EXHIBIT 99.1
------------
EXECUTION COPY
====================
CWMBS, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
and
THE BANK OF NEW YORK,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2002
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ALTERNATIVE LOAN TRUST 2002-7
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-11
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Table of Contents
Page
ARTICLE I DEFINITIONS..........................................................................................I-1
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.......................................II-1
Section 2.01 Conveyance of Mortgage Loans...............................................................II-1
Section 2.02 Acceptance by Trustee of the Mortgage Loans................................................II-9
Section 2.03 Representations, Warranties and Covenants of the Seller and Master Servicer...............II-12
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans..................II-14
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions...........................II-15
Section 2.06 Execution and Delivery of Certificates....................................................II-15
Section 2.07 REMIC Matters.............................................................................II-15
Section 2.08 Covenants of the Master Servicer..........................................................II-16
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...................................................III-1
Section 3.01 Master Servicer to Service Mortgage Loans.................................................III-1
Section 3.02 Subservicing; Enforcement of the Obligations of Servicers.................................III-2
Section 3.03 Rights of the Depositor and the Trustee in Respect of the Master Servicer.................III-2
Section 3.04 Trustee to Act as Master Servicer.........................................................III-3
Section 3.05 Collection of Mortgage Loan Payments; Certificate Account; Distribution Account;
Supplemental Loan Account; Capitalized Interest Account...................................III-3
Section 3.06 Collection of Taxes, Assessments and Similar Items; Escrow Accounts.......................III-7
Section 3.07 Access to Certain Documentation and Information Regarding the Mortgage Loans..............III-7
Section 3.08 Permitted Withdrawals from the Certificate Account and the Distribution Account...........III-8
Section 3.09 Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies...............III-10
Section 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements................................III-11
Section 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans..........III-12
Section 3.12 Trustee to Cooperate; Release of Mortgage Files..........................................III-15
Section 3.13 Documents Records and Funds in Possession of Master Servicer to be Held for the
Trustee..................................................................................III-16
Section 3.14 Servicing Compensation...................................................................III-16
Section 3.15 Access to Certain Documentation..........................................................III-17
Section 3.16 Annual Statement as to Compliance........................................................III-17
i
Section 3.17 Annual Independent Public Accountants' Servicing Statement; Financial Statements.........III-17
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds...........................................III-18
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER..................................................IV-1
Section 4.01 Advances...................................................................................IV-1
Section 4.02 Priorities of Distribution.................................................................IV-1
Section 4.03 [Reserved].................................................................................IV-7
Section 4.04 Allocation of Realized Losses..............................................................IV-7
Section 4.05 [Reserved].................................................................................IV-8
Section 4.06 Monthly Statements to Certificateholders...................................................IV-8
Section 4.07 Determination of Pass-Through Rates for COFI Certificates.................................IV-10
Section 4.08 Determination of Pass-Through Rates for LIBOR Certificates................................IV-12
ARTICLE V THE CERTIFICATES.....................................................................................V-1
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-6
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-7
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER..............................................................VI-1
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 Seller, the Master Servicer and Others.......VI-1
Section 6.04 Limitation on Resignation of Master Servicer...............................................VI-2
ARTICLE VII DEFAULT...........................................................................................VII-1
Section 7.01 Events of Default.........................................................................VII-1
Section 7.02 Trustee to Act; Appointment of Successor..................................................VII-2
Section 7.03 Notification to Certificateholders........................................................VII-4
ARTICLE VIII CONCERNING THE TRUSTEE.........................................................................VIII-1
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-4
Section 8.07 Resignation and Removal of Trustee.......................................................VIII-4
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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-6
Section 8.11 Tax Matters..............................................................................VIII-7
Section 8.12 Periodic Filings.........................................................................VIII-9
ARTICLE IX TERMINATION........................................................................................IX-1
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.............................................................................X-1
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-3
Section 10.05 Notices.....................................................................................X-3
Section 10.06 Severability of Provisions..................................................................X-4
Section 10.07 Assignment..................................................................................X-4
Section 10.08 Limitation on Rights of Certificateholders..................................................X-4
Section 10.09 Inspection and Audit Rights.................................................................X-5
Section 10.10 Certificates Nonassessable and Fully Paid...................................................X-6
Section 10.11 [Reserved]..................................................................................X-6
Section 10.12 Protection of Assets........................................................................X-6
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SCHEDULES
Schedule I: Mortgage Loan Schedule.............................................................S-I-1
Schedule II: Representations and Warranties of the Seller......................................S-II-1
Schedule III: Representations and Warranties of the Seller
as to the Mortgage Loans.........................................................S-III-1
Schedule IV: Representations and Warranties of the Master Servicer.............................S-IV-1
Schedule V: Principal Balances Schedule [if applicable]........................................S-V-1
Schedule VI: Form of Monthly Master Servicer Report............................................S-VI-1
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional Amount Certificates)..................A-1
Exhibit B: Form of Subordinated Certificate.....................................................B-1
Exhibit C: Form of Class A-R Certificate........................................................C-1
Exhibit D: Form of Notional Certificate.........................................................D-1
Exhibit E: Form of Reverse of Certificates......................................................E-1
Exhibit F-1: Form of Initial Certification of Trustee (Initial Mortgage Loans)....................F-1
Exhibit F-2: Form of Initial Certification of Trustee (Supplemental Mortgage Loans)...............F-2
Exhibit G-1: Form of Delay Delivery Certification of Trustee (Initial Mortgage Loans).............G-1
Exhibit G-2: Form of Delay Delivery Certification of Trustee (Supplemental Mortgage Loans)........G-2
Exhibit H-1: Form of Final Certification of Trustee (Initial Mortgage Loans)......................H-1
Exhibit H-2: Form of Final Certification of Trustee (Supplemental Mortgage Loans).................H-2
Exhibit I: Form of Transfer Affidavit...........................................................I-1
Exhibit J-1: Form of Transferor Certificate (Residual)............................................J-1
Exhibit J-2: Form of Transferor Certificate (Private).............................................J-2
Exhibit K: Form of Investment Letter [Non-Rule 144A]............................................K-1
Exhibit L: Form of Rule 144A Letter.............................................................L-1
Exhibit M: Form of Request for Release (for Trustee)............................................M-1
Exhibit N: Form of Request for Release (Mortgage Loan) Paid in Full, Repurchased and
Replaced)............................................................................N-1
Exhibit O: [Reserved]...........................................................................O-1
Exhibit P: Form of Supplemental Transfer Agreement..............................................P-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of June 1, 2002, among
CWMBS, INC., a Delaware corporation, as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC., a New York corporation, as seller (the
"Seller"), COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership,
as master servicer (the "Master Servicer"), and THE BANK OF NEW YORK, a
banking corporation organized under the laws of the State of New York, as
trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. For federal income tax purposes,
the Trust Fund, other than the Supplemental Loan Account and Capitalized
Interest Account, will consist of two real estate mortgage investment conduits
(each a "REMIC" or, in the alternative, the "Lower Tier REMIC" and the "Upper
Tier REMIC"). Each Certificate, other than the Class A-R Certificate, will
represent ownership of one or more regular interests in the Upper Tier REMIC
for purposes of the REMIC Provisions. The Class A-R Certificate represents
ownership of the sole class of residual interest in the Lower Tier REMIC and
the Upper Tier REMIC. The Upper Tier REMIC will hold as assets the several
classes of uncertificated Lower Tier REMIC Interests (other than the Class
LTR-AR Interest). The Lower Tier REMIC will hold as assets all property of the
Trust Fund (except for the Supplemental Loan Account and Capitalized Interest
Account). Each Lower Tier REMIC Interest (other than the Class LTR-AR
Interest) is hereby designated as a regular interest in the Lower Tier REMIC.
The latest possible maturity date of all REMIC regular interests created
herein shall be the Latest Possible Maturity Date.
The following table sets forth characteristics of the 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):
Integral
Initial Class Multiples
Certificate Pass-Through Minimum in Excess of
Class Designation Balance Rate Denomination Minimum
------------------- ---------------- ------------- --------------- ---------------
Class 1-A-1 $93,130,343.00 (1) $25,000.00 $1,000.00
Class 1-A-2 (2) (3) $25,000.00(8) $1,000.00(8)
Class 1-A-3 $27,939,103.00 6.50% $25,000.00 $1,000.00
Class 1-A-4 $116,524,830.00 6.50% $25,000.00 $1,000.00
Class 1-A-5 $9,927,000.00 6.50% $1,000.00 $1,000.00
Class 1-A-6 $50,000,000.00 6.25% $25,000.00 $1,000.00
Class 1-A-7 $50,000,000.00 5.75% $25,000.00 $1,000.00
Class 1-A-8 $25,000,000.00 (4) $25,000.00 $1,000.00
Class 1-A-9 (5) (6) $25,000.00(8) $1,000.00(8)
Class CB-1 (7) 7.00% $25,000.00(8) $1,000.00(8)
Class CB-2 $30,727,428.00 6.50% $25,000.00 $1,000.00
Class CB-3 $125,000,000.00 6.50% $25,000.00 $1,000.00
Class CB-4 $126,180,000.00 6.50% $25,000.00 $1,000.00
Class CB-5 $13,994,856.00 6.50% $1,000.00 $1,000.00
Class CB-6 $11,372,000.00 6.50% $1,000.00 $1,000.00
Class CB-7 $30,727,428.00 6.75% $25,000.00 $1,000.00
Class CB-8 $100,000,000.00 6.75% $25,000.00 $1,000.00
Class CB-9 $22,519,855.00 6.75% $1,000.00 $1,000.00
Class CB-10 $9,884,000.00 6.75% $1,000.00 $1,000.00
Class CB-11 $126,063,000.00 6.75% $25,000.00 $1,000.00
Class CB-12 $18,080,000.00 6.75% $25,000.00 $1,000.00
Class PO $9,979,041.00 (9) $25,000.00 $1,000.00
Class A-R $100.00 7.00% $100.00 N/A
Class M $30,760,000.00 7.00% $25,000.00 $1,000.00
Class B-1 $11,137,200.00 7.00% $25,000.00 $1,000.00
Class B-2 $9,546,200.00 7.00% $25,000.00 $1,000.00
Class B-3 $5,833,700.00 7.00% $100,000.00 $1,000.00
Class B-4 $2,651,700.00 7.00% $100,000.00 $1,000.00
Class B-5 $3,712,628.75 7.00% $100,000.00 $1,000.00
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2
(1) The Class 1-A-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of LIBOR plus 0.65%, subject to
maximum and minimum Pass-Through Rates of 8.50% and 0.65% per annum,
respectively. The Pass-Through Rate for the Class 1-A-1 Certificates
during the initial Interest Accrual Period is 2.50% per annum.
(2) The Class 1-A-2 Certificates will be Notional Certificates, will have
no Class Certificate Balance and will bear interest on their Notional
Amount (initially, $93,130,343.00).
(3) The Class 1-A-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of 7.85% minus LIBOR, subject to
maximum and minimum Pass-Through Rates of 7.85% and 0.00% per annum,
respectively. The Pass-Through Rate for the Class 1-A-2 Certificates
during the initial Interest Accrual Period is 6.00% per annum.
(4) The Class 1-A-8 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of LIBOR plus 0.50%, subject to
maximum and minimum Pass-Through Rates of 8.50% and 0.50% per annum,
respectively. The Pass-Through Rate for the Class 1-A-8 Certificates
during the initial Interest Accrual Period is 2.35% per annum.
(5) The Class 1-A-9 Certificates will be Notional Certificates, will have
no Class Certificate Balance and will bear interest on their Notional
Amount (initially, $25,000,000.00).
(6) The Class 1-A-9 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of 8.00% minus LIBOR, subject to
maximum and minimum Pass-Through Rates of 8.00% and 0.00% per annum,
respectively. The Pass-Through Rate for the Class 1-A-9 Certificates
during the initial Interest Accrual Period is 6.15% per annum.
(7) The Class CB-1 Certificates will be Notional Certificates, will have
no Class Certificate Balance and will bear interest on their Notional
Amount (initially, $32,922,244.00).
(8) Denominations are based on Notional Amount.
(9) The Class PO Certificates will be Principal Only Certificates and
will not bear interest. The Class PO Certificates will be comprised
of two components, each of which is hereby designated a REMIC.
The following table specifies the class designation, interest rate,
and principal amount for each class of Lower Tier REMIC Interests:
Lower Tier REMIC Interests
3
Initial Class Corresponding Class
Class Designation Principal Balance Class Interest Rate of Certificates
----------------- ----------------- ------------------- -------------------
LTR 1-A-1 $93,130,343.00 8.50% Class 1-A-1 Class
1-A-2(1)
LTR 1-A-3 $27,939,103.00 6.50% Class 0-X-0
XXX 0-X-0 $116,524,830.00 6.50% Class 0-X-0
XXX 0-X-0 $9,927,000.00 6.50% Class 0-X-0
XXX 0-X-0 $50,000,000.00 6.25% Class 0-X-0
XXX 0-X-0 $50,000,000.00 5.75% Class 0-X-0
XXX 0-X-0 $25,000,000.00 8.50% Class 1-A-8 Class
1-A-9(2)
LTR CB-2 $30,727,428.00 7.00% Class CB-2(3)
LTR CB-3 $125,000,000.00 7.00% Class CB-3(3)
LTR CB-4 $126,180,000.00 7.00% Class CB-4(3)
LTR CB-5 $13,994,856.00 7.00% Class CB-5(3)
LTR CB-6 $11,372,000.00 7.00% Class CB-6(3)
LTR CB-7 $30,727,428.00 7.00% Class CB-7(4)
LTR CB-8 $100,000,000.00 7.00% Class CB-8(4)
LTR CB-9 $22,519,855.00 7.00% Class CB-9(4)
LTR CB-10 $9,884,000.00 7.00% Class CB-10(4)
LTR CB-11 $126,063,000.00 7.00% Class CB-11(4)
LTR CB-12 $18,080,000.00 7.00% Class CB-12(4)
LTR 1-$100 $100.00 7.00% Class A-R
LTR M $30,760,000.00 7.00% Class M
LTR-PO $9,979,041.00 (5) Class PO
LTR B-1 $11,737,200.00 7.00% Class B-1
LTR B-2 $9,546,200.00 7.00% Class B-2
LTR B-3 $5,833,700.00 7.00% Class B-3
LTR B-4 $2,651,700.00 7.00% Class B-4
LTR B-5 $3,712,628.75 7.00% Class B-5
LTR-A-R (6) (6) Class A-R
(1) The Class 1-A-2 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class LTR-1-A-1
Interest. Specifically, for each related Distribution Date, the Class 1-A-2
Certificates are entitled to interest accruals on the Class LTR-1-A-1 Interest
at a per annum rate of 7.85% minus LIBOR, but no less than 0.00%.
(2) The Class 1-A-9 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the Class LTR-1-A-8
Interest. Specifically, for each related
4
Distribution Date, the Class 1-A-9 Certificates are entitled to interest
accruals on the Class LTR-1-A-8 Interest at a per annum rate equal to 8.00%
minus LIBOR, but no less than 0.00%.
(3) The Class CB-1 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on this Class of Lower Tier
Interest. Specifically, for each related Distribution Date, the Class CB-1
Certificates are entitled to interest accruals on this Class of Lower Tier
Interest at a per annum rate equal to 0.50%.
(4) The Class CB-1 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on this Class of Lower Tier
Interest. Specifically, for each related Distribution Date, the Class CB-1
Certificates are entitled to interest accruals on this Class of Lower Tier
Interest at a per annum rate equal to 0.25%.
(5) This Class of Lower Tier Interest does not pay any interest.
(6) This Class of Lower Tier Interest is the sole class of residual interest
in the Lower Tier REMIC. It pays no interest or principal.
On each Distribution Date, the Trustee will allocate the losses on,
and distribute the principal on each group of Mortgage Loans among the Lower
Tier REMIC Interests in the same manner that such items are allocated to or
distributed among the corresponding class or classes of Certificates.
On each Distribution date, interest is payable on each Lower Tier
REMIC Interest at the rates or in the amounts shown above.
5
Set forth below are designations of Classes of Certificates to the categories used herein:
Accretion Directed Certificates.............None.
Accretion Directed Components...............None.
Accrual Certificates........................None.
Accrual Components..........................None.
Book-Entry Certificates.....................All Classes of Certificates other than the Physical Certificates.
Component Certificates......................Class PO Certificates.
Components..................................For purposes of calculating distributions of principal and/or
interest, the Component Certificates, if any, will be
comprised of multiple payment components having the
designations, Initial Component Balances or Notional Amounts and
Pass-Through Rates set forth below:
Class PO
Certificates
------------
Initial Component
Designation Principal Balance Pass-Through Rate
----------- ------------------ -----------------
Class PO-1 Component $3,478,622 (1)
Class PO-2 Component $6,500,419 (1)
(1) The component does not bear interest.
Delay Certificates..........................All interest-bearing Classes of Certificates other than the
Non-Delay Certificates, if any.
ERISA-Restricted
Certificates................................The Residual Certificates and Private Certificates; until an
ERISA Qualifying Underwriting has occurred with respect
to such Class, the Class PO Certificates; and any Certificate
that does not satisfy the applicable rating requirement under
the Underwriter's Exemption.
Floating Rate Certificates..................Class 1-A-1 and Class 1-A-8 Certificates.
Inverse Floating Rate
Certificates................................Class 1-A-2 and Class 1-A-9 Certificates.
COFI Certificates...........................None.
LIBOR Certificates..........................Class 1-A-1, Class 1-A-2 Class 1-A-8 and Class 1-A-9
Certificates.
6
Loan Group 1
Senior Certificates........................Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4,
Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8,
Class 1-A-9 and Class A-R Certificates and Class PO-1
Component.
Group 1 Certificates........................Loan Group 1 Senior Certificates and the portions of the Subordinate
Certificates related to Loan Group 1.
Loan Group 2
Senior Certificates.........................Class CB-1, Class CB-2, Class CB-3, Class CB-4, Class
CB-5, Class CB-6, Class CB-7, Class CB-8, Class CB-9,
Class CB-10, Class CB-11 and Class CB-12 Certificates
and Class PO-2 Component.
Group 2 Certificates........................Loan Group 2 Senior Certificates and the portions of the
Subordinate Certificates related to Loan Group 2.
Non-Delay Certificates......................Class 1-A-1, Class 1-A-2 Class 1-A-8 and Class 1-A-9
Certificates.
Notional Amount
Certificates................................Class 1-A-2, Class 1-A-9 and Class CB-1 Certificates.
Offered Certificates........................All Classes of Certificates other than the Private
Certificates.
Physical Certificates.......................Private Certificates and the Residual Certificates.
Planned Principal Classes...................None.
Primary Planned Principal
Classes.....................................None.
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.
Scheduled Principal
Classes.....................................None.
7
Secondary Planned Principal
Class.......................................None.
Senior Certificate Group....................The Loan Group 1 Senior Certificates or the Loan Group 2
Senior Certificates, as applicable.
Senior Certificates.........................Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4,
Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8,
Class 1-A-9, Class CB-1, Class CB-2, Class CB-3,
Class CB-4, Class CB-5, Class CB-6, Class CB-7, Class
CB-8, Class CB-9, Class CB-10, Class CB-11, Class CB-
12, Class PO and Class A-R Certificates.
Subordinated Certificates . Class M, Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates.
Targeted Principal
Classes.....................................None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
If the aggregate Stated Principal Balance of the Initial Mortgage Loans
on the Closing Date is equal to or greater than the aggregate Class
Certificate Balances of the Certificates as of such date, all references
herein to "Aggregate Supplemental Purchase Amount", "Aggregate Supplemental
Transfer Amount", "Capitalized Interest Account", "Capitalized Interest
Requirement", "Conveyance Period", "Conveyance Period Distribution Date",
"Remaining Non-PO Supplemental Loan Amount", "Remaining PO Supplemental Loan
Amount", "Supplemental Amount", "Supplemental Loan Account", "Supplemental
Mortgage Loan", "Supplemental Transfer Agreement" and "Supplemental Transfer
Date" shall be of no force or effect and all provisions herein related thereto
shall similarly be of no force or effect.
8
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: With respect to any Class of Accrual Certificates 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).
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the Basic 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 (x) with respect
to each Lender PMI Mortgage Loan, the interest premium charged by the related
lender for the related Primary Insurance Policy and (y) the sum of the Trustee
Fee Rate and the Basic 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, the applicable Non-PO Percentage and the Excess Master Servicing
Fee, each Substitute Mortgage Loan shall be deemed to have an Adjusted Net
Mortgage Rate equal to the Adjusted Net Mortgage Rate of the Deleted Mortgage
Loan for which it is substituted.
Advance: As to a Loan Group, the payment required to be made by the
Master Servicer with respect to any Distribution Date pursuant to Section
4.01, the amount of any such payment being equal to the aggregate of payments
of principal and interest (net of the Basic Master Servicing Fee and net of
any net income in the case of any REO Property and, for so long as Countrywide
Home Loans Servicing LP is the Master Servicer, the related Excess Master
Servicing Fee) on the Mortgage Loans in such Loan Group that were due on the
related Due Date and not received as of the close of business on the related
Determination Date, less the aggregate amount of any such delinquent payments
that the Master Servicer has determined would constitute a Nonrecoverable
Advance if advanced.
Aggregate Supplemental Purchase Amount: With respect to any Supplemental
Transfer Date and Loan Group, the applicable "Aggregate Supplemental Purchase
Amount" identified in the related Supplemental Transfer Agreement for such
Loan Group, which shall be an estimate
I-1
of the aggregate Stated Principal Balances of the Supplemental Mortgage Loans
to be included in such Loan Group identified in such Supplemental Transfer
Agreement.
Aggregate Supplemental Transfer Amount: With respect to any Supplemental
Transfer Date and Loan Group, the aggregate Stated Principal Balances as of
the related Supplemental Cut-off Dates of the Supplemental Mortgage Loans to
be included in such Loan Group conveyed on such Supplemental Transfer Date, as
listed on the revised Mortgage Loan Schedule delivered pursuant to Section
2.01(f); provided, however, that such amount shall not exceed the amount on
deposit in the Supplemental Loan Account allocated to purchasing Supplemental
Mortgage Loans for such Loan Group.
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 Class PO-1 and Class PO-2 Components, zero, and (ii) with
respect to each other Class of Certificates the product of (a) the lesser of
(I) the ratio that the related Required Coupon bears to the Adjusted Mortgage
Rate of such Mortgage Loan and (II) one, multiplied by (b) the ratio that the
amount calculated with respect to such Distribution Date (A) with respect to
the Senior Certificates of the related Senior Certificate Group, pursuant to
clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
4.02 (d)) and (B) with respect to the Subordinated Certificates, pursuant to
the definition of Assumed Interest Amount or after the Senior Termination 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)) or the definition of Assumed Interest Amount, as applicable.
Amount Available for Senior Principal: As to any Distribution Date and
(a) Loan Group 1, the sum of (i) Available Funds for such Distribution Date
and Loan Group and (ii) Remaining Available Funds for Loan Group 2 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 related Senior Certificates pursuant to Section 4.02(a)(1)(i)
and (ii) or (b) Loan Group 2, the sum of (i) Available Funds for such
Distribution Date and Loan Group and (ii) Remaining Available Funds for Loan
Group 1 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 related Senior Certificates
pursuant to Section 4.02(a)(2)(ii).
Amount Held for Future Distribution: As to any Distribution Date and
Mortgage Loans in a Loan Group, the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date on account
of (i) Principal Prepayments received after the related Prepayment Period and
Liquidation Proceeds received in the month of such Distribution Date relating
to such Loan Group and (ii) all Scheduled Payments due after the related Due
Date relating to such Loan Group.
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Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of
the Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; (ii) with
respect to a Refinancing Mortgage Loan other than a Streamlined Documentation
Mortgage Loan, the value of the Mortgaged Property based upon the appraisal
made-at the time of the origination of such Refinancing Mortgage Loan; and
(iii) with respect to a Streamlined Documentation Mortgage Loan, (a) if the
loan-to-value ratio with respect to the Original Mortgage Loan at the time of
the origination thereof was 90% 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 90%, the
value of the Mortgaged Property based upon the appraisal (which may be a
drive-by appraisal) made at the time of the origination of such Streamlined
Documentation Mortgage Loan.
Assumed Balance: With respect to any Distribution Date, Class of
Subordinated Certificates and Loan Group, each such Class' pro rata interest
(based on their respective Class Certificate Balances) in such Loan Group
equal to the product of the Subordinated Percentage for such Loan Group as of
such Distribution Date and the aggregate of the applicable Non-PO Percentage
of the Stated Principal Balance of each Mortgage Loan in such Loan Group as of
the Due Date occurring in the month of such Distribution Date.
Assumed Interest Amount: With respect to any Distribution Date and Class
of Subordinated Certificates, one month's interest accrued during the related
Interest Accrual Period at the Pass-Through Rate for such Class on the
applicable Assumed Balance.
Available Funds: As to any Distribution Date and the Mortgage Loans in a
Loan Group, the sum of (a) the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date in respect
of such Mortgage Loans net of the related Amount Held for Future Distribution
and net of amounts permitted to be withdrawn from the Certificate Account
pursuant to clauses (i) - (viii), inclusive, of Section 3.08(a) in respect of
such Mortgage Loans and amounts permitted to be withdrawn from the
Distribution Account pursuant to clauses (i) - (iii), inclusive, of Section
3.08(b) in respect of such Mortgage Loans, (b) the amount of the related
Advance, (c) in connection with Defective Mortgage Loans in such Loan Group,
as applicable, the aggregate of the Purchase Prices and Substitution
Adjustment Amounts deposited on the related Distribution Account Deposit Date,
(d) on each Conveyance Period Distribution Date, the amount, if any,
transferred from the Capitalized Interest Account in respect of the applicable
Capitalized Interest Requirement with respect to the Mortgage Loans in such
Loan Group, and (e) on the last Conveyance Period Distribution Date, the
amount, if any, transferred from the Supplemental Loan Account representing
the applicable Remaining Non-PO Supplemental Loan Amount and the applicable
Remaining PO Supplemental Loan Amount, if any; provided, however, that on a
Senior Termination Date, Available Funds with respect to the Loan Group
relating to the remaining Senior Certificate Group shall include the Available
Funds from the other Loan Group after all distributions are made on the Senior
Certificates of the other
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Senior Certificate Group and on any Distribution Date thereafter, Available
Funds shall be calculated based on all the Mortgage Loans in the Mortgage
Pool, as opposed to the Mortgage Loans in the related Loan Group.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss hereunder so long as the Master Servicer has
notified the Trustee in writing that the Master Servicer is diligently
pursuing any remedies that may exist in connection with the related Mortgage
Loan and either (A) the related Mortgage Loan is not in default with regard to
payments due thereunder or (B) delinquent payments of principal and interest
under the related Mortgage Loan and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Master
Servicer, in either case without giving effect to any Debt Service Reduction
or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated
to the Certificates since the Cut-off Date and (ii) any permissible reductions
in the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in
a downgrading of the then current ratings assigned to the Classes of
Certificates rated by it.
Basic 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 Basic Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month of such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loan on such Due Date), subject to
reduction as provided in Section 3.14.
Basic Master Servicing Fee Rate: With respect to each Mortgage Loan,
0.25% per annum.
Blanket Mortgage: The mortgage or mortgages encumbering the Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of New York, New York, or the
State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Capitalized Interest Account: The separate Eligible Account designated as
such and created and maintained by the Trustee pursuant to Section 3.05(h)
hereof. The Capitalized
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Interest Account shall be treated as an "outside reserve fund" under
applicable Treasury regulations and shall not be part of either REMIC. Except
as provided in Section 3.05(h) hereof, any investment earnings on the
Capitalized Interest Account shall be treated as owned by the Depositor and
will be taxable to the Depositor.
Capitalized Interest Requirement: With respect to each Conveyance Period
Distribution Date and Loan Group the excess, if any, of (a) the sum of (1) the
amount calculated pursuant to clause (i) of the definition of Class Optimal
Interest Distribution Amount for each Class of Certificates (including, with
respect to the Subordinated Certificates, the related Assumed Balance of each
such Class) in the Certificate Group related to such Loan Group for such
Distribution Date, plus (2) the Trustee Fee for such Loan Group for such
Distribution Date, over (b) with respect to each Mortgage Loan in such Loan
Group, (1) 1/12 of the product of the related Adjusted Mortgage Rate and the
related Stated Principal Balance as of the related Due Date (prior to giving
effect to any Scheduled Payment due on such Mortgage Loan on such Due Date)
minus (2) any related reductions required by Section 4.02(d) hereof. On the
Closing Date, the amount deposited in the Capitalized Interest Account shall
be $232,010.11, of which shall be allocated $218,863.13 to Loan Group 1 and
$13,146.98 to Loan Group 2.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Master Servicer pursuant to Section 3.05 with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of Certificateholders and designated "Countrywide Home
Loans, Inc. in trust for the registered holders of Alternative Loan Trust
2002-7, Mortgage Pass-Through Certificates Series 2002-11."
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof (A)
minus the sum of (i) all distributions of principal previously made with
respect thereto and (ii) all Realized Losses allocated thereto and, in the
case of any Subordinated Certificates, all other reductions in Certificate
Balance previously allocated thereto pursuant to Section 4.03 and (B) in the
case of any Class of Accrual Certificates, increased by the Accrual Amount
added to the Class Certificate Balance of such Class prior to such date.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate.
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
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Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision hereof (other than the second
sentence of Section 10.01 hereof) that requires the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action
hereunder. The Trustee is entitled to rely conclusively on a certification of
the Depositor or any affiliate of the Depositor in determining which
Certificates are registered in the name of an affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set forth
in the Preliminary Statement.
Class Certificate Balance: With respect to any Class and as to any date
of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or, with respect to any interest
bearing Component, any Component thereof, the sum of (i) one month's interest
accrued during the related Interest Accrual Period at the Pass-Through Rate
for such Class on the related Class Certificate Balance, Component Balance,
Notional Amount or Component Notional Amount, as applicable, subject to
reduction as provided in Section 4.02(d) and (ii) any Class Unpaid Interest
Amounts for such Class or Component.
Class PO Component: The Class PO-1 Component or the Class PO-2 Component,
as applicable.
Class PO Deferred Amount: As to any Distribution Date and Loan Group, the
aggregate of the applicable PO Percentage of each Realized Loss, other than
any Excess Loss, on a Discount Mortgage Loan in that Loan Group to be
allocated to the related Class PO Component on such Distribution Date on or
prior to the Senior Credit Support Depletion Date or previously allocated to
that Class PO Component and not yet paid to the Holders of the Class PO
Certificates.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Certificate Balance of such Class of Certificates
immediately prior to such Distribution Date divided by (b) the aggregate of
the Class Certificate Balances immediately prior to such Distribution Date of
all Classes of Certificates.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
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Closing Date: June 28, 2002.
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.
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, less all
amounts applied in reduction of the principal balance of such Component and
Realized Losses allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Conveyance Period: The period from the Closing Date until the earliest of
(i) the date on which the amount on deposit in the Supplemental Loan Account
for each Loan Group is equal to or less than $150,000, (ii) an Event of
Default occurs or (iii) July 31, 2002.
Conveyance Period Distribution Date: Each Distribution Date during the
Conveyance Period and, if the Conveyance Period ends after the Distribution
Date in a month, the immediately succeeding Distribution Date.
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.
Coop Shares: Shares issued by a Cooperative Corporation.
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,
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CWMBS, Inc. Series 2002-11, facsimile no. (000) 000-0000), and which is the
address to which notices to and correspondence with the Trustee should be
directed.
Countrywide: Countrywide Home Loans, Inc., a New York corporation and its
successors and assigns.
Cut-off Date: In the case of any Initial Mortgage Loan, June 1, 2002 and
in the case of any Supplemental Mortgage Loan, the later of (i) July 1, 2002
and (ii) the date of origination of such Mortgage Loan.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by
a court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any
Scheduled Payment that results in a permanent forgiveness of principal, which
valuation or reduction results from an order of such court which is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: As defined in Section 2.02(a) hereof.
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to Trustee on the Closing
Date or Supplemental Transfer Date, as applicable. The number of Delay
Delivery Mortgage Loans shall not exceed 50% of the aggregate number of
Initial Mortgage Loans as of the Closing Date and 90% of the Supplemental
Mortgage Loans conveyed on a Supplemental Transfer Date. To the extent that
Countrywide Home Loans Servicing LP shall be in possession of any Mortgage
Files with respect to any Delay Delivery 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.
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Denomination: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Certificate Balance of this Certificate" or
the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Depositor: CWMBS, Inc., a Delaware corporation, or its successor in
interest.
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 22nd day of each
month or if such 22nd day is not a Business Day the next preceding Business
Day; provided, however, that if such 22nd day or such Business Day, whichever
is applicable, is less than two Business Days prior to the related
Distribution Date, the Determination Date shall be the first Business Day
which is two Business Days preceding such Distribution Date.
Discount Mortgage Loan: Any Mortgage Loan in a Loan Group with an
Adjusted Net Mortgage Rate that is less than the Required Coupon for that Loan
Group.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New York
in trust for registered holders of Alternative Loan Trust 2002-7, Mortgage
Pass-Through Certificates, Series 2002-11." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes
set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if such 25th day is not a Business Day, the
next succeeding Business Day, commencing in July 2002.
Due Date: With respect to any Distribution Date, the first day of the
month in which the related Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of each 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
I-9
which accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with (a) the trust department of a federal or state
chartered depository institution or (b) a trust company, acting in its
fiduciary capacity or (iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
Eligible Repurchase Month: As defined in Section 3.11 hereof.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a) hereof.
Event of Default: As defined in Section 7.01 hereof.
Excess Loss: The amount of any (i) Fraud Loss realized after the Fraud
Loss Coverage Termination Date, (ii) Special Hazard Loss realized after the
Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss realized
after the Bankruptcy Coverage Termination Date.
Excess Master Servicing Fee: The Loan Group 1 Excess Master Servicing Fee
and/or the Loan Group 2 Excess Master Servicing Fee, as the context requires.
Excess Master Servicing Fee Amount: As to any Mortgage Loan and
Distribution Date, an amount payable out of each full payment of interest
received on such Mortgage Loan equal to one-twelfth of the applicable Excess
Master Servicing Fee Rate multiplied by the Stated Principal Balance of such
Mortgage Loan.
Excess Master Servicing Fee Rate: As to any Non-Discount Mortgage Loan in
a Loan Group the excess of (x) of Adjusted Net Mortgage Rate of such
Non-Discount Mortgage Loan over (y) the applicable Required Coupon. As to any
Discount Mortgage Loan, 0%.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated 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
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became a Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage
Rate from the Due Date as to which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date applicable to the
Distribution Date immediately following the calendar month during which such
liquidation occurred.
Expense Rate: As to each Mortgage Loan, the sum of the related Basic
Master Servicing Fee Rate, the Excess Master Servicing Fee Rate and the
Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
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, Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group, or
such other address as Fitch may hereafter furnish to the Depositor and the
Master Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Insurance
Policy because of such fraud, dishonesty or misrepresentation.
Fraud Loss Coverage Amount: As of the Closing Date, $9,613,291
subject to reduction from time to time, by the amount of Fraud Losses
allocated to the Certificates. In addition, on each anniversary of the Cut-off
Date, the Fraud Loss Coverage Amount will be reduced as follows: (a) on the
first, second, third and fourth anniversaries of the Cut-off Date, to an
amount equal to the lesser of (i) 1% of the then current Pool Stated Principal
Balance and (ii) the excess of the Fraud Loss Coverage Amount as of the
preceding anniversary of the Cut-off Date over the cumulative amount of Fraud
Losses allocated to the Certificates since such preceding anniversary; and (b)
on the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
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Group 1 Priority Amount: As to any Distribution Date, the amount equal to
the sum of (i) the product of (A) the Scheduled Principal Distribution Amount
for Loan Group 1, (B) the Shift Percentage and (C) the Group 1 Priority
Percentage and (ii) the product of (A) the Unscheduled Principal Distribution
Amount for Loan Group 1, (B) the Shift Percentage and (C) the Group 1 Priority
Percentage.
Group 1 Priority Percentage: As to any Distribution Date, the percentage
equal to a fraction, the numerator of which is the Class Certificate Balance
of the Class 1-A-3 Certificates immediately prior to such Distribution Date,
and the denominator of which is equal to the aggregate Stated Principal
Balance of each Mortgage Loan in Loan Group 1 for such Distribution Date.
Group 2 Priority Amount: As to any Distribution Date, the amount equal to
the sum of (i) the product of (A) the Scheduled Principal Distribution Amount
for Loan Group 2, (B) the Shift Percentage and (C) the Group 2 Priority
Percentage and (ii) the product of (A) the Unscheduled Principal Distribution
Amount for Loan Group 2, (B) the Shift Percentage and (C) the Group 2 Priority
Percentage.
Group 2 Priority Percentage: As to any Distribution Date, the percentage
equal to a fraction, the numerator of which is the aggregate Class Certificate
Balance of the Class CB-2 and Class CB-7 Certificates immediately prior to
such Distribution Date, and the denominator of which is equal to the aggregate
of the Stated Principal Balance of each Mortgage Loan in Loan Group 2 for such
Distribution Date.
Index: With respect to any Interest Accrual Period for the COFI
Certificates, the then-applicable index used by the Trustee pursuant to
Section 4.07 to determine the applicable Pass-Through Rate for such Interest
Accrual Period for the COFI Certificates.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Coverage Amount: $100,000.
Initial Certification: As defined in Section 2.02(a) hereof.
Initial Component Balance: As specified in the Preliminary Statement.
Initial Cut-off Date: June 1, 2002.
Initial Cut-off Date Pool Principal Balance: $1,014,857,105.53.
Initial Mortgage Loan: A Mortgage Loan conveyed to the Trust Fund on the
Closing Date pursuant to this Agreement as identified on the Mortgage Loan
Schedule delivered to the Trustee on the Closing Date.
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.
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Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates, corresponding Subsidiary REMIC Regular Interest and any
Distribution Date, the calendar month prior to the month of such Distribution
Date. With respect to any Non-Delay Certificates, corresponding Subsidiary
REMIC Regular Interest and any Distribution Date, the one month period
commencing on the 25th day of the month preceding the month in which such
Distribution Date occurs (other than the first Distribution Date, for which it
is the Closing Date) and ending on the 24th day of the month in which such
Distribution Date occurs.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual Period for the
COFI Certificates for which the applicable Index is LIBOR, the second Business
Day prior to the first day of such Interest Accrual Period.
Interest Rate: With respect to each Subsidiary REMIC Interest, the
applicable rate set forth or calculated in the manner described in the
Preliminary Statement.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender PMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the borrower) acquires the Primary Insurance Policy and charges
the related borrower an interest premium.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 4.08.
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which the Master Servicer has determined (in accordance with this Agreement)
that it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of an REO
Property.
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
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REO Property, less the sum of related unreimbursed Basic Master Servicing
Fees, Servicing Advances and Advances.
Loan Group: Any of Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans identified as Loan Group 1 Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group 1 Excess Master Servicing Fee: As to Loan Group 1 and any
Distribution Date, an amount equal to the aggregate of the related Excess
Master Servicing Amount.
Loan Group 1 Senior Certificates: As specified in the Preliminary
Statement.
Loan Group 2: All Mortgage Loans identified as Loan Group 2 Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group 2 Excess Master Servicing Fee: As to Loan Group 2 and any
Distribution Date, an amount equal to the aggregate of the related Excess
Master Servicing Amount.
Loan Group 2 Senior Certificates: As specified in the Preliminary
Statement.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any date
of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
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.
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.
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MERS(R) 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.
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 transferred and assigned to
the Trustee pursuant to the provisions hereof and any Supplemental Transfer
Agreement as from time to time 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, the addition of any Supplemental Mortgage Loans pursuant to the
provisions of this Agreement and any Supplemental Transfer Agreement and the
deletion of Deleted Mortgage Loans pursuant to the provisions of this
Agreement) transferred to the Trustee as part of the Trust Fund and from time
to time subject to this Agreement, attached hereto as Schedule I, setting
forth the following information with respect to each Mortgage Loan by Loan
Group:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the Mortgaged Property,
including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
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(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is either (a) a
detached single family dwelling (b) a dwelling in a de minimis PUD, (c) a
condominium unit or PUD (other than a de minimis PUD), (d) a two- to
four-unit residential property or (e) a Cooperative Unit;
(xi) the Mortgage Rate;
(xii) a code indicating whether the Mortgage Loan is a 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;
(xiii) the purpose for the Mortgage Loan;
(xiv) the type of documentation program pursuant to which the Mortgage
Loan was originated;
(xv) [Reserved]; 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. The Seller shall
update the Mortgage Loan Schedule in connection with each Supplemental
Transfer Agreement within a reasonable period of time after the delivery to it
of the Schedule of Supplemental Mortgage Loans attached to the related
Supplemental Transfer Agreement as Schedule A thereto.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time, net of any interest premium charged by the mortgagee to obtain
or maintain any Primary Insurance Policy.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
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Net Prepayment Interest Shortfalls: As to any Distribution Date and Loan
Group, the amount by which the aggregate of Prepayment Interest Shortfalls for
such Loan Group during the related Prepayment Period exceeds an amount equal
to the sum of (a) one-half of the aggregate Basic Master Servicing Fee for
such Loan Group for such Distribution Date before reduction of the Basic
Master Servicing Fee in respect of such Prepayment Interest Shortfalls and (b)
the excess of one-half of the aggregate Basic Master Servicing Fee with
respect to the Mortgage Loans of the other Loan Group for such Distribution
Date over Prepayment Interest Shortfalls experienced by the Mortgage Loans in
such other Loan Group during such Prepayment Period.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Discount Mortgage Loan: Any Mortgage Loan in a Loan Group with an
Adjusted Net Mortgage Rate that is greater than or equal to the Required
Coupon for such Loan Group.
Non-PO Formula Principal Amount: As to any Distribution Date and Loan
Group, the sum of the applicable Non-PO Percentage of (a) the principal
portion of each Scheduled Payment (without giving effect, prior to the
Bankruptcy Coverage Termination Date, to any reductions thereof caused by any
Debt Service Reductions or Deficient Valuations) due on each Mortgage Loan in
the related Loan Group on the related Due Date, (b) the Stated Principal
Balance of each Mortgage Loan in the related Loan Group that was repurchased
by the Seller or the Master Servicer pursuant to this Agreement as of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with
any Deleted Mortgage Loan in such Loan Group received with respect to such
Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds
allocable to recoveries of principal of Mortgage Loans in the related Loan
Group that are not yet Liquidated Mortgage Loans received during the calendar
month preceding the month of such Distribution Date, (e) with respect to each
Mortgage Loan in a Loan Group that became a Liquidated Mortgage Loan during
the calendar month preceding the month of such Distribution Date, the amount
of the Liquidation Proceeds allocable to principal received during the
calendar month preceding the month of such Distribution Date with respect to
such Mortgage Loan and (f) all Principal Prepayments for such Loan Group
received during the related Prepayment Period; and (g) on the last Conveyance
Period Distribution Date the amounts remaining in the Supplemental Loan
Account allocated to the related Loan Group other than the Remaining PO
Supplemental Amount, provided, however, that if a Bankruptcy Loss that is an
Excess Loss is sustained with respect to a Discount Mortgage Loan that is not
a Liquidated Mortgage Loan, the PO Formula Principal Amount will be reduced on
the related Distribution Date by the applicable PO Percentage of the principal
portion of such Bankruptcy Loss.
Non-PO Percentage: As to any Discount Mortgage Loan in a Loan Group, a
fraction (expressed as a percentage) the numerator of which is the Adjusted
Net Mortgage Rate of such Discount Mortgage Loan and the denominator of which
is the Required Coupon for such Loan Group. As to any Non-Discount Mortgage
Loan, 100%.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
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Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to any Distribution Date and the Class
1-A-2 Certificates, an amount equal to the Class Certificate Balance of the
Class 1-A-1 Certificates immediately prior to such Distribution Date. With
respect to any Distribution Date and the Class 1-A-9 Certificates, an amount
equal to the Class Certificate Balance of the Class 1-A-8 Certificates
immediately prior to such Distribution Date. With respect to any Distribution
Date and the Class CB-1 Certificates, an amount equal to the sum of: (a) the
product of (i) a fraction, the numerator of which is 0.50 and the denominator
of which is 7.00, and (ii) the aggregate Class Certificate Balance of the
Class CB-2, Class CB-3, Class CB-4, Class CB-5 and Class CB-6 Certificates
immediately prior to such Distribution Date and (b) the product of (i) a
fraction, the numerator of which is 0.25 and the denominator of which is 7.00,
and (ii) the aggregate Class Certificate Balance of the Class CB-7, Class
CB-8, Class CB-9, Class CB-10, Class CB-11 and Class CB-12 Certificates
immediately prior to such Distribution Date.
Notional Amount Certificates: As specified in the Preliminary Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) in the case of the Depositor,
signed by the Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President (however denominated), an
Assistant Vice President, the Treasurer, the Secretary, or one of the
Assistant Treasurers or Assistant Secretaries of the Depositor or the Master
Servicer, (ii) in the case of the Master Servicer, signed by the President, an
Executive Vice President, a Vice President, an Assistant Vice President, the
Treasurer, or one of the Assistant Treasurers or Assistant Secretaries of
Countrywide GP, Inc., its general partner or (iii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered to
the Depositor and the Trustee, as the case may be, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or the Master Servicer, including, in-house counsel, reasonably
acceptable to the Trustee; provided, however, that with respect to the
interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of the Depositor and the Master Servicer, (ii) not have
any direct financial interest in the Depositor or the Master Servicer or in
any affiliate of either, and (iii) not be connected with the Depositor or the
Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Optional Termination: The termination of the trust created hereunder in
connection with the purchase of the Mortgage Loans pursuant to Section 9.01(a)
hereof.
Original Applicable Credit Support Percentage: With respect to each of
the following Classes of Subordinated Certificates, the corresponding
percentage described below, as of the Closing Date:
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Class M 6.00%
Class B-1 3.10%
Class B-2 2.05%
Class B-3 1.15%
Class B-4 0.60%
Class B-5 0.35%
Original Mortgage Loan: The mortgage loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
Original Subordinated Principal Balance: On or prior to a Senior
Termination Date, the Subordinated Percentage for a Loan Group of the
aggregate of the applicable Non-PO Percentage of the Stated Principal Balances
of the Mortgage Loans in such Loan Group, in each case as of the Cut-off Date;
or if such date is after a Senior Termination Date, the aggregate of the
principal balances of the Subordinated Certificates as of the Cut-off 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) 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 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.
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.
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Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and credit of
the United States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency, or such lower
rating as will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by each Rating Agency;
(iii) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating of
each Rating Agency, or such 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.
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Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(1) of the
Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in Section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, or an estate or
trust whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust
unless such Person has furnished the transferor and the Trustee with a duly
completed Internal Revenue Service Form W-8ECI or any applicable successor
form, and (vii) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause the REMIC hereunder to fail to qualify as
a REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Balance: With respect to any Planned Principal Class or Component
and any Distribution Date appearing in Schedule IV hereto, such Class' or
Component's portion of the amount appearing opposite such Distribution Date
for such Class or Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Planned Principal Components: As specified in the Preliminary Statement.
PO Formula Principal Amount: As to any Distribution Date and Class PO
Component, the sum of the applicable PO Percentage of (a) the principal
portion of each Scheduled Payment (without giving effect, prior to the
Bankruptcy Coverage Termination Date, to any reductions thereof caused by any
Debt Service Reductions or Deficient Valuations) due on each Mortgage Loan in
the related Loan Group on the related Due Date, (b) the Stated Principal
Balance of each Mortgage Loan in the related Loan Group that was repurchased
by the Seller or the Master
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Servicer pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan in
the related Loan Group received with respect to such Distribution Date, (d)
any Insurance Proceeds or Liquidation Proceeds allocable to recoveries of
principal of Mortgage Loans in the related Loan Group that are not yet
Liquidated Mortgage Loans received during the calendar month preceding the
month of such Distribution Date, (e) with respect to each Mortgage Loan in the
related Loan Group that became a Liquidated Mortgage Loan during the month
preceding the calendar month of such Distribution Date, the amount of
Liquidation Proceeds allocable to principal received with respect to such
Mortgage Loan during the month preceding the month of such Distribution Date
with respect to such Mortgage Loan, (f) all Principal Prepayments with respect
to the Mortgage Loans in the related Loan Group received during the related
Prepayment Period and (g) on the last Conveyance Period Distribution Date, the
Remaining PO Supplemental Loan Amount.
PO Percentage: As to any Discount Mortgage Loan in a Loan Group, a
fraction (expressed as a percentage) the numerator of which is the excess of
the Required Coupon for such Loan Group over the Adjusted Net Mortgage Rate of
such Discount Mortgage Loan and the denominator of which is such Required
Coupon. As to any Non-Discount Mortgage Loan, 0%.
Pool Stated Principal Balance: As to any Distribution Date, the aggregate
of the Stated Principal Balances of the Mortgage Loans which were Outstanding
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date.
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 the Cut-off Date) 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
Basic Master Servicing Fee Rate and, so long as Countrywide Home Loans
Servicing LP is the Master Servicer, the related Excess 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, the period from the 16th
day of the calendar month preceding the month of such Distribution Date (or,
in the case of the first Distribution Date, from the Cut-off Date) through the
15th of the 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%. Thereafter, the
Prepayment Shift Percentage for any Distribution Date occurring on or after
the fifth anniversary of the first Distribution Date will be 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,
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60%; for any Distribution Date occurring in the fourth year thereafter, 80%;
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.
Primary Planned Principal Classes: 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.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Prospectus Supplement: The Prospectus Supplement dated June 25, 2002
relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to Section 2.02 or 2.03 hereof or purchased
at the option of the Master Servicer pursuant to Section 3.11, an amount equal
to the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on
the date of such purchase, and (ii) accrued interest thereon at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x) the
purchaser is the Master Servicer or (y) if the purchaser is the Seller and the
Seller is 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.
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
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mortgage insurer and having a claims paying ability rating of at least "AA" or
equivalent rating by a nationally recognized statistical rating organization.
Any replacement insurer with respect to a Mortgage Loan must have at least as
high a claims paying ability rating as the insurer it replaces had on the
Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein
to a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus (ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation
Proceeds are required to be distributed on the Stated Principal Balance of
such Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation
occurred, to the extent applied as recoveries of interest at the Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation,
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
Recognition Agreement: With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative Property.
Record Date: With respect to any Distribution Date, the close of business
on the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Reference Bank: As defined in Section 4.07.
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any,
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by which (i) interest collectible on such Mortgage Loan for the most recently
ended calendar month is less than (ii) interest accrued thereon for such month
pursuant to the Mortgage Note.
Remaining Available Funds: As to any Distribution Date and Loan Group,
Available Funds for such Loan Group remaining after making the distributions
pursuant to, with respect to Loan Group 1, Section 4.02(a)(1) and with respect
to Loan Group 2, Section 4.02(a)(2).
Remaining Non-PO Supplemental Loan Amount: With respect to the last
Conveyance Period Distribution Date, the excess of the amount on deposit in
the Supplemental Loan Account on such date over the Remaining PO Supplemental
Loan Amount for the Loan Group 1 Supplemental Loan Amount or the Loan Group 2
Supplemental Loan Amount, as applicable.
Remaining PO Supplemental Loan Amount: With respect to the Class PO-1
component and last Conveyance Period Distribution Date, the excess of $865,161
over the product of the PO Percentage and the Stated Principal Balance of each
Supplemental Mortgage Loan in Loan Group 1 as of the related Supplemental
Cut-off Date. With respect to the Class PO-2 Component and the last Conveyance
Period Distribution Date, the excess of $0 over the product of the PO
Percentage and the Stated Principal Balance of each Supplemental Mortgage Loan
in Loan Group 2 as of the related Supplemental Cut-off Date.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation, revenue
ruling, revenue procedure or other official announcement or interpretation
relating to REMICs and the REMIC Provisions issued after the Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Coupon: 7.00% 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
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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).
Scheduled Balances: With respect to the Planned Principal Classes and
Targeted Principal Classes set forth in the Preliminary Statement and any
Distribution Date, the amount set forth on Schedule V hereto for that Class
and Distribution Date.
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 and
Loan Group, an amount equal to the sum of all amounts described in clauses (a)
through (d) of the definition of Non-PO Formula Principal Amount for such
Distribution Date and Loan Group; provided, however, that if a Bankruptcy Loss
that is an Excess Loss is sustained with respect to a Mortgage Loan in such
Loan Group that is not a Liquidated Mortgage Loan, the Scheduled Principal
Distribution Amounts for that Loan Group will be reduced on the related
Distribution Date by the applicable Non-PO Percentage of the principal portion
of such Bankruptcy Loss.
Secondary Planned Principal Classes: As specified in the Preliminary
Statement.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide Home Loans, Inc., a New York corporation, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Senior Certificate Group: As specified in the Preliminary Statement.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of Subordinated Certificates has been
reduced to zero.
Senior Percentage: As to any Senior Certificate Group and Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate of the Class Certificate Balances of each Class of Senior
Certificates of such Senior Certificate Group (other than the applicable Class
PO Component) immediately prior to such date and the denominator of which is
the aggregate of the applicable Non-PO Percentage of the Stated Principal
Balance of each Mortgage Loan in the related Loan Group as of the Due Date in
the month of such Distribution Date; provided, however, that on any
Distribution Date after a Senior Termination Date, the Senior Percentage for
the Senior Certificates of the remaining Senior Certificate Group is the
percentage equivalent of a fraction, the numerator of which is the aggregate
of the Class Certificate Balances of each such Class of Senior Certificates
(other than the applicable Class PO
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Component) immediately prior to such date and the denominator is the aggregate
of the Class Certificate Balances of all Classes of Certificates (other than
the Class PO Certificates), immediately prior to such date.
Senior Prepayment Percentage: As to a Senior Certificate Group and any
Distribution Date during the five years beginning on the first Distribution
Date, 100%. The Senior Prepayment Percentage for any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in
the first year thereafter, the related Senior Percentage plus 70% of the
related Subordinated Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the related Senior Percentage
plus 60% of the related Subordinated Percentage for such Distribution Date;
for any Distribution Date in the third year thereafter, the related Senior
Percentage plus 40% of the related Subordinated Percentage for such
Distribution Date; for any Distribution Date in the fourth year thereafter,
the related Senior Percentage plus 20% of the related Subordinated Percentage
for such Distribution Date; and for any Distribution Date thereafter, the
related Senior Percentage for such Distribution Date (unless on any
Distribution Date the Senior Percentage exceeds the initial Senior Percentage
of such Senior Certificate Group, in which case the Senior Prepayment
Percentage for such Distribution Date will once again equal 100%).
Notwithstanding the foregoing, no decrease in the Senior Prepayment Percentage
will occur unless both of the Senior Step Down Conditions are satisfied with
respect to both Loan Groups.
Senior Principal Distribution Amount: As to any Distribution Date and
Senior Certificate Group, the sum of (i) the sum, not less than zero, of the
Senior Percentage of (x) the applicable Non-PO Percentage of all amounts
described in clauses (a) through (d) of the definition of "Non-PO Formula
Principal Amount" with respect to the related Loan Group for such Distribution
Date and (y) on the last Conveyance Period Distribution Date, the related
Remaining Non-PO Supplemental Amount, (ii) with respect to any Mortgage Loan
in the related Loan Group that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the lesser of
(x) the related Senior Percentage of the applicable Non-PO Percentage of the
Stated Principal Balance of such Mortgage Loan and (y) either (A) the related
Senior Prepayment Percentage, or (B) if an Excess Loss was sustained with
respect to such Liquidated Mortgage Loan during such prior calendar month, the
related Senior Percentage, of the applicable Non-PO Percentage of the amount
of the Liquidation Proceeds allocable to principal received with respect to
such Mortgage Loan, and (iii) the sum of (x) the related Senior Prepayment
Percentage of the applicable Non-PO Percentage of the amounts described in
clause (f) of the definition of "Non-PO Formula Principal Amount" with respect
to the related Loan Group for such Distribution Date plus (y) on the last
Conveyance Period Distribution Date, the amount, if any, of the related
Remaining Non-PO Supplemental Amount not applied in clause (i) hereof
provided, however that if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to a Mortgage Loan in the related Loan Group that is
not a Liquidated Mortgage Loan, the Senior Principal Distribution Amount will
be reduced on the related Distribution Date by the related Senior Percentage
of the applicable Non-PO Percentage of the principal portion of such
Bankruptcy Loss; provided further, however, on any Distribution Date after a
Senior Termination Date, the Senior Principal Distribution Amount for the
remaining Senior Certificate Group will be calculated pursuant to the above
formula based on all the Mortgage Loans in the Mortgage Pool, as opposed to
the Mortgage Loans in the related Loan Group and, if such
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Distribution Date is a Senior Termination Date, shall be reduced by the amount
of the principal distribution made pursuant to (a) if the Loan Group 1 Senior
Certificates are reduced to zero on such date, Section 4.02(a)(1)(iv)(y) or
(b) if the Loan Group 2 Senior Certificates are reduced to zero on such date,
Section 4.02(a)(2)(iv)(y).
Senior Step Down Conditions: With respect to each Loan Group: (i) the
outstanding principal balance of all Mortgage Loans in a Loan Group delinquent
60 days or more (averaged over the preceding six month period), as a
percentage of (a) if such date is on or prior to a Senior Termination Date,
the Subordinated Percentage for such Loan Group of the aggregate of the
applicable Non-PO Percentage of the aggregate Stated Principal Balances of the
Mortgage Loans in that Loan Group, or (b) if such date is after a Senior
Termination Date, the aggregate Class Certificate Balance of the Subordinated
Certificates, does not equal or exceed 50%, and (ii) cumulative Realized
Losses on the Mortgage Loans in each Loan Group do not exceed: (a) for the
Distribution Date on the fifth anniversary of the first Distribution Date, 30%
of the Original Subordinate Principal Balance, (b) for the Distribution Date
on the sixth anniversary of the first Distribution Date, 35% of the Original
Subordinated Principal Balance, (c) for the Distribution Date on the seventh
anniversary of the first Distribution Date, 40% of the Original Subordinated
Principal Balance, (d) for the Distribution Date on the eighth anniversary of
the first Distribution Date, 45% of the Original Subordinated Principal
Balance, and (e) for the Distribution Date on the ninth anniversary of the
first Distribution Date, 50% of the Original Subordinated Principal Balance.
Senior Termination Date: For Senior Certificate Group 1, the Distribution
Date on which the Class Certificate Balance of the Loan Group 1 Senior
Certificates (other than the Class PO-1 Component) has been reduced to zero.
For Senior Certificate Group 2, the Distribution Date on which the Class
Certificate Balances of the Loan Group 2 Senior Certificates (other than the
Class PO-2 Component) have been reduced to zero.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations, including, but not limited to, the cost of (i)
the preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.09.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Shift Percentage: Not applicable.
Special Hazard Coverage Termination Date: The point in time at which the
Special Hazard Loss Coverage Amount is reduced to zero.
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Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to
be maintained with respect to such Mortgaged Property pursuant to Section 3.09
to the extent of the amount of such loss covered thereby, or (ii) any loss
caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, the Master Servicer or any of their agents or employees
(without regard to any portion of the loss not covered by any errors
and omissions policy);
(c) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and
then only for the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate
or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss;"
(e) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against an
actual, impending or expected attack:
1. by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using military, naval
or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or
other radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering,
combating or defending against such an occurrence, seizure or
destruction under quarantine or customs regulations, confiscation by
order of any government or public authority or risks of contraband
or illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $9,613,291. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged Properties
located in the single California postal zip code area having the highest
aggregate principal balance of any such zip code area and (b) the Special
Hazard Loss Coverage Amount as of the Closing Date less the amount, if any, of
Special Hazard Losses allocated to the Certificates since the Closing Date.
All principal balances for the purpose of this definition will be calculated
as of the first day of the
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calendar month preceding the month of such Distribution Date after giving
effect to Scheduled Payments on the Mortgage Loans then due, whether or not
paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
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.
SR Interest: The sole class of "residual interest" in the Subsidiary
REMIC.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to any previous partial
Principal Prepayments and Liquidation Proceeds allocable to principal (other
than with respect to any Liquidated Mortgage Loan) and to the payment of
principal due on such Due Date and irrespective of any delinquency in payment
by the related Mortgagor.
Streamlined Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to the Seller's Streamlined Loan Documentation Program then in
effect.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date on or prior to a
Senior Termination Date and any Loan Group, 100% minus the Senior Percentage
for the Senior Certificate Group relating to such Loan Group for such
Distribution Date. As to any Distribution Date after a Senior Termination
Date, 100% minus the Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior Prepayment Percentage for such
Distribution Date.
Subordinated Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the excess of (A) the
sum, not less than zero, of the sum of (i) the Subordinated Percentage of (x)
the applicable Non-PO Percentage for such Loan Group of all amounts described
in clauses (a) through (d) of the definition of "Non-PO Formula Principal
Amount" for such Distribution Date and (y) on the last Conveyance Period
Distribution Date, the Remaining Non-PO Supplemental Amount for such Loan
Group, (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
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Amount, up to the Subordinated Percentage for such Loan Group of the
applicable Non-PO Percentage of the Stated Principal Balance of such Mortgage
Loan and (iii) the Subordinated Prepayment Percentage of the applicable Non-PO
Percentage of all amounts described in clause (f) of the definition of "Non-PO
Formula Principal Amount" for such Loan Group and Distribution Date reduced by
(B) the amount of any payments in respect of Class PO Deferred Amounts for the
related Class PO Component on the related Distribution Date, provided,
however, that on any Distribution Date after a Senior Termination Date, the
Subordinated Principal Distribution Amount will not be calculated by Loan
Group but will equal the amount calculated pursuant to the formula set forth
above based on the applicable Subordinated Percentage for the Subordinated
Certificates for such Distribution Date with respect to all of the Mortgage
Loans as opposed to the Mortgage Loans in the related Loan Group.
Subservicer: Any person to whom the Master Servicer has contracted for
servicing of all or a portion of the Mortgage Loans pursuant to Section 3.02
hereof
Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC Interests or
the SR Interest.
Subsidiary REMIC Regular Interest: Any one of the "regular interests" in
the Subsidiary REMIC described in the Preliminary Statement.
Supplemental Amount: The amount deposited in the Supplemental Loan
Account on the Closing Date, which shall equal $45,833,307.22, of which
$43,236,137.17 shall be allocated to purchase Supplemental Mortgage Loans for
Loan Group 1 (the "Loan Group 1 Supplemental Loan Amount") and $2,597,170.05
shall be allocated to purchase Supplemental Mortgage Loans for Loan Group 2
(the "Loan Group 2 Supplemental Loan Amount").
Supplemental Loan Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New
York, in trust for registered holders of CWMBS, Inc., Mortgage Pass-Through
Certificates, Series 2002-11." Funds in the Supplemental Loan Account shall be
held in trust for the Certificateholders for the uses and purposes set forth
in this Agreement and shall not be a part of any REMIC created hereunder;
provided, however, that any investment income earned from Permitted
Investments made with funds in the Supplemental Loan Account shall be for the
account of the Depositor.
Supplemental Mortgage Loan: Any Mortgage Loan other than an Initial
Mortgage Loan conveyed to the Trust Fund pursuant to Section 2.01 hereof and
to a Supplemental Transfer Agreement, which Mortgage Loan shall be listed on
the revised Mortgage Loan Schedule delivered pursuant to this Agreement and on
Schedule A to such Supplemental Transfer Agreement. When used with respect to
a single Supplemental Transfer Date, Supplemental Mortgage Loan shall mean a
Supplemental Mortgage Loan conveyed to the Trust Fund on that Supplemental
Transfer Date.
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Supplemental Transfer Agreement: A Supplemental Transfer Agreement
substantially in the form of Exhibit P hereto, executed and delivered by the
Seller, the Master Servicer, the Depositor and the Trustee as provided in
Section 2.01 hereof.
Supplemental Transfer Date: For any Supplemental Transfer Agreement, the
date the related Supplemental Mortgage Loans are transferred to the Trust Fund
pursuant to the related Supplemental Transfer Agreement.
Support Classes: As specified in the Preliminary Statement.
Substitute Mortgage Loan: A Mortgage Loan substituted by the 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.
Targeted Balances: With respect to any Targeted Principal Classes or
Components and any Distribution Date appearing in Schedule IV hereto, the
applicable amount appearing opposite such Distribution Date for such
respective Class or Component.
Targeted Principal Classes: As specified in the Preliminary Statement.
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulationss. 1.860F-4(d) and temporary
Treasury regulationss. 301.6231(a)(7)1T. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.05.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trustee Fee: As to any Distribution Date, an amount equal to one-twelfth
of the Trustee Fee Rate multiplied by the sum of (i) the Pool Stated Principal
Balance plus (ii) any amounts remaining in the Supplemental Loan Account
(excluding any investment earnings thereon) with respect to such Distribution
Date.
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Trustee Fee Rate: With respect to each Mortgage Loan, the per annum rate
agreed upon in writing on or prior to the Closing Date by the Trustee and the
Depositor.
Trust Fund: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loans and all interest and principal received on or with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance thereof; (ii) the Certificate Account, the
Distribution Account, the Supplemental Loan Account and Capitalized Interest
Account, and all amounts deposited therein pursuant to the applicable
provisions of this Agreement; (iii) property that secured a Mortgage Loan and
has been acquired by foreclosure, deed-in-lieu of foreclosure or otherwise;
and (iv) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Underwriter's Exemption: Prohibited Transaction Exemption 2000-58, 65
Fed. Reg. 67765 (2000), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Unscheduled Principal Distribution Amount: As to any Distribution Date
and Loan Group, an amount equal to the sum of (i) with respect to each
Mortgage Loan in that Loan Group that became a Liquidated Mortgage Loan during
the calendar month preceding the month of such Distribution Date, the Non-PO
Percentage of the Liquidation Proceeds allocable to principal received with
respect to such Mortgage Loan, (ii) the applicable Non-PO Percentage of the
amount described in clause (f) of the definition of "Non-PO Formula Principal
Amount" for such Distribution Date and (iii) the amount described in clause
(g) of the definition of "Non-PO Formula Principal Amount" for that Loan Group
and 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
Notional Amount Certificates, if any (such Voting Rights to be allocated among
the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on
such date.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans
(a) The Seller, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the
Depositor, without recourse, all the right, title and interest of the Seller
in and to the Initial Mortgage Loans, including all interest and principal
received or receivable by the Seller on or with respect to the Initial
Mortgage Loans after the Initial Cut-off Date and all interest and principal
payments on the Mortgage Loans received prior to the Initial Cut-off Date in
respect of installments of interest and principal due thereafter, but not
including payments of principal and interest due and payable on the Mortgage
Loans on or before the Initial Cut-off Date. On or prior to the Closing Date,
the Seller 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, such delivery may take place within
thirty (30) days following the Closing Date or twenty (20) days following the
applicable Supplemental Transfer Date, as applicable). Such delivery of the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Seller and Depositor, for the Mortgage
Loans. With respect to any Initial Mortgage Loan that does not have a first
payment date on or before the Due Date in the month of the first Distribution
Date or any Supplemental Mortgage Loan that does not have a first payment date
on or before the Due Date in the month after the related Supplemental Transfer
Date, the Seller shall deposit into the Distribution Account on or before the
Distribution Account Deposit Date relating to the applicable Distribution
Date, an amount equal to one month's interest at the related Adjusted Mortgage
Rate on the Cut-off Date Principal Balance of such Mortgage Loan.
(b) Immediately upon the conveyance of the Initial Mortgage Loans
referred to in clause (a), the Depositor sells, transfers, assigns, sets over
and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund together with the Depositor's right to
require the Seller to cure any breach of a representation or warranty made
herein by the Seller or to repurchase or substitute for any affected Mortgage
Loan in accordance herewith.
(c) In connection with the transfer and assignment set forth in clause
(b) above, the Depositor has delivered or caused to be delivered to the
Trustee (or, in the case of the Delay Delivery Mortgage Loans that are Initial
Mortgage Loans, will deliver or cause to be delivered to the Trustee within
thirty (30) days following the Closing Date and in the case of the Delay
Delivery Mortgage Loans that are Supplemental Mortgage Loans, will deliver or
cause to be delivered to the Trustee within twenty (20) days following the
applicable Supplemental Transfer Date) for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) (A) the original Mortgage Note endorsed by manual or
facsimile signature in blank in the following form: "Pay to the
order of ____________ without recourse," with
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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 the Seller stating that the original Mortgage Note
was lost or destroyed, together with a copy of such Mortgage Note;
(ii) except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or a
copy of such Mortgage certified by the Seller as being a true and
complete copy of the Mortgage (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the Commonwealth
of Puerto Rico, a true copy of the Mortgage certified as such by the
applicable notary) and in the case of each MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the Mortgage
Loans and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was
not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded;
(iii) in the case of each Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage (which may
be included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of such
mortgage (each such assignment, when duly and validly completed, to
be in recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the
assignment relates); provided that, if the related Mortgage has not
been returned from the applicable public recording office, such
assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such
assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
(v) except as provided below, the original or duplicate
original lender's title policy or a printout of the electronic
equivalent and all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) The Coop Shares, together with a stock power in blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
II-2
(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).
In addition, in connection with the assignment of any MERS Mortgage Loan,
the Seller agrees that it will cause, at the Trustee's expense, the MERS(R)
System to indicate that such Mortgage Loans have been assigned by the Seller
to the Trustee in accordance with this Agreement (and any Supplemental
Transfer Agreement, as applicable) for the benefit of the Certificateholders
by including (or deleting, in the case of Mortgage Loans which are repurchased
in accordance with this Agreement) in such computer files the information
required by the MERS(R) System to identify the series of the Certificates
issued in connection with such Mortgage Loans. The 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 during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the
terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage,
(b) all interim recorded assignments or (c) the lender's title policy
(together with all riders thereto) satisfying the requirements of clause (ii),
(iii) or (v) above, respectively, concurrently with the execution and delivery
hereof because such document or documents have not been returned from the
applicable public recording office in the case of clause (ii) or (iii) above,
or because the title policy has not been delivered to either the Master
Servicer or the Depositor by the applicable title insurer in the case of
clause (v) above, the Depositor shall promptly deliver to the Trustee, in the
case of clause (ii) or (iii) above, such original Mortgage or such interim
assignment, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office, but in no event
shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or,
in the case of clause (v) above, no later than 120 days following the Closing
Date; provided, however, in the event the Depositor is unable to deliver by
such date each Mortgage and each such interim assignment by reason of the fact
that any such documents have not been returned by the appropriate recording
office, or, in the case of each such interim assignment, because the related
Mortgage has not been returned by the appropriate recording office, the
Depositor shall deliver such documents to the Trustee as promptly as possible
upon receipt thereof and, in any event, within 720 days following the Closing
Date. The Depositor shall forward or cause to be forwarded to the Trustee (a)
from time to time additional original documents evidencing an assumption or
modification of a Mortgage Loan and (b) any other documents required to be
delivered by the Depositor or the Master Servicer to the Trustee. In the event
that the original Mortgage is not delivered and in connection with the payment
in full of
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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, the Seller shall deliver to the
Trustee a copy of such Mortgage certified by such public recording office to
be a true and complete copy of the original recorded Mortgage.
As promptly as practicable subsequent to such transfer and assignment,
and in any event, within thirty (30) days thereafter, the Trustee shall (i) as
the assignee thereof, affix the following language to each assignment of
Mortgage: "CWMBS Series 2002-11, The Bank of New York, as trustee", (ii) cause
such assignment to be in proper form for recording in the appropriate public
office for real property records and (iii) cause to be delivered for recording
in the appropriate public office for real property records the assignments of
the Mortgages to the Trustee, except that, with respect to any assignments of
Mortgage as to which the Trustee has not received the information required to
prepare such assignment in recordable form, the Trustee's obligation to do so
and to deliver the same for such recording shall be as soon as practicable
after receipt of such information and in any event within thirty (30) days
after receipt thereof and that the Trustee need not cause to be recorded any
assignment which relates to a Mortgage Loan (a) the Mortgaged Property and
Mortgage File relating to which are located in California or (b) in any other
jurisdiction (including Puerto Rico) under the laws of which in the opinion of
counsel the recordation of such assignment is not necessary to protect the
Trustee's and the Certificateholders' interest in the related Mortgage Loan.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee, will deposit in the Certificate Account the portion of such payment
that is required to be deposited in the Certificate Account pursuant to
Section 3.05 hereof.
Notwithstanding anything to the contrary in this Agreement, within thirty
days after the Closing Date with respect to the Initial Mortgage Loans, the
Seller shall either (i) deliver to the Depositor, or at the Depositor's
direction, to the Trustee or other designee of the Depositor the Mortgage File
as required pursuant to this Section 2.01 for each Delay Delivery Mortgage
Loan or (ii) (A) substitute a Substitute Mortgage Loan for the Delay Delivery
Mortgage Loan or (B) repurchase the Delayed 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 the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the thirty-day period provided in the
prior sentence, the Seller 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 the Seller shall have five (5)
Business Days to cure such failure to deliver. At the end of such thirty-day
period the Trustee shall send a Delay Delivery Certification for the Delay
Delivery Mortgage Loans delivered during such thirty-day period in accordance
with the provisions of Section 2.02.
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Notwithstanding anything to the contrary in this Agreement, within twenty
days after a Supplemental Transfer Date with respect to the Supplemental
Mortgage Loans only, the Seller shall either (i) deliver to the Depositor, or
at the Depositor's direction, to the Trustee or other designee of the
Depositor the Mortgage File as required pursuant to this Section 2.01 for each
Delay Delivery Mortgage Loan or (ii) (A) substitute a Substitute Mortgage Loan
for the Delay Delivery Mortgage Loan or (B) repurchase the Delayed 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 the Seller fails to deliver a
Mortgage File for any Delay Delivery Mortgage Loan within the twenty day
period provided in the prior sentence, the Seller 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 the Seller
shall have five (5) Business Days to cure such failure to deliver. At the end
of such twenty day period the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such
twenty day period in accordance with the provisions of Section 2.02.
(d) Subject to the execution and delivery of the related Supplemental
Transfer Agreement as provided in Section 2.01(e) hereof and the terms and
conditions of this Agreement, the Seller sells, transfers, assigns, sets over
and otherwise conveys to the Depositor, without recourse, on each Supplemental
Transfer Date, all the right, title and interest of the Seller in and to the
Supplemental Mortgage Loans identified in such Supplemental Transfer
Agreement, including all interest and principal received and receivable by the
Seller on or with respect to such Supplemental Mortgage Loans on and after the
related Supplemental Cut-off Date (to the extent not applied in computing the
Cut-off Date Principal Balance thereof) or deposited into the Certificate
Account by the Seller, other than principal and interest due on such
Supplemental Mortgage Loans prior to the related Supplemental Cut-off Date.
Immediately upon the conveyance of the Supplemental Mortgage Loans
referred to in the preceding paragraph, the Depositor sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for benefit of the
Certificateholders, without recourse, all right title and interest in the
Supplemental Mortgage Loans.
The Seller has entered into this Agreement in consideration for the
purchase of the Mortgage Loans by the Depositor and has agreed to take the
actions specified herein. The Depositor, concurrently with the execution and
delivery of this Agreement, hereby sells, transfers, assigns and otherwise
conveys to the Trustee for the use and benefit of the Certificateholders,
without recourse, all right title and interest in the portion of the Trust
Fund not otherwise conveyed to the Trust Fund pursuant to Sections 2.01(a) or
(b).
(e) On (x) the last Business Day of the month of the Closing Date and (y)
upon five (5) Business Days written notice to the Trustee, the Depositor, the
Master Servicer (if the Master Servicer is not the Seller) and the Rating
Agencies, on any other Business Day during the Conveyance Period designated by
the Seller, the Seller, the Depositor and the Trustee shall complete, execute
and deliver a Supplemental Transfer Agreement
II-5
so long as no Rating Agency has provided notice that the execution and
delivery of such Supplemental Transfer Agreement will result in a reduction or
withdrawal of the any ratings assigned to the Certificates. After the
execution and delivery of such Supplemental Transfer Agreement, on the
Supplemental Transfer Date, the Trustee shall set aside in the Supplemental
Loan Account an amount equal to the Aggregate Supplemental Purchase Amount.
The transfer of Supplemental Mortgage Loans and the other property and
rights relating to them on a Supplemental Transfer Date is subject to the
satisfaction of each of the following conditions:
(i) each Supplemental Mortgage Loan conveyed on such Supplemental
Transfer Date satisfies the representations and warranties applicable to
it under this Agreement; provided, however, that with respect to a breach
of a representation and warranty with respect to a Supplemental Mortgage
Loan, the obligation under Section 2.03(c) of this Agreement of the
Seller to cure, repurchase or replace such Supplemental Mortgage Loan
shall constitute the sole remedy against the Seller respecting such
breach available to Certificateholders, the Depositor or the Trustee;
(ii) the Trustee, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxx Securities Inc. and the Rating Agencies are
provided with an Opinion of Counsel or Opinions of Counsel with respect
to the tax treatment of the Trust Fund, to be delivered as provided
pursuant to Section 2.01(f);
(iii) the Rating Agencies, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and X.X. Xxxxxx Securities Inc. are provided with an Opinion
of Counsel or Opinions of Counsel with respect to the validity of the
conveyance of the Supplemental Mortgage Loans conveyed on such
Supplemental Transfer Date, to be delivered as provided pursuant to
Section 2.01(f);
(iv) the execution and delivery of such Supplemental Transfer
Agreement or conveyance of the related Supplemental Mortgage Loans does
not result in a reduction or withdrawal of any ratings assigned to the
Certificates by the Rating Agencies;
(v) the Supplemental Mortgage Loans conveyed on such Supplemental
Transfer Date were selected in a manner reasonably believed not to be
adverse to the interests of the holders of certificates in either
Certificate Group;
(vi) no Supplemental Mortgage Loan conveyed on such Supplemental
Transfer date was 60 or more days delinquent;
(vii) the aggregate Class PO Percentage of the Stated Principal
Balance of all Supplemental Mortgage Loans shall not exceed $865,161for
Loan Group 1 and $0 for Loan Group 2.
(viii) following the conveyance of the Supplemental Mortgage Loans
on such Supplemental Transfer Date to the Trust Fund, the characteristics
of the Mortgage Loans in a Loan Group will not vary by more than the
amounts indicated below; provided however that for the purposes of making
such calculations, the characteristics for any Initial Mortgage Loan made
will be taken as of the Initial Cut-off Date and the
II-6
characteristics for any Supplemental Mortgage Loan will be taken as of
the applicable Cut-off Date:
Permitted
Variance
----------
Loan Group 1...........................................................
Average Stated Principal Balance....................................... $428,260 10%
Weighted Average Mortgage Rate......................................... 7.60% 10 basis points
Weighted Average Loan-to-Value Ratio................................... 77.05% 5%
Weighted Average Remaining Term to Stated Maturity..................... 359 months 2 months
Loan Group 2...........................................................
Average Stated Principal Balance....................................... $129,496 10%
Weighted Average Mortgage Rate......................................... 7.68% 10 basis points
Weighted Average Loan-to-Value Ratio................................... 81.52% 5%
Weighted Average Remaining Term to Stated Maturity..................... 359 months 2 months
(ix) neither the Seller nor the Depositor shall be insolvent or
shall be rendered insolvent as a result of such transfer; and
(x) the Depositor shall have delivered to the Trustee an Officer's
Certificate confirming the satisfaction of each of these conditions
precedent.
The Trustee shall not be required to investigate or otherwise verify
compliance with these conditions, except for its own receipt of documents
specified above, and shall be entitled to rely on the required Officer's
Certificate.
(f) Within seven Business Days after each Supplemental Transfer Date,
upon (1) delivery to the Trustee by the Depositor or the Seller of the
Opinions of Counsel referred to in Sections 2.01(e)(ii) and (iii), (2)
delivery to the Trustee by the Seller of a revised Mortgage Loan Schedule
reflecting the Supplemental Mortgage Loans conveyed on such Supplemental
Transfer Date reflecting the Loan Group into which each Supplemental Mortgage
Loan was conveyed and (3) delivery to the Trustee by the Depositor of an
Officer's Certificate confirming the satisfaction of each of the conditions
precedent set forth in Section 2.01(e) and (f), the Trustee shall pay the
Seller the Aggregate Supplemental Transfer Amount from those funds that were
set aside in the Supplemental Loan Account pursuant to Section 2.01(e). The
positive difference, if any, between the Aggregate Supplemental Transfer
Amount for a Loan Group and the Supplemental Transfer Purchase Amount for that
Loan Group shall be reinvested by the Trustee in the Supplemental Loan Account
and shall remain designated as a portion of the Loan Group 1 Supplemental Loan
Amount or the Loan Group 2 Supplemental Loan Amount, as applicable.
The Trustee shall not be required to investigate or otherwise verify
compliance with the conditions set forth in the preceding paragraph, except
for its own receipt of documents specified above, and shall be entitled to
rely on the required Officer's Certificate.
II-7
Within thirty days after each Supplemental Transfer Date, the Depositor
shall deliver to the Trustee a letter of a nationally recognized firm of
independent public accountants stating, on a Loan Group basis, whether or not
the Supplemental Mortgage Loans conveyed on such Supplemental Transfer Date
conform to the characteristics in Section 2.01(e)(vi), (vii) and (viii).
(g) The Supplemental Mortgage Loans conveyed on the Supplemental Transfer
Date shall be determined by the Seller as follows:
(i) The Seller shall list all funded mortgage loans then owned
by it eligible for inclusion in the Trust Fund that individually
qualify for inclusion in the Mortgage Pool (the "Potential Mortgage
Loans") by the date on which they were funded, and for each date,
numerically by the loan number assigned to it by the Seller.
Beginning with the earliest date, sequentially by date and within a
date numerically, the Potential Mortgage Loans shall be included
first in Loan Group 1 and then in Loan Group 2 until the aggregate
Stated Principal Balance of the Potential Mortgage Loans allocated
to a Loan Group is equal to or as close as possible to but does not
exceed the Aggregate Supplemental Transfer Amount for such
Supplemental Transfer Date with respect to that Loan Group or all of
the Potential Mortgage Loans have been allocated. The inclusion of
Potential Mortgage Loans in either Loan Group pursuant to the
preceding sentence is subject to the following conditions:
(A) With respect to Loan Group 1: Once the Potential Mortgage
Loans to be included in Loan Group 1 are identified as provided in
the preceding paragraph, the entire potential mortgage loan pool for
Loan Group 1 in its entirety shall be tested for compliance with the
Characteristics of the Group 1 Mortgage Loans provided in Section
2.01(e)(viii) after taking into account the addition of the
Potential Mortgage Loans to be included in Loan Group 1. If any of
the Characteristics of the Group 1 Mortgage Loans is outside any
permitted parameter (after giving effect to the variance permitted
thereto pursuant to Section 2.01(e)(viii)), then beginning with the
last Potential Mortgage Loan initially added to Loan Group 1 and
progressing in reverse order, any Potential Mortgage Loan having a
characteristic that is outside of the permitted parameters of the
Characteristics of the Group 1 Mortgage Loans violated by the total
potential mortgage loan pool for Loan Group 1 shall be removed.
(B) With respect to Loan Group 2: Once the Potential Mortgage
Loans to be included in Loan Group 2 are identified as provided in
the preceding paragraph, the entire potential mortgage loan pool for
Loan Group 2 in its entirety shall be tested for compliance with the
Characteristics of the Group 2 Mortgage Loans provided in Section
2.02(e)(viii) after taking into account the addition of the
Potential Mortgage Loans to be included in Loan Group 2. If any of
the Characteristics of the Group 2 Mortgage Loans is outside any
permitted parameter (after giving effect to the variance permitted
thereto pursuant to Section 2.02(e)(viii)), then beginning with the
last Potential Mortgage Loan initially added to Loan Group 2 and
progressing in reverse order, any Potential Mortgage Loan having a
characteristic that is outside of the permitted parameters of the
Characteristics of the Group 2 Mortgage Loans violated by the total
potential mortgage loan pool for Loan Group 2 shall be removed.
II-8
(ii) If Potential Mortgage Loans have been removed from either
Loan Group they shall (to the extent required) be added to the other
Loan Group in accordance with the procedures described in the
preceding paragraph (i.e., first by date and within a date
numerically by loan number) except that no Potential Mortgage Loan
shall be added if it has a characteristic that is outside of the
permitted parameters of a pool characteristic violated by the total
potential loan pool for that Loan Group. This procedure shall be
repeated until the pool characteristics for that Loan Group are
satisfied after taking into account the addition of the Potential
Mortgage Loan. Any Potential Mortgage Loan that does not qualify for
inclusion in either Loan Group pursuant to the preceding sentence
shall be removed from consideration for inclusion in the Trust Fund
on the related Supplemental Transfer Date.
If a shortfall remains in either Loan Group after giving effect to the
procedures described in the preceding paragraph, then additional funded
mortgage loans shall be added to the Loan Group for which a shortfall exists
in accordance with the procedures described above.
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 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 the Seller an Initial Certification in the
form annexed hereto as Exhibit F. Based on its review and examination, and
only as to the documents identified in such Initial Certification, the Trustee
acknowledges that such documents appear regular on their face and relate to
such Initial Mortgage Loan. The Trustee shall be under no duty or obligation
to inspect, review or examine said documents, instruments, certificates or
other papers to determine that the same are genuine, enforceable or
appropriate for the represented purpose or that they have actually been
recorded in the real estate records or that they are other than what they
purport to be on their face.
On or about the thirtieth (30th) day after the Closing Date, the Trustee
shall deliver to the Depositor, the Master Servicer and the Seller a Delay
Delivery Certification with respect to the Initial Mortgage Loans in the form
annexed hereto as Exhibit G, 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 the Seller a Final Certification
with respect to the Initial Mortgage Loans in the form annexed hereto as
Exhibit H, 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
II-9
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. The Seller shall promptly correct or cure such defect
within 90 days from the date it was so notified of such defect and, if the
Seller does not correct or cure such defect within such period, the Seller
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 the Seller 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
the Seller 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 the Seller 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 the
Seller and shall execute and deliver at the Seller's request such instruments
of transfer or assignment prepared by the Seller, in each case without
recourse, as shall be necessary to vest in the Seller, or a designee, the
Trustee's interest in any Mortgage Loan released pursuant hereto. If pursuant
to the foregoing provisions the Seller repurchases an Initial 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 the Seller and shall cause such Mortgage to
be removed from registration on the MERS(R) System in accordance with MERS'
rules and regulations or (ii) cause MERS to designate on the MERS(R) System
the Seller as the beneficial holder of such Mortgage Loan.
(b) Upon delivery of the Supplemental Mortgage Loans pursuant to
Supplemental Transfer Agreement, the Trustee shall acknowledge receipt of the
documents identified in any Supplemental Certification in the form annexed
hereto as Exhibit F-2 and declare that it will hold such documents and the
other documents delivered to it constituting the Mortgage Files, and that it
will hold such other assets as are included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will
II-10
maintain possession of the Mortgage Notes in the State of California, unless
otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Supplemental Transfer
Date to the Depositor, the Master Servicer and the Seller a Supplemental
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 Supplemental
Certification, the Trustee shall acknowledge that such documents appear
regular on their face and relate to such Supplemental Mortgage Loan. The
Trustee shall be under no duty or obligation to inspect, review or examine
said documents, instruments, certificates or other papers to determine that
the same are genuine, enforceable or appropriate for the represented purpose
or that they have actually been recorded in the real estate records or that
they are other than what they purport to be on their face.
On or about the twentieth (20th) day after the Supplemental Transfer
Date, the Trustee shall deliver to the Depositor, the Master Servicer and the
Seller a Delay Delivery Certification with respect to the Supplemental
Mortgage Loans in the form annexed hereto as Exhibit G, with any applicable
exceptions noted thereon.
Not later than 90 days after the final Supplemental Transfer Date, the
Trustee shall deliver to the Depositor, the Master Servicer and the Seller a
Final Certification with respect to the Supplemental Mortgage Loans in the
form annexed hereto as Exhibit H, with any applicable exceptions noted
thereon.
If, in the course of such review of the Mortgage Files relating to the
Supplemental Mortgage Loans, the Trustee finds any document constituting a
part of a Mortgage File which does not meet the requirements of Section 2.01,
the Trustee shall list such as an exception in the Final Certification;
provided, however that the Trustee shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and
to that Mortgage Note or (ii) any assignment is in recordable form or is
sufficient to effect the assignment of and transfer to the assignee thereof
under the mortgage to which the assignment relates. The Seller shall promptly
correct or cure such defect within 90 days from the date it was so notified of
such defect and, if the Seller does not correct or cure such defect within
such period, the Seller 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 the
Seller 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
the Seller 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
II-11
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 the Seller 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 the Seller and
shall execute and deliver at the Seller's request such instruments of transfer
or assignment prepared by the Seller, in each case without recourse, as shall
be necessary to vest in the Seller, or a designee, the Trustee's interest in
any Mortgage Loan released pursuant hereto. If pursuant to the foregoing
provisions the Seller repurchases a Supplemental Mortgage Loan that is a MERS
Mortgage Loan, the Master Servicer shall either (i) cause MERS to execute and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS(R) System in accordance with MERS' rules and
regulations or (ii) cause MERS to designate on the MERS(R) System the Seller
as the beneficial holder of such Mortgage Loan.
(c) The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set forth herein.
The Master Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the possession of the Master
Servicer from time to time.
(d) It is understood and agreed that the obligation of the Seller to
substitute for or to purchase any Mortgage Loan 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 the Seller.
Section 2.03 Representations, Warranties and Covenants of the Seller and
Master Servicer.
(a) The Seller hereby makes the representations and warranties set forth
in (i) Schedule II hereto, and by this reference incorporated herein, to the
Depositor and the Trustee, as of the Closing Date and (ii) Schedule III
hereto, and by this reference incorporated herein, to the Depositor and the
Trustee, as of the Closing Date, or if so specified therein, as of the Initial
Cut-off Date with respect to the Initial Mortgage Loans and as of the related
Supplemental Cut-off Date with respect to the Supplemental Mortgage Loans.
(b) The Master Servicer hereby makes the representations and warranties
set forth in Schedule IV hereto, and by 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 made pursuant to Section 2.03(a)(ii) or a breach of
a representation or warranty with respect to a Supplemental Mortgage Loan
under Section 2.01(e)(i) that materially and adversely
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affects the interests of the Certificateholders in any Mortgage Loan, the
party discovering such breach shall give prompt notice thereof to the other
parties. The 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 made pursuant to Section 2.03(a)(ii) and with
respect to a breach of a representation and warranty with respect to a
Mortgage Loan under Section 2.01(e)(i) which materially and adversely affects
the interests of the Certificateholders in any 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 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 the Seller's knowledge, if it is discovered by
either the Depositor, the 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 the Seller's lack of knowledge
with respect to the substance of such representation or warranty, such
inaccuracy shall be deemed a breach of the applicable representation or
warranty.
With respect to any Substitute Mortgage Loan or Loans, the Seller 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 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 the 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 Seller shall be deemed
to have made with respect to such Substitute Mortgage Loan or Loans, as of the
date of substitution, the representations and warranties made pursuant to
Section 2.03(a)(ii) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the Certificate Account of the amount required
to be deposited therein in connection with such substitution as described in
the following paragraph, the Trustee shall release the Mortgage File held for
the benefit of the Certificateholders relating
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to such Deleted Mortgage Loan to the Seller and shall execute and deliver at
the Seller's direction such instruments of transfer or assignment prepared by
the Seller, in each case without recourse, as shall be necessary to vest title
in the Seller, or its designee, the Trustee's interest in any Deleted Mortgage
Loan substituted for pursuant to this Section 2.03.
For any month in which the 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 such Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(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 the Seller 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 the 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 the Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and
upon such deposit of the Purchase Price, the delivery of the Opinion of
Counsel required by Section 2.05 and receipt of a Request for Release in the
form of Exhibit N hereto, the Trustee shall release the related Mortgage File
held for the benefit of the Certificateholders to such Person, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and
is continuing shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor or the Trustee on
their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect
to each Initial Mortgage Loan as of the date hereof or such other date set
forth herein that as of the Closing Date, and following the transfer of the
Initial Mortgage Loans to it by the Seller, the Depositor had good title to
the Initial 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 the Seller made pursuant to Section
2.03(a)(ii) hereof, together with all rights of the Depositor
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to require the Seller to cure any breach thereof or to repurchase or
substitute for any affected Mortgage Loan in accordance with this Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representations and warranties set forth in this Section 2.04
(referred to herein as a "breach"), which breach materially and adversely
affects the interest of the Certificateholders, the party discovering such
breach shall give prompt written notice to the others and to each Rating
Agency.
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than
90 days after the Closing Date unless the Seller 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, the 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 the Seller, at the Seller's 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 the Seller the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
Section 2.06 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, has executed
and delivered to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates and to perform the duties set forth in this
Agreement to the best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
Section 2.07 REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created hereby. The "Startup Day" for purposes
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of the REMIC Provisions shall be the Closing Date. The "tax matters person"
with respect to each REMIC hereunder shall be the Trustee and the Trustee
shall hold the Tax Matters Person Certificate. Each REMIC's fiscal year shall
be the calendar year.
Section 2.08 Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the Trustee as
follows:
(A) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Required Insurance Policy;
and
(B) no written information, certificate of an officer,
statement furnished in writing or written report delivered to the
Depositor, any affiliate of the Depositor or the Trustee and
prepared by the Master Servicer pursuant to this Agreement will
contain any untrue statement of a material fact or omit to state a
material fact necessary to make such information, certificate,
statement or report not misleading.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and customary and usual standards of practice of prudent mortgage
loan servicers. In connection with such servicing and administration, the
Master Servicer shall have full power and authority, acting alone and/or
through Subservicers as provided in Section 3.02 hereof, subject to the terms
hereof (i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds, and (iv) to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan; provided that
the Master Servicer shall not take any action that is inconsistent with or
prejudices the interests of the Trust Fund or the Certificateholders in any
Mortgage Loan or the rights and interests of the Depositor, the Trustee and
the Certificateholders under this Agreement. The Master Servicer shall
represent and protect the interests of the Trust Fund in the same manner as it
protects its own interests in mortgage loans in its own portfolio in any
claim, proceeding or litigation regarding a Mortgage Loan, and shall not make
or permit any modification, waiver or amendment of any Mortgage Loan which
would cause any REMIC created hereunder to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code. Without limiting the generality of the foregoing, the Master
Servicer, in its own name or in the name of the Depositor and the Trustee, is
hereby authorized and empowered by the Depositor and the Trustee, when the
Master Servicer believes it appropriate in its reasonable judgment, to execute
and deliver, on behalf of the Trustee, the Depositor, the Certificateholders
or any of them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge and all other comparable instruments,
with respect to the Mortgage Loans, and with respect to the Mortgaged
Properties held for the benefit of the Certificateholders. The Master Servicer
shall prepare and deliver to the Depositor and/or the Trustee such documents
requiring execution and delivery by either or both of them as are necessary or
appropriate to enable the Master Servicer to service and administer the
Mortgage Loans to the extent that the Master Servicer is not permitted to
execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee shall execute such
documents and deliver them to the Master Servicer. The Master Servicer further
is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Subservicer, when the Master Servicer or the Subservicer, as the case may be,
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee
and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns.
III-1
In accordance with the standards of the preceding paragraph, the Master
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further
as provided in Section 3.08. The costs incurred by the Master Servicer, if
any, in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to
the Stated Principal Balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit.
Section 3.02 Subservicing; Enforcement of the Obligations of Servicers.
(a) The Master Servicer may arrange for the subservicing of any Mortgage
Loan by a Subservicer pursuant to a subservicing agreement; provided, however,
that such subservicing arrangement and the terms of the related subservicing
agreement must provide for the servicing of such Mortgage Loans in a manner
consistent with the servicing arrangements contemplated hereunder. Unless the
context otherwise requires, references in this Agreement to actions taken or
to be taken by the Master Servicer in servicing the Mortgage Loans include
actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing agreement, any of
the provisions of this Agreement relating to agreements or arrangements
between the Master Servicer and a Subservicer or reference to actions taken
through a Subservicer or otherwise, the Master Servicer shall remain obligated
and liable to the Depositor, the Trustee and the Certificateholders for the
servicing and administration of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or
liability by virtue of such subservicing agreements or arrangements or by
virtue of indemnification from the Subservicer and to the same extent and
under the same terms and conditions as if the Master Servicer alone were
servicing and administering the Mortgage Loans. All actions of each
Subservicer performed pursuant to the related subservicing agreement shall be
performed as an agent of the Master Servicer with the same force and effect as
if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be deemed
to have received any collections, recoveries or payments with respect to the
Mortgage Loans that are received by a Subservicer regardless of whether such
payments are remitted by the Subservicer to the Master Servicer.
Section 3.03 Rights of the Depositor and the Trustee in Respect of the
Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue
of such performance by the Depositor or its designee. Neither the Trustee nor
the Depositor shall have any responsibility or liability for any action or
failure to act by the Master Servicer nor shall the Trustee or the Depositor
be obligated to supervise the performance of the Master Servicer hereunder or
otherwise.
III-2
Section 3.04 Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default),
the Trustee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Master Servicer pursuant
to Section 3.09 hereof or any acts or omissions of the predecessor Master
Servicer hereunder), (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03 hereof, (iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03 or (v) deemed to have made any representations and warranties of
the Master Servicer hereunder). Any such assumption shall be subject to
Section 7.02 hereof. If the Master Servicer shall for any reason no longer be
the Master Servicer (including by reason of any Event of Default), the Trustee
or its successor shall succeed to any rights and obligations of the Master
Servicer under each subservicing agreement; provided, however, that, if
Countrywide Home Loans Servicing LP shall no longer be the Master Servicer,
Countrywide Home Loans Servicing LP shall thereafter continue to be entitled
to receive the Excess Master Servicing Fee, and any successor servicer shall
be entitled to receive only the Basic Master Servicing Fee.
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; Supplemental Loan Account; Capitalized Interest Account.
(a) The Master Servicer shall make reasonable efforts in accordance with
the customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the terms and provisions of the Mortgage
Loans to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Mortgage Note for a period not greater than 180
days; provided, however, that the Master Servicer cannot extend the maturity
of any such Mortgage Loan past the date on which the final payment is due on
the latest maturing Mortgage Loan as of the Cut-off Date. In the event of any
such arrangement, the Master Servicer shall make Advances on the related
Mortgage Loan in accordance with the provisions of Section 4.01 during the
scheduled period in accordance with the amortization schedule of such Mortgage
Loan without modification thereof by reason of such arrangements. The Master
Servicer shall not be required to institute or join in litigation with respect
to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it
III-3
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 "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 related Basic Master Servicing Fee and, for so long as
Countrywide Home Loans Servicing LP is the Master Servicer, the
related Excess Master Servicing Fee;
(iii) all Insurance Proceeds 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;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.05(e) in connection with any losses on
Permitted Investments;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.09(c) and in respect of net monthly rental
income from REO Property pursuant to Section 3.11 hereof;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to
Section 4.01; and
(viii) any other amounts required to be deposited hereunder.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for such Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause
funds to be deposited into the Certificate Account in an amount required to
cause an amount of interest to be paid with respect to such Mortgage Loan
equal to the amount of interest that has accrued on such Mortgage Loan from
the preceding Due Date at the Mortgage Rate net of the related Basic Master
Servicing Fee and, for so long as Countrywide Home Loans Servicing LP is the
Master Servicer, the related Excess 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
III-4
the nature of prepayment penalties, late payment charges or assumption fees,
if collected, need not be remitted by the Master Servicer. In the event that
the Master Servicer shall remit any amount not required to be remitted, it may
at any time withdraw or direct the institution maintaining the Certificate
Account to withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding. Such withdrawal or direction may be
accomplished by delivering written notice thereof to the Trustee or such other
institution maintaining the Certificate Account which describes the amounts
deposited in error in the Certificate Account. The Master Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to
this Section. All funds deposited in the Certificate Account shall be held in
trust for the Certificateholders (other than any funds attributed to any
Excess Master Servicing Fee) 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 pursuant to
Section 3.05(e) in connection with any losses on Permitted
Investments; 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 (other than
any funds attributed to any Excess Master Servicing Fee) until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08.
In no event shall the Trustee incur liability for withdrawals from the
Distribution Account at the direction of the Master Servicer.
(e) Each institution at which the Certificate Account, the Supplemental
Loan Account, Capitalized Interest Account or the Distribution Account is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than (i) in
the case of the Certificate Account, the Capitalized Interest Account or the
Supplemental Loan 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
III-5
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. All income or gain (net of any
losses) realized from any such investment of funds on deposit in the
Capitalized Interest Account shall be credited to the Capitalized Interest
Account. The Trustee in its fiduciary capacity shall not be liable for the
amount of any loss incurred in respect of any investment or lack of investment
of funds held in the Certificate Account, the Capitalized Interest Account,
the Supplemental Loan Account or the Distribution Account and made in
accordance with this Section 3.05.
(f) The Master Servicer shall give notice to the Trustee, the 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, the Seller, each Rating Agency and the
Depositor of any proposed change of the location of the Distribution Account
prior to any change thereof.
(g) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Supplemental Loan Account. On the Closing Date the
Seller shall remit the Supplemental Amount to the Trustee for deposit in the
Supplemental Loan Account. On each Supplemental Transfer Date, upon
satisfaction of the conditions for such Supplemental Transfer Date set forth
in Section 2.01(e), with respect to the related Supplemental Transfer
Agreement, the Trustee shall pay to the Seller the Aggregate Supplemental
Transfer Amount held in escrow pursuant to Section 2.01(e) as payment of the
purchase price for the related Supplemental Mortgage Loans. If at any time the
Depositor becomes aware that the Cut-off Date Stated Principal Balance of
Supplemental Mortgage Loans reflected on any Supplemental Transfer Agreement
exceeds the actual Cut-off Date Stated Principal Balance of the relevant
Supplemental Mortgage Loans, the Depositor may so notify the Trustee and the
Trustee shall redeposit into the Supplemental Loan Account the excess reported
to it by the Depositor.
If any funds remain in the Supplemental Loan Account at the end of the
Conveyance Period, to the extent that they represent earnings on the amounts
originally deposited into the Supplemental Loan Account, the Trustee shall
distribute them to the order of the Depositor. The remaining funds shall be
transferred to the Distribution Account to be included as part of principal
distributions to the Class PO Certificates, to the extent of the Remaining PO
Supplemental Loan Amount and to the other Classes of Certificates, to the
extent of the Remaining Non-PO Supplemental Amount, as applicable.
(h) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Capitalized Interest Account. On the Closing Date the
Seller shall remit the aggregate Capitalized Interest Requirement to the
Trustee for deposit in the Capitalized Interest Account. On each Distribution
Account Deposit Date related to a Conveyance Period Distribution Date,
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upon satisfaction of the conditions for such Supplemental Transfer Date set
forth in Section 2.01(e), with respect to the related Supplemental Transfer
Agreement, the Trustee shall transfer from the Capitalized Interest Account to
the Distribution Account an amount equal to the Capitalized Interest
Requirement (which, to the extent required, may include investment earnings on
amounts on deposit therein) with respect to the amount remaining in the
Supplemental Loan Account for the related Distribution Date as identified by
the Seller in the Supplemental Transfer Agreement.
If any funds remain in the Capitalized Interest Account at the end of the
Conveyance Period, the Trustee shall make the transfer described in the
preceding paragraph if necessary for the remaining Conveyance Period
Distribution Date and the Trustee shall distribute any remaining funds in the
Capitalized Interest Account to the order of the Depositor.
Section 3.06 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To the extent required by the related Mortgage Note and not violative
of current law, the Master Servicer shall establish and maintain one or more
accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by the Master Servicer) for the
payment of taxes, assessments, hazard insurance premiums or comparable items
for the account of the Mortgagors. Nothing herein shall require the Master
Servicer to compel a Mortgagor to establish an Escrow Account in violation of
applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse the Master Servicer out of related collections for any payments made
pursuant to Sections 3.01 hereof (with respect to taxes and assessments and
insurance premiums) and 3.09 hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums determined to be overages, to pay interest,
if required by law or the terms of the related Mortgage or Mortgage Note, to
Mortgagors on balances in the Escrow Account or to clear and terminate the
Escrow Account at the termination of this Agreement in accordance with Section
9.01 hereof. The Escrow Accounts shall not be a part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in Section
3.06(a) that are not timely paid by the Mortgagors on the date when the tax,
premium or other cost for which such payment is intended is due, but the
Master Servicer shall be required so to advance only to the extent that 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 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.
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Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder 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 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 for actual expenses incurred by the Master Servicer in
providing such reports and access.
If Countrywide Home Loans Servicing LP is not acting as Master Servicer,
the successor Master Servicer shall provide Countrywide Home Loans Servicing
LP with such information as may be necessary to verify the amount of the
Excess Master Servicing Fee for each Distribution Date. If a question should
arise as to the proper amount of the Excess Master Servicing Fee, the
successor Master Servicer shall provide Countrywide Home Loans Servicing LP
with access to such books and records and personnel of the successor Master
Servicer as may be necessary to establish the proper amount of the Excess
Master Servicing Fee.
Section 3.08 Permitted Withdrawals from the Certificate Account.
(a) The Master Servicer may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to pay to the Master Servicer (to the extent not previously
retained by the Master Servicer) the servicing compensation to which
it is entitled pursuant to Section 3.14, and to pay to the Master
Servicer, as additional servicing compensation, earnings on or
investment income with respect to funds in or credited to the
Certificate Account;
(ii) to reimburse the Master Servicer 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 the Master Servicer for any Nonrecoverable
Advance previously made;
(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 Basic
Master Servicing Fees as provided in Section 3.11 hereof;
(vi) to pay to the purchaser, with respect to each Mortgage
Loan or property acquired in respect thereof that has been purchased
pursuant to Section 2.02, 2.03 or 3.11, all amounts received thereon
after the date of such purchase;
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(vii) to reimburse the Seller, 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 (and, if Countrywide Home Loans Servicing LP is not the
Master Servicer, an amount equal to the Excess Master Servicing Fee)
for such Distribution Date and remit such amount to the Trustee for
deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01 hereof.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Certificate
Account pursuant to subclause (iii), the Master Servicer shall deliver to the
Trustee an Officer's Certificate of a Servicing Officer indicating the amount
of any previous Advance determined by the Master Servicer to be a
Nonrecoverable Advance and identifying the related Mortgage Loans(s), and
their respective portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders, in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that
it is authorized to withhold pursuant to the last paragraph of Section 8.11).
In addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds
in the Distribution Account;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be
deposited therein;
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01 hereof; and
(v) if Countrywide Home Loans Servicing LP is not the Master
Servicer, to pay to Countrywide Home Loans Servicing LP the Excess
Master Servicing Fee for the related Distribution Date.
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Section 3.09 Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall cause to be maintained, for each Mortgage
Loan, hazard insurance with extended coverage in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (y) the outstanding
principal balance of the Mortgage Loan and (z) an amount such that the
proceeds of such policy shall be sufficient to prevent the Mortgagor and/or
the mortgagee from becoming a co-insurer. Each such policy of standard hazard
insurance shall contain, or have an accompanying endorsement that contains, a
standard mortgagee clause. Any amounts collected by the Master Servicer under
any such policies (other than the amounts to be applied to the restoration or
repair of the related Mortgaged Property or amounts released to the Mortgagor
in accordance with the Master Servicer's normal servicing procedures) shall be
deposited in the Certificate Account. Any cost incurred by the Master Servicer
in maintaining any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the Trustee
for their benefit, be added to the principal balance of the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs
shall be recoverable by the Master Servicer out of late payments by the
related Mortgagor or out of Liquidation Proceeds 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 original 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 prohibited by law.
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The Master Servicer agrees to effect the timely payment of the premiums
on each Primary Insurance Policy, and such costs not otherwise recoverable
shall be recoverable by the Master Servicer from the related liquidation
proceeds.
(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.
Setion 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
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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.
Section 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
The Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
In connection with such foreclosure or other conversion, the Master Servicer
shall follow such practices and procedures as it shall deem necessary or
advisable and as shall be normal and usual in its general mortgage servicing
activities and meet the requirements of the insurer under any Required
Insurance Policy; provided, however, that the Master Servicer shall not be
required to expend its own funds in connection with any foreclosure or towards
the restoration of any property unless it shall determine (i) that such
restoration and/or foreclosure will increase the proceeds of liquidation of
the Mortgage Loan after reimbursement to itself of such expenses and (ii) that
such expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Certificate Account). The Master Servicer shall be responsible for all other
costs and expenses incurred by it in any such proceedings; provided, however,
that it shall be entitled to reimbursement thereof from the liquidation
proceeds 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
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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.
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
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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 Basic 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 Basic Master Servicing Fees; second, to reimburse the
Master Servicer for any unreimbursed Advances; third, to reimburse the
Certificate Account for any Nonrecoverable Advances (or portions thereof) that
were previously withdrawn by the Master Servicer pursuant to Section
3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in which
such amounts are required to be distributed; and fifth, as a recovery of
principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation
of a Liquidated Mortgage Loan will be retained by the Master Servicer as
additional servicing compensation pursuant to Section 3.14.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Trust Fund any Mortgage Loan which is
151 days or more delinquent at a price equal to the Purchase Price; provided,
however, that the Master Servicer may only exercise this right on or before
the next to the last day of the calendar month in which such Mortgage Loan
became 151 days delinquent (such month, the "Eligible Repurchase Month");
provided further, that any such Mortgage Loan which becomes current but
thereafter becomes delinquent may be purchased by the Master Servicer pursuant
to this Section in any ensuing Eligible Repurchase Month. The Purchase Price
for any Mortgage Loan purchased hereunder shall be deposited in the
Certificate Account and the Trustee, upon receipt of a certificate from the
Master Servicer in the form of Exhibit N hereto, shall release or cause to be
released to the purchaser of such Mortgage Loan the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment prepared
by the purchaser of such Mortgage Loan, in each case without recourse, as
shall be necessary to vest in the purchaser of such Mortgage Loan any Mortgage
Loan released pursuant hereto and the purchaser of such Mortgage Loan shall
succeed to all the
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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.
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.
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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 or Insurance
Proceeds 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, including but not limited to, any funds
on deposit in the Certificate Account, shall be held by the Master Servicer
for and on behalf of the Trustee and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of
this Agreement. The Master Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, Distribution Account or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment or other encumbrance, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that
the Master Servicer shall be entitled to set off against and deduct from any
such funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
Section 3.14 Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer shall
be entitled to retain or withdraw from the Certificate Account an amount equal
to the sum of the Basic Master Servicing Fee and the Excess Master Servicing
Fee; provided, that the aggregate Basic Master Servicing Fee with respect to
any Distribution Date shall be reduced (i) by an amount equal to the aggregate
of the Prepayment Interest Shortfalls, if any, with respect to such
Distribution Date, but not below an amount equal to one-half of the aggregate
Basic Master Servicing Fee for such Distribution Date before reduction thereof
in respect of such Prepayment Interest Shortfalls, 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; provided further, that if a successor to Countrywide Home
Loans Servicing LP shall be approved as Master Servicer for any reason, the
Excess Master Servicing Fee for each Distribution Date following such
appointment shall be paid, pursuant to this Section 3.14, to Countrywide Home
Loans Servicing LP pursuant to Section 3.08(b)(v) hereof, and not to such
successor to the Master Servicer.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, prepayment penalties, assumption fees, late
payment charges and all income and gain net of any losses realized from
Permitted Investments shall be retained by the Master Servicer to the extent
not required to be deposited in the Certificate Account pursuant to Section
3.05 hereof. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its master servicing activities hereunder
(including payment of any premiums for hazard insurance and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
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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 of Subordinated
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the OTS and the FDIC. Such access
shall be afforded without charge, but only upon reasonable and prior written
request and during normal business hours at the offices designated by the
Master Servicer. Nothing in this Section shall limit the obligation of the
Master Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of the Master Servicer to
provide access as provided in this Section as a result of such obligation
shall not constitute a breach of this Section.
Section 3.16 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee on or
before 120 days after the end of the Master Servicer's fiscal year, commencing
with its 2002 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer during the
preceding calendar year and of the performance of the Master Servicer under
this Agreement has been made under such officer's supervision and (ii) to the
best of such officer's knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. The Trustee shall forward a copy of each such statement to each
Rating Agency.
Section 3.17 Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
On or before 120 days after the end of the Master Servicer's fiscal year,
commencing with its 2002 fiscal year, the Master Servicer at its expense shall
cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, the
Seller or any affiliate thereof) which is a member of the American Institute
of Certified Public Accountants to furnish a statement to the Trustee and the
Depositor to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement
or of mortgage loans under pooling and servicing agreements substantially
similar to this Agreement (such statement to have attached thereto a schedule
setting forth the pooling and servicing agreements covered thereby) and that,
on the basis of such examination, conducted substantially in compliance with
the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC, such servicing has been
conducted in compliance with such pooling and servicing agreements except for
such significant exceptions or errors in records that, in the opinion of such
firm, the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC requires it to report. In
rendering such
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statement, such firm may rely, as to matters relating to direct servicing of
mortgage loans by Subservicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FNMA and FHLMC (rendered within one year of such statement) of independent
public accountants with respect to the related Subservicer. Copies of such
statement shall be provided by the Trustee to any Certificateholder upon
request at the Master Servicer's expense, provided that such statement is
delivered by the Master Servicer to the Trustee.
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall for so long as it acts as master servicer under
this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA or FHLMC for
persons performing servicing for mortgage loans purchased by FNMA or FHLMC. In
the event that any such policy or bond ceases to be in effect, the Master
Servicer shall obtain a comparable replacement policy or bond from an insurer
or issuer, meeting the requirements set forth above as of the date of such
replacement.
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ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
Section 4.10 Advances.
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.
The Master Servicer shall deliver to the Trustee on the related Master
Servicer Advance Date an Officer's Certificate of a Servicing Officer
indicating the amount of any proposed Advance determined by the Master
Servicer to be a Nonrecoverable Advance.
Section 4.02 Priorities of Distribution.
(a) (1) With respect to the Available Funds for Loan Group 1 and
Remaining Available Funds for Loan Group 2, on each Distribution Date, the
Trustee shall withdraw such Available Funds from the Distribution Account and
apply such funds to distributions on the specified Classes of Loan Group 1
Senior Certificates in the following order and priority and, in each case, to
the extent of Available Funds for such Loan Group remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Loan Group
1 Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall
being allocated among such Classes in proportion to the amount of
the Class Optimal Interest Distribution Amount, with respect to the
Group 1 Certificates that would have been distributed in the absence
of such shortfall;
(iii) [Reserved];
(iv) to each Class of Loan Group 1 Senior Certificates,
concurrently, as follows:
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(x) to the Class PO-1 Component an amount allocable to the
related PO Formula Principal Amount, up to the outstanding
Component Balance thereof; and
(y) on each Distribution Date prior to the Senior Credit
Support Depletion Date, the Non-PO Formula Principal Amount up
to the amount of the Senior Principal Distribution Amount for
Loan Group 1 for such Distribution Date will be distributed, as
follows:
1. to the Class A-R Certificates, until its Class Certificate
Balance is reduced to zero;
2. concurrently, 25.0000064426% to the Class 1-A-1
Certificates, until its Class Certificate Balance is reduced to zero
and 74.9999935574% sequentially, to the following classes of
certificates in the following order of priority:
a. to the Class 1-A-3 Certificates, the Group 1 Priority
Amount, until its Class Certificate Balance is reduced to zero;
b. concurrently, to the Class 1-A-4, Class 1-A-6, Class
1-A-7 and Class 1-A-8 Certificates, pro rata, until their
respective Class Certificate Balances are reduced to zero;
c. to the Class 1-A-5 Certificates, until its Class
Certificate Balance is reduced to zero; and
d. to the Class 1-A-3 Certificates, without regard to the
Group 1 Priority Amount, until its Class Certificate Balance is
reduced to zero.
(v) to the Class PO-1 Component, any related Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant to
clause (A) of the definition of the Subordinated Principal Distribution
Amount actually received or advanced for such Distribution Date (with
such amount to be allocated first from amounts calculated pursuant to
(A)(i) and (ii) then (iii) of the definition of Subordinated Principal
Distribution Amount);
(2) With respect to the Available Funds for Loan Group 2 and
Remaining Available Funds for Loan Group 1, on each Distribution Date,
the Trustee shall withdraw such Available Funds from the Distribution
Account and apply such funds to distributions on the specified Class or
Component of Loan Group 2 Senior Certificates in the following order and
priority and, in each case, to the extent of such Available Funds
remaining:
(i) [Reserved];
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(ii) concurrently, to each interest-bearing Class of Loan Group 2
Senior Certificates, an amount allocable to interest equal to the related
Class Optimal Interest Distribution Amount, any shortfall being allocated
among such Classes in proportion to the amount of the Class Optimal
Interest Distribution Amount, with respect to the Group 2 Certificates,
that would have been distributed in the absence of such shortfall;
(iii) [Reserved];
(iv) to each Class of Loan Group 2 Senior Certificates, concurrently
as follows:
(x) to the Class PO-2 Component, an amount allocable to
principal equal to the related PO Formula Principal Amount, up
to the outstanding Component Balance thereof; and
(y) the related Non-PO Formula Principal Amount, up to the
amount of the Senior Principal Distribution Amount for Loan
Group 2 for such Distribution Date, will be distributed as
follows:
1. concurrently, to the Class CB-2 and Class CB-7 Certificates,
pro rata, the Group 2 Priority Amount, until their respective Class
Certificate Balances are reduced to zero;
2. concurrently, to the following classes of certificates in
the following order of priority;
a. 50.0000000904% as follows:
(i) concurrently, 47.1387076005% to the Class CB-3
Certificates, until its Class Certificate Balance is reduced to zero
and 52.8612923995% sequentially, to the Class CB-4 and Class CB-5
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero; and
(ii) to the Class CB-6 Certificates, until its Class
Certificate Balance is reduced to zero; and
b. 49.9999999096% as follows:
(i) concurrently, 40.0000000000% to the Class CB-8
Certificates, until its Class Certificate Balance is reduced to zero
and 59.0403984550% sequentially, to the Class CB-11 and Class CB-12
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero; and
(ii) sequentially, to the Class CB-9 and Class CB-10
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero; and
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3. concurrently, to the Class CB-2 and Class CB-7 Certificates,
pro rata, without regard to the Group 2 Priority Amount, until their
respective Class Certificate Balances are reduced to zero.
(v) to the Class PO-2 Component, any related Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant to
clause (A) of the definition of the Subordinated Principal Distribution
Amount actually received or advanced for such Distribution Date (with
such amount to be allocated first from amounts calculated pursuant to
(A)(i) and (ii) then (iii) of the definition of Subordinated Principal
Distribution Amount);
(3) [Reserved];
(4) On each Distribution Date, Available Funds from both Loan Groups
remaining after making the distributions described in 4.02(a)(1) and
4.02(a)(2) above, will be distributed to the Subordinated Certificates
and the Class A-R Certificates in the following order and priority and,
in each case, to the extent of such funds remaining:
(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;
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(I) to the Class B-4 Certificates, an amount allocable to interest
equal to the amount of the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(J) to the Class B-4 Certificates, an amount allocable to principal
equal to its Pro Rata Share for such Distribution Date until the Class
Certificate Balance thereof is reduced to zero;
(K) to the Class B-5 Certificates, an amount allocable to interest
equal to the Class Optimal Interest Distribution Amount for such Class
for such Distribution Date; and
(L) to the Class B-5 Certificates, an amount allocable to principal
equal to its Pro Rata Share for such Distribution Date until the Class
Certificate Balance thereof is reduced to zero;
(M) [Reserved]; and
(N) to the Class A-R Certificates, any remaining funds in the Trust
Fund.
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Component Balance of the related Class PO
Component.
On any Distribution Date, to the extent the Amount Available for Senior
Principal for Loan Group 1 or the Amount Available for Senior Principal for
Loan Group 2, as the case may be, is insufficient to make the full
distribution required to be made pursuant to clause (a)(1)(iv)(x) and
(a)(2)(iv)(x), respectively, (A) the amount distributable on the related Class
PO Component in respect of principal shall be equal to the product of (1) the
related 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 such PO Formula Principal Amount and the related Senior
Principal Distribution Amount and (B) the amount distributable on the related
Senior Certificates of the related Senior Certificate Group, other than the
related Class PO Component, in respect of principal shall be equal to the
product of (1) the Amount Available for Senior Principal for such Loan Group
and (2) a fraction, the numerator of which is such Senior Principal
Distribution Amount and the denominator of which is such Senior Principal
Distribution Amount and the related PO Formula Principal Amount.
(b) On each Distribution Date prior to and including the applicable
Accrual Termination Date with respect to each Class of Accrual Certificates,
the Accrual Amount for such Class 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 of Accrual Certificates but shall
instead be added to the related Class Certificate Balance of such Class on the
related Distribution Date. With respect to any Distribution Date prior to and
including the applicable Accrual Termination Date on which principal payments
on any Class of Accrual Certificates are distributed pursuant to Section
4.02(a)(1)(iii) or Section 4.02(a)(2)(iii), as applicable, the related Accrual
Amount shall be deemed to have been added on such Distribution Date to the
related Class Certificate Balance of such Class of Accrual Certificates (and
included in the amount distributable on the related Class or Classes of
Accretion Directed Certificates pursuant to
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Section 4.02(a)(1)(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 of such
Class of Accrual Certificates immediately prior to such Distribution Date.
Notwithstanding any such distribution, the Accrual Certificates 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)(1)(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.
(d) On each Distribution Date, the amount referred to in clause (i) of
the definition of Class Optimal Interest Distribution Amount for each Class of
Certificates for such Distribution Date shall be reduced for each Class of
Senior Certificates of a Senior Certificate Group and each Class of
Subordinated Certificates by (i) the related Class' pro rata share of Net
Prepayment Interest Shortfalls for such Loan Group based (x) with respect to a
Class of Senior Certificates, on the related Class Optimal Interest
Distribution Amount and (y) with respect to a Class of Subordinated
Certificates on and prior to a Senior Termination Date on the Assumed Interest
Amount or after such a Senior Termination Date, the related Class Optimal
Interest Distribution Amount for such Distribution Date in the absence of such
Net Prepayment Interest Shortfalls, and (ii) the related Class' Allocable
Share of (A) after the Special Hazard Coverage Termination Date, with respect
to each Mortgage Loan in the related Loan Group (or after the Senior Credit
Support Depletion Date, any Mortgage Loan) that became a Special Hazard
Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the related Adjusted
Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month, (B) after the
Bankruptcy Coverage Termination Date, with respect to each Mortgage Loan in
the related Loan Group (or after the Senior Credit Support Depletion Date, any
Mortgage Loan) that became subject to a Bankruptcy Loss during the calendar
month preceding the month of such Distribution Date, the interest portion of
the related Debt Service Reduction or Deficient Valuation, (C) each Relief Act
Reduction for the Mortgage Loans in the related Loan Group (or after the
Senior Credit Support Depletion Date, any Mortgage Loan) incurred during the
calendar month preceding the month of such Distribution Date and (D) after the
Fraud Loss Coverage Termination Date, with respect to each Mortgage Loan in
the related Loan Group (or after the Senior Credit Support Depletion Date, any
Mortgage Loan) that became a Fraud Loan during the calendar month preceding
the month of such Distribution Date, the excess of one month's interest at the
related Adjusted Net Mortgage Rate on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in such month over the amount of Liquidation
Proceeds applied as interest on such Mortgage Loan with respect to such month.
(e) Notwithstanding the priority and allocation contained in Section
4.02(a)(4), if with respect to any Class of Subordinated Certificates on any
Distribution Date the sum of the related
IV-6
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)(4).
Section 4.03 [Reserved].
Section 4.04 Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall determine
the total amount of Realized Losses, including Excess Losses, with respect to
the related Distribution Date. For purposes of allocating losses to the
Subordinated Certificates, the Class M Certificates will be deemed to have a
lower numerical class designation, and to be of a higher relative payment
priority, than each other Class of Subordinated Certificates.
Realized Losses with respect to any Distribution Date shall be allocated
as follows:
(i) the applicable PO Percentage of any Realized Loss, including any
Excess Loss, shall be allocated to the Class PO-1 Component, if such
Realized Loss relates to a Loan Group 1 Mortgage Loan, until the
Component Balance thereof is reduced to zero and to the Class PO-2
Component, if such Realized Loss relates to a Loan Group 2 Mortgage Loan,
until the Component Balance thereof is reduced to zero; and
(ii) (A) the applicable Non-PO Percentage of any Realized Loss
(other than an Excess Loss) shall be allocated first to the Subordinated
Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinated Certificates then
outstanding with the highest numerical Class designation) until the
respective Class Certificate Balance of each such Class is reduced to
zero, and second to the Senior Certificates (other than any Notional
Amount Certificates, if applicable, and the related Class PO Component),
pro rata on the basis of their respective Class Certificate Balances or,
in the case of any Class of Accrual Certificates, on the basis of the
lesser of their Class Certificate Balance and their initial Class
Certificate Balance, in each case immediately prior to the related
Distribution Date until the respective Class Certificate Balance of each
such Class is been reduced to zero; and
(B) the applicable Non-PO Percentage of any Excess Losses on the
Mortgage Loans in a Loan Group shall be allocated to the Classes of
Certificates of the related Senior Certificate Group (other than any
Notional Certificates, if applicable, and the related Class PO Component)
and the Subordinated Certificates then outstanding, pro rata, on the
basis of, with respect to such Senior Certificates, their respective
Class Certificate Balances, or in the case of any Class of Accrual
Certificates, on the basis of the lesser of its Class Certificate Balance
and its initial Class Certificate Balance, in each
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case immediately prior to the related Distribution Date and, with
respect to each Class of Subordinated Certificates, the applicable
Assumed Balance for each such Class relating to the Loan Group in which
such Realized Loss occurs; provided, however, on any Distribution Date
after a Senior Termination Date for a Senior Certificate Group, such
Excess Losses on the Mortgage Loans in the related Loan Group will be
allocated to the Subordinated Certificates on the basis of their
respective Class Certificate Balances; and provided further that after
the Senior Credit Support Depletion Date, such Excess Losses shall be
allocated pro rata to all Senior Certificates (other than the Class PO
Components and Notional Amount Certificates) regardless of Senior
Certificate Group on the basis of their respective initial Class
Certificate Balances, or in the case of any Class of Accrual
Certificates, on the basis of the lesser of its Class Certificate Balance
and its initial Class Certificate Balance, in each case immediately prior
to the related Distribution Date.
(b) The Class Certificate Balance of the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation
shall be reduced on each Distribution Date by the sum of (i) the amount of any
payments on the Class PO Certificates in respect of Class PO Deferred Amounts
and (ii) the amount, if any, by which the aggregate of the Class Certificate
Balances of all outstanding Classes of Certificates (after giving effect to
the distribution of principal and the allocation of Realized Losses and Class
PO Deferred Amounts on such Distribution Date) exceeds the Pool Stated
Principal Balance for the following Distribution Date.
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 4.04(a) above shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or to any
Component or any reduction in the Certificate Balance of a Certificate,
pursuant to Section 4.04(a) above shall be accomplished by reducing the
Certificate Balance or Component Balance thereof, as applicable, immediately
following the distributions made on the related Distribution Date in
accordance with the definition of "Certificate Balance" or "Component
Balance," as the case may be. All Realized Losses or Excess Losses allocated
to a Class of Component Certificates will be allocated pro rata to the related
Components.
Section 4.05 [Reserved].
Section 4.06 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
cause to be forwarded by first class mail to each Certificateholder, the
Master Servicer, the Depositor and each Rating Agency a statement setting
forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Class Unpaid
Interest Amounts included in such distribution and any remaining Class
Unpaid Interest Amounts after giving effect to such distribution;
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(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the Senior Percentage and Subordinated Percentage for the
following Distribution Date;
(vii) the amount of the Excess Master Servicing Fees and Basic
Master Servicing Fees paid to or retained by the Master Servicer with
respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure) (1) 1 to 30 days
(2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days and (B) in
foreclosure and delinquent (1) 1 to 30 days (2) 31 to 60 days (3) 61 to
90 days and (4) 91 or more days, as of the close of business on the last
day of the calendar month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage for the following
Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month;
(xv) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as
of the related Determination Date; and
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(xvi) with respect to the second Distribution Date, the number and
aggregate balance of any Delay Delivery Mortgage Loans not delivered
within thirty days after the Closing Date, the Remaining PO Supplemental
Loan Amount and the Remaining Non-PO Supplemental Amount distributed as
principal.
The Trustee may make the above information available to
Certificateholders via the Trustee's website at xxxx://xxx.xxxxxxxxxxxx.xxx.
(b) The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness and accuracy
of the information provided by the Master Servicer.
(c) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day prior to
the related Distribution Date), the Master Servicer shall deliver to the
Trustee (which delivery may be by electronic data transmission) a report in
substantially the form set forth as Schedule V hereto.
(d) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(i), (a)(ii) and (a)(vii) of this Section
4.06 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
Section 4.07 Determination of Pass-Through Rates for COFI Certificates.
The Pass-Through Rate for each Class of COFI Certificates for each
Interest Accrual Period after the initial Interest Accrual Period shall be
determined by the Trustee as provided below on the basis of the Index and the
applicable formulae appearing in footnotes corresponding to the COFI
Certificates in the table relating to the Certificates in the Preliminary
Statement.
Except as provided below, with respect to each Interest Accrual Period
following the initial Interest Accrual Period, the Trustee shall not later
than two Business Days 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
such Interest Accrual Period. If at the Outside Reference Date for any
Interest Accrual Period, COFI for the second calendar month preceding such
Interest Accrual Period has not been published, the Trustee shall use COFI for
the third calendar month preceding such Interest Accrual Period. If COFI for
neither the second nor third calendar months preceding any Interest Accrual
Period 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
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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.
On each Interest Determination Date so long as the COFI Certificates are
outstanding and the applicable Index therefor is LIBOR, 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.
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 follows:
(a) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next 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%).
(b) 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.
From such time as the applicable Index becomes LIBOR until all of the
COFI Certificates are paid in full, the Trustee will at all times retain at
least four Reference Banks for the purposes 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
IV-11
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.
In determining LIBOR and any Pass-Through Rate for the COFI Certificates
or any Reserve Interest Rate, the Trustee may conclusively rely and shall be
protected in relying upon the offered quotations (whether written, oral or on
the Reuters Screen) from the Reference Banks or the New York City banks as to
LIBOR or the Reserve Interest Rate, as appropriate, in effect from time to
time. The Trustee shall not have any liability or responsibility to any Person
for (i) the Trustee's selection of New York City banks for purposes of
determining any Reserve Interest Rate or (ii) its inability, following a
good-faith reasonable effort, to obtain such quotations from the Reference
Banks or the New York City banks or to determine such arithmetic mean, all as
provided for in this Section 4.07.
The establishment of LIBOR and each Pass-Through Rate for the COFI
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
Section 4.08 Determination of Pass-Through Rates for LIBOR Certificates.
(a) On each Interest Determination Date so long as any LIBOR Certificates
are outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m. London time on
each LIBOR Determination Date. "Telerate Page 3750" means the display page
currently so designated on the Bridge Telerate Service (formerly the Dow Xxxxx
Markets) (or such other page as may replace that page on that service for the
purpose of displaying comparable rates or prices).
(b) If on any Interest Determination Date LIBOR cannot be determined as
provided in paragraph (A) of this Section 4.08, the Trustee shall either (i)
request each Reference Bank to inform the Trustee of the quotation offered by
its principal London office for making one-month United States dollar deposits
in leading banks in the London interbank market, as of 11:00 a.m. (London
time) on such Interest Determination Date or (ii) in lieu of making any such
request, rely on such Reference Bank quotations that appear at such time on
the Reuters Screen LIBO Page (as defined in the International Swap Dealers
Association Inc. Code of Standard Wording, Assumptions and Provisions for
Swaps, 1986 Edition), to the extent available. LIBOR for the next Interest
Accrual Period will be established by the Trustee on each interest
Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next applicable
Interest Accrual Period shall be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall
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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, or, in the case of the first Interest
Determination Date, 1.85%.
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
applicable Interest Accrual Period shall be determined by the Trustee on each
Interest Determination Date so long as the LIBOR Certificates are outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR Certificates,
any Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered
quotations (whether written, oral or on the Dow Xxxxx Markets) from the BBA
designated banks, the Reference Banks or the New York City banks as to LIBOR,
the Interest Settlement Rate or the Reserve Interest Rate, as appropriate, in
effect from time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee's selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City banks
or to determine such arithmetic mean, all as provided for in this Section
4.08.
IV-13
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.
IV-14
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
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Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly
executed by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In
the event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer in
substantially the forms set forth in Exhibit J (the "Transferor Certificate")
and (i) deliver a letter in substantially the form of either Exhibit K (the
"Investment Letter") or Exhibit L (the "Rule 144A Letter") or (ii) there shall
be delivered to the Trustee at the expense of the transferor an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the Master
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably
request to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee and the Depositor, the Seller 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
V-2
in form and substance satisfactory to the Trustee (in the event such
Certificate is a Private Certificate or 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 K or Exhibit
L, or in the event such Certificate is a Residual Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975 of the Code, or a person acting on behalf of any such plan or
arrangement, or using the assets of any such plan or arrangement to effect
such transfer, (ii) in the case of a Certificate that is an ERISA Restricted
Certificate and that has been the subject of an ERISA-Qualifying Underwriting,
if the purchaser is an insurance company, a representation that the purchaser
is an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of either the Trustee or the Trust Fund,
addressed to the Trustee, to the effect that the purchase and holding of such
ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and will
not subject the Trustee to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the
preceding sentence, with respect to an ERISA-Restricted Certificate that is
not a Private Certificate or a Residual Certificate, in the event the
representation letter referred to in the preceding sentence is not so
furnished, such representation shall be deemed to have been made to the
Trustee by the transferee's (including an initial acquiror's) acceptance of
the ERISA-Restricted Certificates. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA-Restricted Certificate to
or on behalf of an employee benefit plan subject to ERISA or to the Code
without the delivery to the Trustee of an Opinion of Counsel satisfactory to
the Trustee as described above shall be void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
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(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been furnished with
an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Residual Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Residual Certificate to any
Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of
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Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the Trustee, the Seller or the Master Servicer, 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.
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, (y) the Depositor at its option
advises the Trustee in writing that it elects to terminate the book-entry
system through the Depository or (z) 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
V-5
the occurrence of any such event and of the availability of definitive,
fully-registered Certificates (the "Definitive Certificates") to Certificate
Owners requesting the same. Upon surrender to the Trustee of the related Class
of Certificates by the Depository, accompanied by the instructions from the
Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Master Servicer, the Depositor nor the Trustee shall
be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Master Servicer shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Depository shall
be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates and the Trustee shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder; provided that the Trustee shall not by virtue of its assumption of
such obligations become liable to any party for any act or failure to act of
the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Master Servicer and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new Certificate under this Section 5.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer or
the Trustee may treat the Person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, 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 (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders 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, provide the
V-6
Depositor, the Master Servicer or such Certificateholders at such recipients'
expense the most recent list of the Certificateholders of such Trust Fund held
by the Trustee, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, 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 hereunder, regardless of the source from which such
information was derived.
Section 5.06 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates
may be surrendered for registration of transfer or exchange. The Trustee
initially designates its Corporate Trust Office for such purposes. The Trustee
will give prompt written notice to the Certificateholders of any change in
such location of any such office or agency.
V-7
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 each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement. The Master Servicer will keep in effect its
existence, rights and franchises as a limited partnership under the laws of
the United States or under the laws of one of the states thereof and will
obtain and preserve its qualification or registration to do business as a
foreign partnership in each jurisdiction in which such qualification or
registration is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be
the successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of,
FNMA or FHLMC.
Section 6.03 Limitation on Liability of the Depositor, the Seller, the
Master Servicer and Others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer 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 Seller, the Master
Servicer or any such Person against any breach of representations or
warranties made by it herein or protect the Depositor, the Seller, the Master
Servicer 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 Seller, the Master Servicer and any
director, officer, employee or agent of the Depositor, the Seller or the
Master Servicer may rely in good faith on any document of any kind
VI-1
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Seller, the Master Servicer and
any director, officer, employee or agent of the Depositor, the Seller or the
Master Servicer 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
Seller or the Master Servicer 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 Seller or the
Master Servicer 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 Seller and the Master
Servicer shall be entitled to be reimbursed therefor out of the Certificate
Account.
Section 6.04 Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates or (b) upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination under
clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
master servicer shall have assumed the Master Servicer's responsibilities,
duties, liabilities and obligations hereunder.
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, which failure materially
affects the rights of Certificateholders, that failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure shall have been given to the Master Servicer by the
Trustee or the Depositor, or to the Master Servicer and the Trustee by
the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates; provided, however, that the
sixty-day cure period shall not apply to the initial delivery of the
Mortgage File for Delay Delivery Mortgage Loans nor the failure to
substitute or repurchase in lieu thereof; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations.
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, the Trustee may, or at the direction of
the Holders of Certificates evidencing not less than 66 2/3% of the Voting
Rights evidenced by the Certificates, the Trustee shall by notice in writing
to the Master Servicer (with a copy to each Rating Agency), terminate all of
the rights and obligations
VII-1
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. On and after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer hereunder, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in the
Trustee. The Trustee shall thereupon make any Advance which the Master
Servicer failed to make subject to Section 4.01 hereof whether or not the
obligations of the Master Servicer have been terminated pursuant to this
Section. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice
of termination, whether to complete the transfer and endorsement or assignment
of the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any
obligation of the Master Servicer to pay amounts owed pursuant to Article
VIII. The Master Servicer agrees to cooperate with the Trustee in effecting
the termination of the Master Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to the Trustee of all
cash amounts which shall at the time be credited to the Certificate Account,
or thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of
any late collection of a Scheduled Payment on a Mortgage Loan which was due
prior to the notice terminating such Master Servicer's rights and obligations
as Master Servicer hereunder and received after such notice, that portion
thereof to which such Master Servicer would have been entitled pursuant to
Sections 3.08(a)(i) through (viii),and any other amounts payable to such
Master Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 hereof, the Trustee shall, subject to and
to the extent provided in Section 3.04, be the successor to the Master
Servicer in its capacity as master servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and applicable law including the
obligation to make Advances pursuant to Section 4.01. As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans that the Master Servicer would have been entitled to charge to the
Certificate Account or Distribution Account if the Master Servicer had
continued to act hereunder; provided, however, that neither the Trustee nor
any other successor to Countrywide Home Loans Servicing LP as Master Servicer
shall be entitled to receive the Excess Master Servicing Fee. 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
VII-2
a FNMA and FHLMC approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, and which is willing to service the Mortgage
Loans and executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, which contains an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer (other than liabilities of the Master
Servicer under Section 6.03 hereof incurred prior to termination of the Master
Servicer under Section 7.01), with like effect as if originally named as a
party to this Agreement; and provided further that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior
to such assignment and delegation will not be qualified or reduced as a result
of such assignment and delegation. Pending appointment of a successor to the
Master Servicer hereunder, the 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 Basic Master Servicing Fee permitted the Master Servicer hereunder. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither
the Trustee nor any other successor master servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making,
any distribution hereunder or any portion thereof or any failure to perform,
or any delay in performing, any duties or responsibilities hereunder, in
either case caused by the failure of the Master Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
Any successor to the Master Servicer as master servicer shall give notice
to the Mortgagors of such change of servicer and shall, during the term of its
service as master servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 3.09.
In connection with the termination or resignation of the Master Servicer
hereunder, either (i) the successor Master Servicer, including the Trustee if
the Trustee is acting as successor Master Servicer, shall represent and
warrant that it is a member of MERS in good standing and shall agree to comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the Mortgage Loans that are registered with MERS, or
(ii) the predecessor Master Servicer shall cooperate with the successor Master
Servicer either (x) in causing MERS to execute and deliver an assignment of
Mortgage in recordable form to transfer the Mortgage from MERS to the Trustee
and to execute and deliver such other notices, documents and other instruments
as may be necessary or desirable to effect a transfer of such Mortgage Loan or
servicing of such Mortgage Loan on the MERS(R) System to the successor Master
Servicer or (y) in causing MERS to designate on the MERS(R) System the
successor Master Servicer as the servicer of such Mortgage Loan. The
predecessor Master Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The successor Master Servicer
shall cause such assignment to be delivered to the Trustee promptly upon
receipt of the original with evidence of recording thereon or a copy certified
by the public recording office in which such assignment was recorded.
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; and
(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.
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
VIII-2
satisfactory to the Trustee against the costs, expenses and liabilities
which may be incurred therein or thereby.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor or the 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
VIII-3
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 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.
Section 8.07 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to Section 8.08, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a
tax is imposed with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund is located and the imposition of such tax would be
avoided by the appointment of a different trustee, then the Depositor or the
Master Servicer may remove the Trustee and appoint a successor trustee by
written instrument, in triplicate, one copy of which instrument shall be
delivered to the Trustee, one copy of which shall be delivered to the Master
Servicer and one copy to the successor trustee.
VIII-4
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor Trustee to the Master Servicer, one complete set
to the Trustee so removed and one complete set to the successor so appointed.
Notice of any removal of the Trustee shall be given to each Rating Agency by
the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 8.08 hereof.
Section 8.08 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as
if originally named as trustee herein. The Depositor, the Master Servicer and
the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09 Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 8.06 hereof without the execution or filing of
any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
VIII-5
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time
be located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of the Master Servicer, shall
be conferred or imposed upon and exercised or performed by the Trustee
and such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or 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.
VIII-6
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11 Tax Matters.
It is intended that the assets with respect to which any REMIC election
is to be made, as set forth in the Preliminary Statement, shall constitute,
and that the conduct of matters relating to such assets shall be such as to
qualify such assets as, a "real estate mortgage investment conduit" as defined
in and in accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of any such REMIC
and that in such capacity it shall: (a) prepare and file, or cause to be
prepared and filed, in a timely manner, a U.S. Real Estate Mortgage Investment
Conduit Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with
respect to any such REMIC, containing such information and at the times and in
the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby; (b) within thirty days of the
Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such 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,
VIII-7
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 either REMIC
status; (h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any such REMIC prior to its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person as may
be required to sign such returns by the Code or state or local laws,
regulations or rules; (j) maintain records relating to any such REMIC,
including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined
at such intervals as may be required by the Code, as may be necessary to
prepare the foregoing returns, schedules, statements or information; and (k)
as and when necessary and appropriate, represent any such REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any such REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any such REMIC, and otherwise act on behalf of any such REMIC in
relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor shall provide, or cause to be provided, to the Trustee within
ten (10) days after the Closing Date all information or data that the Trustee
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor, any such
additional information or data that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims or expenses of the Trustee arising from any
errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of any
REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c)
of the Code, on any contribution to any REMIC hereunder after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including, without limitation, any minimum tax imposed upon any REMIC
hereunder pursuant to Sections 23153 and 24874 of the California Revenue and
Taxation Code, if not paid as otherwise provided for herein, such tax shall be
paid by (i) the Trustee, if any such other tax arises out of or results from a
breach by the 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
VIII-8
out of or results from a breach by the Master Servicer or Seller of any of
their obligations under this Agreement, (iii) the Seller, if any such tax
arises out of or results from the 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 the 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).
Section 8.12 Periodic Filings.
Pursuant to written instructions from the Depositor, the Trustee shall
prepare, execute and file all periodic reports required under the Securities
Exchange Act of 1934 in conformity with the terms of the relief granted to the
Depositor in CWMBS, Inc. (February 3, 1994), a copy of which has been supplied
to the Trustee by the Depositor. In connection with the preparation and filing
of such periodic reports, the Depositor and the Master Servicer shall timely
provide to the Trustee all material information available to them which is
required to be included in such reports and not known to them to be in the
possession of the Trustee and such other information as the Trustee reasonably
may request from either of them and otherwise reasonably shall cooperate with
the Trustee. The Trustee shall have no liability with respect to any failure
to properly prepare or file such periodic reports resulting from or relating
to the Trustee's inability or failure to obtain any information not resulting
from its own negligence or willful misconduct.
VIII-9
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 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 and (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, in each case 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 Master
Servicer determines that the customary and reasonable costs and expenses
incurred in the performance of the Master Servicer of its servicing
obligations hereunder exceed the benefits accruing to the Master Servicer;
provided, however, that in no event shall the Master Servicer exercise its
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 before
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 sum of the
aggregate Initial Cut-off Date Principal Balance of the Initial Mortgage Loans
and the Supplemental Amount on the Closing Date.
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.
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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.
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 the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of
the Certificates. Upon such final deposit with respect to the Trust Fund and
the receipt by the Trustee of a Request for Release therefor, the Trustee
shall promptly release to the Master Servicer the Mortgage Files for the
Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case
on the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates, the Certificate Balance thereof plus (a) accrued
interest thereon (or on their Notional Amount, if applicable) in the case of
an interest bearing Certificate and (b) any Class PO Deferred Amounts in the
case of Class PO Certificates, and (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account (other
than the amounts retained to meet claims) after application pursuant to clause
(i) above.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within six months after the second notice all the applicable Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for
cancellation, the Class A-R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
Section 9.03 Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option as
provided in Section 9.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee has been
supplied with an Opinion of Counsel, at the expense of
IX-2
the Master Servicer, to the effect that the failure to comply with the
requirements of this Section 9.03 will not (i) result in the imposition of
taxes on "prohibited transactions" on any REMIC as defined in section 860F of
the Code, or (ii) cause any REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(1) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Master Servicer under Section 9.02,
the Master Servicer shall prepare and the Trustee, at the expense of
the "tax matters person," shall adopt a plan of complete liquidation
within the meaning of section 860F(a)(4) of the Code which, as
evidenced by an Opinion of Counsel (which opinion shall not be an
expense of the Trustee or the Tax Matters Person), meets the
requirements of a qualified liquidation; and
(2) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of
the Trust Fund to the Master Servicer for cash in accordance with
Section 9.01.
(b) The Trustee as agent for any REMIC 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, 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 add to the duties of
the Depositor, the Seller or the Master Servicer, (iv) to add any other
provisions with respect to matters or questions arising hereunder or (v) 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 (iv)
or (v) above shall not, as evidenced by an Opinion of Counsel (which Opinion
of Counsel shall not be an expense of the Trustee or the Trust Fund),
adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall not be deemed
to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Notwithstanding the foregoing, no amendment that
significantly changes the permitted activities of the trust created by this
Agreement may be made without the consent of a Majority in Interest of each
Class of Certificates affected by such amendment. The Trustee, the Depositor
and the Master Servicer also may at any time and from time to time amend this
Agreement without the consent of the Certificateholders to modify, eliminate
or add to any of its provisions to such extent as shall be necessary or
helpful to (i) maintain the qualification of any REMIC as a REMIC under the
Code, (ii) avoid or minimize the risk of the imposition of any tax on any
REMIC pursuant to the Code that would be a claim at any time prior to the
final redemption of the Certificates or (iii) comply with any other
requirements of the Code, provided that the Trustee has been provided an
Opinion of Counsel, which opinion shall be an expense of the party requesting
such opinion but in any case shall not be an expense of the Trustee or the
Trust Fund, to the effect that such action is necessary or helpful to, as
applicable, (i) maintain such qualification, (ii) avoid or minimize the risk
of the imposition of such a tax or (iii) comply with any such requirements of
the Code.
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of a
Majority in Interest of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in (i), without the consent of the Holders of
Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating 66-2/3%, or (iii) reduce the
X-1
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
X-2
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties.
It is the express intent of the parties hereto that the conveyance of the
(i) of the Mortgage Loans by the Seller 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 the Seller or 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
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 the 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.
The Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Trust Fund, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. The Depositor
shall arrange for filing any Uniform Commercial Code continuation statements
in connection with any security interest granted or assigned to the Trustee
for the benefit of the Certificateholders.
Section 10.05 Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the Trustee
and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03;
5. The final payment to Certificateholders; and
6. Any rating action involving the long-term credit rating of the Master
Servicer, which notice shall be made by first-class mail within two Business
Days after the Trustee gains actual knowledge thereof.
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In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.16;
3. Each annual independent public accountants' servicing report described
in Section 3.17; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
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, CWMBS, Inc.,
0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (818)
225-4053, Attention: Xxxxx X. Xxxxxxx, (2) in the case of the Seller,
Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx, (3) 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, (4) 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, CWMBS, Inc. Series 2002-11, or such other address as the
Trustee may hereafter furnish to the Depositor or Master Servicer, and (5) in
the case of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a
X-4
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.
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.
X-5
Section 10.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificate-holders 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].
Sectioon 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
IN WITNESS WHEREOF, the Depositor, the Trustee, the Seller 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.
CWMBS, INC.,
as Depositor
By: /s/Xxxxx Xxxxxxx
----------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/Xxxxx Xxxxxx
----------------------
Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
COUNTRYWIDE HOME LOANS, INC.,
as Seller and Master Servicer
By: /s/Xxxxx Xxxxxxx
----------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: /s/Xxxxx Xxxxxxx
----------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice Present
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2002-11
Representations and Warranties of the Seller
--------------------------------------------
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II to the Depositor,
the Master Servicer and the Trustee, as of the Closing Date, or if so
specified herein, as of the Initial Cut-off Date. Capitalized terms used but
not otherwise defined in this Schedule II 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
seller, Countrywide Home Loans Servicing LP, as master servicer, CWMBS, Inc.,
as depositor, and The Bank of New York, as trustee.
(1) Countrywide is duly organized as a New York corporation and is
validly existing and in good standing under the laws of the State of New
York and is duly authorized and qualified to transact any and all
business contemplated by the Pooling and Servicing Agreement to be
conducted by Countrywide in any state in which a Mortgaged Property is
located or is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing business
laws of any such state, to the extent necessary to perform any of its
obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(2) Countrywide has the full corporate power and authority to sell
and service each 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 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
S-II-1
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.
(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
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 Mortgage Loans
to the Depositor as a sale of the 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 for as long as
such Mortgage Loans are registered with MERS.
S-II-2
SCHEDULE III
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2002-11
Representations and Warranties as to the Mortgage Loans
-------------------------------------------------------
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule III to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or if
so specified herein, with respect to the Initial Cut-off Date and with respect
to the Supplemental Mortgage Loans, as of the Supplemental Transfer Date.
Capitalized terms used but not otherwise defined in this Schedule III shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Countrywide, as seller, Countrywide Home Loans Servicing LP, as master
servicer, CWMBS, Inc., as depositor, and The Bank of New York, as trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Initial Mortgage Loan is true
and correct in all material respects as of the Closing Date and with
respect to each Supplemental Mortgage Loan is true and correct in all
material respects as of the related Supplemental Transfer Date.
(2) As of the Closing Date, all payments due with respect to each
Initial Mortgage Loan prior to the Initial Cut-off Date have been made;
and as of the Initial Cut-off Date, no Mortgage Loan has been
contractually delinquent for 30 or more days during the twelve months
prior to the Initial Cut-off Date. As of each Supplemental Transfer Date,
all payments due with respect to each related Supplemental Mortgage Loan
prior to the related Supplemental Cut-off Date will have been made; and
as of each Supplemental Cut-off Date, no related Supplemental Mortgage
Loan will have been contractually delinquent for 30 or more days during
the twelve months prior to that Supplemental Cut-off Date.
(3) No Initial Mortgage Loan had a Loan-to-Value Ratio at
origination in excess of 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) Immediately prior to the assignment of each Mortgage Loan to the
Depositor, the Seller had good title to, and was the sole owner of, such
Mortgage Loan
S-III-1
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.
(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 Initial Mortgage
Loans and as of the Supplemental Transfer Date with respect to the
Supplemental Mortgage Loans, to the best of the Seller'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 state and federal laws, including, without
limitation, usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending and disclosure laws, and consummation of the
transactions contemplated hereby will not involve the violation of any
such laws.
(11) As of the Closing Date in the case of the Initial Mortgage
Loans and as of the related Supplemental Transfer Date with respect to
the Supplemental Mortgage Loans, neither the Seller 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 the Seller and successor owners of indebtedness secured by the
insured Mortgage, as to the first priority lien of the
S-III-2
Mortgage subject to the exceptions set forth in paragraph (4) above; to
the best of the Seller's knowledge, no claims have been made under such
mortgage title insurance policy and no prior holder of the related
Mortgage, including the Seller, 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 the Seller'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 the Seller'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 the Seller'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) The 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 the Seller'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 Loan have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making, or closing or recording
the Mortgage Loans were paid.
(18) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
S-III-3
(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 the Seller have been capitalized under
the Mortgage or the related Mortgage Note.
(22) The origination, underwriting and collection practices used by
the Seller 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) 161 of the Initial Mortgage Loans provide for a prepayment
penalty.
(27) Each Mortgage Loan which had a Loan-to-Value Ratio at
origination in excess of 80% is the subject of a Primary Insurance Policy
that insures that portion of the principal balance equal to a specified
percentage times the sum of the remaining principal balance of the
related Mortgage Loan, the accrued interest thereon and the related
foreclosure expenses. The specified percentage is either 12.00% for
Loan-to-Value Ratios between 80.01% and 85.00%, 25.00% for Loan-to-Value
Ratios between 85.01% and 90.00%, 30.00% for Loan-to-Value Ratios between
90.01% and 97.00% and 35.00% for Loan-to-Value Ratios between 97.01% and
100%. Each such Primary Insurance Policy is issued by a Qualified
Insurer. All provisions of any such Primary Insurance Policy have been
and are being complied with, any such policy is in full force and effect,
and all premiums due thereunder have been paid. Any Mortgage subject to
any such Primary Insurance Policy obligates either the Mortgagor or the
mortgagee thereunder to maintain such insurance and to pay all premiums
and charges in connection therewith, subject, in each case, to the
provisions of Section 3.09(b) of the Pooling and Servicing Agreement. The
Mortgage Rate for each Mortgage Loan is net of any such insurance
premium.
S-III-4
(28) As of the related Cut-off 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 the Seller or the
original mortgagee, and its successors in interest, as mortgagee, and the
Seller 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 the Seller'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 the Seller'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 the Seller has not waived
any default, breach, violation or event of acceleration. 32. Each
Mortgaged Property is improved by a one- to four-family residential
dwelling including condominium units and dwelling units in PUDs, which,
to the best of Seller'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.
S-III-5
(34) Any future advances made prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term reflected on the Mortgage
Loan Schedule. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan. The Mortgage Note does
not permit or obligate the Master Servicer to make future advances to the
Mortgagor at the option of the Mortgagor.
(35) All taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed, but is not yet due and
payable. Except for (A) payments in the nature of escrow payments, and
(B) interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage proceeds, whichever is later, to the day
which precedes by one month the Due Date of the first installment of
principal and interest, including without limitation, taxes and insurance
payments, the Master Servicer has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage.
(36) Each Mortgage Loan was underwritten in all material respects in
accordance with the Seller'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 is a graduated payment mortgage loan
or a growing equity mortgage loan, and none of the Initial Mortgage Loans
is 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 Countrywide's portfolio
at the Closing Date as to which the representations and warranties made
as to the Mortgage Loans set forth in this Schedule III can be made. Such
selection was not made in a manner intended to adversely affect the
interests of Certificateholders.
S-III-6
(41) Except for 778 Initial 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 $353,177,785.13.
S-III-7
SCHEDULE IV
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 2002-11
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 Seller 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 seller, Countrywide Home Loans Servicing LP,
as master servicer, CWMBS, 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 ensure
its ability to enforce each Mortgage Loan, to service the Mortgage Loan
in accordance with the terms of the Pooling and Servicing Agreement and
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
S-IV-1
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.
(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's
Servicing knowledge, threatened, against Countrywide Servicing that would
materially and adversely affect the execution, delivery or enforceability
of the Pooling and Servicing Agreement or the ability of Countrywide
Servicing to service the Mortgage Loans or to perform any of its other
obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide Servicing of, or compliance by Countrywide
Servicing with, the Pooling and Servicing Agreement or the consummation
of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Countrywide Servicing has
obtained the same.
(7) Countrywide Servicing is a member of MERS in good standing, and
will comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the MERS Mortgage Loans for as
long as such Mortgage Loans are registered with MERS.
S-IV-2
SCHEDULE V
Principal Balances Schedule
[attached to Prospectus Supplement]
S-V-1
SCHEDULE VI
Form of Monthly Master Servicer Report
LOAN LEVEL REPORTING SYSTEM
DATABASE STRUCTURE
[MONTH, YEAR]
Field Number Field Name Field Type Field Width Dec
---------------- ------------ ------------ ------------- ------
1 INVNUM Numeric 4
2 INVBLK Numeric 4
3 INACNU Character 8
4 BEGSCH Numeric 15 2
5 SCHPRN Numeric 13 2
6 TADPRN Numeric 11 2
7 LIQEPB Numeric 11 2
8 ACTCOD Numeric 11
9 ACTDAT Numeric 4
10 INTPMT Numeric 8
11 PRNPMT Numeric 13 2
12 ENDSCH Numeric 13 2
13 SCHNOT Numeric 13 2
14 SCHPAS Numeric 7 3
15 PRINPT Numeric 7 3
16 PRIBAL Numeric 11 2
17 LPIDTE Numeric 13 2
18 DELPRN Numeric 7
19 PPDPRN Numeric 11 2
20 DELPRN Numeric 11 2
21 NXTCHG Numeric 8
22 ARMNOT Numeric 7 3
23 ARMPAS Numeric 7 3
24 ARMPMT Numeric 11 2
25 ZZTYPE Character 2
26 ISSUID Character 1
27 KEYNAME Character 8
TOTAL 240
Suggested Format: DBASE file
Modem transmission
S-VI-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").]
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates of
this Class : $
CUSIP :
CWMBS, INC.
Mortgage Pass-Through Certificates, Series 200____-____
-
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
CWMBS, Inc., as Depositor
A-1
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balances of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by CWMBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, Countrywide Home
Loans, Inc., as seller (the "Seller"), Countrywide Home Loans Servicing LP, as
master servicer (the "Master Servicer"), and The Bank of New York, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
A-2
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By________________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
A-3
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES UNDER THE CODE
TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ________, 200 . THE
INITIAL PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS ___%. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT OF ___% PER ANNUM
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH $_______
OF OID PER $1,000 OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE; THE
ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING THE
ACCRUAL OF OID IS APPROXIMATELY ______% (COMPOUNDED MONTHLY); THE AMOUNT OF
OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD IS $_____ PER $1,000 OF THE
ORIGINAL PRINCIPAL AMOUNT OF THIS CERTIFICATE COMPUTED USING THE MONTHLY YIELD
AND DAILY COMPOUNDING DURING THE SHORT ACCRUAL PERIOD. NO REPRESENTATION IS
MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE. THE ACTUAL YIELD TO MATURITY MAY DIFFER FROM
THAT SET FORTH ABOVE, AND THE ACCRUAL OF OID WILL BE ADJUSTED, IN ACCORDANCE
WITH SECTION 1272(a)(6) OF THE CODE, TO TAKE INTO ACCOUNT EVENTS WHICH HAVE
OCCURRED DURING ANY ACCRUAL PERIOD. THE PREPAYMENT ASSUMPTION IS INTENDED TO
BE THE PREPAYMENT ASSUMPTION REFERRED TO IN SECTION 1272(a)(6)(B)(iii) OF THE
CODE.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
B-1
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR
DELIVERS TO THE TRUSTEE AN ALTERNATIVE REPRESENTATION OR AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. [SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.]
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
B-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates of
this Class : $
CWMBS, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties
CWMBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by CWMBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, Countrywide Home
Loans, Inc., as seller (the "Seller"), Countrywide Home Loans Servicing LP, as
master servicer (the "Master Servicer"), and The Bank of New York, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is
B-3
exempt from the registration requirements under said Act and such laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer. In the
event that such a transfer is to be made within three years from the date of
the initial issuance of Certificates pursuant hereto, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Securities Act) to the Trustee an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act and such state
securities laws, which Opinion of Counsel shall not be obtained at the expense
of the Trustee, the Seller, the Master Servicer or the Depositor. The Holder
hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.]
[No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation [letter] from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan subject to
Section 4975 of the Code, nor a person acting on behalf of any such plan,
which representation letter shall not be an expense of the Trustee or the
Master Servicer, (ii) if certificate has been the subject of an ERISA
Qualifying Underwriting and the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under Sections I and III of PTCE 95-60, or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer to the effect that
the purchase or holding of such Certificate will not result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Trustee to any obligation in addition to those undertaken
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee or the Master Servicer. [Such representation shall be deemed to have
been made to the Trustee by the Transferee's acceptance of a Certificate of
this Class and by a beneficial owner's acceptance of its interest in a
Certificate of this Class.] Notwithstanding anything else to the contrary
herein, any purported transfer of a Certificate of this Class to or on behalf
of an employee benefit plan subject to ERISA or to the Code without the
opinion of counsel satisfactory to the Trustee as described above shall be
void and of no effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
B-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By_______________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
B-5
EXHIBIT C
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR AN ALTERNATIVE REPRESENTATION AN OPINION OF
COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates of
this Class : $
CUSIP :
CWMBS, INC.
Mortgage Pass-Through Certificates, Series 200____-____
evidencing the distributions allocable to the Class A-R Certificates
with respect to a Trust Fund consisting primarily of a pool of
conventional loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties
CWMBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Master Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _______________ is the registered owner of the
Percentage Interest (obtained by dividing the Denomination of this Certificate
by the aggregate Initial Certificate Balances of all Certificates of the Class
to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting of the Mortgage Loans deposited by CWMBS,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, Countrywide Home Loans, Inc., as seller (the
"Seller"), Countrywide Home Loans Servicing LP, as master servicer (the
"Master Servicer"), and The Bank of New York, as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
C-2
No transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
nor a person acting on behalf of any such plan, which representation letter
shall not be an expense of the Trustee or the Master Servicer, or (ii) in the
case of any such Class A-R Certificate presented for registration in the name
of an employee benefit plan subject to ERISA, or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer to the effect that
the purchase or holding of such Class A-R Certificate will not result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
will not result in the assets of the Trust Fund being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Trustee or the Master Servicer. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class A-R
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed
to be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By _____________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-4
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").]
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSE OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES UNDER THE CODE
TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ________, 200 . THE
INITIAL PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS ____%. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT OF % PER ANNUM (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH $__________ OF
OID ON THE INITIAL POOL STATED PRINCIPAL BALANCE; THE ANNUAL YIELD TO MATURITY
OF THIS CERTIFICATE FOR PURPOSES OF COMPUTING THE ACCRUAL OF OID IS
APPROXIMATELY _______% (COMPOUNDED MONTHLY); THE AMOUNT OF OID ALLOCABLE TO
THE SHORT FIRST ACCRUAL PERIOD IS $______ ON THE INITIAL POOL STATED PRINCIPAL
BALANCE; AND THE METHOD USED TO CALCULATE THE ANNUAL YIELD TO MATURITY AND THE
AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD IS THE EXACT METHOD
AS DEFINED IN PROPOSED TREASURY REGULATIONS. NO REPRESENTATION IS MADE THAT
THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR
AT ANY OTHER RATE. THE ACTUAL YIELD TO MATURITY MAY DIFFER FROM THAT SET FORTH
ABOVE, AND THE ACCRUAL OF OID WILL BE ADJUSTED, IN ACCORDANCE WITH SECTION
1272(a)(6) OF THE CODE, TO TAKE INTO ACCOUNT EVENTS WHICH HAVE OCCURRED DURING
ANY ACCRUAL PERIOD. THE PREPAYMENT ASSUMPTION IS INTENDED TO BE THE PREPAYMENT
ASSUMPTION REFERRED TO IN SECTION 1272(a)(6)(B)(iii) OF THE CODE.]
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR
DELIVERS TO THE TRUSTEE AN ALTERNATIVE REPRESENTATION OR AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. [SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.]
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") :
Initial Notional Amount
of all Certificates
of this Class :
CUSIP :
CWMBS, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties
CWMBS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that ________________ is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by CWMBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as seller (the "Seller"), Countrywide Home Loans Servicing LP, as master
servicer (the "Master Servicer"), and The Bank of New York, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
D-2
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By_________________________
Countersigned:
By________________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee [Reserved]
D-3
EXHIBIT E
[FORM OF REVERSE OF CERTIFICATES]
CWMBS, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as CWMBS, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the Business Day immediately following the Master Servicer Remittance Date
(the "Distribution Date"), commencing on the first Distribution Date specified
on the face hereof, to the Person in whose name this Certificate is registered
at the close of business on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of Certificates of the Class to
which this Certificate belongs on such Distribution Date pursuant to the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Master Servicer and the Trustee with the consent of
the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange therefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
E-1
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Seller and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the Pool Stated Principal Balance is
less than 10% of the aggregate Cut-off Date Principal Balances of the Mortgage
Loans, the Master Servicer will have the option to repurchase, in whole, from
the Trust Fund all remaining Mortgage Loans and all property acquired in
respect of the Mortgage Loans at a purchase price determined as provided in
the Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _________________________________________________________________________
______________________________________________________________________________
Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
__________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to,_______________________________________________
______________________________________________________________________________
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number ________________________, or, if mailed by check, to__________.
______________________________________________________________________________
______________________________________________________________________________
Applicable statements should be mailed to ___________________________________,
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by _______________________________________,
the assignee named above, or ________________________________________________,
as its agent.
E-3
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary
public in and for said State, personally appeared ______________________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
____________________________________
Notary Public
[Notarial Seal]
E-4
EXHIBIT F-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller, Countrywide
Home Loans Servicing LP, as Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
_________________________________________________
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full
or listed on the attached schedule) it has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay
to the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Initial
F-1-1
Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Initial
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:_____________________________
Name:
Title:
F-1-2
EXHIBIT F-2
FORM OF INITIAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller, Countrywide
Home Loans Servicing LP, as Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
_________________________________________________
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") and the
Supplemental Transfer Agreement, dated as of [month] ____, 200_, the
undersigned, as Trustee, hereby certifies that, as to each Supplemental
Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Supplemental Mortgage Loan paid in full or listed on the attached schedule) it
has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay
to the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability
F-2-1
or genuineness of any of the documents contained in each Mortgage File of any
of the Supplemental Mortgage Loans identified on the Mortgage Loan Schedule,
or (ii) the collectability, insurability, effectiveness or suitability of any
such Supplemental Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:_____________________________
Name:
Title:
F-2-2
EXHIBIT G-1
FORM OF DELAY DELIVERY CERTIFICATION
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Seller]
_______________________
_______________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller, Countrywide
Home Loans Servicing LP, as Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
_________________________________________________
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Delay Delivery Initial Mortgage Loan listed
on Schedule A attached hereto (other than any Initial Mortgage Loan paid in
full or listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________
without recourse", with all intervening endorsements that
show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been
lost or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original
Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage, [and
in the case of each Initial Mortgage Loan that is a MERS
Mortgage Loan, the original Mortgage, noting thereon the
presence of the MIN of the Initial Mortgage Loan and
language indicating that the Initial Mortgage Loan is a
MOM Loan if the Initial Mortgage Loan is a MOM Loan, with
evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which
such Mortgage has been recorded];
G-1-1
(iii) in the case of each Initial Mortgage Loan that is not a
MERS Mortgage Loan, a duly executed assignment of the
Mortgage to "The Bank of New York, as trustee under the
Pooling and Servicing Agreement dated as of [month] 1,
2002, without recourse", or, in the case of each Initial
Mortgage Loan with respect to property located in the
State of California that is not a MERS Mortgage Loan, a
duly executed assignment of the Mortgage in blank (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of
and transfer to the assignee thereof, under the Mortgage
to which such assignment relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of
such Mortgage [(noting the presence of a MIN in the case
of each MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
(vi) the original or duplicate original lender's title policy
or a printout of the electronic equivalent and all riders
thereto or, in the event such original title policy has
not been received from the insurer, any one of an original
title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by
the title company, with the original policy of title
insurance to be delivered within one year of the Closing
Date.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Seller cannot deliver the original recorded Mortgage or
all interim recorded assignments of the Mortgage satisfying the requirements
of clause (ii), (iii) or (iv), as applicable, the Trustee has received, in
lieu thereof, a true and complete copy of such Mortgage and/or such assignment
or assignments of the Mortgage, as applicable, each certified by the Seller,
the applicable title company, escrow agent or attorney, or the originator of
such Initial Mortgage Loan, as the case may be, to be a true and complete copy
of the original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Initial Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
G-1-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:___________________________
Name:
Title:
G-1-3
EXHIBIT G-2
FORM OF DELAY DELIVERY CERTIFICATION
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller, Countrywide
Home Loans Servicing LP, as Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
_________________________________________________
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on [month] __,
200_ (such date being the related "Supplemental Transfer Date" in accordance
with Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"). The undersigned hereby certifies that, as
to each Delay Delivery Supplemental Mortgage Loan listed on Schedule A
attached hereto (other than any Supplemental Mortgage Loan paid in full or
listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________
without recourse", with all intervening endorsements that
show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been
lost or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original
Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(ii) in the case of each Supplemental Mortgage Loan that is not
a MERS Mortgage Loan, the original recorded Mortgage, [and
in the case of each Supplemental Mortgage Loan that is a
MERS Mortgage Loan, the original Mortgage, noting thereon
the presence of the MIN of the Supplemental Mortgage Loan
and language indicating that the Supplemental Mortgage
Loan is a MOM Loan if the Supplemental Mortgage Loan is a
MOM Loan, with evidence of recording
G-2-1
indicated thereon, or a copy of the Mortgage certified by
the public recording office in which such Mortgage has
been recorded];
(iii) in the case of each Supplemental Mortgage Loan that is not
a MERS Mortgage Loan, a duly executed assignment of the
Mortgage to "The Bank of New York, as trustee under the
Pooling and Servicing Agreement dated as of [month] 1,
2002, without recourse", or, in the case of each
Supplemental Mortgage Loan with respect to property
located in the State of California that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage
in blank (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of
such Mortgage [(noting the presence of a MIN in the case
of each MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
(vi) the original or duplicate original lender's title policy
or a printout of the electronic equivalent and all riders
thereto or, in the event such original title policy has
not been received from the insurer, any one of an original
title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by
the title company, with the original policy of title
insurance to be delivered within one year of the Closing
Date.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Seller cannot deliver the original recorded Mortgage or
all interim recorded assignments of the Mortgage satisfying the requirements
of clause (ii), (iii) or (iv), as applicable, the Trustee has received, in
lieu thereof, a true and complete copy of such Mortgage and/or such assignment
or assignments of the Mortgage, as applicable, each certified by the Seller,
the applicable title company, escrow agent or attorney, or the originator of
such Supplemental Mortgage Loan, as the case may be, to be a true and complete
copy of the original Mortgage or assignment of Mortgage submitted for
recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Supplemental Mortgage Loan, and (ii) the information set forth in items (i),
(iv), (v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage
Loan Schedule" in Section 1.01 of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage
G-2-2
File of any of the Supplemental Mortgage Loans identified on the [Mortgage
Loan Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule]
or (ii) the collectibility, insurability, effectiveness or suitability of any
such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:____________________________
Name:
Title:
G-2-3
EXHIBIT H-1
FORM OF FINAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Seller]]
______________________
______________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller, Countrywide
Home Loans Servicing LP, as Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
_________________________________________________
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full
or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________
without recourse", with all intervening endorsements that
show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been
lost or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original
Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage, [and
in the case of each Initial Mortgage Loan that is a MERS
Mortgage Loan, the original Mortgage, noting thereon the
presence of the MIN of the Mortgage Loan and language
indicating that the Mortgage Loan is
H-1-1
a MOM Loan if the Mortgage Loan is a MOM Loan, with
evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which
such Mortgage has been recorded];
(iii) in the case of each Initial Mortgage Loan that is not a
MERS Mortgage Loan, a duly executed assignment of the
Mortgage to "The Bank of New York, as trustee under the
Pooling and Servicing Agreement dated as of [month] 1,
2002, without recourse", or, in the case of each Initial
Mortgage Loan with respect to property located in the
State of California that is not a MERS Mortgage Loan, a
duly executed assignment of the Mortgage in blank (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of
and transfer to the assignee thereof, under the Mortgage
to which such assignment relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of
such Mortgage [(noting the presence of a MIN in the case
of each Initial Mortgage Loan that is a MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
(vi) the original or duplicate original lender's title policy
or a printout of the electronic equivalent and all riders
thereto or, in the event such original title policy has
not been received from the insurer, any one of an original
title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by
the title company, with the original policy of title
insurance to be delivered within one year of the Closing
Date.
In the event that in connection with any Initial Mortgage Loan that is
not a MERS Mortgage Loan the Seller cannot deliver the original recorded
Mortgage or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or
such assignment or assignments of the Mortgage, as applicable, each certified
by the Seller, the applicable title company, escrow agent or attorney, or the
originator of such Initial Mortgage Loan, as the case may be, to be a true and
complete copy of the original Mortgage or assignment of Mortgage submitted for
recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
H-1-2
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Initial Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Initial
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:_____________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF FINAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Seller]
______________________
______________________
Re: Pooling and Servicing Agreement among
CWMBS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller, Countrywide
Home Loans Servicing LP, as Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series 200_-_
_________________________________________________
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Supplemental Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Supplemental Mortgage Loan paid
in full or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________
without recourse", with all intervening endorsements that
show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been
lost or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original
Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(ii) in the case of each Supplemental Mortgage Loan that is not
a MERS Mortgage Loan, the original recorded Mortgage, [and
in the case of each Supplemental Mortgage Loan that is a
MERS Mortgage Loan, the original Mortgage, noting thereon
the presence of the MIN of the Mortgage Loan and language
indicating
H-2-1
that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is a MOM Loan, with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been
recorded];
(iii) in the case of each Supplemental Mortgage Loan that is not
a MERS Mortgage Loan, a duly executed assignment of the
Mortgage to "The Bank of New York, as trustee under the
Pooling and Servicing Agreement dated as of [month] 1,
2002, without recourse", or, in the case of each
Supplemental Mortgage Loan with respect to property
located in the State of California that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage
in blank (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of
such Mortgage [(noting the presence of a MIN in the case
of each Supplemental Mortgage Loan that is a MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
(vi) the original or duplicate original lender's title policy
or a printout of the electronic equivalent and all riders
thereto or, in the event such original title policy has
not been received from the insurer, any one of an original
title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by
the title company, with the original policy of title
insurance to be delivered within one year of the Closing
Date.
In the event that in connection with any Supplemental Mortgage Loan that
is not a MERS Mortgage Loan the Seller cannot deliver the original recorded
Mortgage or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or
such assignment or assignments of the Mortgage, as applicable, each certified
by the Seller, the applicable title company, escrow agent or attorney, or the
originator of such Supplemental Mortgage Loan, as the case may be, to be a
true and complete copy of the original Mortgage or assignment of Mortgage
submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Supplemental Mortgage Loan, and (ii) the information set forth in items (i),
(iv), (v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage
Loan Schedule" in Section 1.01 of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
H-2-2
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Supplemental Mortgage Loans identified on the [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule] or
(ii) the collectibility, insurability, effectiveness or suitability of any
such Supplemental Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By :__________________________
Name:
Title:
H-2-3
EXHIBIT I
TRANSFER AFFIDAVIT
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _____________________, the proposed
Transferee of an Ownership Interest in a Class A-R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, (the
"Agreement"), relating to the above-referenced Series, by and among CWMBS,
Inc., as depositor (the "Depositor"), Countrywide Home Loans, Inc., as seller,
Countrywide Home Loans Servicing LP, as master servicer and The Bank of New
York, as Trustee. Capitalized terms used, but not defined herein or in Exhibit
1 hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a
I-1
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives and, except as
may be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by the provisions of Section 5.02(c) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is ______________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee anticipates that it will, so long as it holders the
Class A-R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class A-R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class A-R Certificates that
the Transferee intends to pay taxes associated with holding such Class A-R
Certificates as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class A-R
Certificates. The Transferee has provided financial statements or other
financial information requested by the Transferor in connection with the
transfer of the Class A-R Certificates to permit the Transferor to assess the
financial capability of the Transferee to pay such taxes. The Transferee is
not an employee benefit plan that is subject to ERISA or a plan that is
subject
I-2
to Section 4975 of the Code, and the Transferee is not acting on behalf of
such a plan.
12. Either (i) the Transferee is not an employee benefit plan subject to
Section 406 of ERISA or Section 4975 of the Code, nor a person acting on
behalf of any such plan or using the assets of such plan to effect such
acquisition, or, (ii) the source of funds for the purchase of such Class A-R
Certificate is an "insurance company general account" within the meaning of
Prohibited Transaction Class Exemption 95-60 (PTCE 95-60"), 60 Fed. Reg. 35925
(July 12, 1995), and the terms and conditions of Sections I and III of PTCE
95-60 are applicable to the acquisition and holding of such Class A-R
Certificate.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ___ day of _______________, 20__.
___________________________________
PRINT NAME OF TRANSFEREE
By:________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above-named _________________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ______________of the Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this _____ day of _________, 20__.
________________________________
NOTARY PUBLIC
My Commission expires the
___ day of ______________, 20__
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
___________________
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, an estate whose income from sources without the
United States is includible in gross income for United States federal income
tax purposes regardless of its connection with the conduct of a trade or
business within the United States, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust, (v) an "electing large partnership" within
the meaning of Section 775 of the Code, and (vii) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Class A-R Certificate to such Person may cause
the Trust Fund to fail to qualify as a REMIC at any time that certain
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture, bank,
joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
________________________________
(c) Each Person who has or who acquires any Ownership Interest in
a Class A-R Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
a Class A-R Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Class A-R Certificate unless, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been furnished with
an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class A-R Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Class A-R Certificate and (C)
not to Transfer its Ownership Interest in a Class A-R Certificate or to
cause the Transfer of an Ownership Interest in a Class A-R Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Class A-R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Class A-R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Class A-R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class A-R
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Class A-R Certificate that was in fact not a Permitted Transferee at
the time it became a Holder or, at such subsequent time as it became
other than a Permitted Transferee, all payments made on such Class A-R
I-6
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Class A-R Certificate to any
Holder who is not a Permitted Transferee.
I-7
EXHIBIT J-1
FORM OF TRANSFEROR CERTIFICATE
________________________
Date
CWMBS, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
0 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWMBS, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
_____________________________________________________________
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that to the extent we are disposing of a Class A-R Certificate, we
have no knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
________________________________
Print Name of Transferor
By:__________________________________
Authorized Officer
J-1-1
EXHIBIT J-2
FORM OF TRANSFEROR CERTIFICATE
________________________
Date
CWMBS, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
0 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWMBS, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
______________________________________________________________
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act.
Very truly yours,
________________________________
Print Name of Transferor
By:__________________________________
Authorized Officer
J-2-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
____________________________
Date
CWMBS, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
0 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWMBS, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
___________________________________________________
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement, nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting and we are an insurance
company, we are an insurance company which is purchasing such Certificates
with funds contained in an "insurance company general account" (as such term
is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and the purchase and holding of such Certificates are covered
under Sections I
K-1
and III of PTCE 95-60, (e) we are acquiring the Certificates for investment
for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below),
(f) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, or taken any other action which would
result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale,
transfer or other disposition is made pursuant to an effective registration
statement under the Act or is exempt from such registration requirements, and
if requested, we will at our expense provide an opinion of counsel
satisfactory to the addressees of this Certificate that such sale, transfer or
other disposition may be made pursuant to an exemption from the Act, (2) the
purchaser or transferee of such Certificate has executed and delivered to you
a certificate to substantially the same effect as this certificate, and (3)
the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
_____________________________________
Print Name of Transferee
By: ___________________________
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
_____________________
Date
CWMBS, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
0 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWMBS, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
________________________________________________
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement, nor are we using the assets of any such plan or
arrangement to effect such acquisition or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting and we are an insurance
company, we are an insurance company which is purchasing such Certificates
with funds contained in an "insurance company general account" (as such term
is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting
on our
L-1
behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to
the Certificates, any interest in the Certificates or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other
action, that would constitute a distribution of the Certificates under the
Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is
being made in reliance on Rule 144A. We are acquiring the Certificates for our
own account or for resale pursuant to Rule 144A and further, understand that
such Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (ii) pursuant to another exemption from registration under
the Securities Act.
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis either at least $100,000 in
securities or, if Buyer is a dealer, Buyer must own and/or invest on a
discretionary basis at least $10,000,000 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the
State or territorial banking commission or similar official
or is a foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which
is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
L-3
___ Broker-dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency
of a State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
L-4
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer
is a bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after
they become available.
_______________________________________
Print Name of Buyer
By:____________________________________
Name:
Title:
Date: _________________________________
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
7. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
8. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Buyer or the Buyer's Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If clause
(ii) in the preceding sentence applies, the securities may be valued at
market.
___ The Buyer owned $_______ in securities (other than the
excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $______ in securities (other
than the excluded securities referred to below) as of the
end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
9. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
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10. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
11. The Buyer is familiar with Rule 144A and under-stands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
12. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
______________________________________
Print Name of Buyer or Adviser
By: ________________________________
Name:
Title:
IF AN ADVISER:
______________________________________
Print Name of Buyer
Date: ______________________________
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
CWMBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
Name of Mortgagor: __________________________________________
Servicer Loan No.: __________________________________________
Trustee
Name: __________________________________________
Address: __________________________________________
__________________________________________
__________________________________________
Trustee
Mortgage File No.: __________________________________________
The undersigned Master Servicer hereby acknowledges that it has received
from The Bank of New York, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the "Documents"). All capitalized terms not otherwise defined in this Request
for Release shall have the meanings given them in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series among the Trustee, Countrywide Home Loans, Inc., as
Seller, Countrywide Home Loans Servicing LP, as Master Servicer and CWMBS,
Inc., as Depositor.
( ) Mortgage Note dated _______________, 20__, in the original principal
sum of $___________, made by ____________________________, payable to, or
endorsed to the order of, the Trustee.
( ) Mortgage recorded on __________________ as instrument no.
______________________ in the County Recorder's Office of the County of
_________________________, State of _________________________________
in book/reel/docket _________________________ of official records at
page/image _______________________________.
M-1
( ) Deed of Trust recorded on ______________________ as instrument no.
___________ in the County Recorder's Office of the County of
__________________________, State of _____________________ in
book/reel/docket _________________________ of official records at
page/image ____________________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_____________________ as instrument no. __________________ in the
County Recorder's Office of the County of _____________________, State
of ___________________ in book/reel/docket ________________ of official
records at page/image ______________________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) _____________________________________________________________________
( ) _____________________________________________________________________
( ) _____________________________________________________________________
( ) _____________________________________________________________________
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Servicer assert or seek to assert any claims or rights of
setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted
to the Certificate Account and except as expressly provided in the
Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master Servicer
shall at all times be earmarked for the account of the Trustee, and the
Master Servicer shall keep the Documents and any proceeds separate and
distinct from all other property in the Master Servicer's possession,
custody or control.
M-2
COUNTRYWIDE HOME LOANS
SERVICING LP
By__________________________________
Its_________________________________
Date:_________________, 20__
M-3
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York Attn: Mortgage Custody
Services
Re: The Pooling & Servicing Agreement dated [month] 1, 2002 among
Countrywide Home Loans, Inc., as Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, CWMBS, Inc. and The Bank of New
York, as Trustee
__________________________________________________________________
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you
as Trustee for CWMBS, Inc., we request the release of the Mortgage Loan File
for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
1. Mortgage Loan paid in full (Countrywide Home Loans, Inc. hereby
certifies that all amounts have been received).
2. Mortgage Loan Liquidated (Countrywide Home Loans, Inc. hereby
certifies that all proceeds of foreclosure, insurance, or other
liquidation have been finally received).
3. Mortgage Loan in Foreclosure.
4. Other (explain):
If item 1 or 2 above is checked, and if all or part of the Mortgage File
was previously released to us, please release to us our previous receipt on
file with you, as well as any additional documents in your possession relating
to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon return
of all of the above documents to you as Trustee, please acknowledge your
receipt by signing in the space indicated below, and returning this form.
N-1
COUNTRYWIDE HOME LOANS, INC.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
N-2
EXHIBIT O
[FORM OF FINANCIAL GUARANTY INSURANCE POLICY]
[RESERVED]
O-1
EXHIBIT P
FORM OF SUPPLEMENTAL TRANSFER AGREEMENT
THIS SUPPLEMENTAL TRANSFER AGREEMENT, dated as of ____________,
200_ (this "Supplemental Transfer Agreement"), among CWMBS, INC., a Delaware
corporation, as depositor (the "Depositor"), COUNTRYWIDE HOME LOANS, INC., a
New York corporation, as seller under the Pooling and Servicing Agreement
referred to below ( the "Seller"), and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee");
WHEREAS, the Depositor, the Seller, the Trustee and Countrywide
Home Loans Servicing LP, as Master Servicer, have entered in the Pooling and
Servicing Agreement, dated as of [month] 1, 2002 (the "Pooling and Servicing
Agreement"), in relation to the CHL Mortgage Pass-Through Trust 200_-_,
Mortgage Pass-Through Certificates, Series 200_-_;
WHEREAS, Section 2.01(e) of the Pooling and Servicing Agreement
provides for the parties hereto to enter into this Supplemental Transfer
Agreement in accordance with the terms and conditions of the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged the parties hereto agree as follows:
(a) The "Supplemental Transfer Date" with respect to this Supplemental
Transfer Agreement shall be ________, 200_.
(b) The "Aggregate Supplemental Purchase Amount" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Supplemental Loan
Account.
(c) The "Capitalized Interest Requirement" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Capitalized Interest
Account.
(d) The Supplemental Mortgage Loans conveyed on the Supplemental Transfer
Date shall be determined by the Seller as follows:
(i) The Seller shall list all funded mortgage loans then owned by it
that qualify for inclusion in the Trust Fund by the date on which they
were funded, and for each date, the Mortgagors shall be listed
alphabetically. Beginning with the earliest date, sequentially by date
and within a date alphabetically, the listed loans shall be included in
the Trust Fund until either their aggregate Stated Principal Balance is
less than or equal to the Supplemental Purchase Amount without exceeding
it or all of the listed loans have been transferred.
(ii) Once the potential Supplemental Mortgage Loans are identified
in this manner, the total potential Trust Fund shall be tested for
compliance with the characteristics identified in Section 2.01(e) after
taking into account the addition of such potential Supplemental Mortgage
Loans. If any group characteristic is outside any permitted parameter by
more than 5% of the
P-1
parameter (or 10% of such parameter, with respect to the Average Stated
Principal Balance, or 10 basis points of such parameter, with respect to
the weighted average mortgage rate, or two months of such parameter, with
respect to the weighted average remaining term to maturity) then
beginning with the last mortgage loan initially added as a potential
Supplemental Mortgage Loan and progressing in reverse order, any
potential Supplemental Mortgage Loan having a characteristic that is
outside of the permitted parameters of a parameter violated by the
potential Supplemental Mortgage Loans in the aggregate shall be removed.
Then additional mortgage loans shall be added as provided in the
preceding paragraph except that no mortgage loan shall be added if it has
a characteristic that is outside of the permitted parameters of a
parameter violated by the potential Supplemental Mortgage Loans in the
aggregate. This procedure shall be repeated until the pool
characteristics for the Trust Fund identified in Section 2.01(e) are
satisfied within 5% of each parameter (other than with respect to the
Average Stated Principal Balance for which it must be within 10%, the
weighted average mortgage rate for which it must be within 10 basis
points, and the weighted average remaining term to maturity for which it
must be within two months) of each parameter specified in those
representations and warranties after taking into account the addition of
the potential Supplemental Mortgage Loans.
(e) In case any provision of this Supplemental Transfer Agreement shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions or obligations shall not in any way
be affected or impaired thereby.
(f) In the event of any conflict between the provisions of this
Supplemental Transfer Agreement and the Pooling and Servicing Agreement, the
provisions of the Pooling and Servicing Agreement shall prevail.
(g) This Supplemental Transfer Agreement shall be governed by, and shall
be construed and enforced in accordance with the laws of the State of New
York.
(h) The Supplemental Transfer Agreement may be executed in one or more
counterparts, each of which so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
P-2
IN WITNESS WHEREOF, the parties to this Supplemental Transfer
Agreement have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CWMBS, INC.,
as Depositor
By:_______________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.,
as Seller
By:_______________________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:_______________________________________
Name:
Title:
P-3
Acknowledged and Agreed:
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: _____________________________
Name:
Title:
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