, including all interest and principal received or receivable
by
such Seller, on or with respect to the Mortgage Loans after the Cut-off Date
and
all interest and principal payments on the related Mortgage Loans received
prior
to the Cut-off Date in respect of installments of interest and principal
due
thereafter, but not including payments of principal and interest due and
payable
on such Mortgage Loans, on or before the Cut-off Date. On or prior to the
Closing Date, Countrywide shall deliver to the Depositor or, at the Depositor’s
direction, to the Trustee or other designee of the Depositor, the Mortgage
File
for each Mortgage Loan listed in the Mortgage Loan Schedule (except that,
in the
case of the Delay Delivery Mortgage Loans (which may include Countrywide
Mortgage Loans, Park Granada Mortgage Loans, Park Monaco Mortgage Loans and
Park
Sienna Mortgage Loans), such delivery may take place within thirty (30) days
following the Closing Date). Such delivery of the Mortgage Files shall be
made
against payment by the Depositor of the purchase price, previously agreed
to by
the Sellers and Depositor, for the Mortgage Loans. With respect to any Mortgage
Loan that does not have a first payment date on or before the Due Date in
the
month of the first Distribution Date, Countrywide shall deposit into the
Distribution Account on or before the Distribution Account Deposit Date relating
to the first Distribution Date, an amount equal to one month’s interest at the
related Adjusted Mortgage Rate on the Cut-off Date Principal Balance of such
Mortgage Loan.
(b) Immediately
upon the conveyance of the Mortgage Loans referred to in clause (a), the
Depositor sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the benefit of the Certificateholders, without recourse, all
the
right, title and interest of the Depositor in and to the Trust Fund together
with the Depositor’s right to require each Seller to cure any breach of a
representation or warranty made 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, will deliver or cause to be delivered
to the Trustee within thirty (30) days following the Closing Date) for the
benefit of the Certificateholders the following documents or instruments
with
respect to each Mortgage Loan so assigned:
(i) (1) 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
(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-1
(ii) except
as
provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the
original recorded Mortgage or a copy of such Mortgage, with recording
information, 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, or a copy of such mortgage, with recording
information, noting the presence of the MIN of the Mortgage Loans and either
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is
a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment thereof to MERS, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded;
(iii) in
the
case of each Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage, or a copy of such assignment, with recording
information, (which may be included in a blanket assignment or assignments),
together with, except as provided below, all interim recorded assignments
of
such mortgage or a copy of such assignment, with recording information, (each
such assignment, when duly and validly completed, to be in recordable form
and
sufficient to effect the assignment of and transfer to the assignee thereof,
under the Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public recording
office, such assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such assignment
of
Mortgage need not be delivered in the case of a Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico;
(iv) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any;
(v) except
as
provided below, the original or 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).
II-2
In
addition, in connection with the assignment of any MERS Mortgage Loan, each
Seller agrees that it will cause, at the Trustee’s expense, the MERS® System to
indicate that the Mortgage Loans sold by such Seller to the Depositor have
been
assigned by that Seller to the Trustee in accordance with this Agreement
for the
benefit of the Certificateholders by including (or deleting, in the case
of
Mortgage Loans which are repurchased in accordance with this Agreement) in
such
computer files the information required by the MERS® System to identify the
series of the Certificates issued in connection with such Mortgage Loans.
Each
Seller further agrees that it will not, and will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by such
Seller to the Depositor during the term of this Agreement unless and until
such
Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage, or a copy
of such mortgage, with recording information, (b) all interim recorded
assignments, or a copy of such assignments, with recording information or
(c) the lender’s title policy or a copy of 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 of this Agreement because such document or documents
have
not been returned from the applicable public recording office in the case
of
clause (ii) or (iii) above, or because the title policy has not been
delivered to either the Master Servicer or the Depositor by the applicable
title
insurer in the case of clause (v) above, the Depositor shall promptly
deliver to the Trustee, in the case of clause (ii) or (iii) above, such
original Mortgage or a copy of such mortgage, with recording information,
or
such interim assignment or a copy of such assignment, with recording
information, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office, but in no event
shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date,
or, in
the case of clause (v) above, no later than 120 days following the Closing
Date; provided,
however,
in the
event the Depositor is unable to deliver by such date each Mortgage and each
such interim assignment by reason of the fact that any such documents have
not
been returned by the appropriate recording office, or, in the case of each
such
interim assignment, because the related Mortgage has not been returned by
the
appropriate recording office, the Depositor shall deliver such documents
to the
Trustee as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. The Depositor shall forward or cause
to be
forwarded to the Trustee (a) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and
(b) any other documents required to be delivered by the Depositor or the
Master Servicer to the Trustee. In the event that the original Mortgage is
not
delivered and in connection with the payment in full of the related Mortgage
Loan and the public recording office requires the presentation of a “lost
instruments affidavit and indemnity” or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction
or
reconveyance, the Master Servicer shall execute and deliver or cause to be
executed and delivered such a document to the public recording office. In
the
case where a public recording office retains the original recorded Mortgage
or
in the case where a Mortgage is lost after recordation in a public recording
office, Countrywide shall deliver to the Trustee a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the
original recorded Mortgage.
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event, within one-hundred and twenty (120) days after such transfer and
assignment, the Trustee shall (A) as the assignee thereof, affix the
following language to each assignment of Mortgage: “CWALT Series 2007-7T2, The
Bank of New York, as trustee”, (B) cause such assignment to be in proper
form for recording in the appropriate public office for real property records
and (C) cause to be delivered for recording in the appropriate public
office for real property records the assignments of the Mortgages to the
Trustee, except that, (i) with respect to any assignments of Mortgage as
to
which the Trustee has not received the information required to prepare such
assignment in recordable form, the Trustee’s obligation to do so and to deliver
the same for such recording shall be as soon as practicable after receipt
of
such information and in any event within thirty (30) days after receipt thereof
and (ii) the Trustee need not cause to be recorded any assignment which relates
to a Mortgage Loan, the Mortgaged Property and Mortgage File relating to
which
are located in any jurisdiction (including Puerto Rico) under the laws of
which
the recordation of such assignment is not necessary to protect the Trustee’s and
the Certificateholders’ interest in the related Mortgage Loan as evidenced by an
opinion of counsel delivered by Countrywide to the Trustee within 90 days
of the
Closing Date (which opinion may be in the form of a “survey” opinion and is not
required to be delivered by counsel admitted to practice law in the jurisdiction
as to which such legal opinion applies).
II-3
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, Countrywide (on its own behalf and on behalf of Park Granada,
Park
Monaco and Park Sienna) shall either (i) deliver to the Depositor, or at
the
Depositor’s direction, to the Trustee or other designee of the Depositor the
Mortgage File as required pursuant to this Section 2.01 for each Delay Delivery
Mortgage Loan or (ii) either (A) substitute a Substitute Mortgage Loan for
the
Delay Delivery Mortgage Loan or (B) repurchase the Delay Delivery Mortgage
Loan,
which substitution or repurchase shall be accomplished in the manner and
subject
to the conditions set forth in Section 2.03 (treating each Delay Delivery
Mortgage Loan as a Deleted Mortgage Loan for purposes of such Section 2.03);
provided, however, that if Countrywide fails to deliver a Mortgage File for
any
Delay Delivery Mortgage Loan within the thirty (30) day period provided in
the
prior sentence, Countrywide (on its own behalf and on behalf of Park Granada,
Park Monaco and Park Sienna) shall use its best reasonable efforts to effect
a
substitution, rather than a repurchase of, such Deleted Mortgage Loan and
provided further that the cure period provided for in Section 2.02 or in
Section
2.03 shall not apply to the initial delivery of the Mortgage File for such
Delay
Delivery Mortgage Loan, but rather Countrywide (on its own behalf and on
behalf
of Park Granada, Park Monaco and Park Sienna) shall have five (5) Business
Days
to cure such failure to deliver. At the end of such thirty (30) day period
the
Trustee shall send a Delay Delivery Certification for the Delay Delivery
Mortgage Loans delivered during such thirty (30) day period in accordance
with
the provisions of Section 2.02.
(d) Neither
the Depositor nor the Trust will acquire or hold any Mortgage Loan that would
violate the representations made by Countrywide set forth in clause (49)
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, Park Monaco and Park Sienna) 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
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.
II-4
On
or
about the thirtieth (30th) day after the Closing Date, the Trustee shall
deliver
to the Depositor, the Master Servicer and Countrywide (on its own behalf
and on
behalf of Park Granada, Park Monaco and Park Sienna) a Delay Delivery
Certification with respect to the Mortgage Loans in the form annexed hereto
as
Exhibit G-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, Park Monaco and Park Sienna) a Final Certification with respect
to the
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 endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or is sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates. Countrywide (on
its
own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) shall
promptly correct or cure such defect within 90 days from the date it was
so
notified of such defect and, if Countrywide does not correct or cure such
defect
within such period, Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall
be
accomplished in the manner and subject to the conditions set forth in Section
2.03, or (b) purchase such Mortgage Loan from the Trustee within 90 days
from
the date Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) was notified of such defect in writing at the Purchase
Price of such Mortgage Loan; provided, however, that in no event shall such
substitution or purchase occur more than 540 days from the Closing Date,
except
that if the substitution or purchase of a Mortgage Loan pursuant to this
provision is required by reason of a delay in delivery of any documents by
the
appropriate recording office, and there is a dispute between either the Master
Servicer or Countrywide (on its own behalf and on behalf of Park Granada,
Park
Monaco and Park Sienna) and the Trustee over the location or status of the
recorded document, then such substitution or purchase shall occur within
720
days from the Closing Date. The Trustee shall deliver written notice to each
Rating Agency within 270 days from the Closing Date indicating each Mortgage
Loan (a) 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, Park Monaco and Park Sienna) in the
Certificate Account on or prior to the Distribution Account Deposit Date
for the
Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form
of
Exhibit N hereto, the Trustee shall release the related Mortgage File to
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) and shall execute and deliver at Countrywide’s (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) request such
instruments of transfer or assignment prepared by Countrywide, in each case
without recourse, as shall be necessary to vest in Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna), or its
designee, the Trustee’s interest in any Mortgage Loan released pursuant hereto.
If pursuant to the foregoing provisions Countrywide (on its own behalf and
on
behalf of Park Granada, Park Monaco and Park Sienna) repurchases 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, Park Monaco and Park Sienna) or its designee and shall cause
such Mortgage to be removed from registration on the MERS® System in accordance
with MERS’ rules and regulations or (ii) cause MERS to designate on the MERS®
System Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco
and Park Sienna) or its designee as the beneficial holder of such Mortgage
Loan.
II-5
(b) [Reserved].
(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, Schedule II-B, Schedule II-C and Schedule II-D hereto, and by this
reference incorporated herein, to the Depositor, the Master Servicer and
the
Trustee, as of the Closing Date, (ii) Schedule III-A hereto, and by this
reference incorporated herein, to the Depositor, the Master Servicer and
the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off
Date with respect to all of the Mortgage Loans, and (iii) Schedule III-B
hereto,
and by this reference incorporated herein, to the Depositor, the Master Servicer
and the Trustee, as of the Closing Date, or if so specified therein, as of
the
Cut-off Date with respect to the Mortgage Loans that are Countrywide Mortgage
Loans. Park Granada hereby makes the representations and warranties set forth
in
(i) Schedule II-B hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii) Schedule III-C hereto, and by this reference incorporated herein, to
the Depositor, the Master Servicer and the Trustee, as of the Closing Date,
or
if so specified therein, as of the Cut-off Date with respect to the Mortgage
Loans that are Park Granada Mortgage Loans. Park Monaco hereby makes the
representations and warranties set forth in (i) Schedule II-C hereto, and
by this reference incorporated herein, to the Depositor, the Master Servicer
and
the Trustee, as of the Closing Date and (ii) Schedule III-D hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer
and
the Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date with respect to the Mortgage Loans that are Park Monaco Mortgage
Loans. Park Sienna hereby makes the representations and warranties set forth
in
(i) Schedule II-D hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii) Schedule III-E hereto, and by this reference incorporated herein, to
the Depositor, the Master Servicer and the Trustee, as of the Closing Date,
or
if so specified therein, as of the Cut-off Date with respect to the Mortgage
Loans that are Park Sienna Mortgage Loans.
II-6
(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)
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) 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. Any breach of a representation set forth in clauses
(45) through (63) of Schedule III-A with respect to a Mortgage Loan shall
be
deemed to materially and adversely affect the Certificateholders.
With
respect to any Substitute Mortgage Loan or Loans, sold to the Depositor by
a
Seller, Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment
of
the Mortgage, and such other documents and agreements as are required by
Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required
by
Section 2.01. No substitution is permitted to be made in any calendar month
after the Determination Date for such month. Scheduled Payments due with
respect
to Substitute Mortgage Loans in the month of substitution shall not be part
of
the Trust Fund and will be retained by the related Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter that Seller shall be entitled to retain
all
amounts received in respect of such Deleted Mortgage Loan. The Master Servicer
shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders
to reflect the removal of such Deleted Mortgage Loan and the substitution
of the
Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the
amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the related Seller shall be deemed to have
made
with respect to such Substitute Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to Section
2.03(a) with respect to such Mortgage Loan. Upon any such substitution and
the
deposit to the Certificate Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee shall release the Mortgage File held for the benefit
of
the Certificateholders relating to such Deleted Mortgage Loan to the related
Seller and shall execute and deliver at such Seller’s direction such instruments
of transfer or assignment prepared by Countrywide (on its own behalf and
on
behalf of Park Granada, Park Monaco and Park Sienna), in each case without
recourse, as shall be necessary to vest title in that Seller, or its designee,
the Trustee’s interest in any Deleted Mortgage Loan substituted for pursuant to
this Section 2.03.
II-7
For
any
month in which a Seller substitutes one or more Substitute Mortgage Loans
for
one or more Deleted Mortgage Loans, the Master Servicer will determine the
amount (if any) by which the aggregate principal balance of all Substitute
Mortgage Loans sold to the Depositor by that Seller as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans repurchased by that Seller (after application of the scheduled
principal portion of the monthly payments due in the month of substitution).
The
amount of such shortage (the “Substitution Adjustment Amount”) plus an amount
equal to the aggregate of any unreimbursed Advances with respect to such
Deleted
Mortgage Loans shall be deposited in the Certificate Account by Countrywide
(on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
on or
before the Distribution Account Deposit Date for the Distribution Date in
the
month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
In
the
event that a Seller shall have repurchased a Mortgage Loan, the Purchase
Price
therefor shall be deposited in the Certificate Account pursuant to Section
3.05
on or before the Distribution Account Deposit Date for the Distribution Date
in
the month following the month during which that Seller became obligated
hereunder to repurchase or replace such Mortgage Loan and upon such deposit
of
the Purchase Price, the delivery of the Opinion of Counsel required by Section
2.05 and receipt of a Request for Release in the form of Exhibit N hereto,
the
Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at
such Person’s direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary to transfer
title from the Trustee. It is understood and agreed that the obligation under
this Agreement of any Person to cure, repurchase or replace any Mortgage
Loan as
to which a breach has occurred and is continuing shall constitute the sole
remedy against such Persons respecting such breach available to
Certificateholders, the Depositor or the Trustee on their behalf.
The
representations and warranties made pursuant to this Section 2.03 shall survive
delivery of the respective Mortgage Files to the Trustee for the benefit
of the
Certificateholders.
SECTION
2.04. Representations
and Warranties of the Depositor as to the Mortgage
Loans.
The
Depositor hereby represents and warrants to the Trustee with respect to each
Mortgage Loan as of the date hereof or such other date set forth herein that
as
of the Closing Date, and following the transfer of the Mortgage Loans to
it by
each Seller, the Depositor had good title to the Mortgage Loans and the Mortgage
Notes were subject to no offsets, defenses or counterclaims.
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.
II-8
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, Park Monaco and Park Sienna), at its option, to either (i) substitute,
if the conditions in Section 2.03(c) with respect to substitutions are
satisfied, a Substitute Mortgage Loan for the affected Mortgage Loan, or
(ii)
repurchase the affected Mortgage Loan within 90 days of such discovery in
the
same manner as it would a Mortgage Loan for a breach of representation or
warranty made pursuant to Section 2.03. The Trustee shall reconvey to
Countrywide the Mortgage Loan to be released pursuant 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 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 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.
II-9
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.
II-10
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® System, or cause the removal from the
registration of any Mortgage Loan on the MERS® System, to execute and deliver,
on behalf of the Trustee and the Certificateholders or any of them, any and
all
instruments of assignment and other comparable instruments with respect to
such
assignment or re-recording of a Mortgage in the name of MERS, solely as nominee
for the Trustee and its successors and assigns.
In
accordance with the standards of the preceding paragraph, the Master Servicer
shall advance or cause to be advanced funds as necessary for the purpose
of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. The costs incurred by the Master Servicer, if any,
in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to
the
Stated Principal Balances of the related Mortgage Loans, notwithstanding
that
the terms of such Mortgage Loans so permit.
III-1
SECTION
3.02. Subservicing;
Enforcement of the Obligations of Subservicers.
(a) The
Master Servicer may arrange for the subservicing of any Mortgage Loan by
a
Subservicer pursuant to a subservicing agreement; provided, however, that
such
subservicing arrangement and the terms of the related subservicing agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated 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 or termination
by
the Depositor), 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 any reason
no
longer be the Master Servicer (including by reason of any Event of Default
or
termination by the Depositor), the Trustee or its successor shall succeed
to any
rights and obligations of the Master Servicer under each subservicing
agreement.
III-2
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; the
Supplemental Interest Trust and Corridor Contract Reserve Fund.
(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 Fitch, or “A3” 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 Master
Servicing Fee, Prepayment Interest Excess and any lender-paid mortgage insurance
premiums;
(iii) all
Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds, other
than
proceeds to be applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with the Master Servicer’s normal
servicing procedures;
III-3
(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 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 charges, 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 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.
III-4
(e) Each
institution at which the Certificate Account or the Distribution Account
is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than (i)
in the
case of the Certificate Account, the second Business Day next preceding the
related Distribution Account Deposit Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account,
then
such Permitted Investment shall mature not later than the Business Day next
preceding such Distribution Account Deposit Date) and (ii) in the case of
the
Distribution Account, the Business Day next preceding the Distribution Date
(except that if such Permitted Investment is an obligation of the institution
that maintains such fund or account, then such Permitted Investment shall
mature
not later than such Distribution Date) and, in each case, shall not be sold
or
disposed of prior to its maturity. All such Permitted Investments shall be
made
in the name of the Trustee, for the benefit of the Certificateholders. All
income and gain net of any losses realized from any such investment of funds
on
deposit in the Certificate Account, or the Distribution Account shall be
for the
benefit of the Master Servicer as servicing compensation and shall be remitted
to it monthly as provided 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 Trustee in its fiduciary capacity
shall
not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in the Certificate Account or the
Distribution Account and made in accordance with this Section 3.05.
(f) The
Master Servicer shall give notice to the Trustee, each Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof. The Trustee shall give notice
to the Master Servicer, each Seller, each Rating Agency and the Depositor
of any
proposed change of the location of the Distribution Account prior to any
change
thereof. The Supplemental Interest 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 Corridor Contract Reserve Fund prior to any
change
thereof.
(g) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), the assets of which shall consist of the Corridor Contract
Reserve Fund and the Supplemental Interest Trustee’s rights and obligations
under the Corridor Contracts. The Supplemental Interest Trust shall be
maintained by the Supplemental Interest Trustee, who initially, shall be
the
Trustee.
On
the
Closing Date, the Supplemental Interest Trustee shall establish and maintain
in
its name, in trust for the benefit of the Holders of the Covered Certificates,
the Corridor Contract Reserve Fund, and shall deposit $1,000 therein upon
receipt from or on behalf of the Depositor of such amount. All funds on deposit
in the Corridor Contract Reserve Fund shall be held separate and apart from,
and
shall not be commingled with, any other moneys, including without limitation,
other moneys held by the Trustee pursuant to this Agreement.
On
each
Distribution Date, the Supplemental Interest Trustee shall deposit into the
Corridor Contract Reserve Fund all amounts received in respect of the Corridor
Contracts for the related Interest Accrual Period. The Supplemental Interest
Trustee shall make withdrawals from the Corridor Contract Reserve Fund to
make
distributions pursuant to Section 4.09 exclusively (other than as expressly
provided for in Section 3.08). Notwithstanding anything to the contrary in
this
Agreement, the Supplemental Interest Trustee shall be allowed to transfer
funds
in the Corridor Contract Reserve Fund to the Trustee to facilitate, for
administrative purposes, distribution of such funds to Certificateholders
through the Distribution Account.
III-5
Funds
in
the Corridor Contract Reserve Fund will be invested in The Bank of New York
cash
reserves. Any net investment earnings will be retained in the Corridor Contract
Reserve Fund until withdrawn upon the earlier of the reduction of the aggregate
Class Certificate Balance of the Class A-3 and Class A-6 Certificates to
zero
and the termination of this Agreement. Any losses incurred in the Corridor
Contract Reserve Fund in respect of the investment will be charged against
amounts on deposit in the Corridor Contract Reserve Fund (or the investments)
immediately as realized. The Trustee, on behalf of the Supplemental Interest
Trust, will not be liable for the amount of any loss incurred in respect
of any
investment or lack of investment of funds held in the Corridor Contract Reserve
Fund and made in accordance with this Agreement.
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 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.
III-6
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, the Distribution Account and the
Corridor Contract Reserve Fund.
(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;
(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
III-7
(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 third paragraph of Section 8.11). In addition, the
Trustee may from time to time make withdrawals from the Distribution Account
for
the following purposes:
(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) The
Supplemental Interest Trustee shall withdraw funds from the Corridor Contract
Reserve Fund for distribution to the Covered Certificates in the manner
specified in Section 4.09 (and to withhold from the amounts so withdrawn
the
amount of any taxes that it is authorized to retain pursuant to the third
paragraph of Section 8.11). In addition, the Supplemental Interest Trustee
may
from time to time make withdrawals from the Corridor Contract Reserve Fund
for
the following purposes:
(i) to
withdraw any amount deposited in the Corridor Contract Reserve Fund and not
required to be deposited therein; and
(ii) to
clear
and terminate the Corridor Contract Reserve Fund upon the earlier of (i)
the
reduction of the aggregate Class Certificate Balance of the Covered Certificates
to zero, and (ii) termination of this Agreement.
III-8
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 the proceeds
of
liquidation of the Mortgage Loan 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 for in the related Mortgage Note or prohibited by law.
The
Master Servicer agrees to effect the timely payment of the premiums on each
Primary Insurance Policy, and such costs not otherwise recoverable shall
be
recoverable by the Master Servicer from the related proceeds of liquidation
and
Subsequent Recoveries.
(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 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.
III-9
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
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.
III-10
SECTION
3.11. Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
(a) The
Master Servicer shall use reasonable efforts to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In connection
with such foreclosure or other conversion, the Master Servicer shall follow
such
practices and procedures as it shall deem necessary or advisable and as shall
be
normal and usual in its general mortgage servicing activities and meet the
requirements of the insurer under any Required Insurance Policy; provided,
however, that the Master Servicer shall not be required to expend its own
funds
in connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after reimbursement
to
itself of such expenses and (ii) that such expenses will be recoverable to
it
through the proceeds of liquidation of the Mortgage Loan and Subsequent
Recoveries (respecting which it shall have priority for purposes of withdrawals
from the Certificate Account). The Master Servicer shall be responsible for
all
other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the proceeds
of
liquidation of the Mortgage Loan and Subsequent Recoveries with respect to
the
related Mortgaged Property, as provided in the definition of Liquidation
Proceeds. If the Master Servicer has knowledge that a Mortgaged Property
which
the Master Servicer is contemplating acquiring in foreclosure or by deed
in lieu
of foreclosure is located within a 1 mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or
other
site with environmental or hazardous waste risks known to the Master Servicer,
the Master Servicer will, prior to acquiring the Mortgaged Property, consider
such risks and only take action in accordance with its established environmental
review procedures.
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of the Certificateholders. The Trustee’s name shall be placed
on the title to such REO Property solely as the Trustee hereunder and not
in its
individual capacity. The Master Servicer shall ensure that the title to such
REO
Property references the Pooling and Servicing Agreement and the Trustee’s
capacity thereunder. 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 or the
Trustee for any unreimbursed Advances; third, to reimburse the Certificate
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer or the Trustee pursuant to Section
3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property,
at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in
which
such amounts are required to be distributed; and fifth, as a recovery of
principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation
of
a Liquidated Mortgage Loan will be retained by the Master Servicer as additional
servicing compensation pursuant to Section 3.14.
III-12
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) Countrywide
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) Countrywide
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 Countrywide and all benefits and burdens of ownership thereof,
including the right to accrued interest thereon from the date of modification
and the risk of default thereon, shall pass to Countrywide. The Master Servicer
shall promptly deliver to the Trustee a certification of a Servicing Officer
to
the effect that all requirements of this paragraph have been satisfied with
respect to the Modified Mortgage Loan. For federal income tax purposes, the
Trustee shall account for such purchase as a prepayment in full of the Modified
Mortgage Loan.
Countrywide
shall remit the Purchase Price for any Modified Mortgage Loan to the Master
Servicer for deposit into the Certificate Account pursuant to Section 3.05
within one Business Day after the purchase of the Modified Mortgage Loan.
Upon
receipt by the Trustee of written notification of any such deposit signed
by a
Servicing Officer, the Trustee shall release to Countrywide the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in Countrywide
any
Modified Mortgage Loan previously transferred and assigned pursuant hereto.
Countrywide covenants and agrees to indemnify the Trust Fund against any
liability for any “prohibited transaction” taxes and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder
as a
result of any modification of a Mortgage Loan effected pursuant to this
subsection (b), any holding of a Modified Mortgage Loan by the Trust Fund
or any
purchase of a Modified Mortgage Loan by Countrywide (but such obligation
shall
not prevent Countrywide or any other appropriate Person from in good faith
contesting any such tax in appropriate proceedings and shall not prevent
Countrywide from withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). Countrywide shall have no right of
reimbursement for any amount paid pursuant to the foregoing indemnification,
except to the extent that the amount of any tax, interest, and penalties,
together with interest thereon, is refunded to the Trust Fund or
Countrywide.
III-13
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 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.
III-14
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 charges, assumption fees, late payment charges and all
income
and gain net of any losses realized from Permitted Investments on funds in
the
Certificate Account and Distribution Account shall be retained by the Master
Servicer to the extent not required to be deposited in the Certificate Account
pursuant to Section 3.05 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.
The
Master Servicer acknowledges that as part of its servicing activities, the
Master Servicer shall fully furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files
related to the Mortgage Loans to Equifax, Experian and Trans Union Credit
Information Company (three of the nationally recognized credit bureaus) on
a
monthly basis.
III-15
SECTION
3.16. Annual
Statement as to Compliance.
(a) The
Master Servicer shall deliver to the Depositor and the Trustee on or before
March 15 of each year, commencing with its 2008 fiscal year, an Officer’s
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer
under
this Agreement has been made under such officer’s supervision and (ii) to the
best of such officer’s knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there has been
a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status thereof.
(b) The
Master Servicer shall cause each Subservicer to deliver to the Depositor
and the
Trustee on or before March 15 of each year, commencing with its 2008 fiscal
year, an Officer’s Certificate stating, as to the signer thereof, that (i) a
review of the activities of such Subservicer during the preceding calendar
year
(or applicable portion thereof) and of the performance of the Subservicer
under
the applicable Subservicing Agreement or primary servicing agreement, has
been
made under such officer’s supervision and (ii) to the best of such officer’s
knowledge, based on such review, such Subservicer has fulfilled all its
obligations under the applicable Subservicing Agreement or primary servicing
agreement, in all material respects throughout such year (or applicable portion
thereof), or, if there has been a failure to fulfill any such obligation
in any
material respect, specifying each such failure known to such officer and
the
nature and status thereof.
(c) The
Trustee shall forward a copy of each such statement to each Rating
Agency.
SECTION
3.17. Errors
and Omissions Insurance; Fidelity Bonds.
The
Master Servicer shall for so long as it acts as master servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of insurance
covering errors and omissions in the performance of its obligations as Master
Servicer hereunder and (b) a fidelity bond in respect of its officers, employees
and agents. Each such policy or policies and bond shall, together, comply
with
the requirements from time to time of FNMA or FHLMC for persons performing
servicing for mortgage loans purchased by FNMA or FHLMC. In the event that
any
such policy or bond ceases to be in effect, the Master Servicer shall obtain
a
comparable replacement policy or bond from an insurer or issuer, meeting
the
requirements set forth above as of the date of such replacement.
SECTION
3.18. The
Corridor Contracts.
The
Supplemental Interest Trustee will enter into the Corridor Contracts with
the
Corridor Contract Counterparty for the benefit of the Covered Certificates.
The
Corridor Contracts will not be assets of the Trust Fund or any REMIC. The
Corridor Contracts instead will be assets of the Supplemental Interest Trust.
The Trustee, on behalf of the Supplemental Interest Trust, shall cause to
be
deposited any amounts received from time to time with respect to the Corridor
Contracts into the Corridor Contract Reserve Fund.
The
Trustee, on behalf of the Supplemental Interest Trust, shall act as calculation
agent and/or shall terminate the Corridor Contracts, upon the occurrence
of
certain events of default or termination events to the extent specified
thereunder. Upon any such termination, the Corridor Contract Counterparty
will
be obligated to pay the Trustee, for the benefit of the Supplemental Interest
Trust, an amount in respect of such termination. Any amounts received by
the
Trustee for the benefit of the Supplemental Interest Trust in respect of
the
termination of a Corridor Contract shall be deposited and held in the Corridor
Contract Reserve Fund and applied on future Distribution Dates to pay the
related Yield Supplement Amount on the Covered Certificates.
Any
amounts remaining in the Corridor Contract Reserve Fund on the Distribution
Date
immediately following the earlier of (x) the termination of this Agreement
and
(y) the date on which the aggregate Class Certificate Balance of the Covered
Certificates has been reduced to zero, will be distributed to the Underwriter
(Senior), and will not be available for payment of any Yield Supplement Amounts
on the Covered Certificates.
III-16
ARTICLE
IV
DISTRIBUTIONS
AND
ADVANCES
BY THE MASTER SERVICER
SECTION
4.01. Advances.
(a) The
Master Servicer shall determine on or before each Master Servicer Advance
Date
whether it is required to make an Advance pursuant to the definition thereof.
If
the Master Servicer determines it is required to make an Advance, it shall,
on
or before the Master Servicer Advance Date, either (i) deposit into the
Certificate Account an amount equal to the Advance or (ii) make an appropriate
entry in its records relating to the Certificate Account that any Amount
Held
for Future Distribution has been used by the Master Servicer in discharge
of its
obligation to make any such Advance. Any funds so applied shall be replaced
by
the Master Servicer by deposit in the Certificate Account no later than the
close of business on the next Master Servicer Advance Date. The Master Servicer
shall be entitled to be reimbursed from the Certificate Account for all Advances
of its own funds made pursuant to this Section as provided in Section 3.08.
The
obligation to make Advances with respect to any Mortgage Loan shall continue
if
such Mortgage Loan has been foreclosed or otherwise terminated and the related
Mortgaged Property has not been liquidated.
(b) If
the
Master Servicer determines that it will be unable to comply with its obligation
to make the Advances as and when described in the second sentence of Section
4.01(a), it shall use its best efforts to give written notice thereof to
the
Trustee (each such notice a “Trustee Advance Notice”; and such notice may be
given by telecopy), not later than 3:00 P.M., New York time, on the Business
Day
immediately preceding the related Master Servicer Advance Date, specifying
the
amount that it will be unable to deposit (each such amount an “Advance
Deficiency”) and certifying that such Advance Deficiency constitutes an Advance
hereunder and is not a Nonrecoverable Advance. If the Trustee receives a
Trustee
Advance Notice on or before 3:30 P.M., New York time on a Master Servicer
Advance Date, the Trustee shall, not later than 3:00 P.M., New York time, on the
related Distribution Date, deposit in the Distribution Account an amount
equal
to the Advance Deficiency identified in such Trustee Advance Notice unless
it is
prohibited from so doing by applicable law. Notwithstanding the foregoing,
the
Trustee shall not be required to make such deposit if the Trustee shall have
received written notification from the Master Servicer that the Master Servicer
has deposited or caused to be deposited in the Certificate Account an amount
equal to such Advance Deficiency. All Advances made by the Trustee pursuant
to
this Section 4.01(b) shall accrue interest on behalf of the Trustee at the
Trustee Advance Rate from and including the date such Advances are made to
but
excluding the date of repayment, with such interest being an obligation of
the
Master Servicer and not the Trust Fund. The Master Servicer shall reimburse
the
Trustee for the amount of any Advance made by the Trustee pursuant to this
Section 4.01(b) together with accrued interest, not later than the fifth
day
following the related Master Servicer Advance Date. In the event that the
Master
Servicer does not reimburse the Trustee in accordance with the requirements
of
the preceding sentence, the Trustee shall have the right, but not the
obligation, to immediately (a) terminate all of the rights and obligations
of
the Master Servicer under this Agreement in accordance with Section 7.01
and (b)
subject to the limitations set forth in Section 3.04, assume all of the rights
and obligations of the Master Servicer hereunder.
(c) The
Master Servicer shall, not later than the close of business on the second
Business Day immediately preceding each Distribution Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the Trustee)
that indicates (i) the Mortgage Loans with respect to which the Master Servicer
has determined that the related Scheduled Payments should be advanced and
(ii)
the amount of the related Scheduled Payments. The Master Servicer shall deliver
to the Trustee on the related Master Servicer Advance Date an Officer’s
Certificate of a Servicing Officer indicating the amount of any proposed
Advance
determined by the Master Servicer to be a Nonrecoverable Advance.
IV-1
SECTION
4.02. Priorities
of Distribution.
(a) On
each
Distribution Date, the Trustee shall withdraw the Available Funds from the
Distribution Account and apply such funds to distributions on the 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 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)(iii);
(iii) the
Accrual Amount for each Class of Accrual Certificates shall be distributed
as
principal to the applicable Classes of Accretion Directed Certificates in
accordance with the Accretion Direction Rule for such Class of Accrual
Certificates;
(iv) to
each
Class of Senior Certificates, concurrently, as follows:
(x) to
the
Class PO Certificates, the PO Formula Principal Amount until its
Class Certificate Balance is reduced to zero; and
(y) on
each
Distribution Date, the Non-PO Formula Principal Amount up to the amount of
the
Senior Principal Distribution Amount for such Distribution Date will be
distributed in the following order:
(1)
to
the
Class A-R Certificates, until its Class Certificate Balance is reduced to
zero;
and
(2) concurrently,
|
a.
|
39.83744877385%
in the following order:
|
|
i.
|
concurrently,
to the Class A-1 and Class A-17 Certificates, pro rata, the Class
A-1 and
Class A-17 Priority Amount, until their respective Class Certificate
Balances are reduced to zero;
|
|
ii.
|
concurrently,
to the Class A-2 and Class A-15 Certificates, pro rata, until their
respective Class Certificate Balances are reduced to zero;
|
|
iii.
|
to
the Class A-5 Certificates, until its Class Certificate Balance
is reduced
to zero; and
|
|
iv.
|
concurrently,
to the Class A-1 and Class A-17 Certificates, pro rata, without
regard to
the Class A-1 and Class A-17 Priority Amount, until their respective
Class
Certificate Balances are reduced to zero;
and
|
IV-2
|
b.
|
60.16255122615%
in the following order:
|
|
i.
|
concurrently,
to the Class A-8 and Class A-18 Certificates, pro rata, the Class
A-8 and
Class A-18 Priority Amount, until their respective Class Certificate
Balances are reduced to zero;
|
|
ii.
|
concurrently,
|
|
(0)
|
00.00000000000%
in the following order:
|
|
(a)
|
in
an amount up to $206,186 on each Distribution Date, concurrently,
3.00% to
the Class A-6 Certificates, until its Class Certificate Balance
is reduced
to zero and 97.00%, sequentially, to the Class A-12 and Class A-13
Certificates, in that order, until their respective Class Certificate
Balances are reduced to zero;
|
|
(b)
|
sequentially,
to the Class A-6, Class A-12 and Class A-13 Certificates, in that
order,
until their respective Class Certificate Balances are reduced to
zero;
and
|
|
(c)
|
to
the Class A-14 Certificates, until its Class Certificate Balance
is
reduced to zero; and
|
|
(0)
|
00.00000000000%
in the following order:
|
|
(a)
|
to
the Class A-9 Certificates, in an amount up to the amount necessary
to
reduce its Class Certificate Balance to its Planned Balance for
that
Distribution Date;
|
|
(b)
|
to
the Class A-3 Certificates, in an amount up to the amount necessary
to
reduce its Class Certificate Balance to its Targeted Balance for
that
Distribution Date;
|
|
(c)
|
to
the Class A-10 Certificates, until its Class Certificate Balance
is
reduced to zero;
|
|
(d)
|
to
the Class A-3 Certificates, without regard to its Targeted Balance
for
that Distribution Date, until its Class Certificate Balance is
reduced to
zero;
|
|
(e)
|
to
the Class A-11 Certificates, until its Class Certificate Balance
is
reduced to zero; and
|
|
(f)
|
to
the Class A-9 Certificates, without regard to its Planned Balance
for that
Distribution Date, until its Class Certificate Balance is reduced
to zero;
and
|
|
iii.
|
concurrently,
to the Class A-8 and Class A-18 Certificates, pro rata, without
regard to
the Class A-8 and Class A-18 Priority Amount, until their respective
Class
Certificate Balances are reduced to zero;
and
|
IV-3
(v) to
the
Class PO Certificates, 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);
(vi) to
each
Class of Subordinated Certificates, subject to subparagraph (e) below, in
the following order of priority:
(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
IV-4
(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;
(vii) [Reserved];
and
(viii) to
the
Class A-R Certificates, any remaining funds in the Trust Fund.
If
any
Class of Depositable Certificates has been surrendered to the Trustee for
Exchangeable Certificates, the Trustee, as holder of such surrendered
Depositable Certificates, shall deposit any amounts distributable to such
Class
of Depositable Certificates in this Section 4.02(a) into the Exchangeable
Certificates Distribution Account and shall distribute such amounts to the
Holders of the related Class or Classes of Exchangeable Certificates pursuant
to
Section 5.07(b).
On
any
Distribution Date, amounts distributed in respect of Class PO Deferred
Amounts will not reduce the Class Certificate Balance of the Class PO
Certificates.
On
any
Distribution Date, to the extent the Amount Available for Senior Principal
is
insufficient to make the full distribution required to be made pursuant to
subclause (iv)(x) above, (A) the amount distributable on the Class PO
Certificates in respect of principal pursuant to such subclause (iv)(x) shall
be
equal to the product of (1) the Amount Available for Senior Principal and
(2) a
fraction, the numerator of which is the PO Formula Principal Amount and the
denominator of which is the sum of the PO Formula Principal Amount and the
Senior Principal Distribution Amount and (B) the amount distributable on
the
Senior Certificates, other than the Class PO Certificates, in respect of
principal pursuant to clause (iv)(y) shall be equal to the product of (1)
the
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 the Senior Principal Distribution Amount and the 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 or Component Balance of such Class or Component, as applicable, 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)(iv)(y), 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)(iii) 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)(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, pro rata, on the basis of their
respective Class Certificate Balances, until the Class Certificate Balances
thereof are reduced to zero.
IV-5
(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 by (i) the related
Class’ pro
rata
share of
Net Prepayment Interest Shortfalls based on such Class’ Class Optimal
Interest Distribution Amount for such Distribution Date, without taking into
account such Net Prepayment Interest Shortfalls and (ii) the related Class’
Allocable Share of the interest portion of a Debt Service Reduction, and
each
Relief Act Reduction incurred during the calendar month preceding the month
of
such Distribution Date.
(e) Notwithstanding
the priority and allocation contained in Section 4.02(a)(vi), 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)(vi).
(f) [Reserved].
(g) 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, an amount equal
to 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 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.
Realized
Losses with respect to any Distribution Date shall be allocated as
follows:
(i) the
applicable PO Percentage of any Realized Loss shall be allocated to the
Class PO Certificates until the Class Certificate Balance thereof is
reduced to zero; and
IV-6
(ii) the
applicable Non-PO Percentage of any Realized Loss 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, second, to the Classes of Senior Certificates (other than
any
Notional Amount Certificates, if applicable, and the Class PO
Certificates), pro
rata
on the
basis of their respective Class Certificate Balances immediately prior to
such
Distribution Date, 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 immediately prior
to
such Distribution Date, and their respective initial Class Certificate Balances
or Component Balance, as applicable, until the respective Class Certificate
Balance or Component Balance of each such Class or Component is reduced to
zero;
provided,
however, that the Non-PO Percentage of any Realized Losses that would otherwise
be allocated: (i) to the Class A-1 and Class A-3 Certificates will instead
be
allocated the Class A-17 Certificates, concurrently, as follows: (x) the
first
$65,500 of Realized Losses that would otherwise be allocated to the Class
A-1
Certificates will instead be allocated to the Class A-17 Certificates and
(y)
the first $8,050,000 of Realized Losses that would otherwise be allocated
to the
Class A-3 Certificates will instead be allocated to the Class A-17 Certificates,
in each case, until the Class Certificate Balance of the Class A-17 Certificates
is reduced to zero and (ii) to the Class A-8 Certificates will instead be
allocated to the Class A-18 Certificates, until its Class Certificate Balance
is
reduced to zero.
(b) The
Class Certificate Balance 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 Pool
Stated Principal Balance for the following Distribution Date.
(c) Any
Realized Losses 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 or Component Balance of a Certificate
or
Component, 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 allocated to a Class of Component Certificates
will
be allocated, pro rata, to the related Components.
(e) [Reserved]
SECTION
4.05. [Reserved]
SECTION
4.06. Monthly
Statements to Certificateholders.
(a) Concurrently
with each distribution on a Distribution Date, the Trustee will forward by
mail
to each Rating Agency and make available to Certificateholders on the Trustee’s
website (xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting
forth the information contained in Exhibit U hereto.
IV-7
(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
items (1), (2) and (7) of Exhibit U hereto, 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 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.
IV-8
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
or
any Exchangeable Certificates that are LIBOR Certificates have a Class
Certificate Balance greater than zero, the Trustee will determine LIBOR on
the
basis of the British Bankers’ Association (“BBA”) “Interest Settlement Rate” for
one-month deposits in U.S. dollars as quoted on the Bloomberg Terminal as
of
each LIBOR Determination Date.
(b) If
on any
Interest Determination Date, LIBOR cannot be determined as provided in paragraph
(A) of this Section 4.08, the Trustee shall either (i) request each Reference
Bank to inform the Trustee of the quotation offered by its principal London
office for making one-month United States dollar deposits in leading banks
in
the London interbank market, as of 11:00 a.m. (London time) on such Interest
Determination Date or (ii) in lieu of making any such request, rely on such
Reference Bank quotations that appear at such time on the Reuters Screen
LIBO
Page (as defined in the International Swap Dealers Association Inc. Code
of
Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition), to
the
extent available. LIBOR for the next 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 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. If on the initial LIBOR
Determination Date the Trustee is required but unable to determine LIBOR
in the
manner provided above, LIBOR for the next Interest Accrual Period will be
the
Initial LIBOR Rate.
IV-9
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 Class Certificate Balance of a Class of LIBOR Certificates
is greater than zero, 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.
SECTION
4.09. Distributions
from the Corridor Contract Reserve Fund.
(a) On
each
Distribution Date on or prior to the earlier of (i) termination of this
Agreement and (ii) the date on which the aggregate Class Certificate Balance
of
the Covered Certificates is reduced to zero, amounts on deposit in the Corridor
Contract Reserve Fund in respect of a Corridor Contract will be withdrawn
therefrom and distributed to the applicable Class of Covered Certificates,
to
the extent needed to pay any related Yield Supplement Amount for such
Distribution Date and any related Yield Supplement Amount remaining unpid
from
prior Distribution dates. Amounts received on the Class A-3 Corridor Contract
on
any Distribution Date in excess of the amount necessary to pay the related
current Yield Supplement Amount and any related Yield Supplement Amount
remaining unpaid from prior Distribution Dates will remain on deposit in
the
Corridor Contract Reserve Fund and may be used to pay such Yield Supplement
Amounts on future Distribution Dates. Amounts received on the Class A-6 Corridor
Contract on any Distribution Date in excess of the amount necessary to pay
the
related current Yield Supplement Amount and any related Yield Supplement
Amount
remaining unpaid from prior Distribution Dates will be remitted to the
Underwriter (Senior) and will not be available on future Distribution Dates
to
make distributions on the Class A-6 Certificates.
(b) Any
amounts remaining in the Corridor Contract Reserve Fund after the earlier
of (i)
the date on which the aggregate Class Certificate Balance of the Covered
Certificates has been reduced to zero and (ii) termination of this Agreement,
will be distributed to the Underwriter (Senior).
IV-10
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 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.
V-1
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to
cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act
and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In the event that a transfer
is
to be made in reliance upon an exemption from the Securities Act and such
laws,
in order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such Certificateholder’s
prospective transferee shall each certify to the Trustee in writing the facts
surrounding the transfer in substantially the forms set forth in Exhibit
J-2
(the “Transferor Certificate”) and (i) deliver a letter in substantially the
form of either Exhibit K (the “Investment Letter”) or Exhibit L-1 (the “Rule
144A Letter”) or (ii) there shall be delivered to the Trustee at the expense of
the transferor an Opinion of Counsel that such transfer may be made pursuant
to
an exemption from the Securities Act. 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-1, or in the
event such Certificate is a Residual Certificate, such requirement is satisfied
only by the Trustee’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that (x) such transferee
is not a Plan 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,
a
representation that the transferee is an insurance company which is purchasing
such Certificate with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of
such Certificate satisfy the requirements for exemptive relief under Sections
I
and III of PTCE 95-60 or (ii) in the case of any ERISA-Restricted Certificate
presented for registration in the name of a Plan, an Opinion of Counsel
satisfactory to the Trustee, which Opinion of Counsel shall not be an expense
of
either the Trustee, the Master Servicer or the Trust Fund, addressed to the
Trustee and the Master Servicer to the effect that the purchase and holding
of
such ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will
not
subject the Trustee or the Master Servicer to any obligation in addition
to
those expressly undertaken in this Agreement or to any liability. 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 a Plan 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.
V-2
For
so
long as a Corridor Contract is in effect, no transfer of the related Covered
Certificates (other than a transfer of a Covered Certificate to an affiliate
of
the Depositor (either directly or through a nominee) in connection with the
initial issuance of the Certificates) shall be made unless the Trustee shall
have received a representation letter from the transferee of such Covered
Certificate substantially in the form of Exhibit L-2 to the effect that (i)
such
transferee is not a Plan, or (ii) that the purchase and holding of the Covered
Certificate satisfies the requirements for exemptive relief under XXXX 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23, the service provider exemption
provided under Section 408(b)(17) of ERISA and Section 4975(d)(20) of the
Code
or a similar exemption. In the event that such a representation letter is
not
delivered, one of the foregoing representations, as appropriate, shall be
deemed
to have been made by the transferee’s (including an initial acquiror’s)
acceptance of the Covered Certificate. In the event that such representation
is
violated, such transfer or acquisition shall be void and of no
effect.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of or
transfer of any ERISA-Restricted Certificate or Covered Certificate that
is in
fact not permitted by this Section 5.02(b) or for making any payments due
on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Trustee in accordance with the foregoing
requirements.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of
any
change or impending change in its status as a Permitted Transferee.
(ii) Except
in
connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Residual Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the Certificates,
no Ownership Interest in a Residual Certificate may be registered on the
Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless the Trustee shall have been furnished
with an
affidavit (a “Transfer Affidavit”) of the initial owner or the proposed
transferee in the form attached hereto as Exhibit I.
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Residual Certificate and (C) not to Transfer its Ownership Interest in
a
Residual Certificate or to cause the Transfer of an Ownership Interest in
a
Residual Certificate to any other Person if it has actual knowledge that
such
Person is not a Permitted Transferee and to provide to the Trustee a certificate
substantially in the form attached hereto as Exhibit J-1 stating that it
has no
knowledge that such Person is not a Permitted Transferee.
V-3
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall
be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by Section 5.02(b) and this Section 5.02(c) or for making any payments due
on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter, if
required. The Trustee shall be entitled but not obligated to recover from
any
Holder of a Residual Certificate that was in fact not a Permitted Transferee
at
the time it became a Holder or, at such subsequent time as it became other
than
a Permitted Transferee, all payments made on such Residual Certificate at
and
after either such time. Any such payments so recovered by the Trustee shall
be
paid and delivered by the Trustee to the last preceding Permitted Transferee
of
such Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this Section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Residual Certificate may be deleted) with respect to Transfers occurring
after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trust Fund, the Trustee, the Master Servicer or
any
Seller, to the effect that the elimination of such restrictions will not
cause
any REMIC hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the
Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel furnished
to
the Trustee, is reasonably necessary (a) to ensure that the record ownership
of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and
(b)
to provide for a means to compel the Transfer of a Residual Certificate which
is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the
parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times: (i) registration
of the Certificates may not be transferred by the Trustee except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of
such
Book-Entry Certificates; (iii) ownership and transfers of registration of
the
Book-Entry Certificates on the books of the Depository shall be governed
by
applicable rules established by the Depository; (iv) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (v) the Trustee shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the
rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they
are
made with respect to different Certificate Owners; and (vi) the Trustee may
rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and
persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
V-4
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.
V-5
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, 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.
SECTION
5.07. Depositable
and Exchangeable Certificates.
(a) On
the
Closing Date, there is hereby established a separate trust (the “ES Trust”),
which shall be a Grantor Trust for federal income tax purposes. The ES Trust
shall be maintained by the Trustee in its name, for the benefit of the Holders
of the Certificates. The assets of the ES Trust shall consist of the LTR-A-R
Interest and the uncertificated Master REMIC Interests, which have been placed
in the ES Trust through the efforts of the Underwriter (Senior). The LTR-A-R
Interest and the uncertificated Master REMIC Interests in the ES Trust shall
be
held by the Trustee. On the Closing Date, the ES Trust shall issue the several
Classes of Certificates. Each Class of Exchangeable Certificates shall be
issued
on the Closing Date with a Class Certificate Balance of zero. Upon the sale
of
the Certificates on the Closing Date, the Exchangeable Certificates shall
be
placed with the Trustee through the efforts of the Underwriter (Senior) to
be
held to facilitate the exchange of Depositable and Exchangeable Certificates
on
and after the Closing Date. Among the Depositable and Exchangeable Certificates,
the beneficial interest of the uncertificated Master REMIC Interests shall
be
represented by the related Depositable Certificates until such Depositable
Certificates have been exchanged for Exchangeable Certificates, at which
time,
such Exchangeable Certificates shall represent those uncertificated Master
REMIC
Interests.
V-6
The
Trustee, as trustee of the ES Trust, shall establish and maintain, on behalf
of
the Holders of the Exchangeable Certificates, the Exchangeable Certificates
Distribution Account. All funds on deposit in the Exchangeable Certificates
Distribution Account shall be held separate and apart from, and shall not
be
commingled with, any other moneys, including without limitation, other moneys
held by the Trustee pursuant to this Agreement.
On
each
Distribution Date, the Trustee, as holder of any surrendered Depositable
Certificates, shall deposit in the Exchangeable Certificates Distribution
Account any amounts distributable to the surrendered Depositable Certificates
pursuant to Section 4.02. For the avoidance of doubt, if on any Distribution
Date no Classes of Depositable Certificates have been surrendered or if all
Classes of Exchangeable Certificates have been exchanged for Depositable
Certificates according to Section 5.07(e), then no amounts will be deposited
in
the Exchangeable Certificates Deposit Account on such Distribution Date.
On
each
Distribution Date, the Trustee shall make withdrawals from the Exchangeable
Certificates Distribution Account to make distributions to the Classes of
Exchangeable Certificates then entitled to distributions pursuant to Section
5.07(b).
Funds
in
the Exchangeable Certificates Distribution Account shall remain
uninvested.
(b) On
each
Distribution Date, the Trustee shall withdraw funds on deposit in the
Exchangeable Certificates Distribution Account on deposit therein from
distributions to the surrendered Depositable Certificates for such Distribution
Date and distribute such amount to the Holders of each related Class of
Exchangeable Certificates. Amounts related to interest distributed to the
surrendered Depositable Certificates shall be distributed as interest to
the
related Class or Classes of Exchangeable Certificates pursuant to Section
4.02(a)(ii). All distributions of principal to the Exchangeable Certificates
shall be made pro rata among the Classes of Exchangeable Certificates within
each Recombination Group unless specifically provided for otherwise in Schedule
VII. All distributions that are made with respect to a particular Class of
Exchangeable Certificates shall be made pro rata among all Certificates of
such
Class in proportion to their respective Class Certificate Balances.
In
addition, the Trustee may from time to time make withdrawals from the
Exchangeable Certificates Distribution Account for the following
purposes:
(i) to
withdraw any amount deposited in the Exchangeable Certificates Distribution
Account and not required to be deposited therein; and
(ii) to
clear
and terminate the Exchangeable Certificates Distribution Account upon the
termination of this Agreement.
(c) On
each
Distribution Date on which a Class of Exchangeable Certificates shall be
entitled to receive distributions pursuant to Section 5.07(b), such Class
shall
be allocated a proportionate share of the Net Prepayment Interest Shortfalls
and
Relief Act Shortfalls allocable to the Classes of Depositable Certificates
in
the related Recombination Group.
V-7
(d) On
each
Distribution Date on which a Class of Exchangeable Certificates shall be
entitled to receive distributions pursuant to Section 5.07(b), such Class
shall
be allocated a proportionate share of the Realized Losses allocable to the
Classes of Depositable Certificates in the related Recombination Group; except
that the Realized Losses that would otherwise be allocated to the Class 1-A-7
Certificates shall instead be allocated to the Class 1-A-8 Certificates,
until
its Class Certificate Balance is reduced to zero.
(e) Upon
the
presentation and surrender of the Depositable Certificates, the Holder thereof
transfers, assigns, sets over and otherwise conveys to the Trustee of the
ES
Trust, all of such Holder’s right, title and interest in and to such Depositable
Certificates, including all payments of interest thereon received after the
month of the exchange. The Trustee on behalf of the ES Trust shall furnish
written acknowledgement to the Holder of such surrendered Certificate of
the
transfer and assignment to it of such Depositable Certificates.
At
the
request of the Holder of a Class or Classes of Depositable Certificates,
and
upon the surrender of such Depositable Certificates, the Trustee shall deliver
such Exchangeable Certificates as set forth in such Recombination Group in
the
respective Denominations determined based on the proportion that the initial
Class Certificate Balance or initial Notional Amounts of such Exchangeable
Certificates bear to the initial Class Certificate Balances of the Depositable
Certificates, as set forth in Schedule VII, which shall represent in the
aggregate, the entire beneficial ownership of the Master REMIC Interests
related
to such surrendered Certificates. In addition, at the request of the Holder
of a
Class or Classes of Exchangeable Certificates, and upon the surrender of
such
Exchangeable Certificates, the Trustee shall exchange such Exchangeable
Certificates for another Class or Classes of Exchangeable Certificates or
the
related surrendered Depositable Certificates, as set forth in Schedule VII.
There shall be no limitation on the number of exchanges authorized pursuant
to
this Section 5.07.
Holders
may exchange their Certificates according to this Section 5.07(e) by (i)
providing notice to the Trustee no later than three (3) Business Days prior
to
the date on which the Holder wishes to make such exchange (the “Exchange Date”),
which Exchange Date is subject to the Trustee’s approval and shall not be the
first or last Business Day of the month, (ii) remitting the Exchange Fee,
as
determined in the next paragraph, to the Trustee and (iii) remitting the
beneficial interest in the Depositable Certificates or the Exchangeable
Certificates, as applicable, to the Trustee. Any such notice to the Trustee
(A)
may be provided to the Trustee by email at xxxxxxx@xxxxxxxx.xxx or by telephone
at (000) 000-0000, (B) must include (i) the Certificateholder’s letterhead, (ii)
a medallion stamp guarantee or be signed by an authorized signatory and be
presented with an incumbency certificate and (iii) set forth the following
information: (a) the CUSIP number of both the Certificates to be exchanged
and
the Certificates to be received, (b) the outstanding Class Certificate Balance
and the initial Class Certificate Balance of the Certificates to be exchanged,
(c) the Certificateholder’s DTC participant number and (d) the proposed Exchange
Date, and (C) is irrevocable beginning on the second Business Day prior to
the
Exchange Date. Such exchange will be completed by the Trustee upon the receipt
by the Trustee of the Exchange Fee and the beneficial interest in the
Depositable Certificates or the Exchangeable Certificates, as
applicable.
The
preparation of all Certificates referred to in this Section 5.07(e) in
connection with an exchange shall be at the expense of the parties to such
exchanges. For each exchange, the Certificateholder must pay the Trustee
a fee
(the “Exchange Fee”) equal to 1/32 of 1% of the current Class Certificate
Balance of the Certificates to be Exchanged but in no event shall the fee
be
less than $2,000 or greater than $25,000.
V-8
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.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation
of the
Master Servicer, the Master Servicer shall provide (x) written notice to
the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Master
Servicer.
SECTION
6.03. Limitation
on Liability of the Depositor, the Sellers, the Master Servicer 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, any Seller
or
any such Person against any breach of representations or warranties made
by it
herein or protect the Depositor, the Master Servicer, any Seller or any such
Person from any liability which would otherwise be imposed by reasons of
willful
misfeasance, bad faith or gross negligence in the performance of duties or
by
reason of reckless disregard of obligations and duties hereunder. The Depositor,
the Master Servicer, 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 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.
VI-1
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 resignation
of
the Master Servicer shall become effective until the Trustee or a successor
master servicer shall have assumed the Master Servicer’s responsibilities,
duties, liabilities (other than those liabilities arising prior to the
appointment of such successor) and obligations hereunder and the Depositor
shall
have received the information described in the following sentence. As a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Master Servicer
shall
provide (x) written notice to the Depositor of any successor pursuant to
this
Section and (y) in writing and in form and substance reasonably satisfactory
to
the Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Master Servicer.
VI-2
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 (except with respect to a failure related to
a
Limited Exchange Act Reporting Obligation), which failure materially affects
the
rights of Certificateholders, that failure continues unremedied for a period
of
60 days after the date on which written notice of such failure shall have
been
given to the Master Servicer by the Trustee or the Depositor, or to the Master
Servicer and the Trustee by the Holders of Certificates evidencing not less
than
25% of the Voting Rights evidenced by the Certificates; provided, however,
that
the sixty-day cure period shall not apply to the initial delivery of the
Mortgage File for Delay Delivery Mortgage Loans nor the failure to substitute
or
repurchase in lieu of delivery; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises for the appointment of a receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 consecutive
days;
or
(iv) the
Master Servicer shall consent to the appointment of a receiver or liquidator
in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings of or relating to the Master Servicer or all or
substantially all of the property of the Master Servicer; or
(v) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of, or commence a
voluntary case under, any applicable insolvency or reorganization statute,
make
an assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations; or
(vi) the
Master Servicer shall fail to reimburse in full the Trustee within five days
of
the Master Servicer Advance Date for any Advance made by the Trustee pursuant
to
Section 4.01(b) together with accrued and unpaid interest.
If
an
Event of Default described in clauses (i) to (vi) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee may, or, if an Event of Default described
in
clauses (i) to (v) of this Section shall occur, then, and in each and every
such
case, so long as such Event of Default shall not have been remedied, at the
direction of the Holders of Certificates evidencing not less than 66-2/3%
of the
Voting Rights evidenced by the Certificates, the Trustee shall, by notice
in
writing to the Master Servicer (with a copy to each Rating Agency and the
Depositor), terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder.
VII-1
In
addition, if during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Master Servicer shall fail
to
observe or perform any of the obligations that constitute a Limited Exchange
Act
Reporting Obligation or the obligations set forth in Section 3.16(a) or Section
11.07(a)(1) and (2), and such failure continues for the lesser of 10 calendar
days or such period in which the applicable Exchange Act Report can be filed
timely (without taking into account any extensions), so long as such failure
shall not have been remedied, the Trustee shall, but only at the direction
of
the Depositor, terminate all of the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof, other than its rights as a Certificateholder hereunder. The Depositor
shall not be entitled to terminate the rights and obligations of the Master
Servicer if a failure of the Master Servicer to identify a Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage Loans.
On
and
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer hereunder, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The Trustee
shall thereupon make any Advance which the Master Servicer failed to make
subject to Section 4.01 hereof whether or not the obligations of the Master
Servicer have been terminated pursuant to this Section. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether
to
complete the transfer and endorsement or assignment of the Mortgage Loans
and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Master Servicer
to pay amounts owed pursuant to Article VIII. The Master Servicer agrees
to
cooperate with the Trustee in effecting the termination of the Master Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be credited
to the Certificate Account, or thereafter be received with respect to the
Mortgage Loans.
Notwithstanding
any termination of the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to receive, out of any late collection of a Scheduled
Payment on a Mortgage Loan which was due prior to the notice terminating
such
Master Servicer’s rights and obligations as Master Servicer hereunder and
received after such notice, that portion thereof to which such Master Servicer
would have been entitled pursuant to Sections 3.08(a)(i) through (viii),
and any
other amounts payable to such Master Servicer hereunder the entitlement to
which
arose prior to the termination of its activities hereunder.
If
the
Master Servicer is terminated, the Trustee shall provide the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of
the
Master Servicer as set forth herein.
VII-2
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
(i)
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, which contains an assumption by such Person
of
the rights, powers, duties, responsibilities, obligations and liabilities
of the
Master Servicer (other than liabilities of the Master Servicer under Section
6.03 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
and
(ii) provides to the Depositor in writing fifteen days prior to the effective
date of such appointment and in form and substance reasonably satisfactory
to
the Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
a replacement master servicer. The Trustee shall provide written notice to
the
Depositor of such successor pursuant to this Section. Pending appointment
of a
successor to the Master Servicer hereunder, the Trustee, unless the Trustee
is
prohibited by law from so acting, shall, subject to Section 3.04 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 to be paid to the Master Servicer hereunder.
The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither
the
Trustee nor any other successor master servicer shall be deemed to be in
default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform,
or any
delay in performing, any duties or responsibilities hereunder, in either
case
caused by the failure of the Master Servicer to deliver or provide, or any
delay
in delivering or providing, any cash, information, documents or records to
it.
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® System to the successor Master Servicer or (y) in
causing MERS to designate on the MERS® System the successor Master Servicer as
the servicer of such Mortgage Loan. The predecessor Master Servicer shall
file
or cause to be filed any such assignment in the appropriate recording office.
The successor Master Servicer shall cause such assignment to be delivered
to the
Trustee promptly upon receipt of the original with evidence of recording
thereon
or a copy certified by the public recording office in which such assignment
was
recorded.
VII-3
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-4
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
it is required to make an Advance under Section 4.01(b), shall have no
responsibility to ascertain or confirm any information contained in any Trustee
Advance Notice, and shall have no obligation to make any Advance under Section
4.01(b) in the absence of a Trustee Advance Notice or actual knowledge of
a
Responsible Officer of the Trustee that (A) such Advance was not made by
the
Master Servicer and (B) such Advance is not a Nonrecoverable
Advance.
VIII-1
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.
VIII-2
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
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.
VIII-3
SECTION
8.07. Resignation
and Removal of Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer
and each Rating Agency not less than 60 days before the date specified in
such
notice when, subject to Section 8.08, such resignation is to take effect,
and
acceptance by a successor trustee in accordance with Section 8.08 meeting
the
qualifications set forth in Section 8.06. If no successor trustee meeting
such
qualifications shall have been so appointed and have accepted appointment
within
30 days after the giving of such notice or resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Trustee shall provide
(x) written notice to the Depositor of any successor pursuant to this Section
and (y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Trustee.
If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 hereof and shall fail to resign after written
request
thereto by the Depositor, (ii) the Trustee shall become incapable of acting,
or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee
or of
its property shall be appointed, or any public officer shall take charge
or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, (iii) a tax is imposed with
respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is
located
and the imposition of such tax would be avoided by the appointment of a
different trustee or (iv) during the period that the Depositor is required
to
file Exchange Act Reports with respect to the Trust Fund, the Trustee fails
to
comply with its obligations under the last sentence of Section 7.01, the
preceding paragraph, Section 8.09 or Article XI and such failure is not remedied
within the lesser of 10 calendar days or such period in which the applicable
Exchange Act Report can be filed timely (without taking into account any
extensions), then, in the case of clauses (i) through (iii), the Depositor
or
the Master Servicer, or in the case of clause (iv), the Depositor, 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 of which
shall be delivered to the successor trustee.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may
at any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, 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, one complete set to the successor so appointed and one complete
set to
the Depositor, together with a written description of the basis of such removal.
Notice of any removal of the Trustee shall be given to each Rating Agency
by the
successor trustee.
VIII-4
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 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, its appointment shall not adversely
affect the then current rating of the Certificates and such successor trustee
has provided to the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to a replacement Trustee.
Upon
acceptance of appointment by a successor trustee as provided in this Section
8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to 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.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation
of the
Trustee, the Trustee shall provide (x) written notice to the Depositor of
any
successor pursuant to this Section and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement Trustee.
SECTION
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust
Fund
or property securing any Mortgage Note may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee 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.
VIII-5
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) To
the
extent necessary to effectuate the purposes of this Section 8.10, all rights,
powers, duties and obligations conferred or imposed upon the Trustee, except
for
the obligation of the Trustee under this Agreement to advance funds on behalf
of
the Master Servicer, shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it
being understood that such separate trustee or co-trustee is not authorized
to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly
by
such separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder and such appointment shall not, and
shall not be deemed to, constitute any such separate trustee or co-trustee
as
agent of the Trustee;
(iii) The
Trustee may at any time accept the resignation of or remove any separate
trustee
or co-trustee; and
(iv) The
Master Servicer, and not the Trustee, shall be liable for the payment of
reasonable compensation, reimbursement and indemnification to any such separate
trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy thereof given
to the
Master Servicer and the Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by
the
Trustee, to the extent permitted by law, without the appointment of a new
or
successor trustee.
VIII-6
SECTION
8.11. Tax
Matters.
It
is
intended that the assets with respect to which any REMIC election is to be
made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a “real estate mortgage investment conduit” as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee
is
hereby appointed to act as agent) on behalf of any such REMIC and that in
such
capacity it shall: (a) prepare and file, or cause to be prepared and filed,
in a
timely manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax
Return
(Form 1066 or any successor form adopted by the Internal Revenue Service)
and
prepare and file or cause to be prepared and filed with the Internal Revenue
Service and applicable state or local tax authorities income tax or information
returns for each taxable year with respect to any such REMIC, containing
such
information and at the times and in the manner as may be required by the
Code or
state or local tax laws, regulations, or rules, and furnish or cause to be
furnished to Certificateholders the schedules, statements or information
at such
times and in such manner as may be required thereby; (b) within thirty days
of
the Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c)
make or
cause to be made elections that such assets be treated as a REMIC on the
federal
tax return for its first taxable year (and, if necessary, under applicable
state
law); (d) prepare and forward, or cause to be prepared and forwarded, to
the
Certificateholders and to the Internal Revenue Service and, if necessary,
state
tax authorities, all information returns and reports as and when required
to be
provided to them in accordance with the REMIC Provisions, including without
limitation, the calculation of any original issue discount using the Prepayment
Assumption; (e) provide information necessary for the computation of tax
imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman)
of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax); (f) to the extent that they are under its control conduct matters relating
to such assets at all times that any Certificates are outstanding so as to
maintain the status as a REMIC under the REMIC Provisions; (g) not knowingly
or
intentionally take any action or omit to take any action that would cause
the
termination of the tax status of any REMIC; (h) pay, from the sources specified
in the third paragraph of this Section 8.11, the amount of any federal or
state
tax, including prohibited transaction taxes as described below, imposed on
any
such REMIC prior to its termination when and as the same shall be due and
payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings
and
shall not prevent the Trustee from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings); (i) ensure that federal,
state
or local income tax or information returns shall be signed by the Trustee
or
such other person as may be required to sign such returns by the Code or
state
or local laws, regulations or rules; (j) maintain records relating to any
such
REMIC, including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined
at
such intervals as may be required by the Code, as may be necessary to prepare
the foregoing returns, schedules, statements or information; and (k) as and
when
necessary and appropriate, represent any such REMIC in any administrative
or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable
year of
any such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any
such
REMIC, and otherwise act on behalf of any such REMIC in relation to any tax
matter or controversy involving it.
VIII-7
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
Trustee of any of its obligations under this Agreement, (ii) the Master
Servicer, in the case of any such minimum tax, or if such tax arises out
of or
results from a breach by the Master Servicer or a Seller of any of their
obligations under this Agreement, (iii) any Seller, if any such tax arises
out
of or results from that Seller’s obligation to repurchase a Mortgage Loan
pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or in the event
that the Trustee, the Master Servicer or any Seller fails to honor its
obligations under the preceding clauses (i),(ii) or (iii), any such tax will
be
paid with amounts otherwise to be distributed to the Certificateholders,
as
provided in Section 3.08(b).
The
Trustee shall treat the Corridor Contract Reserve Fund as an outside reserve
fund within the meaning of Treasury Regulation 1.860G-2(h) that is owned
by the
Underwriter (Senior) and that is not an asset of the Trust Fund or any REMIC
created hereunder. The Trustee shall treat the rights of the Holders of the
Covered Certificates to receive payments from the Corridor Contract Reserve
Fund
as rights in an interest rate corridor contract written by the Corridor Contract
Counterparty. Thus, the Covered Certificates shall be treated as representing
ownership of not only a Master REMIC regular interest, but also ownership
of an
interest in an interest rate corridor contract. For purposes of determining
the
issue price of the Master REMIC regular interest, the Trustee shall assume
that
the Corridor Contracts entered into by the Corridor Contract Counterparty
have
values of $54,000 and $20,000, respectively.
SECTION
8.12. Monitoring
of Significance Percentage.
With
respect to each Distribution Date, the Trustee shall calculate the “significance
percentage” (as defined in Item 1115 of Regulation AB) of each derivative
instrument, if any, based on the aggregate Class Certificate Balance of the
related Classes of Covered Certificates for such derivative instrument and
Distribution Date (after all distributions to be made thereon on such
Distribution Date) and based on the methodology provided in writing by or
on
behalf of Countrywide no later than the fifth Business Day preceding such
Distribution Date. On each Distribution Date, the Trustee shall provide to
Countrywide a written report (which written report may include similar
information with respect to other derivative instruments relating to
securitization transactions sponsored by Countrywide) specifying the
“significance percentage” of each derivative instrument, if any, for that
Distribution Date. If the “significance percentage” of any derivative instrument
exceeds 7.0% with respect to any Distribution Date, the Trustee shall make
a
separate notation thereof in the written report described in the preceding
sentence. Such written report may contain such assumptions and disclaimers
as
are deemed necessary and appropriate by the Trustee.
VIII-8
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 a breach of clause (49) 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 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.
IX-1
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, and 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.
The
Supplemental Interest Trust shall terminate on the earlier of (i) the last
Corridor Contract Scheduled Termination Date and (ii) the date on which the
aggregate Class Certificate Balance of the Covered Certificates is reduced
to
zero.
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:
(i) 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 an expense
of
the Trustee or the Tax Matters Person), meets the requirements of a qualified
liquidation; and
IX-2
(ii) 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 hereunder, hereby agrees to adopt
and
sign such a plan of complete liquidation upon the written request of the
Master
Servicer, and the receipt of the Opinion of Counsel referred to in Section
9.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the 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.
IX-3
ARTICLE
X
MISCELLANEOUS
PROVISIONS
SECTION
10.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, each Seller,
the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any
defective provision herein or to supplement any provision herein which may
be
inconsistent with any other provision herein, (iii) to conform this Agreement
to
the Prospectus and Prospectus Supplement provided to investors in connection
with the initial offering of the Certificates, (iv) to add to the duties
of the
Depositor, any Seller or the Master Servicer, (v) to modify, alter, amend,
add
to or rescind any of the terms or provisions contained in this Agreement
to
comply with any rules or regulations promulgated by the Securities and Exchange
Commission from time to time, (vi) to add any other provisions with respect
to
matters or questions arising hereunder or (vii) to modify, alter, amend,
add to
or rescind any of the terms or provisions contained in this Agreement; provided
that any action pursuant to clauses (vi) or (vii) above shall not, as evidenced
by an Opinion of Counsel (which Opinion of Counsel shall not be an expense
of
the Trustee or the Trust Fund), adversely affect in any material respect
the
interests of any Certificateholder; provided, however, that the amendment
shall
be deemed not to adversely affect in any material respect the interests of
the
Certificateholders if the Person requesting the amendment obtains a letter
from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and
of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Notwithstanding the foregoing, no amendment that
significantly changes the permitted activities of the trust created by this
Agreement may be made without the consent of a Majority in Interest of each
Class of Certificates affected by such amendment. Each party to this Agreement
hereby agrees that it will cooperate with each other party in amending this
Agreement pursuant to clause (v) above. The Trustee, each Seller, the Depositor
and the Master Servicer also may at any time and from time to time amend
this
Agreement without the consent of the Certificateholders to modify, eliminate
or
add to any of its provisions to such extent as shall be necessary or helpful
to
(i) maintain the qualification of any REMIC as a REMIC under the Code, (ii)
avoid or minimize the risk of the imposition of any tax on any REMIC pursuant
to
the Code that would be a claim at any time prior to the final redemption
of the
Certificates or (iii) comply with any other requirements of the Code, provided
that the Trustee has been provided an Opinion of Counsel, which opinion shall
be
an expense of the party requesting such opinion but in any case shall not
be an
expense of the Trustee or the Trust Fund, to the effect that such action
is
necessary or helpful to, as applicable, (i) maintain such qualification,
(ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply
with
any such requirements of the Code.
This
Agreement may also be amended from time to time by the Depositor, each Seller,
the Master Servicer and the Trustee with the consent of the Holders of a
Majority in Interest of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
the Holders of Certificates; provided, however, that no such amendment shall
(i)
reduce in any manner the amount of, or delay the timing of, payments required
to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests
of the
Holders of any Class of Certificates in a manner other than as described in
(i), without the consent of the Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating
X-1
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 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.
(a) It
is the
express intent of the parties hereto that the conveyance of the (i) Mortgage
Loans by the Sellers to the Depositor and (ii) Trust Fund by the Depositor
to
the Trustee each be, and be construed as, an absolute sale thereof to the
Trustee. It is, further, not the intention of the parties that such conveyances
be deemed a pledge thereof. However, in the event that, notwithstanding the
intent of the parties, such assets are held to be the property of any Seller
or
the Depositor, as the case may be, or if for any other reason this Agreement
or
any Supplemental Transfer Agreement is held or deemed to create a 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.
X-2
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.
(b) The
Depositor hereby represents that:
(i) This
Agreement creates a valid and continuing security interest (as defined in
the
Uniform Commercial Code as enacted in the State of New York (the “NY UCC”)) in
the Mortgage Notes in favor of the Trustee, which security interest is prior
to
all other liens, and is enforceable as such as against creditors of and
purchasers from the Depositor.
(ii) The
Mortgage Notes constitutes “instruments” within the meaning of the NY
UCC.
(iii) Immediately
prior to the assignment of each Mortgage Loan to the Trustee, the Depositor
owns
and has good and marketable title to such Mortgage Loan free and clear of
any
lien, claim or encumbrance of any Person.
(iv) The
Depositor has received all consents and approvals required by the terms of
the
Mortgage Loans to the sale of the Mortgage Loans hereunder to the
Trustee.
(v) All
original executed copies of each Mortgage Note that are required to be delivered
to the Trustee pursuant to Section 2.01 have been delivered to the
Trustee.
(vi) Other
than the security interest granted to the Trustee pursuant to this Agreement,
the Depositor has not pledged, assigned, sold, granted a security interest
in,
or otherwise conveyed any of the Mortgage Loans. The Depositor has not
authorized the filing of and is not aware of any financing statements against
the Depositor that include a description of collateral covering the Mortgage
Loans other than any financing statement relating to the security interest
granted to the Trustee hereunder or that has been terminated. The Depositor
is
not aware of any judgment or tax lien filings against the
Depositor.
(c) The
Master Servicer shall take such action as is reasonably necessary to maintain
the perfection and priority of the security interest of the Trustee in the
Mortgage Loans; provided, however, that the obligation to deliver the Mortgage
File to the Trustee pursuant to Section 2.01 shall be solely the Depositor’s
obligation and the Master Servicer shall not be responsible for the safekeeping
of the Mortgage Files by the Trustee.
X-3
(d) It
is
understood and agreed that the representations and warranties set forth in
subsection (b) above shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any
of
the foregoing representations and warranties set forth in subsection (b)
above,
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
SECTION
10.05. Notices.
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency 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 Countrywide, 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
11.07; and
4. Any
notice of a purchase of a Mortgage Loan pursuant to Section 2.02, 2.03 or
3.11.
(b) All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered by first class mail, by
courier or by facsimile transmission to (1) in the case of the Depositor,
CWALT,
Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx, (2) in the case of Countrywide, Countrywide
Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile
number: (000) 000-0000, Attention: Xxxx Xxxxx or such other address as may
be
hereafter furnished to the Depositor and the Trustee by Countrywide in writing,
(3) in the case of Park Granada LLC, c/o Countrywide Financial Corporation,
0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxx Xxxxx or such other address as may be hereafter furnished
to the
Depositor and the Trustee by Park Granada in writing, (4) in the case of
Park
Monaco Inc., c/o Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000, Attention:
Xxxx
Xxxxx or such other address as may be hereafter furnished to the Depositor
and
the Trustee by Park Monaco in writing, (5) in the case of Park Sienna LLC,
c/o
Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, facsimile number: (000) 000-0000, Attention: Xxxx Xxxxx or such other
address as may be hereafter furnished to the Depositor and the Trustee by
Park
Sienna in writing, (6) in the case of the Master Servicer, Countrywide Home
Loans Servicing LP, 000 Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000,
facsimile number (000) 000-0000, Attention: Xxxx Xxxx, or such other address
as
may be hereafter furnished to the Depositor and the Trustee by the Master
Servicer in writing, (7) in the case of the Trustee, The Bank of New York,
000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, facsimile number: (000)
000-0000, Attention: Mortgage-Backed Securities Group, CWALT, Inc. Series
2007-7T2, or such other address as the Trustee may hereafter furnish to the
Depositor or Master Servicer and (8) 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.
X-4
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 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.
X-5
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-6
ARTICLE
XI
EXCHANGE
ACT REPORTING
SECTION
11.01. Filing
Obligations.
The
Master Servicer, the Trustee and each Seller shall reasonably cooperate with
the
Depositor in connection with the satisfaction of the Depositor’s reporting
requirements under the Exchange Act with respect to the Trust Fund. In addition
to the information specified below, if so requested by the Depositor for
the
purpose of satisfying its reporting obligation under the Exchange Act, the
Master Servicer, the Trustee and each Seller shall (and the Master Servicer
shall cause each Subservicer to) provide the Depositor with (a) such information
which is available to such Person without unreasonable effort or expense
and
within such timeframe as may be reasonably requested by the Depositor to
comply
with the Depositor’s reporting obligations under the Exchange Act and (b) to the
extent such Person is a party (and the Depositor is not a party) to any
agreement or amendment required to be filed, copies of such agreement or
amendment in XXXXX-compatible form.
SECTION
11.02. Form
10-D Filings.
(a) In
accordance with the Exchange Act, the Trustee shall prepare for filing and
file
within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act) with the Commission with respect to the Trust Fund,
a
Form 10-D with copies of the Monthly Report and, to the extent delivered
to the
Trustee, no later than 10 days following the Distribution Date, such other
information identified by the Depositor or the Master Servicer, in writing,
to
be filed with the Commission (such other information, the “Additional Designated
Information”). If the Depositor or Master Servicer directs that any Additional
Designated Information is to be filed with any Form 10-D, the Depositor or
Master Servicer, as the case may be, shall specify the Item on Form 10-D
to
which such information is responsive and, with respect to any Exhibit to
be
filed on Form 10-D, the Exhibit number. Any information to be filed on Form
10-D
shall be delivered to the Trustee in XXXXX-compatible form or as otherwise
agreed upon by the Trustee and the Depositor or the Master Servicer, as the
case
may be, at the Depositor’s expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor’s expense. At the reasonable
request of, and in accordance with the reasonable directions of, the Depositor
or the Master Servicer, subject to the two preceding sentences, the Trustee
shall prepare for filing and file an amendment to any Form 10-D previously
filed
with the Commission with respect to the Trust Fund. The Master Servicer shall
sign the Form 10-D filed on behalf of the Trust Fund.
(b) No
later
than each Distribution Date, each of the Master Servicer and the Trustee
shall
notify (and the Master Servicer shall cause any Subservicer to notify) the
Depositor and the Master Servicer of any Form 10-D Disclosure Item, together
with a description of any such Form 10-D Disclosure Item in form and substance
reasonably acceptable to the Depositor. In addition to such information as
the
Master Servicer and the Trustee are obligated to provide pursuant to other
provisions of this Agreement, if so requested by the Depositor, each of the
Master Servicer and the Trustee shall provide such information which is
available to the Master Servicer and the Trustee, as applicable, without
unreasonable effort or expense regarding the performance or servicing of
the
Mortgage Loans (in the case of the Trustee, based on the information provided
by
the Master Servicer) as is reasonably required to facilitate preparation
of
distribution reports in accordance with Item 1121 of Regulation AB. Such
information shall be provided concurrently with the delivery of the reports
specified in Section 4.06(c) in the case of the Master Servicer and the Monthly
Statement in the case of the Trustee, commencing with the first such report
due
not less than five Business Days following such request.
(c) The
Trustee shall not have any responsibility to file any items (other than those
generated by it) that have not been received in a format suitable (or readily
convertible into a format suitable) for electronic filing via the XXXXX system
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it or that are readily convertible to
such
format). The Trustee shall have no liability to the Certificateholders, the
Trust Fund, the Master Servicer or the Depositor with respect to any failure
to
properly prepare or file any of Form 10-D to the extent that such failure
is not
the result of any negligence, bad faith or willful misconduct on its part.
XI-1
SECTION
11.03. Form
8-K Filings.
The
Master Servicer shall prepare and file on behalf of the Trust Fund any Form
8-K
required by the Exchange Act. Each Form 8-K must be signed by the Master
Servicer. Each of the Master Servicer (and the Master Servicer shall cause
any
Subservicer to promptly notify) and the Trustee shall promptly notify the
Depositor and the Master Servicer (if the notifying party is not the Master
Servicer), but in no event later than one (1) Business Day after its occurrence,
of any Reportable Event of which it has actual knowledge. Each Person shall
be
deemed to have actual knowledge of any such event to the extent that it relates
to such Person or any action or failure to act by such Person. Concurrently
with
any transfer of Supplemental Mortgage Loans, if any, Countrywide shall notify
the Depositor and the Master Servicer, if any material pool characteristic
of
the actual asset pool at the time of issuance of the Certificates differs
by 5%
or more (other than as a result of the pool assets converting into cash in
accordance with their terms) from the description of the asset pool in the
Prospectus Supplement.
SECTION
11.04. Form
10-K Filings.
Prior
to
March 30th of each year, commencing in 2008 (or such earlier date as may
be
required by the Exchange Act), the Depositor shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. A senior officer in charge of the servicing function of the Master Servicer
shall sign each Form 10-K filed on behalf of the Trust Fund. Such Form 10-K
shall include as exhibits each (i) annual compliance statement described
under
Section 3.16, (ii) annual report on assessments of compliance with servicing
criteria described under Section 11.07 and (iii) accountant’s report described
under Section 11.07. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx
Certification required to be included therewith, as described in Section
11.05.
If
the
Item 1119 Parties listed on Exhibit X have changed since the Closing Date,
no
later than March 1 of each year, the Master Servicer shall provide each of
the
Master Servicer (and the Master Servicer shall provide any Subservicer) and
the
Trustee with an updated Exhibit X setting forth the Item 1119 Parties. No
later
than March 15 of each year, commencing in 2008, the Master Servicer and the
Trustee shall notify (and the Master Servicer shall cause any Subservicer
to
notify) the Depositor and the Master Servicer of any Form 10-K Disclosure
Item,
together with a description of any such Form 10-K Disclosure Item in form
and
substance reasonably acceptable to the Depositor. Additionally, each of the
Master Servicer and the Trustee shall provide, and shall cause each Reporting
Subcontractor retained by the Master Servicer or the Trustee, as applicable,
and
in the case of the Master Servicer shall cause each Subservicer, to provide,
the
following information no later than March 15 of each year in which a Form
10-K
is required to be filed on behalf of the Trust Fund: (i) if such Person’s report
on assessment of compliance with the servicing criteria described under Section
11.07 or related registered public accounting firm attestation report described
under Section 11.07 identifies any material instance of noncompliance,
notification of such instance of noncompliance and (ii) if any such Person’s
report on assessment of compliance with servicing criteria or related registered
public accounting firm attestation report is not provided to be filed as
an
exhibit to such Form 10-K, information detailing the explanation why such
report
is not included.
SECTION
11.05. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”) required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
of the Commission promulgated thereunder (including any interpretations thereof
by the Commission’s staff)). No later than March 15 of each year, beginning in
2007, the Master Servicer and the Trustee shall (unless such person is the
Certifying Person), and the Master Servicer shall cause each Subservicer
and
each Reporting Subcontractor and the Trustee shall cause each Reporting
Subcontractor to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying Person”) a certification (each, a “Performance
Certification”), in the form attached hereto as Exhibit V-1 (in the case of a
Subservicer or any Reporting Subcontractor of the Master Servicer or a
Subservicer) and Exhibit V-2 (in the case of the Trustee or any Reporting
Subcontractor of the Trustee), on which the Certifying Person, the entity
for
which the Certifying Person acts as an officer, and such entity’s officers,
directors and Affiliates (collectively with the Certifying Person,
“Certification Parties”) can reasonably rely. The senior officer in charge of
the servicing function of the Master Servicer shall serve as the Certifying
Person on behalf of the Trust Fund. Neither the Master Servicer nor the
Depositor will request delivery of a certification under this clause unless
the
Depositor is required under the Exchange Act to file an annual report on
Form
10-K with respect to the Trust Fund. In the event that prior to the filing
date
of the Form 10-K in March of each year, the Trustee or the Depositor has
actual
knowledge of information material to the Xxxxxxxx-Xxxxx Certification, the
Trustee or the Depositor, as the case may be, shall promptly notify the Master
Servicer and the Depositor. The respective parties hereto agree to cooperate
with all reasonable requests made by any Certifying Person or Certification
Party in connection with such Person’s attempt to conduct any due diligence that
such Person reasonably believes to be appropriate in order to allow it to
deliver any Xxxxxxxx-Xxxxx Certification or portion thereof with respect
to the
Trust Fund.
XI-2
SECTION
11.06. Form
15 Filing.
Prior
to
January 30 of the first year in which the Depositor is able to do so under
applicable law, the Depositor shall file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange
Act.
SECTION
11.07. Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 15 of each calendar year, commencing in 2008:
(1) Each
of
the Master Servicer and the Trustee shall deliver to the Depositor and the
Master Servicer a report (in form and substance reasonably satisfactory to
the
Depositor) regarding the Master Servicer’s or the Trustee’s, as applicable,
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be signed
by an
authorized officer of such Person and shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit
W
hereto delivered to the Depositor concurrently with the execution of this
Agreement. To the extent any of the Servicing Criteria are not applicable
to
such Person, with respect to asset-backed securities transactions taken as
a
whole involving such Person and that are backed by the same asset type backing
the Certificates, such report shall include such a statement to that effect.
The
Depositor and the Master Servicer, and each of their respective officers
and
directors shall be entitled to rely on upon each such servicing criteria
assessment.
(2) Each
of
the Master Servicer and the Trustee shall deliver to the Depositor and the
Master Servicer a report of a registered public accounting firm reasonably
acceptable to the Depositor that attests to, and reports on, the assessment
of
compliance made by Master Servicer or the Trustee, as applicable, and delivered
pursuant to the preceding paragraphs. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities
Act and
the Exchange Act, including, without limitation that in the event that an
overall opinion cannot be expressed, such registered public accounting firm
shall state in such report why it was unable to express such an opinion.
Such
report must be available for general use and not contain restricted use
language. To the extent any of the Servicing Criteria are not applicable
to such
Person, with respect to asset-backed securities transactions taken as a whole
involving such Person and that are backed by the same asset type backing
the
Certificates, such report shall include such a statement that that
effect.
XI-3
(3) The
Master Servicer shall cause each Subservicer and each Reporting Subcontractor
to
deliver to the Depositor an assessment of compliance and accountant’s
attestation as and when provided in paragraphs (a) and (b) of this Section
11.07.
(4) The
Trustee shall cause each Reporting Subcontractor to deliver to the Depositor
and
the Master Servicer an assessment of compliance and accountant’s attestation as
and when provided in paragraphs (a) and (b) of this Section.
(5) The
Master Servicer and the Trustee shall execute (and the Master Servicer shall
cause each Subservicer to execute, and the Master Servicer and the Trustee
shall
cause each Reporting Subcontractor to execute) a reliance certificate to
enable
the Certification Parties to rely upon each (i) annual compliance statement
provided pursuant to Section 3.16, (ii) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section 11.07
and
(iii) accountant’s report provided pursuant to this Section 11.07 and shall
include a certification that each such annual compliance statement or report
discloses any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the certificates
provided for in this Section 11.07. In the event the Master Servicer, any
Subservicer, the Trustee or Reporting Subcontractor is terminated or resigns
during the term of this Agreement, such Person shall provide a certification
to
the Certifying Person pursuant to this Section 11.07 with respect to the
period
of time it was subject to this Agreement or provided services with respect
to
the Trust Fund, the Certificates or the Mortgage Loans.
(b) In
the
event the Master Servicer, any Subservicer, the Trustee or Reporting
Subcontractor is terminated or resigns during the term of this Agreement,
such
Person shall provide documents and information required by this Section 11.07
with respect to the period of time it was subject to this Agreement or provided
services with respect to the Trust Fund, the Certificates or the Mortgage
Loans.
(c) Each
assessment of compliance provided by a Subservicer pursuant to Section
11.07(a)(3) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit W hereto delivered to
the
Depositor concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Section 11.07(a)(3) or (4) need not address any elements of the Servicing
Criteria other than those specified by the Master Servicer or the Trustee,
as
applicable, pursuant to Section 11.07(a)(1).
SECTION
11.08. Use
of
Subservicers and Subcontractors.
(a) The
Master Servicer shall cause any Subservicer used by the Master Servicer (or
by
any Subservicer) for the benefit of the Depositor to comply with the provisions
of Section 3.16 and this Article XI to the same extent as if such Subservicer
were the Master Servicer (except with respect to the Master Servicer’s duties
with respect to preparing and filing any Exchange Act Reports or as the
Certifying Person). The Master Servicer shall be responsible for obtaining
from
each Subservicer and delivering to the Depositor any servicer compliance
statement required to be delivered by such Subservicer under Section 3.16,
any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 11.07 and any certification required to be delivered
to the Certifying Person under Section 11.05 as and when required to be
delivered. As a condition to the succession to any Subservicer as subservicer
under this Agreement by any Person (i) into which such Subservicer may be
merged
or consolidated, or (ii) which may be appointed as a successor to any
Subservicer, the Master Servicer shall provide to the Depositor, at least
15
calendar days prior to the effective date of such succession or appointment,
(x)
written notice to the Depositor of such succession or appointment and (y)
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K.
XI-4
(b) It
shall
not be necessary for the Master Servicer, any Subservicer or the Trustee
to seek
the consent of the Depositor or any other party hereto to the utilization
of any
Subcontractor. The Master Servicer or the Trustee, as applicable, shall promptly
upon request provide to the Depositor (or any designee of the Depositor,
such as
the Master Servicer or administrator) a written description (in form and
substance satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by such Person (or in the case of the Master Servicer
or
any Subservicer), specifying (i) the identity of each such Subcontractor,
(ii)
which (if any) of such Subcontractors are “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, and (iii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (ii)
of
this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Trustee, as applicable, shall cause
any such Subcontractor used by such Person (or in the case of the Master
Servicer or any Subservicer) for the benefit of the Depositor to comply with
the
provisions of Sections 11.07 and 11.09 of this Agreement to the same extent
as
if such Subcontractor were the Master Servicer (except with respect to the
Master Servicer’s duties with respect to preparing and filing any Exchange Act
Reports or as the Certifying Person) or the Trustee, as applicable. The Master
Servicer or the Trustee, as applicable, shall be responsible for obtaining
from
each Subcontractor and delivering to the Depositor and the Master Servicer,
any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 11.05 and Section 11.07, in each case as and
when
required to be delivered.
SECTION
11.09. Amendments.
In
the
event the parties to this Agreement desire to further clarify or amend any
provision of this Article XI, this Agreement shall be amended to reflect
the new
agreement between the parties covering matters in this Article XI pursuant
to
Section 10.01, which amendment shall not require any Opinion of Counsel or
Rating Agency confirmations or the consent of any Certificateholder. If,
during
the period that the Depositor is required to file Exchange Act Reports with
respect to the Trust Fund, the Master Servicer is no longer an Affiliate
of the
Depositor, the Depositor shall assume the obligations and responsibilities
of
the Master Servicer in this Article XI with respect to the preparation and
filing of the Exchange Act Reports and/or acting as the Certifying Person,
if
the Depositor has received indemnity from such successor Master Servicer
satisfactory to the Depositor, and such Master Servicer has agreed to provide
a
Xxxxxxxx-Xxxxx Certification to the Depositor substantially in the form of
Exhibit Y, and the certifications referred to in Section 11.07.
SECTION
11.10. Reconciliation
of Accounts.
Any
reconciliation of Accounts performed by any party hereto, or any Subservicer
or
Subcontractor shall be prepared no later than 45 calendar days after the
bank
statement cutoff date.
* * * * * *
XI-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/ Xxxxxx Xxxxxx | ||
|
Name:
Xxxxxx Xxxxxx
|
||
|
Title:
First Vice
President
|
|
THE
BANK OF NEW YORK,
as
Trustee
|
||
| By: /s/ Xxxxxxxx Xxxxxx | ||
|
Name:
Xxxxxxx Xxxxxx
|
||
|
Title:
Vice
President
|
|
COUNTRYWIDE
HOME LOANS, INC.,
as
Seller
|
||
| By: /s/ Xxxxxx Xxxxxx | ||
|
Name:
Xxxxxx Xxxxxx
|
||
|
Title:
First Vice
President
|
|
PARK
GRANADA LLC,
as
a Seller
|
||
| By: /s/ Xxxxxx Xxxxxx | ||
|
Name:
Xxxxxx Xxxxxx
|
||
|
Title:
First Vice
President
|
|
PARK
MONACO INC.,
as
a Seller
|
||
| By: /s/ Xxxxxx Xxxxxx | ||
|
Name:
Xxxxxx Xxxxxx
|
||
|
Title:
First Vice
President
|
|
PARK
SIENNA LLC,
as
a Seller
|
||
| By: /s/ Xxxxxx Xxxxxx | ||
|
Name:
Xxxxxx Xxxxxx
|
||
|
Title:
First Vice
President
|
|
COUNTRYWIDE
HOME LOANS SERVICING LP,
as
Master Servicer
|
||
| By: COUNTRYWIDE GP, INC. | ||
| By: /s/ Xxxxxx Xxxxxx | ||
|
Name:
Xxxxxx Xxxxxx
|
||
|
Title:
First Vice
President
|
| Acknowledged solely with respect to the Trustee’s obligations under Section 4.01(b) | ||
| THE BANK OF NEW YORK, in its individual capacity | ||
| By: /s/ Xxxx Xxxxxxxx | ||
|
Name:
Xxxx Xxxxxxxx
|
||
|
Title:
Vice
President
|
SCHEDULE
I
Mortgage
Loan Schedule
[Delivered
at Closing to Trustee]
S-I-1
SCHEDULE
II-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
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, or if so specified herein, as of the Cut-off
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, as a seller, Park Granada LLC, as a seller, Park Monaco
Inc.,
as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing
LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York,
as
trustee.
(1) Countrywide
is duly organized as a New York corporation and is validly existing and in
good
standing under the laws of the State of New York and is duly authorized and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide in any state in which
a
Mortgaged Property is located or is otherwise not required under applicable
law
to effect such qualification and, in any event, is in compliance with the
doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under the Pooling and Servicing Agreement in accordance with
the
terms thereof.
(2) Countrywide
has the full corporate power and authority to sell each Countrywide Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has
duly
authorized by all necessary corporate action on the part of Countrywide the
execution, delivery and performance of the Pooling and Servicing Agreement;
and
the Pooling and Servicing Agreement, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a legal, valid
and binding obligation of Countrywide, enforceable against Countrywide in
accordance with its terms, except that (a) the enforceability thereof may
be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide,
the sale of the Countrywide Mortgage Loans by Countrywide under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business
of
Countrywide and will not (A) result in a material breach of any term or
provision of the charter or by-laws of Countrywide or (B) materially conflict
with, result in a material breach, violation or acceleration of, or result
in a
material default under, the terms of any other material agreement or instrument
to which Countrywide is a party or by which it may be bound, or (C) constitute
a
material violation of any statute, order or regulation applicable to Countrywide
of any court, regulatory body, administrative agency or governmental body
having
jurisdiction over Countrywide; and Countrywide is not in breach or violation
of
any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair Countrywide’s ability to perform or
meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-A-1
(4) Countrywide
is an approved servicer of conventional mortgage loans for FNMA or FHLMC
and is
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to sections 203 and 211 of the National Housing Act.
(5) No
litigation is pending or, to the best of Countrywide’s knowledge, threatened,
against Countrywide that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Countrywide to sell the Countrywide Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
of,
or compliance by Countrywide with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Countrywide has obtained the
same.
(7) Countrywide
intends to treat the transfer of the Countrywide Mortgage Loans to the Depositor
as a sale of the Countrywide Mortgage Loans for all tax, accounting and
regulatory purposes.
(8) Countrywide
is a member of MERS in good standing, and will comply in all material respects
with the rules and procedures of MERS in connection with the servicing of
the
MERS Mortgage Loans in the Trust Fund for as long as such Mortgage Loans
are
registered with MERS.
S-II-A-2
SCHEDULE
II-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
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, or if so specified herein, as of the Cut-off 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 LLC, as
a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller,
Countrywide, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park
Granada is a limited liability company duly formed and validly existing and
in
good standing under the laws of the State of Delaware.
(2) Park
Granada has the full corporate power and authority to sell each Park Granada
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of
Park
Granada the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Granada, enforceable
against Park Granada in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Granada,
the sale of the Park Granada Mortgage Loans by Park Granada under the Pooling
and Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business
of Park
Granada and will not (A) result in a material breach of any term or provision
of
the certificate of formation or the limited liability company agreement of
Park
Granada or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Park Granada is a party or
by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Park Granada of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park
Granada; and Park Granada is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Granada’s ability to perform or meet any of
its obligations under the Pooling and Servicing Agreement.
S-II-B-1
(4) No
litigation is pending or, to the best of Park Granada’s knowledge, threatened,
against Park Granada that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Granada to sell the Park Granada Mortgage Loans or to perform any
of its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Granada
of,
or compliance by Park Granada with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Granada has obtained the
same.
(6) Park
Granada intends to treat the transfer of the Park Granada Mortgage Loans
to the
Depositor as a sale of the Park Granada Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-B-2
SCHEDULE
II-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
Representations
and Warranties of Park Monaco
Park
Monaco Inc. (“Park Monaco”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-C to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date, or if so specified herein, as of the Cut-off Date. Capitalized terms
used
but not otherwise defined in this Schedule II-C shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among Park Monaco, as a
seller, Countrywide, as a seller, Park Granada LLC, as a seller, Park Sienna
LLC, as a seller, Countrywide Home Loans Servicing LP, as master servicer,
CWALT, Inc., as depositor, and The Bank of New York, as trustee.
(1) Park
Monaco is a corporation duly formed and validly existing and in good standing
under the laws of the State of Delaware.
(2) Park
Monaco has the full corporate power and authority to sell each Park Monaco
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of
Park
Monaco the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Monaco, enforceable
against Park Monaco in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Monaco,
the sale of the Park Monaco Mortgage Loans by Park Monaco under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business
of Park
Monaco and will not (A) result in a material breach of any term or provision
of
the certificate of incorporation or by-laws of Park Monaco or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or
result in a material default under, the terms of any other material agreement
or
instrument to which Park Monaco is a party or by which it may be bound, or
(C)
constitute a material violation of any statute, order or regulation applicable
to Park Monaco of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Park Monaco; and Park Monaco is
not
in breach or violation of any material indenture or other material agreement
or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair Park Monaco’s ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-C-1
(4) No
litigation is pending or, to the best of Park Monaco’s knowledge, threatened,
against Park Monaco that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Monaco to sell the Park Monaco Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Monaco
of,
or compliance by Park Monaco with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Monaco has obtained the
same.
(6) Park
Monaco intends to treat the transfer of the Park Monaco Mortgage Loans to
the
Depositor as a sale of the Park Monaco Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-C-2
SCHEDULE
II-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
Representations
and Warranties of Park Sienna
Park
Sienna LLC (“Park Sienna”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-D to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date, or if so specified herein, as of the Cut-off Date,
or if
so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-D shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Park Sienna, as a seller, Countrywide, as a seller, Park Granada LLC,
as a
seller, Park Monaco Inc., as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park
Sienna is a limited liability company duly formed and validly existing and
in
good standing under the laws of the State of Delaware.
(2) Park
Sienna has the full corporate power and authority to sell each Park Sienna
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of
Park
Sienna the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Sienna, enforceable
against Park Sienna in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Sienna,
the sale of the Park Sienna Mortgage Loans by Park Sienna under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business
of Park
Sienna and will not (A) result in a material breach of any term or provision
of
the certificate of formation or the limited liability company agreement of
Park
Sienna or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Park Sienna is a party or
by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Park Sienna of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park
Sienna;
and Park Sienna is not in breach or violation of any material indenture or
other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially
impair
Park Sienna’s ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
S-II-D-1
(4) No
litigation is pending or, to the best of Park Sienna’s knowledge, threatened,
against Park Sienna that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Sienna to sell the Park Sienna Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Sienna
of,
or compliance by Park Sienna with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Sienna has obtained the
same.
(6) Park
Sienna intends to treat the transfer of the Park Sienna Mortgage Loans to
the
Depositor as a sale of the Park Sienna Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-D-2
SCHEDULE
III-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
Representations
and Warranties of Countrywide as to all of the Mortgage Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-A to the Depositor, the Master Servicer and
the
Trustee, with respect to all of the Mortgage Loans as of the Closing Date,
or if
so specified herein, as of the Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule III-A shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among Countrywide, as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
1) The
information set forth on Schedule I to the Pooling and Servicing Agreement
with
respect to each Mortgage Loan is true and correct in all material respects
as of
the Closing Date.
2) As
of the
Cut-off Date, none of the Mortgage Loans is 30 days or more
delinquent.
3) No
Mortgage Loan had a Loan-to-Value Ratio at origination in excess of
100.00%.
4) Each
Mortgage is a valid and enforceable first lien on the Mortgaged Property
subject
only to (a) the lien of non delinquent current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
of such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal
made
in connection with the origination of the related Mortgage Loan, and (c)
other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage.
5) [Reserved].
6) There
is
no delinquent tax or assessment lien against any Mortgaged
Property.
7) There
is
no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal of
or
interest on such Mortgage Note.
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 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.
S-III-A-1
11) As
of the
Closing Date, neither the Sellers 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.
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.
S-III-A-2
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.
25) Each
Mortgage Loan contains a customary “due on sale” clause.
26) As
of the
Closing Date, 31 of the Mortgage Loans provide for a prepayment
charge.
27) Each
Mortgage Loan which had a Loan-to-Value Ratio at origination in excess of
80.00%
is the subject of a Primary Insurance Policy that insures that portion of
the
principal balance equal to a specified percentage times the sum of the remaining
principal balance of the related Mortgage Loan, the accrued interest thereon
and
the related foreclosure expenses. The specified coverage percentage for mortgage
loans with terms to maturity between 25 and 30 years is 12% for Loan-to-Value
Ratios between 80.01% and 85.00%, 25% for Loan-to-Value Ratios between 85.01%
and 90.00%, 30% for Loan-to-Value Ratios between 90.01% and 95.00% and 35%
for
Loan-to-Value Ratios between 95.01% and 100%. The specified coverage percentage
for mortgage loans with terms to maturity of up to 20 years ranges from 6%
to
12% for Loan-to-Value Ratios between 80.01% and 85.00%, from 12% to 20% for
Loan-to-Value Ratios between 85.01% and 90.00% and 20% to 25% for Loan-to-Value
Ratios between 90.01% and 95.00%. Each such Primary Insurance Policy is issued
by a Qualified Insurer. All provisions of any such Primary Insurance Policy
have
been and are being complied with, any such policy is in full force and effect,
and all premiums due thereunder have been paid. Any Mortgage subject to any
such
Primary Insurance Policy obligates either the Mortgagor or the mortgagee
thereunder to maintain such insurance and to pay all premiums and charges
in
connection therewith, subject, in each case, to the provisions of Section
3.09(b) of the Pooling and Servicing Agreement. The Mortgage Rate for each
Mortgage Loan is net of any such insurance premium.
S-III-A-3
28) As
of the
Closing Date, the improvements upon each Mortgaged Property are covered by
a
valid and existing hazard insurance policy with a generally acceptable carrier
that provides for fire and extended coverage and coverage for such other
hazards
as are customary in the area where the Mortgaged Property is located in an
amount which is at least equal to the lesser of (i) the maximum insurable
value
of the improvements securing such Mortgage Loan or (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan and (b) an amount such
that
the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or
the mortgagee from becoming a co-insurer. If the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a blanket
policy
for the condominium unit. All such individual insurance policies and all
flood
policies referred to in item (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, with the passage of time or with notice and the expiration of any
grace
or cure period, would constitute a default, breach, violation or event of
acceleration under the Mortgage or the related Mortgage Note; and Countrywide
has not waived any default, breach, violation or event of
acceleration.
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.
S-III-A-4
36) Each
Mortgage Loan was underwritten in all material respects in accordance with
Countrywide’s underwriting guidelines as set forth in the Prospectus
Supplement.
37) 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.
38) None
of
the Mortgage Loans are graduated payment mortgage loans or a growing equity
mortgage loans, and none of the Mortgage Loans are subject to a buydown or
similar arrangement.
39) 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.
40) 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.
41) Except
for 51 Mortgage Loans, 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 will not exceed
$14,738,149.32.
45) With
respect to any mortgage loan that contains a provision permitting imposition
of
a penalty upon a prepayment prior to maturity: (a) the mortgage loan provides
some benefit to the borrower in exchange for accepting such prepayment penalty;
(b) the mortgage loan’s originator had a written policy of offering the
borrower, or requiring third-party brokers to offer the borrower, the option
of
obtaining a mortgage loan that did not require payment of such a penalty;
(c)
the prepayment penalty was adequately disclosed to the borrower pursuant
to
applicable state and federal law; (d) the mortgage loan does not provide
for
prepayment penalty for a term in excess of five years; in each case unless
the
loan was modified to reduce the prepayment period to no more than three years
from the date of the note and the borrower was notified in writing of such
reduction in prepayment period; and (e) such prepayment penalty will not
be
imposed in any instance where the mortgage loan is accelerated or paid off
in
connection with the workout of a delinquent mortgage or due to the borrower’s
default, notwithstanding that the terms of the mortgage loan or state or
federal
law might permit the imposition of such penalty.
S-III-A-5
46) [Reserved].
47) [Reserved].
48) No
Mortgage Loan originated between October 1, 2002 and March 7, 2003 is subject
to
the Georgia Fair Lending Act, as amended. No Mortgage Loan originated between
October 1, 2002 and March 7, 2003 is secured by a Mortgaged Property located
in
the state of Georgia, and there is no Mortgage Loan originated on or after
March
7, 2003 that is a “high cost home loan” as defined under the Georgia Fair
Lending Act.
49) None
of
the Mortgage Loans are “high cost” loans as defined by applicable predatory and
abusive lending laws.
50) None
of
the Mortgage Loans are covered by the Home Ownership and Equity Protection
Act
of 1994 (“HOEPA”).
51) 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.).
52) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21a-1 et
seq.).
53) No
Mortgage Loan is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
(Mass. Gen. Law ch. 183C).
54) No
Mortgage Loan originated on or after January 1, 2005 is a “High-Cost Home Loan”
as defined in the Indiana Home Loan Practices Act, effective January 1, 2005
(Ind. Code Xxx. Sections 24-9-1 through 24-9-9).
55) All
of
the Mortgage Loans were originated in compliance with all applicable laws,
including, but not limited to, all applicable anti-predatory and abusive
lending
laws.
56) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and with
respect to the foregoing, the terms “High Cost Loan” and “Covered Loan” have the
meaning assigned to them in the then current Standard & Poor’s LEVELS®
Version 5.7 Glossary Revised, Appendix E which is attached hereto as Exhibit
Q
(the “Glossary”) where (x) a “High Cost Loan” is each loan identified in the
column “Category under applicable anti-predatory lending law” of the table
entitled “Standard & Poor's High Cost Loan Categorization” in the Glossary
as each such loan is defined in the applicable anti-predatory lending law
of the
State or jurisdiction specified in such table and (y) a “Covered Loan” is each
loan identified in the column “Category under applicable anti-predatory lending
law” of the table entitled “Standard & Poor’s Covered Loan Categorization”
in the Glossary as each such loan is defined in the applicable anti-predatory
lending law of the State or jurisdiction specified in such table.
S-III-A-6
SCHEDULE
III-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
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 Mortgage
Loans
as of the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule III-B shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Countrywide, as a seller, Park Granada LLC, as a seller, Park Monaco
Inc.,
as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing
LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York,
as
trustee.
(1) Immediately
prior to the assignment of each Countrywide Mortgage Loan to the Depositor,
Countrywide had good title to, and was the sole owner of, such Countrywide
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE
III-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
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 Mortgage
Loans
as of the Closing Date. Capitalized terms used but not otherwise defined
in this
Schedule III-C shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park
Granada, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as
a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as
depositor, and The Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Granada Mortgage Loan to the Depositor,
Park Granada had good title to, and was the sole owner of, such Park Granada
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
same pursuant to the Pooling and Servicing Agreement.
S-III-C-1
SCHEDULE
III-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
Park
Monaco Inc. (“Park Monaco”) hereby makes the representations and warranties set
forth in this Schedule III-D to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Monaco Mortgage Loans that are Mortgage
Loans
as of the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule III-D shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Monaco, as a seller,
Park
Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide Home
Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank
of New
York, as trustee.
(1) Immediately
prior to the assignment of each Park Monaco Mortgage Loan to the Depositor,
Park
Monaco had good title to, and was the sole owner of, such Park Monaco Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest
and
had full right and authority, subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the same pursuant to
the
Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE
III-E
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
Park
Sienna LLC (“Park Sienna”) hereby makes the representations and warranties set
forth in this Schedule III-E to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Sienna Mortgage Loans that are Mortgage
Loans
as of the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule III-E shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Sienna, as a seller,
Park
Monaco Inc., as a seller, Park Granada LLC, as a seller, Countrywide Home
Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank
of New
York, as trustee.
(1) Immediately
prior to the assignment of each Park Sienna Mortgage Loan to the Depositor,
Park
Sienna had good title to, and was the sole owner of, such Park Sienna Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest
and
had full right and authority, subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the same pursuant to
the
Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE
IV
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-7T2
Representations
and Warranties of the Master Servicer
Countrywide
Home Loans Servicing LP (“Countrywide Servicing”) hereby makes the
representations and warranties set forth in this Schedule IV to the Depositor,
the Sellers and the Trustee, as of the Closing Date. Capitalized terms used
but
not otherwise defined in this Schedule IV shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among Countrywide Home
Loans, Inc., as a seller, Park Granada LLC, as a seller, Park Monaco Inc.,
as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Countrywide
Servicing is duly organized as a limited partnership and is validly existing
and
in good standing under the laws of the State of Texas and is duly authorized
and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide Servicing in any state
in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary to
perform any of its obligations under the Pooling and Servicing Agreement
in
accordance with the terms thereof.
(2) Countrywide
Servicing has the full partnership power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has
duly
authorized by all necessary partnership action on the part of Countrywide
Servicing the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Countrywide Servicing,
enforceable against Countrywide Servicing in accordance with its terms, except
that (a) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors’ rights
generally and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide
Servicing, the servicing of the Mortgage Loans by Countrywide Servicing under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Countrywide Servicing and will not (A) result in a material
breach of any term or provision of the certificate of limited partnership,
partnership agreement or other organizational document of Countrywide Servicing
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other
material agreement or instrument to which Countrywide Servicing is a party
or by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Countrywide Servicing of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
Countrywide Servicing; and Countrywide Servicing is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair the ability of Countrywide Servicing
to perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-IV-1
(4) Countrywide
Servicing is an approved servicer of conventional mortgage loans for FNMA
or
FHLMC and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No
litigation is pending or, to the best of Countrywide Servicing’s knowledge,
threatened, against Countrywide Servicing that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Countrywide Servicing to service the Mortgage
Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
Servicing of, or compliance by Countrywide Servicing with, the Pooling and
Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Countrywide Servicing has obtained the same.
(7) Countrywide
Servicing is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
S-IV-2
SCHEDULE
V
Principal
Balance Schedules
[Attached
to Prospectus Supplement, if applicable]
S-V-1
SCHEDULE
VI
Form
of
Monthly Master Servicer Report
|
LOAN
LEVEL REPORTING SYSTEM
|
||||
|
DATABASE
STRUCTURE
|
||||
|
[MONTH,
YEAR]
|
||||
|
Field
Number
|
Field
Name
|
Field
Type
|
Field
Width
|
Dec
|
|
1
|
INVNUM
|
Numeric
|
4
|
|
|
2
|
INVBLK
|
Numeric
|
4
|
|
|
3
|
INACNU
|
Character
|
8
|
|
|
4
|
BEGSCH
|
Numeric
|
15
|
2
|
|
5
|
SCHPRN
|
Numeric
|
13
|
2
|
|
6
|
TADPRN
|
Numeric
|
11
|
2
|
|
7
|
LIQEPB
|
Numeric
|
11
|
2
|
|
8
|
ACTCOD
|
Numeric
|
11
|
|
|
9
|
ACTDAT
|
Numeric
|
4
|
|
|
10
|
INTPMT
|
Numeric
|
8
|
|
|
11
|
PRNPMT
|
Numeric
|
13
|
2
|
|
12
|
ENDSCH
|
Numeric
|
13
|
2
|
|
13
|
SCHNOT
|
Numeric
|
13
|
2
|
|
14
|
SCHPAS
|
Numeric
|
7
|
3
|
|
15
|
PRINPT
|
Numeric
|
7
|
3
|
|
16
|
PRIBAL
|
Numeric
|
11
|
2
|
|
17
|
LPIDTE
|
Numeric
|
13
|
2
|
|
18
|
DELPRN
|
Numeric
|
7
|
|
|
19
|
PPDPRN
|
Numeric
|
11
|
2
|
|
20
|
DELPRN
|
Numeric
|
11
|
2
|
|
21
|
NXTCHG
|
Numeric
|
8
|
|
|
22
|
ARMNOT
|
Numeric
|
7
|
3
|
|
23
|
ARMPAS
|
Numeric
|
7
|
3
|
|
24
|
ARMPMT
|
Numeric
|
11
|
2
|
|
25
|
ZZTYPE
|
Character
|
2
|
|
|
26
|
ISSUID
|
Character
|
1
|
|
|
27
|
KEYNAME
|
Character
|
8
|
|
|
TOTAL
|
240
|
|||
|
Suggested
Format:
|
DBASE
file
Modem
transmission
|
|||
S-V-2
SCHEDULE
VII
Available
Exchanges of Depositable Certificates for Exchangeable Certificates(1)(2)
|
Classes
of Depositable Certificates
|
Related
Classes of Exchangeable Certificates
|
||||||
|
Classes
of
Depositable Certificates |
Original
Certificate Balance |
Classes
of
Exchangeable Certificates |
Maximum
Original Certificate Balance |
Pass-
Through Rate |
|||
|
Recombination
1
|
|||||||
|
Class A-1
|
$11,387,500
|
Class
A-31
|
$143,184,031
|
6.00%
|
|||
|
Class
A-2
|
$102,061,600
|
||||||
|
Class
A-5
|
$1,289,031
|
||||||
|
Class
A-15
|
$25,515,400
|
||||||
|
Class
A-16(3)
|
$25,515,400
|
||||||
|
Class
A-17
|
$2,930,500
|
||||||
|
Recombination
2
|
|||||||
|
Class A-2
|
$102,061,600
|
Class
A-27
|
$127,577,000
|
6.00%
|
|||
|
Class
A-15
|
$25,515,400
|
||||||
|
Class
A-16(3)
|
$25,515,400
|
||||||
|
Recombination
3
|
|||||||
|
Class A-8(4)
|
$41,221,732
|
Class
A-21
|
$41,221,732
|
5.75%
|
|||
|
Class
A-22
|
$41,221,732
|
5.80%
|
|||||
|
Class
A-23
|
$41,221,732
|
5.85%
|
|||||
|
Class
A-24
|
$41,221,732
|
5.90%
|
|||||
|
Class
A-25
|
$41,221,732
|
5.95%
|
|||||
|
Class
A-26
|
$1,717,572(3)
|
6.00%
|
|||||
|
Recombination
4
|
|||||||
|
Class A-9(5)
|
$70,522,216
|
Class
A-28
|
$70,522,216
|
5.50%
|
|||
|
Class
A-29
|
$70,522,216
|
5.75%
|
|||||
|
Class
A-30
|
$5,876,851(3)
|
6.00%
|
|||||
|
Recombination
5
|
|||||||
|
Class A-12(6)
|
$18,388,225
|
Class
A-19
|
$20,000,000
|
6.00%
|
|||
|
Class A-13(6)
|
$1,611,775
|
Class
A-20
|
$833,333(3)
|
6.00%
|
|||
|
Class
A-32
|
$20,000,000
|
5.75%
|
|||||
|
(1)
|
Depositable
Certificates and Exchangeable Certificates may be exchanged only
in the
proportions shown in this Schedule VII. In any exchange, the relative
proportions of the Depositable Certificates to be delivered (or,
if
applicable, received) in such exchange will equal the proportions
reflected by the outstanding Class Certificate Balances of the
related
Depositable Certificates at the time of
exchange.
|
|
(2)
|
If,
as a result of a proposed exchange, a certificateholder would hold
a
Depositable Certificate or Exchangeable Certificate of a class
in an
amount less than the applicable minimum denomination for that class,
the
certificateholder will be unable to effect the proposed exchange.
|
|
(3)
|
This
class of certificates is a class of interest-only notional amount
certificates. The notional amount reflected in the table represents
the
maximum initial notional amount for this class of
certificates.
|
|
(4)
|
The
Class A-8 Certificates may be exchanged for either: (i) the Class
A-21 and
Class A-26 Certificates, (ii) the Class A-22 and Class A-26 Certificates,
(iii) the Class A-23 and Class A-26 Certificates, (iv) the Class
A-24 and
Class A-26 Certificates or (v) the Class A-25 and Class A-26 Certificates,
in such proportions that result in the principal and interest entitlements
of the classes of certificates received being equal to the principal
and
interest entitlements of the Class A-8
Certificates.
|
S-IV-3
|
(5)
|
The
Class A-9 Certificates may be exchanged for either: (i) the Class
A-28 and
Class A-30 Certificates or (ii) the Class A-29 and Class A-30
Certificates, in such proportions that result in the principal
and
interest entitlements of the classes of certificates received being
equal
to the principal and interest entitlements of the Class A-9
Certificates.
|
|
(6)
|
The
Class A-12 and Class A-13 Certificates may be exchanged for either:
(i)
the Class A-32 and Class A-20 Certificates or (ii) the Class A-19
and
Class A-20 Certificates, in such proportions that result in the
principal
and interest entitlements of the classes of certificates received
being
equal to the principal and interest entitlements of the Class A-12
and
Class A-13 Certificates.
|
S-IV-4
EXHIBIT
A
FORMS
OF
CERTIFICATES
A-1
EXHIBIT
B
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
|
STATE
OF
|
)
|
|
|
)
ss.:
|
||
|
COUNTY
OF
|
)
|
[NAME
OF
OFFICER], _________________ being first duly sworn, deposes and
says:
|
1.
|
That
he [she] is [title of officer] ________________________ of [name
of
Purchaser] _________________________________________ (the “Purchaser”), a
_______________________ [description of type of entity] duly
organized and
existing under the laws of the [State of __________] [United
States], on
behalf of which he [she] makes this
affidavit.
|
|
2.
|
That
the Purchaser’s Taxpayer Identification Number is [
].
|
|
3.
|
That
the Purchaser is not a “disqualified organization” within the meaning of
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the “Code”) and will not be a “disqualified organization” as of [date of
transfer], and that the Purchaser is not acquiring a Residual
Certificate
(as defined in the Agreement) for the account of, or as agent
(including a
broker, nominee, or other middleman) for, any person or entity
from which
it has not received an affidavit substantially in the form of
this
affidavit. For these purposes, a “disqualified organization” means the
United States, any state or political subdivision thereof, any
foreign
government, any international organization, any agency or instrumentality
of any of the foregoing (other than an instrumentality if all
of its
activities are subject to tax and a majority of its board of
directors is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to
persons in
rural areas as described in Code Section 1381(a)(2)(C), any “electing
large partnership” within the meaning of Section 775 of the Code, or
any organization (other than a farmers’ cooperative described in Code
Section 521) that is exempt from federal income tax unless such
organization is subject to the tax on unrelated business income
imposed by
Code Section 511.
|
|
4.
|
That
the Purchaser either (x) is not, and on __________________ [date of
transfer] will not be, an employee benefit plan or other retirement
arrangement subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or Section 4975 of the
Code (“Code”), (collectively, a “Plan”) or a person acting on behalf of
any such Plan or investing the assets of any such Plan to acquire
a
Residual Certificate; (y) is an insurance company that is purchasing
the Certificate with funds contained in an “insurance company general
account” as defined in Section V(e) of Prohibited Transaction
Class Exemption (“PTCE”) 95-60 and the purchase and holding of the
Certificate satisfy the requirements for exemptive relief under
Sections I
and III of PTCE 95-60; or (z) herewith delivers to the Certificate
Registrar an opinion of counsel satisfactory to the Certificate
Registrar
and the Securities Administrator and upon which the Certificate
Registrar,
the Trustee, the Master Servicer, the Depositor and Securities
Administrator shall be entitled to rely, to the effect that the
purchase
or holding of such Residual Certificate by the Investor will
not result in
any non-exempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate
Registrar, the Trustee, the Depositor, the Master Servicer or
the
Securities Administrator to any obligation in addition to those
undertaken
by such entities in the Pooling and Servicing Agreement, which
opinion of
counsel shall not be an expense of the Trust Fund or any of the
above
parties.
|
B-1
|
5.
|
That
the Purchaser hereby acknowledges that under the terms of the
Pooling and
Servicing Agreement, dated as of February 1, 2007 (the “Agreement”), by
and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx
Fargo Bank,
National Association, as Master Servicer and as Administrator
and LaSalle
Bank National Association, as Trustee with respect to Xxxxxx
Xxxxxxx
Mortgage Loan Trust 2007-5AX, Mortgage Pass-Through Certificates,
no
transfer of the Residual Certificates shall be permitted to be
made to any
person unless the Certificate Registrar has received a certificate
from
such transferee containing the representations in paragraphs 3 and 4
hereof.
|
|
6.
|
That
the Purchaser does not hold REMIC residual securities as nominee
to
facilitate the clearance and settlement of such securities through
electronic book-entry changes in accounts of participating organizations
(such entity, a “Book-Entry
Nominee”).
|
|
7.
|
That
the Purchaser does not have the intention to impede the assessment
or
collection of any federal, state or local taxes legally required
to be
paid with respect to such Residual
Certificate.
|
|
8.
|
That
the Purchaser will not transfer a Residual Certificate to any
person or
entity (i) as to which the Purchaser has actual knowledge that the
requirements set forth in paragraph 3, paragraph 6 or
paragraph 10 hereof are not satisfied or that the Purchaser has
reason to believe does not satisfy the requirements set forth
in
paragraph 7 hereof, and (ii) without obtaining from the
prospective Purchaser an affidavit substantially in this form
and
providing to the Certificate Registrar a written statement substantially
in the form of Exhibit C to the
Agreement.
|
|
9.
|
That
the Purchaser understands that, as the holder of a Residual Certificate,
the Purchaser may incur tax liabilities in excess of any cash
flows
generated by the interest and that it intends to pay taxes associated
with
holding such Residual Certificate as they become
due.
|
|
10.
|
That
the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds a Residual Certificate in connection with the
conduct of
a trade or business within the United States and has furnished
the
transferor the Certificate Registrar with an effective Internal
Revenue
Service Form W-8ECI (Certificate of Foreign Person’s Claim for
Exemption From Withholding on Income Effectively Connected With
the
Conduct of a Trade or Business in the United States) or successor
form at
the time and in the manner required by the Code or (iii) is a
Non-U.S. Person that has delivered to the transferor, the Trustee
and the
Certificate Registrar an opinion of a nationally recognized tax
counsel to
the effect that the transfer of such Residual Certificate to
it is in
accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual Certificate
will not be disregarded for federal income tax purposes. “Non-U.S. Person”
means an individual, corporation, partnership or other person
other than
(i) a citizen or resident of the United States; (ii) a
corporation, partnership or other entity created or organized
in or under
the laws of the United States or any state thereof, including
for this
purpose, the District of Columbia; (iii) an estate that is subject to
U.S. federal income tax regardless of the source of its income;
(iv) 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 trustees have authority to control all substantial
decisions
of the trust; and, (v) to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996 that
are
treated as United States persons prior to such date and elect
to continue
to be treated as United States
persons.
|
B-2
|
11.
|
The
Purchaser will not cause income from the Residual Certificate
to be
attributable to a foreign permanent establishment or fixed base
of the
Purchaser or another U.S. taxpayer.
|
|
12.
|
That
the Purchaser agrees to such amendments of the Pooling and Servicing
Agreement as may be required to further effectuate the restrictions
on
transfer of any Residual Certificate to such a “disqualified
organization,” an agent thereof, a Book-Entry Nominee, or a person that
does not satisfy the requirements of paragraph 7 and
paragraph 10 hereof.
|
|
13.
|
That
the Purchaser consents to the designation of the Securities Administrator
to act as agent for the “tax matters person” of each REMIC created by the
Trust Fund pursuant to the Pooling and Servicing
Agreement.
|
B-3
IN
WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its [title
of
officer] this _____ day of __________ 20__.
| [name of Purchaser] | ||
| By: | ||
| Name: | ||
| Title: | ||
Personally
appeared before me the above-named [name of officer] ________________,
known or
proved to me to be the same person who executed the foregoing instrument
and to
be the [title of officer] _________________ of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and
the
free act and deed of the Purchaser.
Subscribed
and sworn before me this _____ day of __________ 20__.
| NOTARY PUBLIC | ||
| COUNTY OF | ||
| STATE OF | ||
My
commission expires the _____ day of __________ 20__.
B-4
EXHIBIT
C
FORM
OF
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
|
Date
|
|
|
Re:
|
Xxxxxx
Xxxxxxx Mortgage Loan Trust
2007-5AX
|
Mortgage
Pass-Through Certificates
_______________________
(the “Transferor”) has reviewed the attached affidavit of
_____________________________ (the “Transferee”), and has no actual knowledge
that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason
to believe that the Transferee has the intention to impede the assessment
or
collection of any federal, state or local taxes legally required to be
paid with
respect to a Residual Certificate. In addition, the Transferor has conducted
a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue
to pay
its debts as they become due.
| Very truly yours, | |
|
|
|
|
Name:
Title:
|
C-1
EXHIBIT
D
[RESERVED]
D-1
EXHIBIT
E
LIST
OF
PURCHASE AND SERVICING AGREEMENTS
1. Third
Amended and Restated Mortgage Loan Purchase and Warranties Agreement, dated
as
of June 1, 2006, between Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser
and
American Home Mortgage Corp. as seller.
2. Mortgage
Loan Purchase and Warranties Agreement, dated as of September 1, 2006,
between
Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser and IndyMac Bank, F.S.B.
as
seller.
3. First
Amended and Restated Servicing Agreement, dated as of January 1, 2006,
between
GMAC Mortgage, LLC, as servicer and Xxxxxx Xxxxxxx Mortgage Capital Inc.,
as
purchaser.
4. Second
Amended and Restated Mortgage Loan Purchase and Warranties Agreement, dated
as
of September 1, 2006, between Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser and Lydian Private Bank as seller.
5. First
Amended and Restated Mortgage Loan Purchase and Warranties Agreement, dated
as
of November 1, 2005, between Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser and NetBank as seller.
6. Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of November 1,
2005, between Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser and New
Century
Mortgage Corporation as seller.
7. First
Amended and Restated Seller’s Purchase, Warranties and Servicing Agreement,
dated as of June 1, 2006 between Xxxxxx Xxxxxxx Mortgage Capital Inc.,
as
purchaser and Wachovia Mortgage Corporation, as seller and
servicer.
8. Amended
and Restated Regulation AB Compliance Addendum, dated as of November 22,
2005,
between Xxxxxx Xxxxxxx Mortgage Capital Inc. as purchaser and Wachovia
Mortgage
Corporation, to that certain Seller’s Purchase, Warranties and Servicing
Agreement, dated as of September 1, 2004, between Wachovia Mortgage Corporation
and the Xxxxxx Xxxxxxx Mortgage Capital Inc. (as amended, modified or
supplemented).
9. First
Amended and Restated Seller’s Purchase, Warranties and Interim Servicing
Agreement, dated as of June 1, 2006 between Xxxxxx Xxxxxxx Mortgage Capital
Inc., as purchaser and Wachovia Mortgage Corporation, as seller and interim
servicer.
10. Mortgage
Loan Purchase and Warranties Agreement, dated as of November 1, 2006,
between Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser and Wilmington
Finance Inc., as seller.
E-1
EXHIBIT
F
[RESERVED]
F-1
EXHIBIT
G
ASSIGNMENT
AND NOTICE OF TRANSFER WITH RESPECT TO ADDITIONAL COLLATERAL MORTGAGE
LOANS
G-1
EXHIBIT
H
FORM
OF
RULE 144A TRANSFER CERTIFICATE
|
Re:
|
Xxxxxx
Xxxxxxx Mortgage Loan Trust
2007-5AX,
|
Mortgage
Pass-Through Certificates
Reference
is hereby made to the Pooling and Servicing Agreement, dated as of February
1,
2007 (the “Pooling and Servicing Agreement”), by and among Xxxxxx Xxxxxxx
Capital I Inc., as Depositor, Xxxxx Fargo Bank, National Association, as
Master
Servicer, as Securities Administrator and, in its capacity as Securities
Administrator, as Auction Administrator, LaSalle Bank National Association,
as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Pooling and Servicing Agreement.
This
letter relates to $__________ initial Certificate Balance of Class _____
Certificates which are held in the form of Definitive Certificates registered
in
the name of ______________ (the “Transferor”). The Transferor has requested a
transfer of such Definitive Certificates for Definitive Certificates of
such
Class registered in the name of [insert name of transferee].
In
connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred
in
accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and the Certificates and (ii) Rule 144A under the
Securities Act to a purchaser that the Transferor reasonably believes is
a
“qualified institutional buyer” within the meaning of Rule 144A purchasing
for its own account or for the account of a “qualified institutional buyer,”
which purchaser is aware that the sale to it is being made in reliance
upon
Rule 144A, in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Underwriter, the Certificate Registrar and the
Depositor.
| [Name of Transferor] | ||
| By: | ||
| Name: | ||
| Title: | ||
Dated:
___________, ____
H-1
EXHIBIT
I
FORM
OF
PURCHASER’S LETTER FOR
INSTITUTIONAL
ACCREDITED INVESTOR
Date
Dear
Sirs:
In
connection with our proposed purchase of $______________ principal amount
of
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-5AX, Mortgage Pass-Through Certificates
(the “Privately Offered Certificates”) of Xxxxxx Xxxxxxx Capital I Inc. (the
“Depositor”), we confirm that:
|
(1)
|
We
understand that the Privately Offered Certificates have not been,
and will
not be, registered under the Securities Act of 1933, as amended
(the
“Securities Act”), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf
of any
accounts for which we are acting as hereinafter stated, that
if we should
sell any Privately Offered Certificates within two years of the
later of
the date of original issuance of the Privately Offered Certificates
or the
last day on which such Privately Offered Certificates are owned
by the
Depositor or any affiliate of the Depositor we will do so only
(A) to
the Depositor, (B) to “qualified institutional buyers” (within the
meaning of Rule 144A under the Securities Act) in accordance with
Rule 144A under the Securities Act (“QIBs”), (C) pursuant to the
exemption from registration provided by Rule 144 under the Securities
Act, or (D) to an institutional “accredited investor” within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act that is not a QIB (an “Institutional Accredited
Investor”) which, prior to such transfer, delivers to the Certificate
Registrar under the Pooling and Servicing Agreement, dated as
of February
1, 2007 (the “Pooling and Servicing Agreement”), by and among Xxxxxx
Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank, National
Association, as Master Servicer, as Securities Administrator
and, in its
capacity as Securities Administrator, as Auction Administrator
and LaSalle
Bank National Association, as Trustee and Custodian, a signed
letter in
the form of this letter; and we further agree, in the capacities
stated
above, to provide to any person purchasing any of the Privately
Offered
Certificates from us a notice advising such purchaser that resales
of the
Privately Offered Certificates are restricted as stated
herein.
|
|
(2)
|
We
understand that, in connection with any proposed resale of any
Privately
Offered Certificates to an Institutional Accredited Investor,
we will be
required to furnish to the Certificate Registrar a certification
from such
transferee in the form hereof to confirm that the proposed sale
is being
made pursuant to an exemption from, or in a transaction not subject
to,
the registration requirements of the Securities Act. We further
understand
that the Privately Offered Certificates purchased by us will
bear a legend
to the foregoing effect.
|
|
(3)
|
We
are acquiring the Privately Offered Certificates for investment
purposes
and not with a view to, or for offer or sale in connection with,
any
distribution in violation of the Securities Act. We have such
knowledge
and experience in financial and business matters as to be capable
of
evaluating the merits and risks of our investment in the Privately
Offered
Certificates, and we and any account for which we are acting
are each able
to bear the economic risk of such
investment.
|
I-1
|
(4)
|
We
are an Institutional Accredited Investor and we are acquiring
the
Privately Offered Certificates purchased by us for our own account
or for
one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment
discretion.
|
|
(5)
|
We
have received such information as we deem necessary in order
to make our
investment decision.
|
|
(6)
|
If
we are acquiring ERISA-Restricted Certificates, we understand
that in
accordance with ERISA, the Code and the Exemption, no Plan and
no person
acting on behalf of such a Plan may acquire such Certificate
except in
accordance with Section 3.03(d) of the Pooling and Servicing
Agreement.
|
Terms
used in this letter which are not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
I-2
You
and
the Certificate Registrar are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with
respect
to the matters covered hereby.
| Very truly yours, | ||
|
|
||
| [Purchaser] | ||
| By: | ||
| Name: | ||
| Title: | ||
I-3
EXHIBIT
J
FORM
OF
ERISA TRANSFER AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
ss.:
|
||
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is the ______________________ of ______________ (the “Investor”), a
[corporation duly organized] and existing under the laws of __________,
on
behalf of which he makes this affidavit.
2. The
Investor either (x) is not, and on ___________ [date of transfer] will not
be, an employee benefit plan or other plan or arrangement subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the “Code”), (collectively, a “Plan”) or a person acting on behalf of
any such Plan or investing the assets of any such Plan; (y) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, is
an
insurance company that is purchasing the Certificate with funds contained
in an
“insurance company general account” as defined in Section V(e) of
Prohibited Transaction Class Exemption (“PTCE”) 95-60 and the purchase and
holding of the Certificate satisfy the requirements for exemptive relief
under
Sections I and III of PTCE 95-60; or (z) herewith delivers to the
Certificate Registrar an opinion of counsel satisfactory to the Certificate
Registrar and the Securities Administrator and upon which the Certificate
Registrar, the Trustee, the Master Servicer, the Depositor and the Securities
Administrator shall be entitled to rely, to the effect that the purchase
and
holding of such Certificate by the Investor will not constitute or result
in any
non-exempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate Registrar,
the Trustee, the Master Servicer, the Depositor or the Securities Administrator
to any obligation in addition to those undertaken by such entities in the
Pooling and Servicing Agreement, which opinion of counsel shall not be
an
expense of the Trust Fund or the above parties.
3. The
Investor hereby acknowledges that under the terms of the Pooling and Servicing
Agreement, dated as of February 1, 2007 (the “Pooling and Servicing Agreement”),
by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank,
National Association, as Master Servicer, as Securities Administrator and,
in
its capacity as Securities Administrator, as Auction Administrator and
LaSalle
Bank National Association, as Trustee, no transfer of the ERISA-Restricted
Certificates shall be permitted to be made to any person unless the Certificate
Registrar has received a certificate from such transferee in the form
hereof.
J-1
IN
WITNESS
WHEREOF, the Investor has caused this instrument to be executed on its
behalf,
pursuant to proper authority, by its duly authorized officer, duly attested,
this ____ day of _______________ 20__.
|
|
||
| [Investor] | ||
| By: | ||
| Name: | ||
| Title: | ||
ATTEST:
|
STATE
OF
|
)
|
|
|
)
ss.:
|
||
|
COUNTY
OF
|
)
|
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
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 Investor, and acknowledged that he executed
the same
as his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this _____ day of _________ 20___.
| NOTARY PUBLIC | |
|
My
commission expires the
_____
day of __________ 20___.
|
J-2
EXHIBIT
K
FORM
OF
LETTER OF REPRESENTATIONS
WITH
THE
DEPOSITORY TRUST COMPANY
[On
File
with Securities Administrator]
K-1
EXHIBIT
L-1
FORM
OF
INITIAL CUSTODIAL CERTIFICATION
June
__,
2007
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
LaSalle
Bank National Association, as Trustee
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services - MSM 2007-5AX
|
Re:
|
Pooling
and Servicing Agreement (“Pooling
and Servicing Agreement”)
relating to Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-5AX, Mortgage
Pass-Through Certificates, Series
2007-5AX
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling
and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that,
except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to the Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the
UCC-1), (g) and (h), and if delivered to it, the documents identified in
Section 2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the
UCC-3) and (f) of the Pooling and Servicing Agreement are in its
possession, (b) such documents have been reviewed by it and have not been
mutilated, damaged, defaced, torn or otherwise physically altered, and
such
documents relate to such Mortgage Loan, (c) 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 and (d) each
Mortgage Note has been endorsed and each assignment of Mortgage has been
delivered as provided in Section 2.01 of the Pooling and Servicing Agreement.
The Custodian has made no independent examination of any documents contained
in
each Mortgage File beyond the review specifically mentioned above. The
Custodian
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents delivered in accordance
with Section 2.01 of the Pooling and Servicing Agreement or any of the
Mortgage
Loans identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
L-1-1
The
Custodian acknowledges receipt of notice that the Depositor has granted
to the
Trustee for the benefit of the Certificateholders a security interest in
all of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
L-1-2
Capitalized
terms used herein without definition shall have the meaning assigned to
them in
the Pooling and Servicing Agreement.
| LASALLE BANK NATIONAL
ASSOCIATION, as Custodian |
||
|
|
||
| By: | ||
| Authorized Representative | ||
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CUSTODIAL CERTIFICATION
June
__,
2007
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
LaSalle
Bank National Association, as Trustee
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services - MSM 2007-5AX
|
Re:
|
Pooling
and Servicing Agreement (“Pooling
and Servicing Agreement”)
relating to Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-5AX, Mortgage
Pass-Through Certificates, Series
2007-5AX
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling
and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that,
except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to the Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the
UCC-1), (g) and (h), and if delivered to it, the documents identified in
Section 2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the
UCC-3) and (f) of the Pooling and Servicing Agreement are in its
possession, (b) such documents have been reviewed by it and have not been
mutilated, damaged, defaced, torn or otherwise physically altered, and
such
documents relate to such Mortgage Loan, (c) based on its examination and
only as to the foregoing documents, these documents with respect to each
Mortgage Loan accurately reflect the information contained in the Mortgage
Note
and Mortgage and (d) each Mortgage Note has been endorsed and each
assignment of Mortgage has been delivered as provided in Section 2.01 of
the
Pooling and Servicing Agreement. The Custodian has made no independent
examination of any documents contained in each Mortgage File beyond the
review
specifically mentioned above. The Custodian makes no representations as
to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any
of the
documents delivered in accordance with Section 2.01 of the Pooling and
Servicing
Agreement or any of the Mortgage Loans identified in the Mortgage Loan
Schedule,
or (ii) the collectibility, insurability, effectiveness or suitability
of any
such Mortgage Loan.
L-2-1
The
Custodian acknowledges receipt of notice that the Depositor has granted
to the
Trustee for the benefit of the Certificateholders a security interest in
all of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
L-2-2
Capitalized
terms used herein without definition shall have the meaning assigned to
them in
the Pooling and Servicing Agreement.
| LASALLE BANK NATIONAL
ASSOCIATION, as Custodian |
||
|
|
||
| By: | ||
| Authorized Representative | ||
L-2-3
EXHIBIT
M
REQUEST
FOR RELEASE OF DOCUMENTS
[Name
and
Address of Custodian]
|
Re:
|
Pooling
and Servicing Agreement (“Pooling
and Servicing Agreement”)
relating to Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-5AX, Mortgage
Pass-Through Certificates, Series 2007-5AX
|
In
connection with the administration of the Mortgage Loans in the Trust created
by
the above-captioned Pooling and Servicing Agreement and that are held by
you as
Custodian pursuant to the above-captioned Pooling and Servicing Agreement,
we
request the release, and hereby acknowledge receipt, of the Mortgage File
for
the Mortgage Loan described below, for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
__________ 1. Mortgage
Paid in Full
__________ 2. Foreclosure
__________ 3. Substitution
__________ 4. Other
Liquidation (Repurchases, etc.)
__________ 5. Nonliquidation
Reason:
______________________
Address
to which Custodian should
Deliver
the Mortgage File:
_____________________________________________
_____________________________________________
_____________________________________________
By:_______________________________________
(authorized
signer)
| Issuer | ||
|
Address:
|
||
|
Date:
|
||
M-1
Custodian
[insert
name of appropriate Custodian]
Please
acknowledge the execution of the above request by your signature and date
below:
____________________________________
Signature
_____________________
Date
Documents
returned to Custodian:
____________________________________
Signature
_____________________
Date
M-2
EXHIBIT
N-1
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the monthly statement to certificateholders
|
Servicer,
Master Servicer and Securities Administrator
|
|
Any
information required by 1121 which is NOT included on the monthly
statement to certificateholders
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
(i)
Depositor (with respect to the Closing Date) and (ii) Master
Servicer
|
N-1-1
|
ADDITIONAL
FORM 10-D
DISCLOSURE\
|
|
|
Item
on Form 10-D
|
Responsible
Party
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Securities
Administrator and Trustee
(to
the extent Trustee has knowledge)
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator and
Trustee
(to
the extent Trustee has knowledge)
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
N-1-2
|
ADDITIONAL
FORM 10-D
DISCLOSURE
|
|
| Item on Form 10-D |
Responsible
Party
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
responsible party for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
N-1-3
EXHIBIT
N-2
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
responsible party for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
(i)
As to agreements, Securities Administrator/Depositor and (ii)
as to
financial statements, Reporting Parties (as to
themselves)
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
N-2-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of the following parties, and (b) to the extent known and material,
any of the following parties are affiliated with one
another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
N-2-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Responsible
Party
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and
(b) any of the following parties (or their affiliates) on the other
hand, that exist currently or within the past two years and that
are
material to a Certificateholder’s understanding of the
Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on the one hand, and (b) any of the following parties (or their
affiliates) on the other hand, that exist currently or within
the past two
years and that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
N-2-3
EXHIBIT
N-3
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is
not a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are
fully
disclosed in the prospectus
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement
that is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties (with respect to any agreement entered into by such
party)
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
N-3-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
| Item on Form 8-K |
Responsible
Party
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct
Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Master
Servicer/Securities Administrator/ Depositor (with respect to
any
agreement to which neither the Master Servicer nor the Securities
Administrator is a party)
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Securities
Administrator and Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Trustee
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/
Servicer/Depositor/Trustee
(as to itself)/Successor Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Successor
Trustee
|
N-3-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Responsible
Party
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives.
|
Depositor/Securities
Administrator/Trustee (to the extent action is required by the
Trustee in
connection with any amendment or modification therewith)
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator/Trustee
(to the extent the Trustee has knowledge thereof)/Depositor (to
the extent
the Depositor has knowledge thereof)
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the
time of
issuance of the securities from the description in the final
prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
N-3-3
EXHIBIT
O
[FORM
OF]
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by each party listed below shall
address, at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
S,
MS, SA
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
S,
MS, SA
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
N/A
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
S,
MS, SA
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
S,
MS, SA
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
S,
MS, SA
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
S,
MS
|
O-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
S,
MS, SA
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
S,
MS, SA
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
S,
MS, SA
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
S,
MS, SA
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
S,
MS, SA
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
S,
MS, SA
|
O-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria/
Responsible
Party
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
S,
MS, SA
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
S,
MS, SA
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
S,
C
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements.
|
S,
C
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
S
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
S
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
S
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
S
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
S
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
S
|
O-3
|
Servicing
Criteria
|
Applicable
Servicing Criteria/
Responsible
Party
|
|
| Reference |
Criteria
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
S
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
S
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
S
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
S
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
S
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
S,
MS
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
SA
|
O-4
|
[NAME
OF REPORTING PARTY]
|
||
|
Date:
|
|
|
|
By:
|
||
| Name: | ||
| Title: | ||
Key:
S
= each
Servicer
MS
=
Master Servicer
SA
=
Securities Administrator
C
=
Custodian
O-5
EXHIBIT
P
Additional
Disclosure Notification
Xxxxx
Fargo Bank, N.A. as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
[insert
name and address of Depositor]
Attn:
Corporate Trust Services - MSM 2007-5AX-SEC REPORT PROCESSING
RE:
**Additional Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [12.02(b)][12.03(b)][12.04(b)] of the Pooling and
Servicing Agreement, dated as of February 1, 2007, XXXXXX XXXXXXX CAPITAL I
INC., a Delaware corporation, as depositor , LASALLE BANK NATIONAL ASSOCIATION,
as trustee and as the custodian and XXXXX FARGO BANK, NATIONAL ASSOCIATION,
in
its separate capacities as master servicer, securities administrator and
as
auction administrator and acknowledged by XXXXXX XXXXXXX MORTGAGE CAPITAL
INC.,
as seller. The Undersigned, as [ ], hereby notifies you that certain
events have come to our attention that [will][may] need to be disclosed
on
Form [ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
|
[NAME
OF PARTY]
as
[role]
|
||
| By: | ||
| Name: | ||
| Title: | ||
P-1
EXHIBIT
Q
GLOSSARY
of TERMS for STANDARD & POOR’S LEVELS® VERSION 5.7 FILE FORMAT
APPENDIX
E - Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that certain loans classified by the relevant statute as Covered are included
in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by
the
industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January
1, 2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
Q-1
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name of Anti-Predatory Lending Law/Effective Date |
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id.§
16a-3-207) and;
High
APR Consumer Loan (id.§
16a-3-308a)
|
|
Kentucky
|
2003
KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev. Stat. §§ 360.100
et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
| Maine | Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High Rate High Fee Mortgage |
Q-2
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
and 209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat.
§§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines
of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code Xxx.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
Q-3
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective Date
|
Category
under Applicable
Anti-Predatory Lending Law
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat.
§§ 46:10B-22
et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat.
§§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines
of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Q-4
EXHIBIT
R
FORM
OF
LOST NOTE AFFIDAVIT - LA SALLE AS CUSTODIAN
I,
as
_________________________ (title) of ________ (the “Custodian”), am authorized
to make this Lost Note Affidavit on behalf of __________. In connection
with the
administration of the Mortgage Loans held by _______________ as Custodian
on
behalf of ____________ (“____”) or the Trust of such mortgage loans, as the case
may be (the “Investor”), I (hereinafter called “Deponent”), being duly sworn,
depose and say that:
Custodian’s
address is:
[CUSTODIAN’S
Address]
Custodian
previously delivered to the Investor a signed Trust Receipt with respect
to the
Mortgage Note referred to below;
Such
Mortgage Note was endorsed or sold to the Investor by _________________________
pursuant to the terms and provisions of a ____________________ Agreement
dated
and effective as of _________ ______, ____;
Such
Mortgage Note is not outstanding pursuant to a Request for Release of
Documents;
Such
Mortgage Note (hereinafter called the “Original”) has been lost;
Deponent
has made or has caused to be made diligent search for Original and has
been
unable to find or recover same;
The
Custodian was the Custodian of the Original at the time of loss;
and
Deponent
agrees that, if the Original should ever come into Custodian’s possession,
custody or power, Custodian will immediately and without consideration
surrender
Original to the Investor.
Attached
hereto is a true and correct copy of the (i) Mortgage Note, endorsed in
blank by
the Mortgagee, and (ii) [Mortgage][Deed of Trust] with evidence of recording
thereon which secures the Mortgage Note.
Deponent
hereby agrees that the Custodian shall indemnify and hold harmless the
Purchaser, the Trust, the Servicer of the related Mortgage Loan and their
respective employees, officers, directors and agents against any loss,
liability
or damage, including reasonable attorney’s fees, resulting from the
unavailability of the Mortgage Note, including but not limited to any loss,
liability or damage arising from (i) any false statement contained in this
Lost
Note Affidavit, (ii) any claim of any party that it has already purchased
a
mortgage loan evidenced by the lost Mortgage Note or any interest in such
mortgage loan, (iii) any claim of any borrower with respect to the existence
of
terms of a Mortgage Loan evidenced by the lost Mortgage Note, (iv) the
issuance
of new instrument in lieu thereof and (v) any claim whether or not based
upon or
arising from honoring or refusing to honor the Original when presented
by anyone
(items (i) through (iv) above are hereinafter referred to as the “Losses”) and
(b) if required by any Rating Agency in connection with placing such lost
Mortgage Note into a securitization transaction, shall obtain a surety
bond from
an insurer acceptable to the applicable Rating Agency in an amount acceptable
to
such Rating Agency to cover any Losses with respect to such lost Mortgage
Note.
R-1
Capitalized
terms used herein but not defined herein have the meanings given them in
the
Custodial Agreement, dated as of July 1, 2006, between Xxxxxx Xxxxxxx Mortgage
Capital Inc. and the Custodian.
This
Lost
Note Affidavit is intended to be relied on by the Investor, its successors,
and
assigns and _______________________ represents and warrants that it has
the
authority to perform its obligations under this Lost Note
Affidavit.
IN
WITNESS WHEREOF, the Custodian has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its [title
of
officer] this _____ day of __________ 20__.
| [LA SALLE BANK NATIONAL ASSOCIATION] | ||
|
By:
|
||
| Name: | ||
| Title: | ||
On
this
_________ day of _______________________, ____, before me appeared
____________________________________________, to me personally known, who
being
duly sworn did say that she/he is the ______________________________ of
______________________, and that said Lost Note Affidavit was signed and
sealed
on behalf of such corporation and said _____________________________
acknowledged this instrument to be the free act and deed of said
corporation.
Subscribed
and sworn before me this _____ day of __________ 20__.
NOTARY
PUBLIC
____________________________
COUNTY
OF
________________
STATE
OF
__________________
My
commission expires the _____ day of __________ 20__.
Signature
Typed
Name
R-2
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[On
File
with the Trustee and the Securities Administrator]
SCH.
A-1
SCHEDULE
B
PRINCIPAL
BALANCES SCHEDULE
[Attached
to Prospectus Supplement, if applicable]
SCH.
B-1
