The Pooling and Servicing Agreement
EXHIBIT 99.1
EXECUTION
COPY
CWALT,
INC.,
Depositor
COUNTRYWIDE
HOME LOANS, INC.,
Seller
PARK
GRANADA LLC,
Seller
PARK
MONACO INC.,
Seller
PARK
SIENNA LLC,
Seller
COUNTRYWIDE
HOME LOANS SERVICING LP,
Master
Servicer
and
THE
BANK
OF NEW YORK,
Trustee
___________________________________
Dated
as
of February 1, 2007
___________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-HY3
TABLE
OF
CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
||
|
SECTION
1.01.
|
Defined
Terms.
|
1
|
|
SECTION
1.02.
|
Certain
Interpretive Provisions.
|
37
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES
|
||
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans
|
39
|
|
SECTION
2.02.
|
Acceptance
by Trustee of the Mortgage Loans.
|
43
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Sellers and Master
Servicer.
|
45
|
|
SECTION
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
47
|
|
SECTION
2.05.
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
48
|
|
SECTION
2.06.
|
Execution
and Delivery of Certificates.
|
48
|
|
SECTION
2.07.
|
REMIC
Matters.
|
49
|
|
SECTION
2.08.
|
Covenants
of the Master Servicer.
|
49
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
|
||
|
SECTION
3.01.
|
Master
Servicer to Service Mortgage Loans.
|
50
|
|
SECTION
3.02.
|
Subservicing;
Enforcement of the Obligations of Servicers.
|
51
|
|
SECTION
3.03.
|
Rights
of the Depositor, the NIM Insurer and the Trustee in Respect of the
Master
Servicer.
|
51
|
|
SECTION
3.04.
|
Trustee
to Act as Master Servicer.
|
52
|
|
SECTION
3.05.
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Carryover Reserve Fund; Principal Reserve Fund; Supplemental Interest
Trust and Cap Contract Reserve Fund.
|
52
|
|
SECTION
3.06.
|
Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
|
56
|
|
SECTION
3.07.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
57
|
|
SECTION
3.08.
|
Permitted
Withdrawals from the Certificate Account, the Distribution Account,
the
Carryover Reserve Fund; the Principal Reserve Fund and the Cap Contract
Reserve Fund.
|
57
|
|
SECTION
3.09.
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
60
|
|
SECTION
3.10.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
|
61
|
|
SECTION
3.11.
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
62
|
|
SECTION
3.12.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
66
|
i
|
SECTION
3.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
the
Trustee.
|
67
|
|
SECTION
3.14.
|
Servicing
Compensation.
|
67
|
|
SECTION
3.15.
|
Access
to Certain Documentation.
|
68
|
|
SECTION
3.16.
|
Annual
Statement as to Compliance.
|
68
|
|
SECTION
3.17.
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
68
|
|
SECTION
3.18.
|
Notification
of Adjustments.
|
69
|
|
SECTION
3.19.
|
Cap
Contract.
|
69
|
|
SECTION
3.20.
|
Prepayment
Charges.
|
70
|
|
ARTICLE
IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
|
||
|
SECTION
4.01.
|
Advances.
|
71
|
|
SECTION
4.02.
|
Priorities
of Distribution.
|
72
|
|
SECTION
4.03.
|
[Reserved].
|
77
|
|
SECTION
4.04.
|
[Reserved].
|
77
|
|
SECTION
4.05.
|
[Reserved].
|
77
|
|
SECTION
4.06.
|
Monthly
Statements to Certificateholders.
|
78
|
|
SECTION
4.07.
|
Determination
of Pass-Through Rates for COFI Certificates.
|
78
|
|
SECTION
4.08.
|
Determination
of Pass-Through Rates for LIBOR Certificates.
|
79
|
|
SECTION
4.09.
|
Determination
of MTA.
|
81
|
|
SECTION
4.10.
|
Supplemental
Interest Trust.
|
81
|
|
ARTICLE
V THE CERTIFICATES
|
||
|
SECTION
5.01.
|
The
Certificates.
|
82
|
|
SECTION
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
83
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
88
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
88
|
|
SECTION
5.05.
|
Access
to List of Certificateholders’ Names and Addresses.
|
88
|
|
SECTION
5.06.
|
Maintenance
of Office or Agency.
|
89
|
|
ARTICLE
VI THE DEPOSITOR AND THE MASTER SERVICER
|
||
|
SECTION
6.01.
|
Respective
Liabilities of the Depositor and the Master Servicer.
|
90
|
|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor or the Master Servicer.
|
90
|
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Sellers, the Master Servicer,
the NIM
Insurer and Others.
|
90
|
|
SECTION
6.04.
|
Limitation
on Resignation of Master Servicer.
|
91
|
|
ARTICLE
VII DEFAULT
|
||
|
SECTION
7.01.
|
Events
of Default.
|
92
|
|
SECTION
7.02.
|
Trustee
to Act; Appointment of Successor.
|
94
|
|
SECTION
7.03.
|
Notification
to Certificateholders.
|
95
|
ii
|
ARTICLE
VIII CONCERNING THE TRUSTEE
|
||
|
SECTION
8.01.
|
Duties
of Trustee.
|
96
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
97
|
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
98
|
|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
98
|
|
SECTION
8.05.
|
Trustee’s
Fees and Expenses.
|
98
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
99
|
|
SECTION
8.07.
|
Resignation
and Removal of Trustee.
|
99
|
|
SECTION
8.08.
|
Successor
Trustee.
|
100
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
101
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
101
|
|
SECTION
8.11.
|
Tax
Matters.
|
102
|
|
SECTION
8.12.
|
Monitoring
of Significance Percentage.
|
105
|
|
ARTICLE
IX TERMINATION
|
||
|
SECTION
9.01.
|
Termination
upon Liquidation or Purchase of all Mortgage Loans.
|
106
|
|
SECTION
9.02.
|
Final
Distribution on the Certificates.
|
106
|
|
SECTION
9.03.
|
Additional
Termination Requirements.
|
108
|
|
ARTICLE
X MISCELLANEOUS PROVISIONS
|
||
|
SECTION
10.01.
|
Amendment.
|
109
|
|
SECTION
10.02.
|
Recordation
of Agreement; Counterparts.
|
110
|
|
SECTION
10.03.
|
Governing
Law.
|
111
|
|
SECTION
10.04.
|
Intention
of Parties.
|
111
|
|
SECTION
10.05.
|
Notices.
|
112
|
|
SECTION
10.06.
|
Severability
of Provisions.
|
113
|
|
SECTION
10.07.
|
Assignment.
|
114
|
|
SECTION
10.08.
|
Limitation
on Rights of Certificateholders.
|
114
|
|
SECTION
10.09.
|
Inspection
and Audit Rights.
|
114
|
|
SECTION
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
115
|
|
SECTION
10.11.
|
[Reserved].
|
115
|
|
SECTION
10.12.
|
Protection
of Assets.
|
115
|
|
SECTION
10.13.
|
Rights
of the NIM Insurer.
|
115
|
|
ARTICLE
XI EXCHANGE ACT REPORTING
|
||
|
SECTION
11.01.
|
Filing
Obligations.
|
117
|
|
SECTION
11.02.
|
Form
10-D Filings.
|
117
|
|
SECTION
11.03.
|
Form
8-K Filings.
|
118
|
|
SECTION
11.04.
|
Form
10-K Filings.
|
118
|
|
SECTION
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
119
|
|
SECTION
11.06.
|
Form
15 Filing.
|
119
|
|
SECTION
11.07.
|
Report
on Assessment of Compliance and Attestation.
|
119
|
|
SECTION
11.08.
|
Use
of Subservicers and Subcontractors.
|
121
|
iii
|
SECTION
11.09.
|
Amendments.
|
122
|
|
SECTION
11.10.
|
Reconciliation
of Accounts.
|
122
|
|
SCHEDULES
|
||
|
Schedule
I:
|
Mortgage
Loan Schedule
|
S-I-1
|
|
Schedule
II-A:
|
Representations
and Warranties of Countrywide
|
S-II-A-1
|
|
Schedule
II-B:
|
Representations
and Warranties of Park Granada
|
S-II-B-1
|
|
Schedule
II-C:
|
Representations
and Warranties of Park Monaco
|
S-II-C-1
|
|
Schedule
II-D:
|
Representations
and Warranties of Park Sienna
|
S-II-D-1
|
|
Schedule
III-A:
|
Representations
and Warranties of Countrywide as to all of the Mortgage
Loans
|
S-III-A-1
|
|
Schedule
III-B:
|
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
|
S-III-B-1
|
|
Schedule
III-C:
|
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
|
S-III-C-1
|
|
Schedule
III-D:
|
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
|
S-III-D-1
|
|
Schedule
III-E:
|
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
|
S-III-E-1
|
|
Schedule
IV:
|
Representations
and Warranties of the Master Servicer
|
S-IV-1
|
|
Schedule
V:
|
Principal
Balance Schedules [if applicable]
|
S-V-1
|
|
Schedule
VI:
|
Form
of Monthly Master Servicer Report
|
S-VI-1
|
|
Schedule
VII:
|
Prepayment
Charge Schedule
|
S-VII-1
|
|
EXHIBITS
|
||
|
Exhibit
A:
|
Form
of Senior Certificate (excluding Class A-R and Notional Amount
Certificates)
|
A-1
|
|
Exhibit
B:
|
Form
of Subordinated Certificate
|
B-1
|
|
Exhibit
C-1:
|
Form
of Class A-R Certificate
|
C-1-1
|
|
Exhibit
C-2:
|
Form
of Class P Certificate
|
C-2-1
|
|
Exhibit
C-3:
|
Form
of Class C Certificate
|
C-3-1
|
|
Exhibit
C-4
|
[Reserved]
|
C-4-1
|
|
Exhibit
D:
|
Form
of Notional Certificate
|
D-1
|
|
Exhibit
E:
|
Form
of Reverse of Certificates
|
E-1
|
|
Exhibit
F:
|
Form
of Initial Certification of Trustee
|
F-1
|
|
Exhibit
G:
|
Form
of Delay Delivery Certification of Trustee
|
G-1
|
|
Exhibit
H:
|
Form
of Final Certification of Trustee
|
H-1
|
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
I-1
|
|
Exhibit
J-1:
|
Form
of Transferor Certificate (Residual)
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Transferor Certificate (Private)
|
J-2-1
|
|
Exhibit
K:
|
Form
of Investment Letter [Non-Rule 144A]
|
K-1
|
|
Exhibit
L-1:
|
Form
of Rule 000X Xxxxxx
|
X-0
|
|
Xxxxxxx
X-0:
|
Form
of ERISA Letter (Covered Certificates)
|
L-1
|
|
Exhibit
M:
|
Form
of Request for Release (for Trustee)
|
M-1
|
iv
|
Exhibit
N:
|
Form
of Request for Release of Documents (Mortgage Loan) Paid in Full,
Repurchased and Replaced)
|
N-1
|
|
Exhibit
O:
|
[Reserved]
|
O-1
|
|
Exhibit
P:
|
[Reserved]
|
P-1
|
|
Exhibit
Q:
|
Then
current Standard & Poor’s LEVELS® Version 5.7 Glossary Revised,
Appendix E
|
Q-1
|
|
Exhibit
R:
|
Form
of Cap Contract
|
R-1
|
|
Exhibit
S-1:
|
[Reserved]
|
S-1-1
|
|
Exhibit
S-2:
|
[Reserved]
|
S-2-1
|
|
Exhibit
T:
|
Officer’s
Certificate with respect to Prepayments.
|
T-1
|
|
Exhibit
U:
|
Form
of Monthly Statement
|
U-1
|
|
Exhibit
V-1:
|
Form
of Performance Certification (Subservicer)
|
V-1-1
|
|
Exhibit
V-2:
|
Form
of Performance Certification (Trustee)
|
V-2-1
|
|
Exhibit
W:
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
W-1
|
|
Exhibit
X:
|
List
of Item 1119 Parties
|
X-1
|
|
Exhibit
Y:
|
Form
of Xxxxxxxx-Xxxxx Certification (Replacement of Master
Servicer)
|
Y-1
|
v
WITNESSETH
THAT
In
consideration of the mutual agreements contained in this Agreement, the parties
to this Agreement agree as follows:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. For federal income tax purposes, the Trust
Fund
(other than the Carryover Shortfall Reserve Fund, the Cap Contract and the
Cap
Contract Reserve Fund), will consist of three real estate mortgage investment
conduits (each a “REMIC” or, in the alternative, the “Sub WAC (SW) REMIC,” the
“Strip (ST) REMIC” and “ the “Master REMIC”). Each Certificate, other than the
Class A-R Certificates, will represent ownership of one or more regular
interests in the Master REMIC for purposes of the REMIC Provisions. The Class
A-R Certificate will represent ownership of the sole class of residual interest
in each of the SW REMIC, the ES REMIC and the Master REMIC. The Master REMIC
will hold as assets the several classes of uncertificated ES REMIC Interests
(other than the Class ST-A-R Interests). The ES REMIC will hold as assets the
several classes of uncertificated SW REMIC Interests (other than the Class
SW-A-R Interests). The SW REMIC will hold all the assets of Loan Group 1, Loan
Group 2 and Loan Group 3 (other than the Carryover Reserve Fund). For federal
income tax purposes, each REMIC Interest (other than the interests represented
by the Class A-R Certificates) is hereby designated as a regular interest.
The
latest possible maturity date of all REMIC regular interests created hereby
shall be the Latest Possible Maturity Date.
The
Supplemental Interest Trust, the Carryover Shortfall Reserve Fund, the Cap
Contract and the Cap Contract Reserve Fund will not for any part of any REMIC
described herein.
Master
REMIC:
The
Master REMIC Certificates will have the original Class Certificate Balances
and
Pass-Through Rates as set forth in the following table:
|
Class
|
Original
Class Certificate Balance
|
Pass-Through
Rate
|
REMIC
Certificate
|
|||||||
|
Class 1-A-1
|
$
|
140,798,000
|
(1)
|
|
Class
1-A-1
|
|||||
|
Class 1-A-2
|
$
|
15,644,000
|
(1)
|
|
Class
1-A-2
|
|||||
|
Class 2-A-1
|
$
|
557,768,000
|
(2)
|
|
Class
2-A-1
|
|||||
|
Class 2-A-2
|
$
|
61,974,000
|
(2)
|
|
Class
2-A-2
|
|||||
|
Class 3-A-1
|
$
|
147,344,000
|
(3)
|
|
Class
3-A-1
|
|||||
|
Class 3-A-2
|
$
|
16,371,000
|
(3)
|
|
Class
3-A-2
|
|||||
|
Class
M-1
|
$
|
9,972,000
|
(4)
|
|
Class
M-1
|
|||||
|
Class
M-2
|
$
|
7,978,000
|
(4)
|
|
Class
M-2
|
|||||
|
Class
M-3
|
$
|
5,485,000
|
(4)
|
|
Class
M-3
|
|||||
|
Class
M-4
|
$
|
3,490,000
|
(4)
|
|
Class
M-4
|
|||||
|
Class
M-5
|
$
|
3,490,000
|
(4)
|
|
Class
M-5
|
|||||
|
Class
M-6
|
$
|
3,490,000
|
(4)
|
|
Class
M-6
|
|||||
|
Class
M-7
|
$
|
3,490,000
|
(4)
|
|
Class
M-7
|
|||||
|
Class
M-8
|
$
|
3,490,000
|
(4)
|
|
Class
M-8
|
|||||
|
Class
M-9
|
$
|
3,490,000
|
(4)
|
|
Class
M-9
|
|||||
|
Class
M-10
|
$
|
4,986,000
|
(4)
|
|
Class
M-10
|
|||||
|
Class
M-11
|
$
|
4,488,000
|
(4)
|
|
Class
M-11
|
|||||
|
Class C
|
(5
|
)
|
(6)
|
|
Class
C
|
|||||
|
Class 1-P
|
$
|
100(7
|
)
|
(8)
|
|
Class
1-P
|
||||
|
Class 2-P
|
$
|
100(7
|
)
|
(9)
|
|
Class
2-P
|
||||
|
Class 3-P
|
$
|
100(7
|
)
|
(10)
|
|
Class
3-P
|
||||
|
Class
A-R
|
$
|
100
|
(11)
|
|
Class
A-R
|
|||||
_______________
|
(1)
|
This
Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement. For federal income tax purposes, the
interest accruing on this Certificates will be subject to a cap equal
to
the Net Rate Cap for Loan Group 1.
|
|
(2)
|
This
Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement. For federal income tax purposes, the
interest accruing on this Certificates will be subject to a cap equal
to
the Net Rate Cap for Loan Group 2.
|
|
(3)
|
This
Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement. For federal income tax purposes, the
interest accruing on this Certificates will be subject to a cap equal
to
the Net Rate Cap for Loan Group 3.
|
|
(4)
|
This
Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement. For federal income tax purposes, the
interest accruing on this Certificates will be subject to a cap equal
to
the Net Rate Cap for the Subordinated
Certificates.
|
|
(5)
|
The
Class C Interest has no principal balance. For income tax purposes,
this
Class C Master REMIC Interest will have a principal balance equal
to the
Overcollateralized Amount.
|
|
(6)
|
For
each Interest Accrual Period the Class C Certificates are entitled
to an
amount (the “Class C Distributable Amount”) equal to the sum of (a) the
interest payable on the ST-C Interest and (b) a specified portion
of the
interest payable on the Strip REMIC Regular Interests (other than
the
ST-$100, ST-C and ST-P Interests) equal to the excess of the Pool
Net Rate
Cap over the weighted average interest rate of the Strip REMIC Regular
Interests (other than the ST-$100, ST-C and ST-P Interests) with
each such
Class subject to a cap equal to the Pass-Through Rate of the Corresponding
Master REMIC Class. The Pass-Through Rate of the Class C Certificates
shall be a rate sufficient to entitle it to an amount equal to all
interest accrued on the Mortgage Loans less the interest accrued
on the
other Certificates issued by the Master REMIC. The Class C Distributable
Amount for any Distribution Date is payable from current interest
on the
Mortgage Loans and any related OC Release Amount for that Distribution
Date.
|
|
(7)
|
This
Class also has a notional balance equal to the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group that require
the
payment of a Prepayment Charge. The minimum denomination for the
Class
1-P, Class 2-P and Class 3-P Certificates is a 20% Percentage Interest.
Any Percentage Interest in excess of 20% is an authorized
denomination.
|
|
(8)
|
F
or each Distribution Date the Class 1-P Interests are entitled to
all
amounts payable with respect to the Class ST-1-P
Interest.
|
|
(9)
|
For
each Distribution Date the Class 2-P Interests are entitled to all
amounts
payable with respect to the Class ST-2-P
Interest.
|
|
(10)
|
For
each Distribution Date the Class 3-P Interests are entitled to all
amounts
payable with respect to the Class ST-3-P
Interest.
|
|
(11)
|
The
A-R Interests represent the sole class of residual interest in the
Master
REMIC. The Class A-R Interests are not entitled to distributions
of
interest.
|
2
Sub-WAC
REMIC:
The
Sub-WAC REMIC Interests will have the initial balances, pass-through rates
and
corresponding Class of Certificates as set forth in the following
table:
|
The
Sub-WAC REMIC Interests
|
Initial
Principal Balance
|
Pass-Through
Rate
|
Corresponding
Loan Group
|
|
SW-A-1
|
(1)
|
(2)
|
1
|
|
SW-B-1
|
(1)
|
(2)
|
1
|
|
SW-C-1
|
(1)
|
(2)
|
1
|
|
SW-A-2
|
(1)
|
(2)
|
2
|
|
SW-B-2
|
(1)
|
(2)
|
2
|
|
SW-C-2
|
(1)
|
(2)
|
2
|
|
SW-A-3
|
(1)
|
(2)
|
3
|
|
SW-B-3
|
(1)
|
(2)
|
3
|
|
SW-C-3
|
(1)
|
(2)
|
3
|
|
SW-P1
|
$100.00
|
(3)
|
1
|
|
SW-P2
|
$100.00
|
(3)
|
2
|
|
SW-P3
|
$100.00
|
(3)
|
3
|
|
SW-A-R
|
(4)
|
(4)
|
N/A
|
_______________
|
(1)
|
Each
Class A Sub-WAC REMIC Interest will have an Initial Principal Balance
equal to 0.9% of the Subordinate Portion of its Corresponding Loan
Group.
Each Class B Sub-WAC REMIC Interest will have an Initial Principal
Balance
equal to 0.1% of the Subordinate Portion of its Corresponding Loan
Group.
Each Class C Sub-WAC REMIC Interest will have an Initial Principal
Balance
equal to the excess of the initial aggregate Stated Principal Balance
of
the Mortgage Loans in its Corresponding Loan Group over the initial
aggregate principal balances of the Class A and Class B Sub-WAC REMIC
Interests corresponding to such Loan
Group.
|
|
(2)
|
This
Sub-WAC REMIC Interest will have an interest rate equal to the weighted
average of the Adjusted Net Mortgage Rates of the Mortgage Loans
in the
Corresponding Loan Group.
|
|
(3)
|
This
Class SW-P Interest does not pay any interest. All Prepayment Charges
with respect to the Mortgage Loans in the Corresponding Loan Group
will be
allocated to this Class SW-P Interest.
|
|
(4)
|
The
Class SW-A-R Interest is the sole class of residual interest in Sub-WAC
REMIC It has no principal balance and pays no principal or
interest.
|
On
each
Distribution Date, the Available Funds (including Prepayment Charges) for each
Loan Group shall be distributed with respect to its corresponding Sub-WAC REMIC
Interests in the following manner:
(1) Interest.
Interest is to be distributed with respect to each Sub-WAC REMIC Interest at
the
rate, or according to the formulas, described above;
(2) Prepayment
Charges.
All
Prepayment Charges will be allocated to the Class SW-P Interests as
described above.
3
(3) Principal,
if no Cross-Over Situation Exists.
If no
Cross-Over Situation exists with respect to any Class of Sub-WAC
REMIC Interests,
pincipal aounts arising with respect to each of Loan Group 1, Loan Group 2
and
Loan Group 3 will be allocated: first to cause the Loan Group’s corresponding
Class A and Class B Interests
to
equal,
respectively, 0.9% of the Subordinate
Portion of such Loan Group
and 0.1%
of the Subordinate
Portion of such Loan Group;
and
second to the Loan Group’s corresponding Class C Interest;
(4) Principal,
if a Cross-Over Situation Exists.
If a
Cross-Over Situation exists with respect to the Class A and Class B
Interests:
(a) If
the Calculation Rate
in respect of the outstanding Class A and Class B Interests is less than the
Net
Rate Cap for the Subordinated Certificates, then Principal Relocation Payments
will be made proportionately to the outstanding Class A Interests prior to
any
other principal distributions from each such Loan Group.
(b) If
the Calculation Rate
in respect of the outstanding Class A and Class B Interests is greater than
the
Net Rate Cap for the Subordinated Certificates, then Principal Relocation
Payments will be made to the outstanding Class B Interests prior to any other
principal distributions from each such Loan Group.
In
each
case, Principal Relocation Payments will be made so as to cause the Calculation
Rate in respect of the outstanding Class A and Class B Interests to equal the
Net Rate Cap for the Subordinated Certificates. With respect to each
Corresponding Loan Group, if (and to the extent that) the sum of (a) the
principal payments received during the Due Period and (b) the Realized Losses,
are insufficient to make the necessary reductions of principal on the Class
A
and Class B Interests, then interest will be added to the Loan Group’s Class C
Interest.
(c) Unless
required to
achieve the Calculation Rate, the outstanding aggregate Class A and Class B
Interests for all Corresponding Loan Groups will not be reduced below 1%
of
the
excess of (i) the aggregate outstanding principal balances
of all
Loan Groups as of the end of any Due Period (reduced by principal prepayments
received after the Due Period that are to be distributed on the Distribution
Date related to the Due Period) over (ii) the aggregate Class Certificate
Balance of the Senior Certificates for all Loan Groups as of the related
Distribution Date (after taking into account distributions of principal on
such
Distribution Date).
If
(and
to the extent that) the limitation in paragraph (c) prevents the distribution
of
principal to the corresponding Class A and Class B Interests of a Loan Group,
and if the Loan Group’s Class C Interest has already been reduced to zero, then
the excess principal from that Loan Group will be paid to the Class C Interests
of the other Corresponding Loan Group, the aggregate Class A and Class B
Interests of which are less than 1% of the Subordinate Portion of such Loan
Groups. If the Loan Group corresponding to the Class C Interest that receives
such payment has a weighted average Adjusted Net Mortgage Rate below the
weighted average Adjusted Net Mortgage Rate of the Loan Group making the
payment, then the payment will be treated by Sub-WAC REMIC as a Realized Loss.
Conversely, if a Loan Group corresponding to the Class C Interest
that receives such payment has a weighted average Adjusted Net Mortgage Rate
above the weighted average Adjusted Net Mortgage Rate of the Loan Group making
the payment, then the payment will be treated by Sub-WAC REMIC as a
reimbursement for prior Realized Losses.
4
Strip
REMIC:
The
Strip
REMIC Regular Interests will have the principal balances, pass-through rates
and
Corresponding Classes of Certificates as set forth in the following
table:
|
Strip
REMIC Interests
|
Initial
Principal Balance
|
Pass-Through
Rate
|
Corresponding
Class of Certificates
|
|
ST-1-A-1
|
(1)
|
(3)
|
1-A-1
|
|
ST-1-A-2
|
(1)
|
(3)
|
1-A-2
|
|
ST-2-A-1
|
(1)
|
(3)
|
2-A-1
|
|
ST-2-A-2
|
(1)
|
(3)
|
2-A-2
|
|
ST-3-A-1
|
(1)
|
(3)
|
3-A-1
|
|
ST-3-A-2
|
(1)
|
(3)
|
3-A-2
|
|
ST-M-1
|
(1)
|
(3)
|
M-1
|
|
ST-M-2
|
(1)
|
(3)
|
M-2
|
|
ST-M-3
|
(1)
|
(3)
|
M-3
|
|
ST-M-4
|
(1)
|
(3)
|
M-4
|
|
ST-M-5
|
(1)
|
(3)
|
M-5
|
|
ST-M-6
|
(1)
|
(3)
|
M-6
|
|
ST-M-7
|
(1)
|
(3)
|
M-7
|
|
ST-M-8
|
(1)
|
(3)
|
M-8
|
|
ST-M-9
|
(1)
|
(3)
|
M-9
|
|
ST-M-10
|
(1)
|
(3)
|
M-10
|
|
ST-M-11
|
(1)
|
(3)
|
M-11
|
|
ST-$100
|
$100
|
(4)
|
A-R
|
|
ST-C
|
(2)
|
(3)
|
N/A
|
|
ST-P1
|
$100
|
(5)
|
P-1
|
|
ST-P2
|
$100
|
(5)
|
P-2
|
|
ST-P3
|
$100
|
(5)
|
P-3
|
|
ST-A-R
|
(6)
|
(6)
|
N/A
|
(1)
This
Strip REMIC Interest has a principal balance that is initially equal to 100%
of
its Corresponding Certificate Class issued by the Master REMIC. Principal
payments, both scheduled and prepaid, Realized Losses and Subsequent Recoveries
attributable to the Sub-WAC REMIC Interests held by Strip REMIC will be
allocated to this class to maintain its size relative to its Corresponding
Certificate Class.
(2)
This
Strip REMIC Interest has a principal balance that is initially equal to 100%
of
the Overcollateralization Amount. Principal payments, both scheduled and
prepaid, Realized Losses and Subsequent Recoveries attributable to the Sub-WAC
REMIC Interests held by Strip REMIC will be allocated to this class to maintain
its size relative to the Overcollateralization Amount.
(3)
The
pass-through rate with respect to any Distribution Date (and the related Accrual
Period) for this Strip REMIC Interest is a per annum rate equal to the weighted
average of the Mortgage Loans (the “Pool Net Rate Cap”).
5
(4)
This
Strip REMIC Interest pays no interest.
(5)
The
ST-P1, ST-P2 and ST-P3 Interests are entitled to, respectively, all amounts
payable with respect to the SW-P1, SW-P2 and SW-P3 Interests. They pay no
interest.
(6)
The
ST-A-R Interest is the sole class of residual interest in Strip REMIC. It has
no
principal balance and pays no principal or interest.
On
each
Distribution Date, the Interest Funds and the Principal Distribution Amount
payable with respect to the Sub-WAC REMIC Interests shall be payable with
respect to the Strip REMIC Interests in the following manner:
(1) Interest.
Interest is to be distributed with respect to each Strip REMIC Interest at
the
rate, or according to the formulas, described above.
(2) Principal.
Principal Distribution Amounts shall be allocated among the Strip REMIC
Interests as described above.
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Master REMIC as cash flow on REMIC regular
interests, without creating any shortfall—actual or potential (other than for
credit losses)— to any REMIC regular interest. It is not intended that the Class
A-R Certificates be entitled to any cash flows pursuant to this Agreement except
as provided in Section 3.08(a) hereunder (that is, its entitlement to
$100).
6
Set
forth
below are designations of Classes or Components of Certificates and other
defined terms to the categories used in this Agreement:
|
Accretion
Directed Certificates
|
None.
|
|
Accretion
Directed Components
|
None.
|
|
Accrual
Certificates
|
None.
|
|
Accrual
Components
|
None.
|
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
COFI
Certificates
|
None.
|
|
Component
Certificates
|
None.
|
|
Components
|
None.
|
|
Delay
Certificates
|
All
interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
|
|
ERISA-Restricted
Certificates
|
The
Residual Certificates and the Private Certificates; and any Certificate
of
a Class that does not or no longer has a rating of BBB- or its equivalent,
or better from at least one Rating
Agency.
|
|
Floating
Rate Certificates
|
The
Variable Rate Certificates and the LIBOR Certificates.
|
|
Group
1 Senior Certificates
|
The
Class 1-A-1 and Class 1-A-2 Certificates.
|
|
Group
2 Senior Certificates
|
The
Class 2-A-1 and Class 2-A-3
Certificates.
|
|
Group
3 Senior Certificates
|
The
Class 3-A-1 and Class 3-A-2
Certificates.
|
|
Inverse
Floating Rate Certificates
|
None.
|
|
LIBOR
Certificates
|
The
Subordinated Certificates.
|
7
|
Non-Delay
Certificates
|
The
LIBOR Certificates.
|
|
Notional
Amount Certificates
|
None.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private Certificates.
|
|
Physical
Certificates
|
The
Private Certificates and the Residual Certificates.
|
|
Planned
Principal Classes
|
None.
|
|
Planned
Principal Components
|
None.
|
|
Principal
Only Certificates
|
None.
|
|
Private
Certificates
|
The
Class M-11, Class C, Class 1-P, Class 2-P and Class 3-P Certificates.
|
|
Rating
Agencies
|
S&P
and Xxxxx’x.
|
|
Regular
Certificates
|
All
Classes of Certificates, other than the Residual Certificates.
|
|
Residual
Certificates
|
The
Class A-R Certificates.
|
|
Scheduled
Principal Classes
|
None.
|
|
Senior
Certificates
|
The
Group 1 Senior Certificates, the Group 2 Senior Certificates, the
Group 3
Senior Certificates and the Class A-R
Certificates.
|
|
Subordinated
Certificates
|
The
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11
Certificates.
|
|
Targeted
Principal Classes
|
None.
|
|
Variable
Rate Certificates
|
The
Senior Certificates.
|
|
Underwriter
|
Deutsche
Bank Securities Inc.
|
With
respect to any of the foregoing designations as to which the corresponding
reference is “None,” all defined terms and provisions in this Agreement relating
solely to such designations shall be of no force or effect, and any calculations
in this Agreement incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions in this Agreement relating to statistical rating agencies not
designated above as Rating Agencies shall be of no force or effect.
8
ARTICLE
I
DEFINITIONS
DEFINITIONS
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Account:
Any
Escrow Account, the Certificate Account, the Distribution Account, the Carryover
Reserve Fund, the Cap Contract Reserve Fund or any other account related to
the
Trust Fund or the Mortgage Loans.
Accretion
Directed Classes:
As
specified in the Preliminary Statement.
Accrual
Period:
With
respect to each Class of Delay Certificates, its corresponding Sub-WAC REMIC
Regular Interest and any Distribution Date, the calendar month prior to the
month of such Distribution Date. With respect to any Class of Non-Delay
Certificates, its corresponding Sub-WAC REMIC Regular Interest and any
Distribution Date, the period commencing on the Distribution Date in 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 day
preceding such Distribution Date.
Additional
Designated Information:
As
defined in Section 11.02.
Adjusted
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the Mortgage
Rate less the Master Servicing Fee Rate.
Adjusted
Net Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the Mortgage
Rate less the Expense Fee Rate.
Adjustment
Date:
A date
specified in each Mortgage Note as a date on which the Mortgage Rate on the
related Mortgage Loan will be adjusted.
Advance:
As to
each Loan Group, the payment required to be made by the Master Servicer with
respect to any Distribution Date pursuant to Section 4.01, the amount of any
such payment being equal to the aggregate of payments of principal and interest
(net of the Master Servicing Fee on the Mortgage Loans in such Loan Group that
were due on the related Due Date and not received by the Master Servicer as
of
the close of business on the related Determination Date, together with an amount
equivalent to interest on each Mortgage Loan as to which the related Mortgaged
Property is an REO Property (net of any net income from that REO Property),
less
the aggregate amount of any such delinquent payments that the Master Servicer
has determined would constitute a Nonrecoverable Advance if
advanced.
Agreement:
This
Pooling and Servicing Agreement and all amendments or supplements this Pooling
and Servicing Agreement.
Amount
Held for Future Distribution:
As to
any Distribution Date and each Loan Group, the aggregate amount held in the
Certificate Account at the close of business on the related Determination Date
on account of (i) Principal Prepayments received after the related Prepayment
Period and Liquidation Proceeds and Subsequent Recoveries received in the month
of such Distribution Date relating to such Loan Group and (ii) all Scheduled
Payments due after the related Due Date relating to such Loan
Group.
Applied
Realized Loss Amount:
Applied
Realized Loss Amount: With respect to any Distribution Date and the Offered
Certificates, the sum of the Realized Losses with respect to the Mortgage Loans
which are to be applied in reduction of the Class Certificate Balance of any
such Class of Certificates pursuant to this Agreement, with respect to each
Class of the Subordinated Certificates, the amount, if any, by which the
aggregate Class Certificate Balance of all Subordinated Certificates (after
all
distributions of principal on such Distribution Date) exceeds the aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date in the month
in which such Distribution Date occurs (after giving effect to Principal
Prepayments and Liquidation Proceeds allocated to principal and Subsequent
Recoveries received in the related Prepayment Period). With respect to each
Class of Senior Certificates and any Distribution Date on or after which the
aggregate Class Certificate Balance of the Subordinated Certificates and Class
C
Certificates is equal to zero, the amount, if any, by which the aggregate Class
Certificate Balance of the Senior Certificates (after all distributions of
principal on such Distribution Date) exceeds the aggregate Stated Principal
Balance of the Mortgage Loans as of the Due Date in the month in which such
Distribution Date occurs (after giving effect to Principal Prepayments and
Liquidation Proceeds allocated to principal and Subsequent Recoveries received
in the related Prepayment Period).
Appraised
Value:
With
respect to any Mortgage Loan, the Appraised Value of the related Mortgaged
Property shall be: (i) with respect to a Mortgage Loan other than a Refinancing
Mortgage Loan, the lesser of (a) the value of the Mortgaged Property based
upon
the appraisal made at the time of the origination of such Mortgage Loan and
(b)
the sale price of the Mortgaged Property at the time of the origination of
such
Mortgage Loan; (ii) with respect to a Refinancing Mortgage Loan other than
a
Streamlined Documentation Mortgage Loan, the value of the Mortgaged Property
based upon the appraisal made-at the time of the origination of such Refinancing
Mortgage Loan; and (iii) with respect to a Streamlined Documentation Mortgage
Loan, (a) if the loan-to-value ratio with respect to the Original Mortgage
Loan
at the time of the origination thereof was 80% or less and the loan amount
of
the new mortgage loan is $650,000 or less, the value of the Mortgaged Property
based upon the appraisal made at the time of the origination of the Original
Mortgage Loan and (b) if the loan-to-value ratio with respect to the Original
Mortgage Loan at the time of the origination thereof was greater than 80% or
the
loan amount of the new mortgage loan being originated is greater than $650,000,
the value of the Mortgaged Property based upon the appraisal (which may be
a
drive-by appraisal) made at the time of the origination of such Streamlined
Documentation Mortgage Loan.
Available
Funds:
As to
any Distribution Date and each Loan Group, the sum of (a) the aggregate amount
held in the Certificate Account at the close of business on the related
Determination Date, including any Subsequent Recoveries, in respect of such
Mortgage Loans net of the related Amount Held for Future Distribution and net
of
Prepayment Charges and amounts permitted to be withdrawn from the Certificate
Account pursuant to clauses (i) - (viii) 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) of Section 3.08(b) in respect of such
Mortgage Loans, (b) the amount of the related Advance and (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. The Holders of the Class P Certificates
will
be entitled to all Prepayment Charges received on the Mortgage Loans and such
amounts will not be available for distribution to the Holders of any other
Class
of Certificates.
2
Bankruptcy
Code:
The
United States Bankruptcy Reform Act of 1978, as amended.
Benefit
Plan Opinion:
As
defined in Section 5.02(b)..
Book-Entry
Certificates:
As
specified in the Preliminary Statement.
Business
Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in the City of New York, New York, or the States of California
or
Texas or the city in which the Corporate Trust Office of the Trustee is located
are authorized or obligated by law or executive order to be closed.
Calculation
Rate:
For
each Distribution Date, the product of (i) 10 and (ii) the weighted average
pass-through rate of the outstanding Class A and Class B Interests, treating
each of the Class A Interests as capped at zero.
Cap
Contract:
With
respect to the Covered Certificates, the transaction evidenced by the
Confirmation, a form of which is attached hereto as Exhibit S-1.
Cap
Contract Counterparty:
Swiss
Re Financial Products Corporation.
Cap
Contract Reserve Fund:
The
separate fund created and initially maintained by the Supplemental Interest
Trustee pursuant to Section 3.05(h) in the name of the Supplemental Interest
Trustee for the benefit of the Holders of the Covered Certificates and
designated “The Bank of New York in trust for registered holders of Alternative
Loan Trust 2007-HY3, Mortgage Pass-Through Certificates, Series 2007-HY3.” Funds
in the Cap Contract Reserve Fund shall be held in trust for the Holders of
the
Covered Certificates for the uses and purposes set forth in this
Agreement.
Cap
Contract Scheduled Termination Date:
The
Distribution Date in February 2017.
Carryover
Reserve Fund:
The
separate Eligible Account created and initially maintained by the Trustee
pursuant to Section 3.05(g) in the name of the Trustee for the benefit of the
Holders of the Offered Certificates and designated “The Bank of New York in
trust for registered holders of CWALT, Inc., Alternative Loan Trust 2007-HY3,
Mortgage Pass-Through Certificates, Series 2007-HY3.” Funds in the Carryover
Reserve Fund shall be held in trust for the Holders of the Offered Certificates
for the uses and purposes set forth in this Agreement.
Certificate:
Any one
of the Certificates executed by the Trustee in substantially the forms attached
this Agreement as exhibits.
Certificate
Account:
The
separate Eligible Account or Accounts created and maintained by the Master
Servicer pursuant to Section 3.05 with a depository institution, initially
Countrywide, N.A., in the name of the Master Servicer for the benefit of the
Trustee on behalf of Certificateholders and designated “Countrywide Home Loans
Servicing LP in trust for the registered holders of Alternative Loan Trust
2007-HY3, Mortgage Pass-Through Certificates Series 2007-HY3.”
3
Certificate
Balance:
With
respect to any Certificate (other than the Class C Certificates) at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled under this Agreement, such amount being equal to the Denomination
of
that Certificate (A) plus, with respect to the Subordinated Certificates, any
increase to the Certificate Balance of such Certificate pursuant to Section
4.02
due to the receipt of Subsequent Recoveries and (B) minus
the sum
of (i) all distributions of principal previously made with respect to that
Certificate and (ii) with respect to the Subordinated Certificates, any
Applied Realized Loss Amounts allocated to such Certificate on previous
Distribution Dates pursuant to Section 4.02 without duplication.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
such Book-Entry Certificate. For the purposes of this Agreement, in order for
a
Certificate Owner to enforce any of its rights under this Agreement, it shall
first have to provide evidence of its beneficial ownership interest in a
Certificate that is reasonably satisfactory to the Trustee, the Depositor,
and/or the Master Servicer, as applicable.
Certificate
Register:
The
register maintained pursuant to Section 5.02.
Certificateholder
or Holder:
The
person in whose name a Certificate is registered in the Certificate Register,
except that, solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor or any
affiliate of the Depositor shall be deemed not to be Outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary
to
effect such consent has been obtained; provided, however, that if any such
Person (including the Depositor) owns 100% of the Percentage Interests evidenced
by a Class of Certificates, such Certificates shall be deemed to be Outstanding
for purposes of any provision of this Agreement (other than the second sentence
of Section 10.01) that requires the consent of the Holders of Certificates
of a
particular Class as a condition to the taking of any action under this
Agreement. The Trustee is entitled to rely conclusively on a certification
of
the Depositor or any affiliate of the Depositor in determining which
Certificates are registered in the name of an affiliate of the
Depositor.
Certification
Party:
As
defined in Section 11.05.
Certifying
Person:
As
defined in Section 11.05.
Class:
All
Certificates bearing the same class designation as set forth in the Preliminary
Statement.
Class
A Interest:
Each of
the Class 1-A-1 and Class 1-A-2 Interests.
Class
B Interest:
Each of
the Class 1-B-1 and Class 1-B-2 Interests.
Class
C Distributable Amount:
As
defined in the Preliminary Statement.
Class
C Interest:
Each of
the Class 1-C-1 and Class 1-C-2 Interests.
4
Class
Certificate Balance:
With
respect to any Class of Certificates other than the Class C Certificates and
as
to any date of determination, the aggregate of the Certificate Balances of
all
Certificates of such Class as of such date. The Class C Certificates do not
have
a Class Certificate Balances.
Class
P Certificate:
Each of
the Class 1-P, Class 2-P and Class 3-P Certificates, in the form of Exhibit
C-3
hereto, representing the right to distributions as set forth
herein.
Class
P Principal Distribution Date:
As to
any Class of Class P Certificates, the first Distribution Date that occurs
after
the end of the latest Prepayment Charge Period for the Mortgage Loans in the
related Loan Group that have a Prepayment Charge.
Closing
Date:
February 28, 2007.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
COFI:
The
Monthly Weighted Average Cost of Funds Index for the Eleventh District Savings
Institutions published by the Federal Home Loan Bank of San
Francisco.
COFI
Certificates:
As
specified in the Preliminary Statement.
Commission:
The
U.S. Securities and Exchange Commission.
Compensating
Interest:
As to
any Distribution Date and Loan Group, an amount equal to the product of 50%
and
the aggregate Master Servicing Fee payable to the Master Servicer for that
Loan
Group and Distribution Date.
Component:
As
specified in the Preliminary Statement.
Component
Balance:
Not
applicable.
Component
Certificates:
As
specified in the Preliminary Statement.
Component
Notional Amount:
Not
applicable.
Confirmation:
With
respect to the Covered Certificates, the Confirmation (reference #1293759)
with
a trade date of February 23, 2007, evidencing a transaction between the Cap
Contract Counterparty and The Bank of New York, as Supplemental Interest
Trustee, on behalf of the Supplemental Interest Trust.
Coop
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the
Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Coop Shares and a Proprietary Lease.
5
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, including
the allocation of individual dwelling units to the holders of the Coop Shares
of
the Cooperative Corporation.
Cooperative
Unit:
A
single family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
designated office of the Trustee in the State of New York at which at any
particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000 (Attn:
Mortgage-Backed Securities Group, CWALT, Inc. Series 2007-HY3), facsimile no.
(000) 000-0000, and which is the address to which notices to and correspondence
with the Trustee should be directed.
Countrywide:
Countrywide Home Loans, Inc., a New York corporation and its successors and
assigns, in its capacity as the seller of the Countrywide Mortgage Loans to
the
Depositor.
Countrywide
Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which
Countrywide is the applicable Seller.
Countrywide
Servicing:
Countrywide Home Loans Servicing LP, a Texas limited partnership and its
successors and assigns.
Covered
Certificates:
The
Offered Certificates (other than the Class A-R Certificates).
Cross-Over
Situation:
For any
Distribution Date and for any Loan Group (after taking into account principal
distributions on such Distribution Date) a Cross-Over Situation exists with
respect to the Class A and Class B Interests of the Loan Group if such Interests
in the aggregate are less than 1% of the Subordinated Portion of the related
Loan Group.
Cumulative
Loss Trigger Event:
With
respect to a Distribution Date on or after the Stepdown Date, the aggregate
amount of Realized Losses on the Mortgage Loans from (and including) the Cut-off
Date to the related Due Date (reduced by the aggregate amount of Subsequent
Recoveries received from the Cut-off Date through the Prepayment Period related
to that Due Date) exceeds the applicable percentage, for such Distribution
Date,
of the aggregate Stated Principal Balance of the Mortgage Loans as set forth
below:
6
|
Distribution
Date
|
Percentage
|
|
|
March
2009 - February 2010
|
0.20%
with respect to March 2009, plus an additional 1/12th of
0.25% for each month thereafter through February 2010
|
|
|
March
2010 - February 2011
|
0.45%
with respect to March 2010, plus an additional 1/12th of
0.30% for each month thereafter through February 2011
|
|
|
March
2011 - February 2012
|
0.75%
with respect to March 2011, plus an additional 1/12th of
0.30% for each month thereafter through February 2012
|
|
|
March
2012 - February 2013
|
1.05%
with respect to March 2012, plus an additional 1/12th of
0.20% for each month thereafter through February 2013
|
|
|
March
2013 and thereafter
|
1.25%
|
Current
Interest: With respect to each Class of Offered Certificates and each
Distribution Date, the interest accrued at the applicable Pass-Through Rate
for
the applicable Accrual Period on the Class Certificate Balance of such Class
immediately prior to such Distribution Date.
Cut-off
Date:
As to
any Mortgage Loan, the later of the date of origination of that Mortgage Loan
and February 1, 2007.
Cut-off
Date Pool Principal Balance: $997,240,133.91.
Cut-off
Date Principal Balance:
As to any Mortgage Loan, the Stated Principal Balance thereof as of the close
of
business on the Cut-off Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a reduction
resulting from a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
Defective
Mortgage Loan:
Any
Mortgage Loan that is required to be repurchased pursuant to Section 2.02
or 2.03.
Deferred
Interest:
Not
applicable.
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.
7
Definitive
Certificates:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 5.02(e).
Delay
Certificates:
As
specified in the Preliminary Statement.
Delay
Delivery Certification:
As
defined in Section 2.02(a).
Delay
Delivery Mortgage Loans:
The
Mortgage Loans for which all or a portion of a related Mortgage File is not
delivered to Trustee on the Closing Date. With respect to up to 50% of the
Mortgage Loans in each Loan Group, the Depositor may deliver all or a portion
of
each related Mortgage File to the Trustee not later than thirty days after
the
Closing Date. To the extent that Countrywide Servicing shall be in possession
of
any Mortgage Files with respect to any Delay Delivery Mortgage Loan, until
delivery of such Mortgage File to the Trustee as provided in Section 2.01,
Countrywide Servicing shall hold such files as Master Servicer hereunder, as
agent and in trust for the Trustee.
Deleted
Mortgage Loan:
As
defined in Section 2.03(c).
Delinquency
Trigger Event:
With
respect to a Distribution Date on or after the Stepdown Date, the Rolling
Sixty-Day Delinquency Rate for the outstanding Mortgage Loans equals or exceeds
the product of (i) 40.00% and (ii) the Senior Enhancement Percentage for such
Distribution Date.
Delinquent:
A
Mortgage Loan is “delinquent” if any payment due thereon is not made pursuant to
the terms of such Mortgage Loan by the close of business on the day such payment
is scheduled to be due. A Mortgage Loan is “30 days delinquent” if such payment
has not been received by the close of business on the corresponding day of
the
month immediately succeeding the month in which such payment was due, or, if
there is no such corresponding day (e.g., as when a 30-day month follows a
31-day month in which a payment was due on the 31st
day of
such month), then on the last day of such immediately succeeding month.
Similarly for “60 days delinquent,” “90 days delinquent” and so on.
Denomination:
With
respect to each Certificate, the amount set forth on the face of that
Certificate as the “Initial Certificate Balance of this Certificate” or the
“Initial Notional Amount of this Certificate” or, if neither of the foregoing,
the Percentage Interest appearing on the face thereof.
Depositor:
CWALT,
Inc., a Delaware corporation, or its successor in interest.
Depository:
The
initial Depository shall be The Depository Trust Company, the nominee of which
is CEDE & Co., as the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository
Participant:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
8
Determination
Date:
As to
any Distribution Date, the 22nd
day of
each month or, if such 22nd
day is
not a Business Day, the next preceding Business Day; provided, however, that
if
such 22nd
day or
such Business Day, whichever is applicable, is less than two Business Days
prior
to the related Distribution Date, the Determination Date shall be the first
Business Day that is two Business Days preceding such Distribution
Date.
Distribution
Account:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 3.05(d) in the name of the Trustee for the benefit of the
Certificateholders and designated “The Bank of New York in trust for registered
holders of Alternative Loan Trust 2007-HY3, Mortgage Pass-Through Certificates,
Series 2007-HY3.” Funds in the Distribution Account shall be held in trust for
the Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution
Account Deposit Date:
As to
any Distribution Date, 12:30 p.m. Pacific time on the Business Day immediately
preceding such Distribution Date.
Distribution
Date:
The
25th
day of
each calendar month after the initial issuance of the Certificates, or if such
25th
day is
not a Business Day, the next succeeding Business Day, commencing in March
2007.
Due
Date:
With
respect to a Mortgage Loan, the date on which Scheduled Payments are due on
that
Mortgage Loan. With respect to any Distribution Date, the related Due Date
is
the first day of the calendar month in which that Distribution Date
occurs.
Due
Period:
Not
applicable.
XXXXX:
The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Eligible
Account:
Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings of
Xxxxx’x and one of the two highest short-term ratings of S&P, if S&P is
a Rating Agency at the time any amounts are held on deposit therein, or
(ii) an account or accounts in a depository institution or trust company in
which such accounts are insured by the FDIC (to the limits established by the
FDIC) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each
Rating Agency, the Certificateholders have a claim with respect to the funds
in
such account or a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments) securing such
funds
that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which such account is maintained,
or
(iii) a trust account or accounts maintained with (a) the trust
department of a federal or state chartered depository institution or (b) a
trust company, acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest, and
may
include, if otherwise qualified under this definition, accounts maintained
with
the Trustee.
Eligible
Repurchase Month:
As
defined in Section 3.11.
9
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of the Underwriter’s Exemption.
ERISA-Restricted
Certificate:
As
specified in the Preliminary Statement.
Escrow
Account:
The
Eligible Account or Accounts established and maintained pursuant to
Section 3.06(a).
Event
of Default:
As
defined in Section 7.01.
Excess
Cashflow:
With
respect to any Distribution Date, the sum of (i) the amount remaining as set
forth in Section 4.02(a)(2)(iii) and (ii) the amount remaining as set forth
in
Section 4.02(b)(1)(B)(ii) or 4.02(b)(2)(B)(ii), as applicable, in each case
for
such Distribution Date.
Excess
Overcollateralization Amount:
With
respect to any Distribution Date, the excess, if any, of the Overcollateralized
Amount for the Distribution Date over the Overcollateralization Target Amount
for the Distribution Date.
Excess
Proceeds:
With
respect to any Liquidated Mortgage Loan, the amount, if any, by which the sum
of
any Liquidation Proceeds received with respect to such Mortgage Loan during
the
calendar month in which such Mortgage Loan became a Liquidated Mortgage Loan
plus any Subsequent Recoveries received with respect to such Mortgage Loan,
net
of any amounts previously reimbursed to the Master Servicer as Nonrecoverable
Advance(s) with respect to such Mortgage Loan pursuant to Section 3.08(a)(iii),
exceeds (i) the unpaid principal balance of such Liquidated Mortgage Loan as
of
the Due Date in the month in which such Mortgage Loan became a Liquidated
Mortgage Loan plus (ii) accrued interest at the Mortgage Rate from the Due
Date
as to which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date applicable to the Distribution Date
immediately following the calendar month during which such liquidation
occurred.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exchange
Act Reports:
Any
reports on Form 10-D, Form 8-K and Form 10-K required to be filed by the
Depositor with respect to the Trust Fund under the Exchange Act.
Expense
Fee:
As to
each Mortgage Loan and any Distribution Date, the product of the related Expense
Fee Rate and its Stated Principal Balance as of that Distribution Date.
Expense
Fee Rate:
As to
each Mortgage Loan and any date of determination, the sum of (a) the related
Master Servicing Fee Rate and (b) the Trustee Fee Rate.
Extra
Principal Distribution Amount:
With
respect to any Distribution Date, the lesser of (1) the Overcollateralization
Deficiency Amount and (2) the Excess Cashflow available for payment pursuant
to
Section 4.02(c).
10
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor to the Federal Home Loan Mortgage
Corporation.
Final
Certification:
As
defined in Section 2.02(a) of this Agreement.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
Fitch:
Fitch,
Inc., or any successor thereto. If Fitch is designated as a Rating Agency in
the
Preliminary Statement, for purposes of Section 10.05(b) the address for
notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Residential Mortgage Surveillance Group, or such other
address as Fitch may hereafter furnish to the Depositor and the Master
Servicer.
FNMA:
The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor to the Federal National Mortgage
Association.
Form
10-D Disclosure Item:
With
respect to any Person, any material litigation or governmental proceedings
pending against (a) such Person or (b) against any of the Trust Fund, the
Depositor, the Trustee, any co-trustee, the Master Servicer or any Subservicer,
if such Person has actual knowledge thereof.
Form
10-K Disclosure Item:
With
respect to any Person, (a) Form 10-D Disclosure Item, and (b) any affiliations
or relationships between such Person and any Item 1119 Party.
Gross
Margin:
The
percentage set forth in the related Mortgage Note for the Mortgage Loans to
be
added to One-Year LIBOR for use in determining the Mortgage Rate on each
Adjustment Date, and which is set forth in the Mortgage Loan
Schedule.
Group
1 Mortgage Loans:
The
Mortgage Loans in Loan Group 1.
Group
1 Overcollateralization Reduction Amount:
With
respect to each Distribution Date, the Overcollateralization Reduction Amount
for such Distribution Date multiplied by a fraction, the numerator of which
is
the Principal Remittance Amount for Loan Group 1 for such Distribution Date,
and
the denominator of which is the aggregate Principal Remittance Amount for Loan
Group 1, Loan Group 2 and Loan Group 3 for such Distribution Date.
Group
1 Principal Distribution Target Amount:
With
respect to each Distribution Date, the excess of:
(1) the
aggregate Class Certificate Balance of the Group 1 Senior Certificates
immediately prior to such Distribution Date, over
(2) the
lesser of (x) 88.50% of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 1 as of the Due Date in the month of that Distribution
Date
(after giving effect to Principal Prepayments received in the related Prepayment
Period) and (y) the aggregate Stated Principal Balance of the Mortgage Loans
in
Loan Group 1 as of the Due Date in the month of that Distribution Date (after
giving effect to Principal Prepayments received in the related Prepayment
Period) minus 0.35% of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 1 as of the Cut-off Date.
11
Group
1 Senior Principal Distribution Amount:
With
respect to each Distribution Date, the product of (i) the Senior Principal
Distribution Amount and (ii) a fraction, the numerator of which is (x) the
Group
1 Principal Distribution Target Amount for that Distribution Date and the
denominator of which is (y) the sum of the Group 1 Principal Distribution Target
Amount, the Group 2 Principal Distribution Target Amount and the Group 3
Principal Distribution Target Amount for that Distribution Date.
Group
2 Mortgage Loans:
The
Mortgage Loans in Loan Group 2.
Group
2 Overcollateralization Reduction Amount:
With
respect to each Distribution Date, the Overcollateralization Reduction Amount
for such Distribution Date multiplied by a fraction, the numerator of which
is
the Principal Remittance Amount for Loan Group 2 for such Distribution Date,
and
the denominator of which is the aggregate Principal Remittance Amount for Loan
Group 1, Loan Group 2 and Loan Group 3 for such Distribution Date.
Group
2 Principal Distribution Target Amount:
With
respect to each Distribution Date, the excess of:
(1) the
aggregate Class Certificate Balance of the Group 2 Senior Certificates
immediately prior to such Distribution Date, over
(2) the
lesser of (x) 88.50% of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 2 as of the Due Date in the month of that Distribution
Date
(after giving effect to Principal Prepayments received in the related Prepayment
Period) and (y) the aggregate Stated Principal Balance of the Mortgage Loans
in
Loan Group 2 as of the Due Date in the month of that Distribution Date (after
giving effect to Principal Prepayments received in the related Prepayment
Period) minus 0.35% of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 2 as of the Cut-off Date.
Group
2 Senior Principal Distribution Amount:
With
respect to each Distribution Date, the product of (i) the Senior Principal
Distribution Amount and (ii) a fraction, the numerator of which is (x) the
Group
2 Principal Distribution Target Amount for that Distribution Date and the
denominator of which is (y) the sum of the Group 1 Principal Distribution Target
Amount, the Group 2 Principal Distribution Target Amount and the Group 3
Principal Distribution Target Amount for that Distribution Date.
Group
3 Mortgage Loans:
The
Mortgage Loans in Loan Group 3.
Group
3 Overcollateralization Reduction Amount:
With
respect to each Distribution Date, the Overcollateralization Reduction Amount
for such Distribution Date multiplied by a fraction, the numerator of which
is
the Principal Remittance Amount for Loan Group 3 for such Distribution Date,
and
the denominator of which is the aggregate Principal Remittance Amount for Loan
Group 1, Loan Group 2 and Loan Group 3 for such Distribution Date.
12
Group
3 Principal Distribution Target Amount:
With
respect to each Distribution Date, the excess of:
(1) the
aggregate Class Certificate Balance of the Group 3 Senior Certificates
immediately prior to such Distribution Date, over
(2) the
lesser of (x) 88.50% of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 3 as of the Due Date in the month of that Distribution
Date
(after giving effect to Principal Prepayments received in the related Prepayment
Period) and (y) the aggregate Stated Principal Balance of the Mortgage Loans
in
Loan Group 3 as of the Due Date in the month of that Distribution Date (after
giving effect to Principal Prepayments received in the related Prepayment
Period) minus 0.35% of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 3 as of the Cut-off Date.
Group
3 Senior Principal Distribution Amount:
With
respect to each Distribution Date, the product of (i) the Senior Principal
Distribution Amount and (ii) a fraction, the numerator of which is (x) the
Group
3 Principal Distribution Target Amount for that Distribution Date and the
denominator of which is (y) the sum of the Group 1 Principal Distribution Target
Amount, the Group 2 Principal Distribution Target Amount and the Group 3
Principal Distribution Target Amount for that Distribution Date.
Guarantees:
The
three guarantees of the Guarantor in favor of the Supplemental Interest Trustee
of all of the Counterparty’s obligations under the Cap Contract.
Guarantor:
Swiss
Reinsurance Company.
Index:
With
respect to any Accrual Period for the COFI Certificates, if any, the
then-applicable index used by the Trustee pursuant to Section 4.07 to determine
the applicable Pass-Through Rate for such Accrual Period for the COFI
Certificates.
Indirect
Participant:
A
broker, dealer, bank or other financial institution or other Person that clears
through or maintains a custodial relationship with a Depository
Participant.
Initial
Certification:
As
defined in Section 2.02(a).
Initial
Component Balance:
As
specified in the Preliminary Statement.
Initial
LIBOR Rate:
5.32%.
Initial
Periodic Rate Cap:
As to
each Mortgage Loan and the related Mortgage Note, the provision therein that
limits permissible increases and decreases in the Mortgage Rate on the first
Adjustment Date for that Mortgage Loan to not more than the amount set forth
therein.
Insurance
Policy:
With
respect to any Mortgage Loan included in the Trust Fund, any insurance policy,
including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
13
Insurance
Proceeds:
Proceeds paid by an insurer pursuant to any Insurance Policy, in each case
other
than any amount included in such Insurance Proceeds in respect of Insured
Expenses.
Insured
Expenses:
Expenses covered by an Insurance Policy or any other insurance policy with
respect to the Mortgage Loans.
Interest
Carry Forward Amount:
With
respect to each Class of Offered Certificates and each Distribution Date, the
excess of (i) the Current Interest for such Class with respect to prior
Distribution Dates over (ii) the amount actually distributed to such Class
with
respect to interest on such prior Distribution Dates.
Interest
Determination Date:
With
respect to (a) any Accrual Period for any LIBOR Certificates and
(b) any Accrual Period for the COFI Certificates for which the applicable
Index is LIBOR, the second Business Day prior to the first day of such Accrual
Period. With respect to the Variable Rate Certificates, the 15th
day
prior to the commencement of each Accrual Period or, if such 15th
day is
not a Business Day, the next preceding Business Day.
Interest
Funds:
With
respect to any Distribution Date and Loan Group, the excess of the Interest
Remittance Amount for that Loan Group over the pro rata portion of the Trustee
Fee for such Distribution Date allocable to such Loan Group.
Interest
Remittance Amount:
With
respect to the Mortgage Loans in a Loan Group and any Distribution Date, (x)
the
sum, without duplication, of (i) all scheduled interest on the Mortgage Loans
in
that Loan Group due on the related Due Date and received on or prior to the
related Determination Date, less the related Master Servicing Fees and any
payments made in respect of premiums on Lender PMI Mortgage Loans, (ii) all
interest on Principal Prepayments on the Mortgage Loans in that Loan Group,
other than Prepayment Interest Excess, (iii) all Advances relating to interest
with respect to the Mortgage Loans in that Loan Group, (iv) all Compensating
Interest with respect to such Mortgage Loans in that Loan Group and (v)
Liquidation Proceeds with respect to the Mortgage Loans in that Loan Group
during the related Prepayment Period (to the extent such Liquidation Proceeds
relate to interest), less (y) all reimbursements to the Master Servicer since
the immediately preceding Due Date for Advances of interest previously made
allocable to such Loan Group.
Investment
Letter:
As
defined in Section 5.02(b).
Item
1119 Party:
The
Depositor, any Seller, the Master Servicer, the Trustee, any Subservicer, any
originator identified in the Prospectus Supplement, the Cap Contract
Counterparty and any other material transaction party, as identified in Exhibit
X hereto, as updated pursuant to Section 11.04.
Last
Scheduled Distribution Date:
The
Distribution Date occurring in March 2047.
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.
14
Lender
PMI Mortgage Loan:
Certain
Mortgage Loans as to which the lender (rather than the Mortgagor) acquires
the
Primary Insurance Policy and charges the related Mortgagor an interest
premium.
LIBOR:
The
London interbank offered rate for one-month United States dollar deposits
calculated in the manner described in Section 4.08.
LIBOR
Certificates:
As
specified in the Preliminary Statement.
Limited
Exchange Act Reporting Obligations:
The
obligations of the Master Servicer under Section 3.16(b), Section 6.02 and
Section 6.04 with respect to notice and information to be provided to the
Depositor and Article XI (except Section 11.07(a)(1) and (2)).
Liquidated
Mortgage Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan (including any
REO
Property) that was liquidated in the calendar month preceding the month of
such
Distribution Date and as to which the Master Servicer has determined (in
accordance with this Agreement) that it has received all amounts it expects
to
receive in connection with the liquidation of such Mortgage Loan, including
the
final disposition of an REO Property.
Liquidation
Proceeds:
Amounts, including Insurance Proceeds, received in connection with the partial
or complete liquidation of defaulted Mortgage Loans, whether through trustee’s
sale, foreclosure sale or otherwise or amounts received in connection with
any
condemnation or partial release of a Mortgaged Property and any other proceeds
received in connection with an REO Property, less the sum of related
unreimbursed Master Servicing Fees, Servicing Advances and
Advances.
Loan
Group:
Any of
Loan Group 1, Loan Group 2 or Loan Group 3, as applicable.
Loan
Group 1:
All
Mortgage Loans identified as Loan Group 1 Mortgage Loans on the Mortgage Loan
Schedule.
Loan
Group 2:
All
Mortgage Loans identified as Loan Group 2 Mortgage Loans on the Mortgage Loan
Schedule.
Loan
Group 3:
All
Mortgage Loans identified as Loan Group 3 Mortgage Loans on the Mortgage Loan
Schedule.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan and as to any date of determination, the fraction
(expressed as a percentage) the numerator of which is the principal balance
of
the related Mortgage Loan at that date of determination and the denominator
of
which is the Appraised Value of the related Mortgaged Property.
Lost
Mortgage Note:
Any
Mortgage Note the original of which was permanently lost or destroyed and has
not been replaced.
Maintenance:
With
respect to any Cooperative Unit, the rent paid by the Mortgagor to the
Cooperative Corporation pursuant to the Proprietary Lease.
15
Majority
in Interest:
As to
any Class of Regular Certificates, the Holders of Certificates of such Class
evidencing, in the aggregate, at least 51% of the Percentage Interests evidenced
by all Certificates of such Class.
Master
REMIC:
As
described in the Preliminary Statement.
Master
Servicer:
Countrywide Home Loans Servicing LP, a Texas limited partnership, and its
successors and assigns, in its capacity as master servicer
hereunder.
Master
Servicer Advance Date:
As to
any Distribution Date, 12:30 p.m. Pacific time on the Business Day immediately
preceding such Distribution Date.
Master
Servicing Fee:
As to
each Mortgage Loan and any Distribution Date, an amount payable out of each
full
payment of interest received on such Mortgage Loan and equal to one-twelfth
of
the Master Servicing Fee Rate multiplied by the Stated Principal Balance of
such
Mortgage Loan as of the Due Date in the month preceding the month of such
Distribution Date, subject to reduction as provided in Section
3.14.
Master
Servicing Fee Rate:
With
respect to each Mortgage Loan, the per annum rate set forth in the Mortgage
Loan
Schedule.
Maximum
Mortgage Rate:
With
respect to each Mortgage Loan, the maximum rate of interest set forth as such
in
the related Mortgage Note.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor to Mortgage
Electronic Registration Systems, Inc.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS® System.
MERS®
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
The
mortgage identification number for any MERS Mortgage Loan.
Minimum
Mortgage Rate:
With
respect to each Mortgage Loan, the minimum rate of interest set forth as such
in
the related Mortgage Note, which, with respect to certain Mortgage Loans is
equal to the related Gross Margin.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Statement:
The
statement delivered to the Certificateholders pursuant to
Section 4.06.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor thereto. If Xxxxx’x is designated as a
Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Moody’s shall be Xxxxx’x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody’s may
hereafter furnish to the Depositor or the Master Servicer.
16
Mortgage:
The
mortgage, deed of trust or other instrument creating a first lien on an estate
in fee simple or leasehold interest in real property securing a Mortgage
Note.
Mortgage
File:
The
mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents delivered to the Trustee to be added
to the Mortgage File pursuant to this Agreement.
Mortgage
Index:
As to
each Mortgage Loan, the index from time to time in effect for adjustment of
the
Mortgage Rate as set forth as such on the related Mortgage Note.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as from time to time amended by the Master Servicer
to
reflect the addition of Substitute Mortgage Loans and the deletion of Deleted
Mortgage Loans pursuant to the provisions of this Agreement) transferred to
the
Trustee as part of the Trust Fund and from time to time subject to this
Agreement, attached to this Agreement as Schedule I, setting forth the following
information with respect to each Mortgage Loan:
|
|
(i)
|
the
loan number;
|
|
|
(ii)
|
the
Loan Group;
|
|
|
(iii)
|
the
Mortgagor’s name and the street address of the Mortgaged Property,
including the zip code;
|
|
|
(iv)
|
the
maturity date;
|
|
|
(v)
|
the
original principal balance;
|
|
|
(vi)
|
the
Cut-off Date Principal Balance;
|
|
|
(vii)
|
the
first payment date of the Mortgage
Loan;
|
|
|
(viii)
|
the
Scheduled Payment in effect as of the Cut-off
Date;
|
|
|
(ix)
|
the
Loan-to-Value Ratio at origination;
|
|
|
(x)
|
a
code indicating whether the residential dwelling at the time of
origination was represented to be
owner-occupied;
|
|
|
(xi)
|
a
code indicating whether the residential dwelling is either (a) a
detached or attached single family dwelling, (b) a
dwelling in a de minimis PUD, (c) a condominium unit or PUD (other
than a de minimis PUD) or (d) a two- to four-unit residential
property or (e) a Cooperative Unit;
|
|
|
(xii)
|
the
Mortgage Rate as of the Cut-off
Date;
|
17
|
|
(ix)
|
the
Loan-to-Value Ratio at origination;
|
|
|
(x)
|
a
code indicating whether the residential
dwelling at the time of
origination was represented to be
owner-occupied;
|
|
|
(xi)
|
a
code indicating whether the residential
dwelling is either (a) a
detached or attached single family dwelling, (b) a
dwelling in a de minimis PUD, (c) a condominium unit or PUD (other
than a de minimis PUD) or (d) a two- to four-unit residential
property or (e) a Cooperative Unit;
|
|
|
(xii)
|
the
Mortgage Rate as of the Cut-off
Date;
|
|
|
(xiii)
|
the
initial Payment Adjustment Date for each
Mortgage
Loan;
|
|
|
(xiv)
|
a
code indicating whether the Mortgage Loan
is a Lender PMI Mortgage Loan
and, in the case of any Lender PMI Mortgage
Loan, a percentage
representing the amount of the related
interest premium charged to the
borrower;
|
|
|
(xv)
|
the
purpose for the Mortgage Loan;
|
|
|
(xvi)
|
the
type of documentation program pursuant
to which the Mortgage Loan was
originated;
|
|
|
(xvii)
|
a
code indicating whether the Mortgage Loan
is a Countrywide Mortgage Loan,
a Park Granada Mortgage Loan, a Park Monaco
Mortgage Loan or a Park Sienna
Mortgage Loan;
|
|
|
(xviii)
|
the
direct servicer of such Mortgage Loan as
of the Cut-off
Date;
|
|
|
(xix)
|
a
code indicating whether the Mortgage Loan
is a MERS Mortgage
Loan;
|
|
|
(xx)
|
with
respect to each Mortgage Loan, the Gross
Margin, the Mortgage Index, the
Maximum Mortgage Rate and the Minimum Mortgage
Rate;
and
|
|
|
(xxi)
|
the
initial Adjustment Date and the Master
Servicing Fee Rate both before and
after the initial Adjustment Date for each
Mortgage
Loan.
|
Such
schedule shall also set forth the total of the amounts described under (iv)
and
(v) above for all of the Mortgage Loans and for each Loan Group.
Mortgage
Loans:
Such of
the mortgage loans as from time to time are transferred and assigned to the
Trustee pursuant to the provisions of this Agreement and that are held as a
part
of the Trust Fund (including any REO Property), the mortgage loans so held
being
identified in the Mortgage Loan Schedule, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage
Note:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage
Pool:
The
aggregate of the Mortgage Loans identified in the Mortgage Loan
Schedule.
Mortgage
Rate:
The
annual rate of interest borne by a Mortgage Note from time to time, net of
any
interest premium charged by the mortgagee to obtain or maintain any Primary
Insurance Policy.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan, which, with respect to a
Cooperative Loan, is the related Coop Shares and Proprietary Lease.
Mortgagor:
The
obligor(s) on a Mortgage Note.
18
MTA:
The
twelve-month average monthly yield on U.S. Treasury Securities adjusted to
a
constant maturity of one-year, as published by the Federal Reserve Board in
the
Federal Reserve Statistical Release “Selected Interest Rates
(H.15)”.
MTA
Certificates:
As
specified in the Preliminary Statement.
National
Cost of Funds Index:
The
National Monthly Median Cost of Funds Ratio to SAIF-Insured Institutions
published by the Office of Thrift Supervision.
Net
Prepayment Interest Shortfalls:
As to
any Distribution Date and Loan Group, the excess of the amount of the aggregate
Prepayment Interest Shortfalls for that Loan Group during the related Prepayment
Period over the sum of (x) the Compensating Interest for such Loan Group and
Distribution Date and (y) the excess of the Compensating Interest over the
Prepayment Interest Shortfalls for each other Loan Group for such Distribution
Date.
Net
Rate Cap:
For
each Distribution Date and the Group 1 Senior Certificates, the Group 2 Senior
Certificates and the Group 3 Senior Certificates the Weighted Average Adjusted
Net Mortgage Rate on the Mortgage Loans in the related Loan Group as of the
Due
Date in the prior calendar month (after giving effect to Principal Prepayments
in the Prepayment Period related to that prior Due Date). With respect to the
Subordinated Certificates, the product of (a) the lesser of (1) the sum of
the
following for Loan Group 1, Loan Group 2 and Loan Group 3: the product of:
(A)
the weighted average of the Net Rate Caps of the Group 1 Senior Certificates,
the Group 2 Senior Certificates and the Group 3 Senior Certificates, in each
case adjusted to an effective rate reflecting the accrual of interest on the
basis of a 360-day year and the actual number of days that elapse in the related
Accrual Period, weighted on the basis of the excess of the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group as of the
Due
Date in the prior calendar month (after giving effect to Principal Prepayments
in the Prepayment Period related to that prior Due Date) over the aggregate
Class Certificate Balance of the Senior Certificates in the applicable Senior
Certificate Group.
Net
Rate Carryover:
For any
Class of Offered Certificates (other than the Class A-R Certificates) and any
Distribution Date, the excess of: (1) the amount of interest that such Class
would have accrued for such Distribution Date had the Pass-Through Rate for
that
Class and the related Accrual Period not been calculated based on the applicable
Net Rate Cap, over (2) the amount of interest such Class accrued for such
Distribution Date based on the applicable Net Rate Cap, plus the unpaid portion
of any such excess from prior Distribution Dates (and interest accrued thereon
at the then applicable Pass-Through Rate, without giving effect to the
applicable Net Rate Cap).
NIM
Insurer:
Any
insurer guarantying at the request of Countrywide certain payments under notes
backed or secured by the Class C or Class P Certificates.
Non-Delay
Certificates:
As
specified in the Preliminary Statement.
Nonrecoverable
Advance:
Any
portion of an Advance previously made or proposed to be made by the Master
Servicer that, in the good faith judgment of the Master Servicer, will not
be
ultimately recoverable by the Master Servicer from the related Mortgagor,
related Liquidation Proceeds or otherwise.
19
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 Certificates:
As
specified in the Preliminary Statement.
OC
Floor:
An
amount equal to 0.35% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-off Date.
Offered
Certificates:
As
specified in the Preliminary Statement.
Officer’s
Certificate:
A
certificate (i) in the case of the Depositor, signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director,
a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor, (ii) in the case of the Master Servicer, signed
by
the President, an Executive Vice President, a Vice President, an Assistant
Vice
President, the Treasurer, or one of the Assistant Treasurers or Assistant
Secretaries of Countrywide GP, Inc., its general partner, (iii) if provided
for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required
by
this Agreement or (iv) in the case of any other Person, signed by an authorized
officer of such Person.
One-Year
LIBOR:
As of
any date of determination, the per annum rate equal to the average of the London
interbank offered rates for one-year U.S. dollar deposits in the London market,
generally as set forth in either The
Wall Street Journal
or some
other source generally accepted in the residential mortgage loan origination
business and specified in the related Mortgage Note, or, if such rate ceases
to
be published in The
Wall Street Journal
or
becomes unavailable for any reason, then based upon a new index selected by
the
Master Servicer, based on comparable information, in each case, as most recently
announced as of either 45 days prior to, or the first business day of the month
immediately preceding the month of, such Adjustment Date.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for a Seller, the Depositor
or
the Master Servicer, including, in-house counsel, reasonably acceptable to
the
Trustee; provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (i) in fact be
independent of a Seller, the Depositor and the Master Servicer, (ii) not have
any direct financial interest in a Seller, the Depositor or the Master Servicer
or in any affiliate thereof, and (iii) not be connected with a Seller, the
Depositor or the Master Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Optional
Termination Date:
The
first Distribution Date on which the aggregate Stated Principal Balance of
the
Mortgage Loans is less than or equal to 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
20
Original
Mortgage Loan:
The
mortgage loan refinanced in connection with the origination of a Refinancing
Mortgage Loan.
OTS:
The
Office of Thrift Supervision.
Outside
Reference Date:
As to
any Accrual Period for the COFI Certificates, the close of business on the
tenth
day thereof.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
| (i) |
Certificates
theretofore canceled by the Trustee or delivered to the Trustee
for
cancellation; and
|
| (ii) |
Certificates
in exchange for which or in lieu of which other Certificates
have been
executed and delivered by the Trustee pursuant to this Agreement.
|
Outstanding
Mortgage Loan:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero,
which was not the subject of a Principal Prepayment in Full prior to the end
of
the related Prepayment Period and which did not become a Liquidated Mortgage
Loan prior to the end of the related Prepayment Period.
Overcollateralization
Deficiency Amount:
With
respect to any Distribution Date, the amount, if any, by which the
Overcollateralization Target Amount exceeds the Overcollateralized Amount on
such Distribution Date (after giving effect to distributions in respect of
the
Principal Remittance Amount for Loan Group 1, Loan Group 2 and Loan Group 3
on
such Distribution Date).
Overcollateralization
Reduction Amount:
With
respect to any Distribution Date, an amount equal to the lesser of (i) the
Excess Overcollateralization Amount for the Distribution Date and (ii) the
Principal Remittance Amount for Loan Group 1, Loan Group 2 and Loan Group 3
for
the Distribution Date.
Overcollateralization
Target Amount:
With
respect to any Distribution Date, the OC Floor.
Overcollateralized
Amount:
For any
Distribution Date, the amount, if any, by which (x) the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the month of
that
Distribution Date (after giving effect to Principal Prepayments, the principal
portion of any Liquidation Proceeds and any Subsequent Recoveries received
in
the related Prepayment Period) exceeds (y) the aggregate Class Certificate
Balance of the Offered Certificates as of such Distribution Date (after giving
effect to distributions of the Principal Remittance Amount to be made on such
Distribution Date).
Ownership
Interest:
As to
any Residual Certificate, any ownership interest in such Certificate including
any interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
00
Xxxx
Xxxxxxx:
Xxxx
Xxxxxxx LLC, a Delaware limited liability company, and its successors and
assigns, in its capacity as the seller of the Park Granada Mortgage Loans to
the
Depositor.
Park
Granada Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which Park
Granada is the applicable Seller.
Park
Monaco:
Park
Monaco Inc., a Delaware corporation, and its successors and assigns, in its
capacity as the seller of the Park Monaco Mortgage Loans to the
Depositor.
Park
Monaco Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which Park
Monaco is the applicable Seller.
Park
Sienna:
Park
Sienna LLC, a Delaware limited liability company, and its successors and
assigns, in its capacity as the seller of the Park Sienna Mortgage Loans to
the
Depositor.
Park
Sienna Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which Park
Sienna is the applicable Seller.
Pass-Through
Margin:
With
respect to the Accrual Period for any Distribution Date and Class of LIBOR
Certificates, the per annum rate indicated in the following table:
|
Class
of Certificates
|
Pass-Through
Margin
|
||||||
|
(1)
|
(2)
|
||||||
|
Class
M-1
|
0.300
|
%
|
0.450
|
%
|
|||
|
Class
M-2
|
0.320
|
%
|
0.480
|
%
|
|||
|
Class
M-3
|
0.380
|
%
|
0.570
|
%
|
|||
|
Class
M-4
|
0.500
|
%
|
0.750
|
%
|
|||
|
Class
M-5
|
0.570
|
%
|
0.855
|
%
|
|||
|
Class
M-6
|
0.650
|
%
|
0.975
|
%
|
|||
|
Class
M-7
|
1.000
|
%
|
1.500
|
%
|
|||
|
Class
M-8
|
1.000
|
%
|
1.500
|
%
|
|||
|
Class
M-9
|
1.000
|
%
|
1.500
|
%
|
|||
|
Class
M-10
|
1.000
|
%
|
1.500
|
%
|
|||
|
Class
M-11
|
1.000
|
%
|
1.500
|
%
|
|||
|
(1)
|
For
the Accrual Period related to any Distribution Date occurring on
or prior
to the Optional Termination Date.
|
|
(2)
|
For
the Accrual Period related to any Distribution Date occurring after
the
Optional Termination Date.
|
Pass-Through
Rate:
With
respect to the Accrual Period for such Distribution Date, and (1) the Class
1-A-1 and Class 1-A-2 Certificates, 5.9901% per annum prior to or on the
Distribution Date in February 2012; (2) the Class 2-A-1 and Class 2-A-2
Certificates, 5.5443% per annum prior to or on the Distribution Date in February
2014; and (3) the Class 3-A-1 and Class 3-A-2 Certificates, 5.6202% per annum
prior to or on the Distribution Date in February 2017. The Pass-Through Rate
with respect to each Accrual Period after the Distribution Date in (x) February
2012 with respect to the Class 1-A-1 and Class 1-A-2 Certificates, (y) February
2014 with respect to the Class 2-A-1 and Class 2-A-2 Certificates and (z)
February 2017 with respect to the Class 3-A-1 and Class 3-A-2 Certificates
will
be a per annum rate equal to the lesser of: (1) One-Year LIBOR for such Accrual
Period plus 1.700%, and (2) the
related Net Rate Cap for such Distribution Date. The Pass-Through Rate with
respect to each Accrual Period and each Class of LIBOR Certificates will be
a
per annum rate equal to the lesser of: (1) One-Month LIBOR for such Accrual
Period plus the Pass-Through Margin for such Class and Accrual Period, and
the
related Net Rate Cap for such Distribution Date.
22
Payment
Adjustment Date:
For
each Mortgage Loan, the date specified in the related Mortgage Note as the
annual date on which the related Scheduled Payment will be adjusted.
Percentage
Interest:
As to
any Certificate, the percentage interest evidenced thereby in distributions
required to be made on the related Class, such percentage interest being set
forth on the face thereof or equal to the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of the same Class. With respect to the Class C, Class P, Class
R-X
and Class A-R Certificates, the portion of the Class evidenced thereby,
expressed as a percentage, as stated on the face of such
Certificate.
Performance
Certification:
As
defined in Section 11.05.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
|
|
(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, and reasonably acceptable to the NIM Insurer,
as
evidenced by a signed writing delivered by the NIM
Insurer;
|
provided,
that no such instrument shall be a Permitted Investment if such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument.
Permitted
Transferee:
Any
person other than (i) the United States, any State or political subdivision
thereof, or any agency or instrumentality of any of the foregoing, (ii) a
foreign government, International Organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers’
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511
of
the Code on unrelated business taxable income) on any excess inclusions (as
defined in Section 860E(c)(1) of the Code) with respect to any Residual
Certificate, (iv) rural electric and telephone cooperatives described in Section
1381(a)(2)(C) of the Code, (v) an “electing large partnership” as defined in
Section 775 of the Code, (vi) a Person that is not a citizen or resident of
the
United States, a corporation, partnership, or other entity created or organized
in or under the laws of the United States, any state thereof or the District
of
Columbia, or an estate or trust whose income from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States or a trust if a court within the United States is
able
to exercise primary supervision over the administration of the trust and one
or
more United States persons have the authority to control all substantial
decisions of the trust unless such Person has furnished the transferor and
the
Trustee with a duly completed Internal Revenue Service Form W-8ECI or any
applicable successor form, and (vii) any other Person so designated by the
Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any REMIC created
under this Agreement to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms “United States,” “State” and
“International Organization” shall have the meanings set forth in Section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with
the exception of the Federal Home Loan Mortgage Corporation, a majority of
its
board of directors is not selected by such government unit.
23
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.
Plan:
An
“employee benefit plan” as defined in section 3(3) of ERISA that is subject to
Title I of ERISA, a “plan” as defined in section 4975 of the Code that is
subject to section 4975 of the Code, or any Person investing on behalf of or
with plan assets (as defined in 29 CFR §2510.3-101 or otherwise under ERISA) of
such an employee benefit plan or plan.
Pool
Stated Principal Balance:
The
aggregate of the Stated Principal Balances of the Outstanding Mortgage
Loans.
Prepayment
Charge:
With
respect to any Mortgage Loan, the charges or premiums, if any, due in connection
with a full or partial prepayment of such Mortgage Loan within the related
Prepayment Charge Period in accordance with the terms thereof.
Prepayment
Charge Amount:
As to
any Loan Group and Distribution Date, the sum of the Prepayment Charges
collected on the related Mortgage Loans during the related Prepayment Period
and
any amounts paid pursuant to Section 3.20 with respect to such Loan Group and
Distribution Date.
Prepayment
Charge Period:
With
respect to any Mortgage Loan, the period of time during which a Prepayment
Charge may be imposed.
Prepayment
Charge Schedule:
As of
the Cut off Date with respect to each Mortgage Loan, a list attached hereto
as
Schedule VII (including the prepayment charge summary attached thereto), setting
forth the following information with respect to each Prepayment
Charge:
| (i) |
the
Mortgage Loan identifying
number;
|
| (ii) |
a
code indicating the type of Prepayment
Charge;
|
| (iii) |
the
state of origination of the related Mortgage
Loan;
|
| (iv) |
the
Mortgage Loan identifying number;the date on which the first
monthly
payment was due on the related Mortgage
Loan;
|
| (v) |
the
term of the related Prepayment Charge;
and
|
| (vi) |
the
principal balance of the related Mortgage Loan as of
the Cut off
Date.
|
As
of the
Closing Date, the Prepayment Charge Schedule shall contain the necessary
information for each Mortgage Loan. The Prepayment Charge Schedule shall be
amended from time to time by the Master Servicer in accordance with the
provisions of this Agreement and a copy of each related amendment shall be
furnished by the Master Servicer to the Class P and Class C Certificateholders
and the NIM Insurer.
24
Prepayment
Interest Excess:
As to
any Principal Prepayment received by the Master Servicer from the first day
through the fifteenth day of any calendar month (other than the calendar month
in which the Cut-off Date occurs), all amounts paid by the related Mortgagor
in
respect of interest on such Principal Prepayment. All Prepayment Interest Excess
shall be paid to the Master Servicer as additional master servicing
compensation.
Prepayment
Interest Shortfall:
As to
any Distribution Date, Mortgage Loan and Principal Prepayment received on or
after the sixteenth day of the month preceding the month of such Distribution
Date (or, in the case of the first Distribution Date, on or after February
1,
2007) and on or before the last day of the month preceding the month of such
Distribution Date, the amount, if any, by which one month’s interest at the
related Mortgage Rate, net of the related Master Servicing Fee Rate, on such
Principal Prepayment exceeds the amount of interest paid in connection with
such
Principal Prepayment.
Prepayment
Period:
As to
any Distribution Date and the related Due Date, the period from the
16th
day of
the calendar month immediately preceding the month in which the Distribution
Date occurs (or, in the case of the first Distribution Date, from February
1,
2007) through the 15th
day of
the calendar month in which the Distribution Date occurs.
Primary
Insurance Policy:
Each
policy of primary mortgage guaranty insurance or any replacement policy therefor
with respect to any Mortgage Loan.
Prime
Rate:
The
prime commercial lending rate of The Bank of New York, as publicly announced
to
be in effect from time to time. The Prime Rate shall be adjusted automatically,
without notice, on the effective date of any change in such prime commercial
lending rate. The Prime Rate is not necessarily The Bank of New York’s lowest
rate of interest.
Principal
Distribution Amount:
With
respect to each Distribution Date and Loan Group, the sum of: (1) the Principal
Remittance Amount for such Loan Group and Distribution Date, and (2) the Extra
Principal Distribution Amount for such Loan Group and Distribution Date, minus
(3) (a) the Group 1 Overcollateralization Reduction Amount for that Distribution
Date in the case of Loan Group 1, (b) the Group 2 Overcollateralization
Reduction Amount for that Distribution Date in the case of Loan Group 2, and
(c)
the Group 3 Overcollateralization Reduction Amount for that Distribution Date
in
the case of Loan Group 3.
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.
25
Principal
Relocation Payments:
A
payment from any Loan Group to REMIC 1 Regular Interests other than those of
their corresponding Loan Group as provided in the Preliminary Statement.
Principal Relocation Payments shall be made of principal allocations comprising
the Principal Remittance Amount for a Loan Group.
Principal
Remittance Amount:
As to
any Distribution Date and any Loan Group, (x) the sum, without duplication,
of
(a) the principal portion of each Scheduled Payment (without giving effect
to
any reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) collected or advanced on each Mortgage Loan in that Loan Group
(other than a Liquidated Mortgage Loan) on the related Due Date, (b) the
principal portion of the Purchase Price of each Mortgage Loan in that Loan
Group
that was repurchased by the applicable Seller or purchased by the Master
Servicer pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan
in
that 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 that 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 that Loan Group that became
a
Liquidated Mortgage Loan during the related Prepayment Period, the amount of
the
Liquidation Proceeds allocable to principal received during such Prepayment
Period with respect to such Mortgage Loan, (f) all Principal Prepayments on
the
Mortgage Loans in that Loan Group received during the related Prepayment Period
and (g) any Subsequent Recoveries on the Mortgage Loans in that Loan Group
received during the related Prepayment Period minus
(y) all
non-recoverable Advances on the Mortgage Loans in that Loan Group relating
to
principal and certain expenses reimbursable pursuant to Section 6.03 and
reimbursed since the immediately preceding Due Date.
Principal
Reserve Fund:
The
separate Eligible Account created and initially maintained by the Trustee
pursuant to Section 3.05(c) in the name of the Trustee for the benefit of the
Holders of the Class P Certificates and designated “The Bank of New York in
trust for registered holders of CWALT, Inc., Alternative Loan Trust 2007-HY3,
Mortgage Pass-Through Certificates, Series 2007-HY3.” Funds in the Principal
Reserve Fund shall be held in trust for the Holders of each Class of Class
P
Certificates for the uses and purposes set forth in this Agreement.
Private
Certificate:
As
specified in the Preliminary Statement.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Coop Shares.
Prospectus:
The
prospectus dated November 14, 2006 generally relating to mortgage pass-through
certificates to be sold by the Depositor.
Prospectus
Supplement:
The
prospectus supplement dated February 27, 2007 relating to the Offered
Certificates.
PUD:
Planned
Unit Development.
26
Purchase
Price:
With
respect to any Mortgage Loan required to be purchased by the applicable Seller
pursuant to Section 2.02 or 2.03 or purchased at the option of the Master
Servicer pursuant to Section 3.11, an amount equal to the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the date
of such purchase, (ii) accrued interest thereon at the applicable Mortgage
Rate (or at the applicable Adjusted Mortgage Rate if (x) the purchaser is
the Master Servicer or (y) if the purchaser is Countrywide and Countrywide
is an affiliate of the Master Servicer) from the date through which interest
was
last paid by the Mortgagor to the Due Date in the month in which the Purchase
Price is to be distributed to Certificateholders and (iii) costs and damages
incurred by the Trust Fund in connection with a repurchase pursuant to Section
2.03 that arises out of a violation of any predatory or abusive lending law
with
respect to the related Mortgage Loan.
Qualified
Insurer:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, approved as a FNMA-approved mortgage insurer
and
having a claims paying ability rating of at least “AA” or equivalent rating by a
nationally recognized statistical rating organization. Any replacement insurer
with respect to a Mortgage Loan must have at least as high a claims paying
ability rating as the insurer it replaces had on the Closing Date.
Rating
Agency:
Each of
the Rating Agencies specified in the Preliminary Statement. If any such
organization or a successor is no longer in existence, “Rating Agency” shall be
such nationally recognized statistical rating organization, or other comparable
Person, identified as a “Rating Agency” under the Underwriter’s Exemption, as is
designated by the Depositor, notice of which designation shall be given to
the
Trustee. References in this Agreement to a given rating category of a Rating
Agency shall mean such rating category without giving effect to any
modifiers.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount (not less than zero or
more
than the Stated Principal Balance of the Mortgage Loan) as of the date of such
liquidation, equal to (i) the Stated Principal Balance of the Liquidated
Mortgage Loan as of the date of such liquidation, plus (ii) interest at the
Adjusted Net Mortgage Rate from the Due Date as to which interest was last
paid
or advanced (and not reimbursed) to Certificateholders up to the Due Date in
the
month in which Liquidation Proceeds are required to be distributed on the Stated
Principal Balance of such Liquidated Mortgage Loan from time to time, minus
(iii) the Liquidation Proceeds, if any, received during the month in which
such liquidation occurred, to the extent applied as recoveries of interest
at
the Adjusted Net Mortgage Rate and to principal of the Liquidated Mortgage
Loan.
With respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, if the principal amount due under the related Mortgage Note has
been
reduced, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation. With respect
to each Mortgage Loan which has become the subject of a Debt Service Reduction
and any Distribution Date, the amount, if any, by which the principal portion
of
the related Scheduled Payment has been reduced.
27
To
the
extent the Master Servicer receives Subsequent Recoveries with respect to any
Mortgage Loan, the amount of Realized Losses with respect to that Mortgage
Loan
will be reduced by the amount of such Subsequent Recoveries.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the Cooperative
Corporation and the originator of such Mortgage Loan which establishes the
rights of such originator in the Cooperative Property.
Record
Date:
With
respect to any Distribution Date and the Delay Certificates, the last Business
Day of the month preceding the month of that Distribution Date. With respect
to
any Distribution Date and the Non-Delay Certificates, the Business Day
immediately preceding such Distribution Date, or if such Certificates are no
longer Book-Entry Certificates, the last Business Day of the month preceding
the
month of such Distribution Date.
Reference
Bank:
As
defined in Section 4.08(b).
Refinancing
Mortgage Loan:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
Regular
Certificates:
As
specified in the Preliminary Statement.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relief
Act:
The
Servicemembers Civil Relief Act and any similar state or local
laws.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
REMIC
1-P:
As
defined in the Preliminary Statement.
REMIC
1-P Interest:
Each
interest in REMIC 1-P as described in the Preliminary Statement.
REMIC
1-P Regular Interest:
Each
REMIC 1-P Interest other than the Class R-1-P Interest.
REMIC
2-P:
As
defined in the Preliminary Statement.
REMIC
2-P Interest:
Each
interest in REMIC 2-P as described in the Preliminary Statement.
REMIC
2-P Regular Interest:
Each
REMIC 2-P Interest other than the Class R-2-P Interest.
28
REMIC
3-P:
As
defined in the Preliminary Statement.
REMIC
3-P Interest:
Each
interest in REMIC 3-P as described in the Preliminary Statement.
REMIC
3-P Regular Interest:
Each
REMIC 3-P Interest other than the Class R-3-P Interest.
REMIC
Cap:
For
each Distribution Date and (i) with respect to the Group 1 Senior Certificates
and the Group 2 Senior Certificates, the Weighted Average Adjusted Net Mortgage
Rate on the Mortgage Loans in the related Loan Group as of the Due Date in
the
prior calendar month (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date) (ii) with respect to the
Group
3 Senior Certificates, the product of (a) the Weighted Average Adjusted Net
Mortgage Rate on the Mortgage Loans in Loan Group 3 and (b) a fraction, the
numerator of which is 30, and the denominator of which is the actual number
of
days that elapsed in the related Accrual Period and (iii) with respect to the
Subordinated Certificates, the product of (a) the sum of the following for
Loan
Group 1, Loan Group 2 and Loan Group 3: the product of: (A) the Weighted Average
Adjusted Net Mortgage Rate on the Mortgage Loans in that Loan Group; and (B)
a
fraction, (i) the numerator of which is the related Subordinated Portion
immediately prior to that Distribution Date; and (ii) the denominator of which
is the greater of, (a) such Subordinated Portion and (b) the excess of (I)
the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in
the prior month (after giving effect to Principal Prepayments in the Prepayment
Period related to that prior Due Date), over (II) the aggregate Class
Certificate Balance of the Senior Certificates (other than the Notional Amount
Certificates) immediately prior to that Distribution Date, and (b) a fraction,
the numerator of which is 30, and the denominator of which is the actual number
of days that elapsed in the related Accrual Period.
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
C:
As
defined in the Preliminary Statement.
REMIC
C Interest:
Each
interest in REMIC C as described in the Preliminary Statement.
REMIC
C Regular Interest:
Each
REMIC C Interest other than the Class R-C Interest.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from
time
to time as well as provisions of applicable state laws.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Reportable
Event:
Any
event required to be reported on Form 8-K, and in any event, the following:
29
(a) entry
into a definitive agreement related to the Trust Fund, the Certificates or
the
Mortgage Loans, or an amendment to a Transaction Document, even if the Depositor
is not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination
of a Transaction Document (other than by expiration of the agreement on its
stated termination date or as a result of all parties completing their
obligations under such agreement), even if the Depositor is not a party to
such
agreement (e.g., a servicing agreement with a servicer contemplated by Item
1108(a)(3) of Regulation AB);
(c) with
respect to the Master Servicer only, if the Master Servicer becomes aware of
any
bankruptcy or receivership with respect to Countrywide, the Depositor, the
Master Servicer, any Subservicer, the Trustee, the Cap Contract Counterparty
any
enhancement or support provider contemplated by Items 1114(b) or 1115 of
Regulation AB, or any other material party contemplated by Item 1101(d)(1)
of
Regulation AB;
(d) with
respect to the Trustee, the Master Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) the
resignation, removal, replacement, substitution of the Master Servicer, any
Subservicer or the Trustee;
(f) with
respect to the Master Servicer only, if the Master Servicer becomes aware that
(i) any material enhancement or support specified in Item 1114(a)(1) through
(3)
of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more classes of the Certificates has terminated other than
by
expiration of the contract on its stated termination date or as a result of
all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or Item
1115 of Regulation AB has been added with respect to one or more Classes of
the
Certificates; or (iii) any existing material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(g) with
respect to the Trustee, the Master Servicer and the Depositor only, a required
distribution to Holders of the Certificates is not made as of the required
Distribution Date under this Agreement.
Reporting
Subcontractor:
With
respect to the Master Servicer or the Trustee, any Subcontractor determined
by
such Person pursuant to Section 11.08(b) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB. References to a
Reporting Subcontractor shall refer only to the Subcontractor of such Person
and
shall not refer to Subcontractors generally.
Request
for Release:
The
Request for Release submitted by the Master Servicer to the Trustee,
substantially in the form of Exhibits M and N to this Agreement, as
appropriate.
30
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Residual
Certificates:
As
specified in the Preliminary Statement.
Responsible
Officer:
When
used with respect to the Trustee, any Vice President, any Assistant Vice
President, the Secretary, any Assistant Secretary, any Trust Officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with respect
to a particular matter, such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.
Rolling
Sixty-Day Delinquency
Rate:
With
respect to any Distribution Date on or after the Stepdown Date, the average
of
the Sixty-Day Delinquency Rates for such Distribution Date and the two
immediately preceding Distribution Dates.
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. If S&P
is designated as a Rating Agency in the Preliminary Statement, for purposes
of
Section 10.05(b) the address for notices to S&P shall be Standard &
Poor’s, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish
to the Depositor and the Master Servicer.
Xxxxxxxx-Xxxxx
Certification:
As defined in Section 11.05.
Scheduled
Balances:
Not
applicable.
Scheduled
Classes:
As
specified in the Preliminary Statement.
Scheduled
Payment:
The
scheduled monthly payment on a Mortgage Loan due on any Due Date allocable
to
principal and/or interest on such Mortgage Loan which, unless otherwise
specified in this Agreement, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of the monthly
payment due on such Mortgage Loan.
Securities
Act:
The
Securities Act of 1933, as amended.
Seller:
Countrywide, Park Granada, Park Monaco or Park Sienna, as
applicable.
Senior
Certificates:
As
specified in the Preliminary Statement.
Senior
Enhancement Percentage:
With
respect to a Distribution Date on and after the Stepdown Date, the fraction
(expressed as a percentage) (1) the numerator of which is the excess of (a)
the
aggregate Stated Principal Balance of the Mortgage Loans for the preceding
Distribution Date over (b) (i) before the Class Certificate Balances of the
Senior Certificates have been reduced to zero, the sum of the Class Certificate
Balances of the Senior Certificates, or (ii) after the Class Certificate
Balances of the Senior Certificates have been reduced to zero, the Class
Certificate Balance of the most senior Class of Subordinated Certificates
outstanding as of the Business Day immediately preceding the Distribution Date
in the calendar month prior to the month of such Distribution Date and (2)
the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans for the preceding Distribution Date.
31
Senior
Principal Distribution Amount:
For any
Distribution Date, the excess of:
Senior
Principal Distribution Target Amount:
As to
any Distribution Date, the excess of (x) the aggregate Class Certificate
Balance of the Senior Certificates immediately prior to such Distribution Date,
over (y) the lesser of (i) 88.40% of the aggregate Stated Principal Balance
of
the Mortgage Loans as of the Due Date in the month of such Distribution Date
(after giving effect to Principal Prepayments, the principal portion of any
Liquidation Proceeds and any Subsequent Recoveries received in the related
Prepayment Period) and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the month of such Distribution Date (after
giving effect to Principal Prepayments, the principal portion of any Liquidation
Proceeds and any Subsequent Recoveries received in the related Prepayment
Period), minus the OC Floor.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses incurred
in the performance by the Master Servicer of its servicing obligations,
including, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any expenses
reimbursable to the Master Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.09.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB.
Servicing
Officer:
Any
officer of the Master Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and facsimile
signature appear on a list of servicing officers furnished to the Trustee by
the
Master Servicer on the Closing Date pursuant to this Agreement, as such list
may
from time to time be amended.
Sixty-Day
Delinquency Rate:
With
respect to any Distribution Date on or after the Stepdown Date, a fraction,
expressed as a percentage, the numerator of which is the aggregate Stated
Principal Balance for such Distribution Date of all Mortgage Loans 60 or more
days delinquent as of the close of business on the last day of the calendar
month preceding such Distribution Date (including Mortgage Loans in foreclosure,
bankruptcy and REO Properties) and the denominator of which is the aggregate
Stated Principal Balance for such Distribution Date of the Mortgage Loans as
of
the related Due Date (after giving effect to Principal Prepayments received
in
the related Prepayment Period).
Startup
Day:
The
Closing Date.
Stated
Principal Balance:
As to
any Mortgage Loan and Due Date, the unpaid principal balance of such Mortgage
Loan as of such Due Date, as specified in the amortization schedule at the
time
relating thereto (before any adjustment to such amortization schedule by reason
of any moratorium or similar waiver or grace period) after giving effect to
the
sum of: (i) any previous partial Principal Prepayments and the payment of
principal due on such Due Date, irrespective of any delinquency in payment
by
the related Mortgagor, and (ii) Liquidation Proceeds allocable to principal
(other than with respect to any Liquidated Mortgage Loan) received in the prior
calendar month and Principal Prepayments received through the last day of the
related Prepayment Period, in each case, with respect to that Mortgage
Loan.
32
Stepdown
Date:
The
earlier to occur of: (1) the Distribution Date after the Distribution Date
on
which the aggregate Class Certificate Balance of the Senior Certificates is
reduced to zero, and (2) the later to occur of (x) the Distribution Date in
March 2010 and (y) the first Distribution Date on which the aggregate Class
Certificate Balance of the Senior Certificates (after calculating anticipated
distributions on such Distribution Date) is less than or equal to 88.50% of
the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date
in
the month of that Distribution Date (after giving effect to Principal
Prepayments, the principal portion of any Liquidation Proceeds and any
Subsequent Recoveries received in the Prepayment Period related to that Due
Date).
Stepdown
Target Subordination Percentage:
With
respect to any Class of Subordinated Certificates, the respective percentage
indicated in the following table:
|
Stepdown
Target Subordination Percentage
|
|||||||
|
Class
M-1
|
9.50%
|
|
|||||
|
Class
M-2
|
7.90%
|
|
|||||
|
Class
M-3
|
6.80%
|
|
|||||
|
Class
M-4
|
6.10%
|
|
|||||
|
Class
M-5
|
5.40%
|
|
|||||
|
Class
M-6
|
4.70%
|
|
|||||
|
Class
M-7
|
4.00%
|
|
|||||
|
Class
M-8
|
3.30%
|
|
|||||
|
Class
M-9
|
2.60%
|
|
|||||
|
Class
M-10
|
1.60%
|
|
|||||
|
Class
M-11
|
0.70%
|
|
|||||
Streamlined
Documentation Mortgage Loan:
Any
Mortgage Loan originated pursuant to Countrywide’s Streamlined Loan
Documentation Program then in effect. For the purposes of this Agreement, a
Mortgagor is eligible for a mortgage pursuant to Countrywide’s Streamlined Loan
Documentation Program if that Mortgagor is refinancing an existing mortgage
loan
that was originated or acquired by Countrywide where, among other things, the
mortgage loan has not been more than 30 days delinquent in payment during the
previous twelve month period.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
the Mortgage Loans under the direction or authority of the Master Servicer
or a
Subservicer or the Trustee, as the case may be.
Subordinated
Class Principal Distribution Target Amount:
With
respect to any Class of Subordinated Certificates and Distribution Date, the
excess of: (1) the sum of: (a) the aggregate Class Certificate Balance
of the Senior Certificates (after taking into account the distribution of the
Senior Principal Distribution Amount for such Distribution Date), (b) the
aggregate Class Certificate Balance of any Class(es) of Subordinated
Certificates that are senior to the subject Class (in each case, after taking
into account distribution of the Subordinated Class Principal Distribution
Amount(s) for such more senior Class(es) of Certificates for such Distribution
Date), and (c) the Class Certificate Balance of the subject Class of
Subordinated Certificates immediately prior to such Distribution Date over
(2) the lesser of (a) the product of (x) 100% minus the Stepdown
Target Subordination Percentage for the subject Class of Certificates and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date (after giving effect to Principal Prepayments received in
the
related Prepayment Period) and (b) the aggregate Stated Principal Balance
of the Mortgage Loans for such Distribution Date (after giving effect to
Principal Prepayments received in the related Prepayment Period) minus the
OC
Floor; provided, however, that if such Class of Subordinated Certificates is
the
only Class of Subordinated Certificates outstanding on such Distribution Date,
that Class will be entitled to receive the entire remaining Principal
Distribution Amount for Aggregate Loan until its Class Certificate Balance
is
reduced to zero.
33
Subordinated
Certificates:
As
specified in the Preliminary Statement.
Subordinated
Portion:
For any
Distribution Date and Loan Group, the aggregate Stated Principal Balance of
the
Mortgage Loans in the related Loan Group as of the Due Date in the prior month
(after giving effect to Principal Prepayments in the Prepayment Period related
to that prior Due Date) minus the aggregate Class Certificate Balance of the
related Senior Certificates immediately prior to such Distribution
Date.
Subordinated
WAC REMIC:
As
described in the Preliminary Statement.
Subordinated
WAC REMIC Interest:
Any one
of the REMIC Interests.
Subordinated
WAC REMIC Regular Interest:
Any one
of the “regular interests” in the Subordinated WAC REMIC described in the
Preliminary Statement.
Subsequent
Periodic Rate Cap:
As to
each Mortgage Loan and the related Mortgage Note, the provision therein that
limits permissible increases and decreases in the Mortgage Rate on the each
Adjustment Date after the first Adjustment Date for that Mortgage Loan to not
more than the amount set forth therein.
Subsequent
Recoveries:
As to
any Distribution Date and Loan Group, with respect to a Liquidated Mortgage
Loan
in that Loan Group that resulted in a Realized Loss in a prior calendar month,
unexpected amounts received by the Master Servicer (net of any related expenses
permitted to be reimbursed pursuant to Section 3.08) specifically related to
such Liquidated Mortgage Loan after the classification of such Mortgage Loan
as
a Liquidated Mortgage Loan.
Subservicer:
Any
person to whom the Master Servicer has contracted for the servicing of all
or a
portion of the Mortgage Loans pursuant to Section 3.02.
Substitute
Mortgage Loan:
A
Mortgage Loan substituted by the applicable Seller for a Deleted Mortgage Loan
which must, on the date of such substitution, as confirmed in a Request for
Release, substantially in the form of Exhibit M, (i) have a Stated
Principal Balance, after deduction of the principal portion of the Scheduled
Payment due in the month of substitution, not in excess of, and not more than
10% less than the Stated Principal Balance of the Deleted Mortgage Loan;
(ii) be accruing interest at a rate no lower than and not more than 1% per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not more than
one year less than that of) the Deleted Mortgage Loan; (v) have a Maximum
Mortgage Rate no lower than and not more than 1% per annum higher than, that
of
the Deleted Mortgage Loan; (vi) have a Minimum Mortgage Rate specified in its
related mortgage note not more than 1% per annum higher or lower than the
Minimum Mortgage Rate of the Deleted Mortgage Loan; (vii) have the same Mortgage
Index and Mortgage Index reset period as the Deleted Mortgage Loan and a Gross
Margin not more than 1% per annum higher or lower than that of the Deleted
Mortgage Loan; (viii) not be a Cooperative Loan unless the Deleted Mortgage
Loan was a Cooperative Loan and (ix) comply with each representation and
warranty set forth in Section 2.03.
34
Substitution
Adjustment Amount:
The
meaning ascribed to such term pursuant to Section 2.03.
Supplemental
Interest Trust:
The
separate trust created under this Agreement pursuant to Section
4.10.
Supplemental
Interest Trustee:
The
Bank of New York, a New York banking corporation, not in its individual
capacity, but solely in its capacity as trustee of the Supplemental Interest
Trust for the benefit of the Holders of the Certificates under this Agreement,
and any successor thereto, and any corporation or national banking association
resulting from or surviving any consolidation or merger to which it or its
successors may be a party and any successor trustee as may from time to time
be
serving as successor trustee hereunder.
Tax
Matters Person:
The
person designated as “tax matters person” in the manner provided under Treasury
regulation § 1.860F-4(d) and Treasury regulation § 301.6231(a)(7)1.
Initially, the Tax Matters Person shall be the Trustee.
Tax
Matters Person Certificate:
The
Class A-R Certificate with a Denomination of $0.01.
Terminator:
As
defined in Section 9.01.
Transaction
Documents:
This
Agreement, the Cap Contract and any other document or agreement entered into
in
connection with the Trust Fund, the Certificates or the Mortgage
Loans.
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Trigger
Event:
With
respect to a Distribution Date on or after the Stepdown Date, the existence
of
either a Delinquency Trigger Event or a Cumulative Loss Trigger Event with
respect to that Distribution Date.
Trust
Fund:
The
corpus of the trust created under this Agreement consisting of (i) the Mortgage
Loans and all interest and principal received on or with respect thereto after
the Cut-off Date to the extent not applied in computing the Cut-off Date
Principal Balance of the Mortgage Loans; (ii) the Certificate Account, the
Distribution Account and the Carryover Reserve Fund, and all amounts deposited
therein pursuant to the applicable provisions of this Agreement; (iii) the
Carryover Shortfall Reserve Fund; (iv) property that secured a Mortgage Loan
and
has been acquired by foreclosure, deed-in-lieu of foreclosure or otherwise;
and
(v) all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing.
35
Trustee:
The
Bank of New York and its successors and, if a successor trustee is appointed
under this Agreement, such successor.
Trustee
Advance Rate:
With
respect to any Advance made by the Trustee pursuant to Section 4.01(b), a per
annum rate of interest determined as of the date of such Advance equal to the
Prime Rate in effect on such date plus 5.00%.
Trustee
Fee:
As to
any Distribution Date, an amount equal to one-twelfth of the Trustee Fee Rate
multiplied by the Pool Stated Principal Balance with respect to such
Distribution Date.
Trustee
Fee Rate:
With
respect to each Mortgage Loan, 0.009% per annum.
Underwriters:
As
specified in the Preliminary Statement.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), as amended
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
Unpaid
Realized Loss Amount:
For any
Class of Certificates, (x) the portion of the aggregate Applied Realized Loss
Amount previously allocated to that Class remaining unpaid from prior
Distribution Dates minus (y) any increase in the Class Certificate Balance
of
that Class due to the receipt of Subsequent Recoveries to the Class Certificate
Balance of that Class pursuant to Section 4.02(g).
Voting
Rights:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. As of any date of determination, (a) 1% of all Voting
Rights shall be allocated to each Class of Notional Amount Certificates, if
any
(such Voting Rights to be allocated among the holders of Certificates of each
such Class in accordance with their respective Percentage Interests), (b) 1%
of
all Voting Rights shall be allocated to each of the Class A-R, Class C, Class
1-P, Class 2-P and Class 3-P Certificates, and (c) the remaining Voting Rights
shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on
such
date.
Weighted
Average Adjusted Net Mortgage Rate:
For any
Distribution Date and Loan Group, the average of the Adjusted Net Mortgage
Rate
of each Mortgage Loan in that Loan Group, weighted on the basis of its Stated
Principal Balance as of the Due Date occurring in the month preceding the month
of that Distribution Date (after giving effect to Principal Prepayments in
the
Prepayment Period related to that prior Due Date).
SECTION
1.02. Certain
Interpretive Provisions.
All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate, agreement or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (b) the words “hereof,” “herein” and “hereunder” and words of
similar import refer to this Agreement (or the certificate, agreement or other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate, agreement or document); (c) references
to any Section, Schedule or Exhibit are references to Sections, Schedules and
Exhibits in or to this Agreement, and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term “including” means “including without limitation”; (e)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (f) references
to
any agreement refer to that agreement as amended from time to time; (g)
references to any Person include that Person’s permitted successors and assigns;
and (h) a Mortgage Loan is “30 days delinquent” if any Scheduled Payment has not
been received by the close of business on the day immediately preceding the
Due
Date on which the next Scheduled Payment is due. Similarly for “60 days
delinquent,” “90 days delinquent” and so on.
36
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
SECTION
2.01. Conveyance
of Mortgage Loans
(a) Each
Seller, concurrently with the execution and delivery of this Agreement, hereby
sells, transfers, assigns, sets over and otherwise conveys to the Depositor,
without recourse, all its respective right, title and interest in and to the
related Mortgage Loans, including all interest and principal received or
receivable by such Seller, on or with respect to the applicable Mortgage Loans
after the Cut-off Date and all interest and principal payments on the related
Mortgage Loans received prior to the Cut-off Date in respect of installments
of
interest and principal due thereafter, but not including payments of principal
and interest due and payable on such Mortgage Loans on or before the Cut-off
Date. On or prior to the Closing Date, Countrywide shall deliver to the
Depositor or, at the Depositor’s direction, to the Trustee or other designee of
the Depositor, the Mortgage File for each Mortgage Loan listed in the Mortgage
Loan Schedule (except that, in the case of the Delay Delivery Mortgage Loans
(which may include Countrywide Mortgage Loans, Park Granada Mortgage Loans,
Park
Monaco Mortgage Loans or Park Sienna Mortgage Loans), such delivery may take
place within thirty (30) days following the Closing Date). Such delivery of
the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Sellers and Depositor, for the Mortgage
Loans. With respect to any Mortgage Loan that does not have a first payment
date
on or before the Due Date in the month of the first Distribution Date,
Countrywide shall deposit into the Distribution Account on or before the
Distribution Account Deposit Date relating to the first Distribution Date,
an
amount equal to one month’s interest at the related Adjusted Mortgage Rate on
the Cut-off Date Principal Balance of such Mortgage Loan.
(b) Immediately
upon the conveyance of the Mortgage Loans referred to in clause (a), the
Depositor sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the benefit of the Certificateholders, without recourse, all the
right, title and interest of the Depositor in and to the Trust Fund together
with the Depositor’s right to require each Seller to cure any breach of a
representation or warranty made in this Agreement by such Seller or to
repurchase or substitute for any affected Mortgage Loan in accordance
herewith.
(c) In
connection with the transfer and assignment set forth in clause (b) above,
the Depositor has delivered or caused to be delivered to the Trustee (or, in
the
case of the Delay Delivery Mortgage Loans, will deliver or cause to be delivered
to the Trustee within thirty (30) days following the Closing Date) for the
benefit of the Certificateholders the following documents or instruments with
respect to each Mortgage Loan so assigned:
(i) (A) the
original
Mortgage Note endorsed by manual or facsimile signature in blank in the
following form: “Pay to the order of ____________ without recourse,” with all
intervening endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such endorsement
being sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
or
37
(B) with
respect
to any Lost Mortgage Note, a lost note affidavit from Countrywide stating that
the original Mortgage Note was lost or destroyed, together with a copy of such
Mortgage Note;
(ii) except
as
provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the
original recorded Mortgage or a copy of such Mortgage, with recording
information, (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of each
MERS Mortgage Loan, the original Mortgage or a copy of such Mortgage, with
recording information, noting the presence of the MIN of the Mortgage Loans
and
either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded;
(iii) in
the case
of each Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage or a copy of such assignment, with recording
information, (which may be included in a blanket assignment or assignments),
together with, except as provided below, all interim recorded assignments of
such mortgage or a copy of such assignment, with recording information, (each
such assignment, when duly and validly completed, to be in recordable form
and
sufficient to effect the assignment of and transfer to the assignee thereof,
under the Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public recording
office, such assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such assignment of
Mortgage need not be delivered in the case of a Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico;
(iv) the
original or
copies of each assumption, modification, written assurance or substitution
agreement, if any;
(v) except
as
provided below, the original or a copy of lender’s title policy or a printout of
the electronic equivalent and all riders thereto; and
(vi) in
the case of a
Cooperative Loan, the originals of the following documents or
instruments:
(A)
The
Coop
Shares, together with a stock power in blank;
(B) The
executed Security Agreement;
(C) The
executed Proprietary Lease;
(D) The
executed Recognition Agreement;
38
(E) The
executed UCC-1 financing statement with evidence of recording thereon which
have
been filed in all places required to perfect the applicable Seller’s interest in
the Coop Shares and the Proprietary Lease; and
(F) The
executed UCC-3 financing statements or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
In
addition, in connection with the assignment of any MERS Mortgage Loan, each
Seller agrees that it will cause, at the Trustee’s expense, the MERS® System to
indicate that the Mortgage Loans sold by such Seller to the Depositor have
been
assigned by that Seller to the Trustee in accordance with this Agreement for
the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in
such
computer files the information required by the MERS® System to identify the
series of the Certificates issued in connection with such Mortgage Loans. Each
Seller further agrees that it will not, and will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by such
Seller to the Depositor during the term of this Agreement unless and until
such
Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage or a copy of
such Mortgage, with recording information, or (b) all interim recorded
assignments or a copy of such assignments, with recording information, or (c)
the lender’s title policy or a copy of lender’s title policy (together with all
riders thereto) satisfying the requirements of clause (ii), (iii) or (v) above,
respectively, concurrently with the execution and delivery of this Agreement
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above,
the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or
(iii) above, such original Mortgage or a copy of such Mortgage, with recording
information, or such interim assignment or a copy of such assignments, with
recording information, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in
no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or,
in
the case of clause (v) above, no later than 120 days following the Closing
Date;
provided,
however,
in the
event the Depositor is unable to deliver by such date each Mortgage and each
such interim assignment by reason of the fact that any such documents have
not
been returned by the appropriate recording office, or, in the case of each
such
interim assignment, because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver such documents to
the
Trustee as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. The Depositor shall forward or cause to
be
forwarded to the Trustee (a) from time to time additional original documents
evidencing an assumption or modification of a Mortgage Loan and (b) any other
documents required to be delivered by the Depositor or the Master Servicer
to
the Trustee. In the event that the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan and the public
recording office requires the presentation of a “lost instruments affidavit and
indemnity” or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Master
Servicer shall execute and deliver or cause to be executed and delivered such
a
document to the public recording office. In the case where a public recording
office retains the original recorded Mortgage or in the case where a Mortgage
is
lost after recordation in a public recording office, Countrywide shall deliver
to the Trustee a copy of such Mortgage certified by such public recording office
to be a true and complete copy of the original recorded Mortgage.
39
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event, within one hundred twenty (120) days after such transfer and assignment,
the Trustee shall (A) as the assignee thereof, affix the following language
to
each assignment of Mortgage: “CWALT, Inc., Series 2007-HY3, The Bank of New
York, as trustee”, (B) cause such assignment to be in proper form for recording
in the appropriate public office for real property records and (C) cause to
be
delivered for recording in the appropriate public office for real property
records the assignments of the Mortgages to the Trustee, except that, (i) with
respect to any assignments of Mortgage as to which the Trustee has not received
the information required to prepare such assignment in recordable form, the
Trustee’s obligation to do so and to deliver the same for such recording shall
be as soon as practicable after receipt of such information and in any event
within thirty (30) days after receipt thereof and (ii) the Trustee need not
cause to be recorded any assignment which relates to a Mortgage Loan, the
Mortgaged Property and Mortgage File relating to which are located in any
jurisdiction (including Puerto Rico) under the laws of which the recordation
of
such assignment is not necessary to protect the Trustee’s and the
Certificateholders’ interest in the related Mortgage Loan as evidenced by an
opinion of counsel delivered by Countrywide to the Trustee within 90 days of
the
Closing Date (which opinion may be in the form of a “survey” opinion and is not
required to be delivered by counsel admitted to practice law in the jurisdiction
as to which such legal opinion applies).
In
the
case of Mortgage Loans that have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate Account the portion of such payment that is required
to be deposited in the Certificate Account pursuant to
Section 3.05.
Notwithstanding
anything to the contrary in this Agreement, within thirty (30) days after the
Closing Date with respect to the Mortgage Loans, Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) shall either
(i) deliver to the Depositor, or at the Depositor’s direction, to the
Trustee or other designee of the Depositor the Mortgage File as required
pursuant to this Section 2.01 for each Delay Delivery Mortgage Loan or
(ii) either (A) substitute a Substitute Mortgage Loan for the Delay
Delivery Mortgage Loan or (B) repurchase the Delay Delivery Mortgage Loan,
which substitution or repurchase shall be accomplished in the manner and subject
to the conditions set forth in Section 2.03 (treating each Delay Delivery
Mortgage Loan as a Deleted Mortgage Loan for purposes of such
Section 2.03); provided,
however,
that if
Countrywide fails to deliver a Mortgage File for any Delay Delivery Mortgage
Loan within the thirty (30)-day period provided in the prior sentence,
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) shall use its best reasonable efforts to effect a substitution,
rather than a repurchase of, such Deleted Mortgage Loan and provided further
that the cure period provided for in Section 2.02 or in Section 2.03
shall not apply to the initial delivery of the Mortgage File for such Delay
Delivery Mortgage Loan, but rather Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) shall have five (5) Business
Days
to cure such failure to deliver. At the end of such thirty (30)-day period
the
Trustee shall send a Delay Delivery Certification for the Delay Delivery
Mortgage Loans delivered during such thirty (30)-day period in accordance with
the provisions of Section 2.02.
40
Each
Seller has entered into this Agreement in consideration for the purchase of
the
Mortgage Loans sold by such Seller to the Depositor and has agreed to take
the
actions specified herein. The Depositor, concurrently with the execution and
delivery of this Agreement, hereby sells, transfers, assigns and otherwise
conveys to the Trustee for the use and benefit of the Certificateholders,
without recourse, all right title and interest in the portion of the Trust
Fund
not otherwise conveyed to the Trust Fund pursuant to Sections 2.01(a) or
(b).
(d) Neither
the Depositor nor the Trust will acquire or hold any Mortgage Loan that would
violate the representations made by Countrywide set forth in clause (46) of
Schedule III-A hereto.
SECTION
2.02. Acceptance
by Trustee of the Mortgage Loans.
(a) The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit F (an “Initial
Certification”)
and
declares that it holds and will hold such documents and the other documents
delivered to it constituting the Mortgage Files, and that it holds or will
hold
such other assets as are included in the Trust Fund, in trust for the exclusive
use and benefit of all present and future Certificateholders. The Trustee
acknowledges that it will maintain possession of the Mortgage Notes in the
State
of California, unless otherwise permitted by the Rating Agencies.
The
Trustee agrees to execute and deliver on the Closing Date to the Depositor,
the
Master Servicer and Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) an Initial Certification in the form
annexed to this Agreement as Exhibit F. Based on its review and examination,
and
only as to the documents identified in such Initial Certification, the Trustee
acknowledges that such documents appear regular on their face and relate to
the
Mortgage Loans. The Trustee shall be under no duty or obligation to inspect,
review or examine said documents, instruments, certificates or other papers
to
determine that the same are genuine, enforceable or appropriate for the
represented purpose or that they have actually been recorded in the real estate
records or that they are other than what they purport to be on their
face.
On
or
about the thirtieth (30th)
day
after the Closing Date, the Trustee shall deliver to the Depositor, the Master
Servicer and Countrywide (on its own behalf and on behalf of Park Granada,
Park
Monaco and Park Sienna) a Delay Delivery Certification with respect to the
Mortgage Loans in the form annexed hereto as Exhibit G (a “Delay
Delivery Certification”),
with
any applicable exceptions noted thereon.
Not
later
than 90 days after the Closing Date, the Trustee shall deliver to the Depositor,
the Master Servicer and Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) a Final Certification with respect to
the
Mortgage Loans in the form annexed hereto as Exhibit H (a “Final
Certification”),
with
any applicable exceptions noted thereon.
41
If,
in
the course of such review, the Trustee finds any document constituting a part
of
a Mortgage File that does not meet the requirements of Section 2.01, the
Trustee shall list such as an exception in the Final Certification; provided,
however
that the
Trustee shall not make any determination as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note
or
(ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to which
the assignment relates. Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall promptly correct or cure such defect
within 90 days from the date it was so notified of such defect and, if
Countrywide does not correct or cure such defect within such period, Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
shall either (a) substitute for the related Mortgage Loan a Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase
such Mortgage Loan from the Trustee within 90 days from the date Countrywide
(on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
was
notified of such defect in writing at the Purchase Price of such Mortgage Loan;
provided,
however,
that in
no event shall such substitution or purchase occur more than 540 days from
the
Closing Date, except that if the substitution or purchase of a Mortgage Loan
pursuant to this provision is required by reason of a delay in delivery of
any
documents by the appropriate recording office, and there is a dispute between
either the Master Servicer or Countrywide (on its own behalf and on behalf
of
Park Granada, Park Monaco and Park Sienna) and the Trustee over the location
or
status of the recorded document, then such substitution or purchase shall occur
within 720 days from the Closing Date. The Trustee shall deliver written notice
to each Rating Agency within 270 days from the Closing Date indicating each
Mortgage Loan (a) that has not been returned by the appropriate recording
office or (b) as to which there is a dispute as to location or status of
such Mortgage Loan. Such notice shall be delivered every 90 days thereafter
until the related Mortgage Loan is returned to the Trustee. Any such
substitution pursuant to (a) above or purchase pursuant to (b) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05, if any, and any substitution pursuant to
(a) above shall not be effected prior to the additional delivery to the Trustee
of a Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such Mortgage
Loan
shall be deposited by Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) in the Certificate Account on or prior
to
the Distribution Account Deposit Date for the Distribution Date in the month
following the month of repurchase and, upon receipt of such deposit and
certification with respect thereto in the form of Exhibit N hereto, the
Trustee shall release the related Mortgage File to Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) and shall
execute and deliver at Countrywide’s (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) request such instruments of transfer
or
assignment prepared by Countrywide, in each case without recourse, as shall
be
necessary to vest in Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna), or its designee, the Trustee’s interest
in any Mortgage Loan released pursuant hereto. If pursuant to the foregoing
provisions Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) repurchases a Mortgage Loan that is a MERS Mortgage
Loan, the Master Servicer shall either (i) cause MERS to execute and deliver
an
assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS
to Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) or its designee and shall cause such Mortgage to be removed from
registration on the MERS® System in accordance with MERS’ rules and regulations
or (ii) cause MERS to designate on the MERS® System Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) or its
designee as the beneficial holder of such Mortgage Loan.
42
(b) [Reserved].
(c) [Reserved].
(d) The
Trustee shall retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions set forth in this Agreement. The
Master Servicer shall promptly deliver to the Trustee, upon the execution or
receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the possession of the Master
Servicer from time to time.
(e) It
is
understood and agreed that the respective obligations of each Seller to
substitute for or to purchase any Mortgage Loan sold to the Depositor by it
which does not meet the requirements of Section 2.01 above shall constitute
the sole remedy respecting such defect available to the Trustee, the Depositor
and any Certificateholder against that Seller.
SECTION
2.03. Representations,
Warranties and Covenants of the Sellers and Master Servicer.
(a) Countrywide
hereby makes the representations and warranties set forth in (i) Schedule II-A,
Schedule II-B, Schedule II-C and Schedule II-D hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee,
as
of the Closing Date, (ii) Schedule III-A hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee,
as
of the Closing Date, or if so specified therein, as of the Cut-off Date with
respect to the Mortgage Loans, and (iii) Schedule III-B hereto, and by this
reference incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off
Date with respect to the Mortgage Loans that are Countrywide Mortgage Loans.
Park Granada hereby makes the representations and warranties set forth in (i)
Schedule II-B hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii)
Schedule III-C hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or
if so
specified therein, as of the Cut-off Date with respect to the Mortgage Loans
that are Park Granada Mortgage Loans. Park Monaco hereby makes the
representations and warranties set forth in (i) Schedule II-C hereto, and
by this reference incorporated herein, to the Depositor, the Master Servicer
and
the Trustee, as of the Closing Date and (ii) Schedule III-D hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date with respect to the Mortgage Loans that are Park Monaco Mortgage
Loans. Park Sienna hereby makes the representations and warranties set forth
in
(i) Schedule II-D hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii) Schedule III-E hereto, and by this reference incorporated herein, to
the Depositor, the Master Servicer and the Trustee, as of the Closing Date,
or
if so specified therein, as of the Cut-off Date with respect to the Mortgage
Loans that are Park Sienna Mortgage Loans.
43
(b) The
Master Servicer hereby makes the representations and warranties set forth in
Schedule IV hereto, and by this reference incorporated herein, to the Depositor
and the Trustee, as of the Closing Date.
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty with respect to a Mortgage Loan made pursuant to Section 2.03(a)
that materially and adversely affects the interests of the Certificateholders
in
that Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties and the NIM Insurer. Each Seller hereby covenants
that within 90 days of the earlier of its discovery or its receipt of written
notice from any party of a breach of any representation or warranty with respect
to a Mortgage Loan sold by it pursuant to Section 2.03(a) that materially
and adversely affects the interests of the Certificateholders in that Mortgage
Loan, it shall cure such breach in all material respects, and if such breach
is
not so cured, shall, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted
Mortgage Loan”)
from
the Trust Fund and substitute in its place a Substitute Mortgage Loan, in the
manner and subject to the conditions set forth in this Section; or
(ii) repurchase the affected Mortgage Loan or Mortgage Loans from the
Trustee at the Purchase Price in the manner set forth below; provided,
however,
that
any such substitution pursuant to (i) above shall not be effected prior to
the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05,
if any, and any such substitution pursuant to (i) above shall not be effected
prior to the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit N and the Mortgage File for any such
Substitute Mortgage Loan. The Seller repurchasing a Mortgage Loan pursuant
to
this Section 2.03(c) shall promptly reimburse the Master Servicer and the
Trustee for any expenses reasonably incurred by the Master Servicer or the
Trustee in respect of enforcing the remedies for such breach. With respect
to
the representations and warranties described in this Section which are made
to the best of a Seller’s knowledge, if it is discovered by either the
Depositor, a Seller or the Trustee that the substance of such representation
and
warranty is inaccurate and such inaccuracy materially and adversely affects
the
value of the related Mortgage Loan or the interests of the Certificateholders
therein, notwithstanding that Seller’s lack of knowledge with respect to the
substance of such representation or warranty, such inaccuracy shall be deemed
a
breach of the applicable representation or warranty.
With
respect to any Substitute Mortgage Loan or Loans sold to the Depositor by a
Seller, Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment
of
the Mortgage, and such other documents and agreements as are required by
Section 2.01, with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. Scheduled Payments
due with respect to Substitute Mortgage Loans in the month of substitution
shall
not be part of the Trust Fund and will be retained by the related Seller on
the
next succeeding Distribution Date. For the month of substitution, distributions
to Certificateholders will include the monthly payment due on any Deleted
Mortgage Loan for such month and thereafter that Seller shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan. The Master
Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and
the
substitution of the Substitute Mortgage Loan or Loans and the Master Servicer
shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such
substitution, the Substitute Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the related Seller shall be deemed
to have made with respect to such Substitute Mortgage Loan or Loans, as of
the
date of substitution, the representations and warranties made pursuant to
Section 2.03(a) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the Certificate Account of the amount required
to be deposited therein in connection with such substitution as described in
the
following paragraph, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to such Deleted Mortgage Loan to
the
related Seller and shall execute and deliver at such Seller’s direction such
instruments of transfer or assignment prepared by Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna), in each case
without recourse, as shall be necessary to vest title in that Seller, or its
designee, the Trustee’s interest in any Deleted Mortgage Loan substituted for
pursuant to this Section 2.03.
44
For
any
month in which a Seller substitutes one or more Substitute Mortgage Loans for
one or more Deleted Mortgage Loans, the Master Servicer will determine the
amount (if any) by which the aggregate principal balance of all Substitute
Mortgage Loans sold to the Depositor by that Seller as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans repurchased by that Seller (after application of the scheduled
principal portion of the monthly payments due in the month of substitution).
The
amount of such shortage (the “Substitution
Adjustment Amount”)
plus
an amount equal to the aggregate of any unreimbursed Advances with respect
to
such Deleted Mortgage Loans shall be deposited in the Certificate Account by
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) on or before the Distribution Account Deposit Date for the
Distribution Date in the month succeeding the calendar month during which the
related Mortgage Loan became required to be purchased or replaced
hereunder.
In
the
event that a Seller shall have repurchased a Mortgage Loan, the Purchase Price
therefor shall be deposited in the Certificate Account pursuant to
Section 3.05 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which that Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and
upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.05 and receipt of a Request for Release in the form
of Exhibit N hereto, the Trustee shall release the related Mortgage File
held for the benefit of the Certificateholders to such Person, and the Trustee
shall execute and deliver at such Person’s direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood
and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and
is
continuing shall constitute the sole remedy against such Persons respecting
such
breach available to Certificateholders, the Depositor or the Trustee on their
behalf.
The
representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Mortgage Files to the Trustee for the benefit
of the Certificateholders.
SECTION
2.04. Representations
and Warranties of the Depositor as to the Mortgage Loans.
45
The
Depositor hereby represents and warrants to the Trustee with respect to each
Mortgage Loan as of the date of this Agreement or such other date set forth
in
this Agreement that as of the Closing Date, and following the transfer of the
Mortgage Loans to it by each Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses
or
counterclaims.
The
Depositor hereby assigns, transfers and conveys to the Trustee all of its rights
with respect to the Mortgage Loans including, without limitation, the
representations and warranties of each Seller made pursuant to
Section 2.03(a), together with all rights of the Depositor to require a
Seller to cure any breach thereof or to repurchase or substitute for any
affected Mortgage Loan in accordance with this Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the Trustee. Upon
discovery by the Depositor or the Trustee of a breach of any of the foregoing
representations and warranties set forth in this Section 2.04 (referred to
herein as a “breach”), which breach materially and adversely affects the
interest of the Certificateholders, the party discovering such breach shall
give
prompt written notice to the others and to each Rating Agency and the NIM
Insurer.
SECTION
2.05. Delivery
of Opinion of Counsel in Connection with Substitutions.
(a) Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to
Section 2.02 or Section 2.03 shall be made more than 90 days after the
Closing Date unless Countrywide delivers to the Trustee an Opinion of Counsel,
which Opinion of Counsel shall not be at the expense of either the Trustee
or
the Trust Fund, addressed to the Trustee, to the effect that such substitution
will not (i) result in the imposition of the tax on “prohibited
transactions” on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively, or
(ii) cause any REMIC created under this Agreement to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
(b) Upon
discovery by the Depositor, a Seller, the Master Servicer, or the Trustee that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code, the party discovering such fact shall
promptly (and in any event within five (5) Business Days of discovery) give
written notice thereof to the other parties and the NIM Insurer. In connection
therewith, the Trustee shall require Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) at its option, to either
(i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days
of such discovery in the same manner as it would a Mortgage Loan for a breach
of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to Countrywide the Mortgage Loan to be released pursuant to this
Section in the same manner, and on the same terms and conditions, as it would
a
Mortgage Loan repurchased for breach of a representation or warranty contained
in Section 2.03.
SECTION
2.06. Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered
to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates and to
perform the duties set forth in this Agreement, to the end that the interests
of
the Holders of the Certificates may be adequately and effectively protected.
46
SECTION
2.07. REMIC
Matters.
The
Preliminary Statement sets forth the designations and “latest possible maturity
date” for federal income tax purposes of all interests created hereby. The
“Startup Day” for purposes of the REMIC Provisions shall be the Closing Date.
The “tax matters person” with respect to each REMIC hereunder shall be the
Trustee and the Trustee shall hold the Tax Matters Person Certificate. Each
REMIC’s fiscal year shall be the calendar year.
SECTION
2.08. Covenants
of the Master Servicer.
The
Master Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the
Master Servicer shall comply in the performance of its obligations under this
Agreement with all reasonable rules and requirements of the insurer under each
Required Insurance Policy; and
(b) no
written information, certificate of an officer, statement furnished in writing
or written report delivered to the Depositor, any affiliate of the Depositor
or
the Trustee and prepared by the Master Servicer pursuant to this Agreement
will
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make such information, certificate, statement or report not
misleading.
47
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
SECTION
3.01. Master
Servicer to Service Mortgage Loans.
For
and
on behalf of the Certificateholders, the Master Servicer shall service and
administer the Mortgage Loans in accordance with the terms of this Agreement
and
customary and usual standards of practice of prudent mortgage loan servicers.
In
connection with such servicing and administration, the Master Servicer shall
have full power and authority, acting alone and/or through Subservicers as
provided in Section 3.02, subject to the terms of this Agreement
(i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of
the Mortgage Notes and related Mortgages (but only in the manner provided in
this Agreement), (iii) to collect any Insurance Proceeds and other
Liquidation Proceeds (which for the purpose of this Section 3.01 includes any
Subsequent Recoveries), and (iv) to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage
Loan; provided that the Master Servicer shall not take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee and the Certificateholders under this Agreement. The
Master Servicer shall represent and protect the interests of the Trust Fund
in
the same manner as it protects its own interests in mortgage loans in its own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan,
and
shall not make or permit any modification, waiver or amendment of any Mortgage
Loan which would cause any REMIC created under this Agreement to fail to qualify
as a REMIC or result in the imposition of any tax under section 860F(a) or
section 860G(d) of the Code. Without limiting the generality of the
foregoing, the Master Servicer, in its own name or in the name of the Depositor
and the Trustee, is hereby authorized and empowered by the Depositor and the
Trustee, when the Master Servicer believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor,
the
Certificateholders or any of them, any and all instruments of satisfaction
or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans, and with respect
to
the Mortgaged Properties held for the benefit of the Certificateholders. The
Master Servicer shall prepare and deliver to the Depositor and/or the Trustee
such documents requiring execution and delivery by either or both of them as
are
necessary or appropriate to enable the Master Servicer to service and administer
the Mortgage Loans to the extent that the Master Servicer is not permitted
to
execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee shall execute such
documents and deliver them to the Master Servicer. The Master Servicer further
is authorized and empowered by the Trustee, on behalf of the Certificateholders
and the Trustee, in its own name or in the name of the Subservicer, when the
Master Servicer or the Subservicer, as the case may be, believes it appropriate
in its best judgment to register any Mortgage Loan on the MERS® System, or cause
the removal from the registration of any Mortgage Loan on the MERS® System, to
execute and deliver, on behalf of the Trustee and the Certificateholders or
any
of them, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name of
MERS, solely as nominee for the Trustee and its successors and
assigns.
48
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 under this Agreement;
provided, however, that the NIM Insurer shall have consented to such
subservicing agreements (which consent shall not be unreasonably withheld).
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing agreement, any
of
the provisions of this Agreement relating to agreements or arrangements between
the Master Servicer and a Subservicer or reference to actions taken through
a
Subservicer or otherwise, the Master Servicer shall remain obligated and liable
to the Depositor, the Trustee and the Certificateholders for the servicing
and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from
the
Subservicer and to the same extent and under the same terms and conditions
as if
the Master Servicer alone were servicing and administering the Mortgage Loans.
All actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Master Servicer with the same
force and effect as if performed directly by the Master Servicer.
(b) For
purposes of this Agreement, the Master Servicer shall be deemed to have received
any collections, recoveries or payments with respect to the Mortgage Loans
that
are received by a Subservicer regardless of whether such payments are remitted
by the Subservicer to the Master Servicer.
SECTION
3.03. Rights
of the Depositor, the NIM Insurer and the Trustee in Respect of the Master
Servicer.
The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer under this Agreement and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
under this Agreement and in connection with any such defaulted obligation to
exercise the related rights of the Master Servicer under this Agreement;
provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. None of the Trustee, the NIM Insurer or the Depositor shall
have any responsibility or liability for any action or failure to act by the
Master Servicer nor shall the Trustee or the Depositor be obligated to supervise
the performance of the Master Servicer under this Agreement or
otherwise.
49
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 under this Agreement (including by reason of an Event of Default or
termination by the Depositor), the Trustee or its successor shall then assume
all of the rights and obligations of the Master Servicer under this Agreement
arising thereafter (except that the Trustee shall not be (i) liable for
losses of the Master Servicer pursuant to Section 3.09 or any acts or
omissions of the predecessor Master Servicer under this Agreement),
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions
of Mortgage Loans under this Agreement including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03, (iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03 or (v) deemed to have made any representations and
warranties of the Master Servicer under this Agreement). Any such assumption
shall be subject to Section 7.02. If the Master Servicer shall for any
reason no longer be the Master Servicer (including by reason of any Event of
Default or termination by the Depositor), the Trustee or its successor shall
succeed to any rights and obligations of the Master Servicer under each
subservicing agreement.
The
Master Servicer shall, upon request of the Trustee, but at the expense of the
Master Servicer, deliver to the assuming party all documents and records
relating to each subservicing agreement or substitute subservicing agreement
and
the Mortgage Loans then being serviced thereunder and an accounting of amounts
collected or held by it and otherwise use its best efforts to effect the orderly
and efficient transfer of the substitute subservicing agreement to the assuming
party.
| SECTION 3.05. |
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Carryover Reserve Fund; Principal Reserve Fund; Supplemental Interest
Trust and Cap Contract Reserve Fund.
|
(a) The
Master Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect all
payments called for under the terms and provisions of the Mortgage Loans to
the
extent such procedures shall be consistent with this Agreement and the terms
and
provisions of any related Required Insurance Policy. Consistent with the
foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or, subject to Section 3.20, any Prepayment Charge or penalty
interest in connection with the prepayment of a Mortgage Loan and
(ii) extend the due dates for payments due on a Mortgage Note for a period
not greater than 180 days; provided,
however,
that
the Master Servicer cannot extend the maturity of any such Mortgage Loan past
the date on which the final payment is due on the latest maturing Mortgage
Loan
as of the Cut-off Date. In the event of any such arrangement, the Master
Servicer shall make Advances on the related Mortgage Loan in accordance with
the
provisions of Section 4.01 during the scheduled period in accordance with
the amortization schedule of such Mortgage Loan without modification thereof
by
reason of such arrangements. In addition, the NIM Insurer’s prior written
consent shall be required for any waiver of Prepayment Charges or for the
extension of the due dates for payments due on a Mortgage Note, if the aggregate
number of outstanding Mortgage Loans that have been granted such waivers or
extensions exceeds 5% of the aggregate number of Mortgage Loans. The Master
Servicer shall not be required to institute or join in litigation with respect
to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which such payment is required
is prohibited by applicable law.
50
(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 in this Agreement, the following payments and
collections remitted by Subservicers or received by it in respect of Mortgage
Loans subsequent to the Cut-off Date (other than in respect of principal and
interest due on the Mortgage Loans on or before the Cut-off Date) and the
following amounts required to be deposited under this Agreement:
| (i) |
all
payments on account of principal on the Mortgage Loans, including
Principal Prepayments and Prepayment
Charges;
|
| (ii) |
all
payments on account of interest on the Mortgage Loans,
net of the related
Master Servicing Fee, Prepayment Interest Excess and any
lender paid
mortgage insurance premiums;
|
| (iii) |
all
Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other
than proceeds to be applied to the restoration or
repair of a Mortgaged
Property or released to the Mortgagor in accordance
with the Master
Servicer’s normal servicing
procedures;
|
| (iv) |
any
amount required to be deposited by the Master
Servicer or the Depositor in
connection with any losses on Permitted Investments
for which it is
responsible;
|
| (v) |
any
amounts required to be deposited by the
Master Servicer pursuant to
Section 3.09(c) and in respect of net monthly rental
income from REO
Property pursuant to
Section 3.11;
|
| (vi) |
all
Substitution Adjustment
Amounts;
|
| (vii) |
all
Advances made by the Master
Servicer pursuant to Section 4.01;
and
|
| (viii) |
any
other amounts required
to be deposited under
this
Agreement.
|
In
addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for such Mortgage Loan, in addition to the monthly
payment remitted by the Mortgagor, the Master Servicer shall cause funds to
be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to such Mortgage Loan equal to the amount
of
interest that has accrued on such Mortgage Loan from the preceding Due Date
at
the Mortgage Rate net of the related Master Servicing Fee.
51
The
foregoing requirements for remittance by the Master Servicer shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges or assumption fees,
if
collected, need not be remitted by the Master Servicer. In the event that the
Master Servicer shall remit any amount not required to be remitted, it may
at
any time withdraw or direct the institution maintaining the Certificate Account
to withdraw such amount from the Certificate Account, any provision in this
Agreement to the contrary notwithstanding. Such withdrawal or direction may
be
accomplished by delivering written notice thereof to the Trustee or such other
institution maintaining the Certificate Account which describes the amounts
deposited in error in the Certificate Account. The Master Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to
this
Section. All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders until withdrawn in accordance with
Section 3.08.
(c) The
Trustee shall establish and maintain, on behalf of the Holders of the Class
P
Certificates, a Principal Reserve Fund in the name of the Trustee. On the
Closing Date, the Depositor shall deposit into the Principal Reserve Fund $300.
Funds on deposit in the Principal Reserve Fund shall not be invested. The
Principal Reserve Fund shall be treated as an “outside reserve fund” under
applicable Treasury regulations and shall not be part of any REMIC created
under
this Agreement. Amounts on deposit in the Principal Reserve Fund shall not
be
invested.
(d) The
Trustee shall establish and maintain, on behalf of the Certificateholders,
the
Distribution Account. The Trustee shall, promptly upon receipt, deposit in
the
Distribution Account and retain in the Distribution Account the
following:
| (i) |
the
aggregate amount remitted by the Master Servicer to the Trustee
pursuant
to Section 3.08(a)(ix);
|
| (ii) |
any
amount deposited by the Master Servicer or the Depositor
pursuant to
Section 3.05(e) in connection with any losses on Permitted
Investments for which it is responsible;
and
|
| (iii) |
any
other amounts deposited hereunder which are required
to be deposited in
the Distribution Account.
|
In
the
event that the Master Servicer shall remit any amount not required
to be
remitted, it may at any time direct the Trustee to withdraw
such amount from the
Distribution Account, any provision in this Agreement to the
contrary
notwithstanding. Such direction may be accomplished by delivering
an Officer’s
Certificate to the Trustee which describes the amounts deposited
in error in the
Distribution Account. All funds deposited in the Distribution
Account shall be
held by the Trustee in trust for the Certificateholders until
disbursed in
accordance with this Agreement or withdrawn in accordance with
Section 3.08. In no event shall the Trustee incur liability for withdrawals
from the Distribution Account at the direction of the Master
Servicer.
52
(e) Each
institution at which the Certificate Account or the Distribution Account is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than (i) in
the case of the Certificate Account, the second Business Day next preceding
the
related Distribution Account Deposit Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account,
then
such Permitted Investment shall mature not later than the Business Day next
preceding such Distribution Account Deposit Date) and (ii) in the case of
the Distribution Account, the Business Day next preceding the Distribution
Date
(except that if such Permitted Investment is an obligation of the institution
that maintains such fund or account, then such Permitted Investment shall mature
not later than such Distribution Date) and, in each case, shall not be sold
or
disposed of prior to its maturity. All such Permitted Investments shall be
made
in the name of the Trustee, for the benefit of the Certificateholders. All
income and gain net of any losses realized from any such investment of funds
on
deposit in the Certificate Account, or the Distribution Account shall be for
the
benefit of the Master Servicer as servicing compensation and shall be remitted
to it monthly as provided in this Agreement. The amount of any realized losses
in the Certificate Account or the Distribution Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
Master Servicer in the Certificate Account or paid to the Trustee for deposit
into the Distribution Account, as applicable. The Trustee in its fiduciary
capacity shall not be liable for the amount of any loss incurred in respect
of
any investment or lack of investment of funds held in the Certificate Account
or
the Distribution Account and made in accordance with this Section
3.05.
(f) The
Master Servicer shall give notice to the Trustee, each Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof. The Trustee shall give notice
to the Master Servicer, each Seller, each Rating Agency and the Depositor of
any
proposed change of the location of the Distribution Account or the Carryover
Reserve Fund or the Cap Contract Reserve Fund prior to any change
thereof.
(g) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the Holders of the Offered Certificates, the Carryover Reserve
Fund and shall deposit $1,000 therein upon receipt from or on behalf of the
Depositor of such amount. The Carryover Reserve Fund shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart from,
and
shall not be commingled with, any other moneys, including without limitation,
other moneys held by the Trustee pursuant to this Agreement.
Funds
in
the Carryover Reserve Fund may be invested in Permitted Investments at the
direction of the Majority Holders of the Class C Certificates, which Permitted
Investments shall mature not later than the Business Day immediately preceding
the first Distribution Date that follows the date of such investment (except
that if such Permitted Investment is an obligation of the institution that
maintains the Carryover Reserve Fund, then such Permitted Investment shall
mature not later than such Distribution Date) and shall not be sold or disposed
of prior to maturity. All such Permitted Investments shall be made in the name
of the Trustee, for the benefit of the Holders of the Class C Certificates.
In
the absence of such written direction, all funds in the Carryover Reserve Fund
shall be invested by the Trustee in The Bank of New York cash reserves. Any
net
investment earnings on such amounts shall be retained therein until withdrawn
as
provided in Section 3.08. Any losses incurred in the Carryover Reserve Fund
in
respect of any such investments shall be charged against amounts on deposit
in
the Carryover Reserve Fund (or such investments) immediately as realized. The
Trustee shall not be liable for the amount of any loss incurred in respect
of
any investment or lack of investment of funds held in the Carryover Reserve
Fund
and made in accordance with this Section 3.05. The Carryover Reserve Fund will
not constitute an asset of any REMIC created hereunder. The Class C Certificates
shall evidence ownership of the Carryover Reserve Fund for federal tax
purposes.
(h) On
the
Closing Date, the Supplemental Interest Trustee shall establish and maintain
in
its name, in trust for the benefit of the Holders of the Covered Certificates,
the Cap Contract Reserve Fund, and shall deposit $1,000 therein upon receipt
from or on behalf of the Depositor of such amount. All funds on deposit in
the
Cap Contract Reserve Fund shall be held separate and apart from, and shall
not
be commingled with, any other moneys, including without limitation, other moneys
held by the Supplemental Interest Trustee or the Trustee pursuant to this
Agreement.
On
each
Distribution Date, the Supplemental Interest Trustee shall deposit into the
Cap
Contract Reserve Fund all amounts received in respect of the Cap Contract for
the related Accrual Period. The Supplemental Interest Trustee shall make
withdrawals from the Cap Contract Reserve Fund to make distributions pursuant
to
Section 4.02(e) exclusively (other than as expressly provided for in Section
3.08). Notwithstanding anything to the contrary in this Agreement, the
Supplemental Interest Trustee shall be allowed to transfer funds in the Cap
Contract Reserve Fund to the Trustee to facilitate, for administrative purposes,
distribution of such funds to Certificateholders through the Distribution
Account.
Funds
in
the Cap Contract Reserve Fund may be invested in Permitted Investments at the
direction of the Majority Holders of the Class C Certificates, which Permitted
Investments shall mature not later than the Business Day immediately preceding
the first Distribution Date that follows the date of such investment (except
that if such Permitted Investment is an obligation of the institution that
maintains the Cap Contract Reserve Fund, then such Permitted Investment shall
mature not later than such Distribution Date) and shall not be sold or disposed
of prior to maturity. All such Permitted Investments shall be made in the name
of the Trustee, for the benefit of the Holders of the Covered Certificates.
In
the absence of such written direction, all funds in the Cap Contract Reserve
Fund shall be invested by the Trustee in The Bank of New York cash reserves.
Any
net investment earnings on such amounts shall be retained therein until
withdrawn as provided in Section 3.08. Any losses incurred in the Cap Contract
Reserve Fund in respect of any such investments shall be charged against amounts
on deposit in the Cap Contract Reserve Fund (or such investments) immediately
as
realized. The Trustee shall not be liable for the amount of any loss incurred
in
respect of any investment or lack of investment of funds held in the Cap
Contract Reserve Fund and made in accordance with this Section 3.05. The Cap
Contract Reserve Fund will not constitute an asset of the Trust Fund or any
REMIC created hereunder.
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 in
this
Agreement shall require the Master Servicer to compel a Mortgagor to establish
an Escrow Account in violation of applicable law.
53
(b) Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse the Master Servicer
out
of related collections for any payments made pursuant to Sections 3.01
(with respect to taxes and assessments and insurance premiums) and 3.09 (with
respect to hazard insurance), to refund to any Mortgagors any sums determined
to
be overages, to pay interest, if required by law or the terms of the related
Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account
or to
clear and terminate the Escrow Account at the termination of this Agreement
in
accordance with Section 9.01. The Escrow Accounts shall not be a part of
the Trust Fund.
(c) The
Master Servicer shall advance any payments referred to in Section 3.06(a)
that are not timely paid by the Mortgagors on the date when the tax, premium
or
other cost for which such payment is intended is due, but the Master Servicer
shall be required so to advance only to the extent that such advances, in the
good faith judgment of the Master Servicer, will be recoverable by the Master
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
SECTION
3.07. Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
Master Servicer shall afford each Seller, the Depositor, the NIM Insurer and
the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but
only
upon reasonable request and during normal business hours at the office
designated by the Master Servicer.
Upon
reasonable advance notice in writing, the Master Servicer will provide to each
Certificateholder and/or Certificate Owner which is a savings and loan
association, bank or insurance company certain reports and reasonable access
to
information and documentation regarding the Mortgage Loans sufficient to permit
such Certificateholder and/or Certificate Owner to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder and/or Certificate
Owner for actual expenses incurred by the Master Servicer in providing such
reports and access. Upon request, the Master Servicer shall furnish to the
Trustee and the NIM Insurer its most recent publicly available financial
statements and any other information relating to its capacity to perform its
obligations under this Agreement reasonably requested by the NIM
Insurer.
| SECTION 3.08. |
Permitted
Withdrawals from the Certificate Account, the Distribution Account,
the
Carryover Reserve Fund; the Principal Reserve Fund and
the Cap Contract Reserve Fund.
|
(a) The
Master Servicer may from time to time make withdrawals from the Certificate
Account for the following purposes:
54
(i) to
pay to
the Master Servicer (to the extent not previously retained by the Master
Servicer) the servicing compensation to which it is entitled pursuant to
Section 3.14 and to pay to the Master Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds in or
credited to the Certificate Account;
(ii) to
reimburse each of the Master Servicer and the Trustee for unreimbursed Advances
made by it, such right of reimbursement pursuant to this subclause (ii)
being limited to amounts received on the Mortgage Loan(s) in respect of which
any such Advance was made;
(iii) to
reimburse each of the Master Servicer and the Trustee for any Nonrecoverable
Advance previously made by it;\
(iv) to
reimburse the Master Servicer for Insured Expenses from the related Insurance
Proceeds;
(v) to
reimburse the Master Servicer for (a) unreimbursed Servicing Advances, the
Master Servicer’s right to reimbursement pursuant to this clause (a) with
respect to any Mortgage Loan being limited to amounts received on such Mortgage
Loan(s) that represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01 or Section 3.06 and (b) for
unpaid Master Servicing Fees as provided in Section 3.11;
(vi) to
pay to
the purchaser, with respect to each Mortgage Loan or property acquired in
respect thereof that has been purchased pursuant to Section 2.02, 2.03 or
3.11, all amounts received on such Mortgage Loan after the date of such
purchase;
(vii) to
reimburse the Sellers, the Master Servicer, the NIM Insurer or the Depositor
for
expenses incurred by any of them and reimbursable pursuant to
Section 6.03;
(viii) to
withdraw any amount deposited in the Certificate Account and not required to
be
deposited in the Certificate Account;
(ix) on
or
prior to the Distribution Account Deposit Date, to withdraw an amount equal
to
the related Available Funds, the related Prepayment Charge Amount and the pro
rata portion of the Trustee Fee for such Distribution Date and remit such amount
to the Trustee for deposit in the Distribution Account; and
(x) to
clear
and terminate the Certificate Account upon termination of this Agreement
pursuant to Section 9.01.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Certificate Account pursuant to such subclauses (i), (ii), (iv), (v) and
(vi). Prior to making any withdrawal from the Certificate Account pursuant
to
subclause (iii), the Master Servicer shall deliver to the Trustee an
Officer’s Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
55
(b) The
Trustee shall withdraw funds from the Distribution Account for distributions
to
Certificateholders, in the manner specified in this Agreement (and to withhold
from the amounts so withdrawn, the amount of any taxes that it is authorized
to
withhold pursuant to the third paragraph of Section 8.11). In addition, the
Trustee may from time to time make withdrawals from the Distribution Account
for
the following purposes:
(i) to
pay to
itself the Trustee Fee for the related Distribution Date;
(ii) to
pay to
the Master Servicer as additional servicing compensation earnings on or
investment income with respect to funds in the Distribution
Account;
(iii) to
withdraw and return to the Master Servicer any amount deposited in the
Distribution Account and not required to be deposited therein;
(iv) to
reimburse the Trustee for any unreimbursed Advances made by it pursuant to
Section 4.01(b) hereof, such right of reimbursement pursuant to this subclause
(iv) being limited to (x) amounts received on the related Mortgage Loan(s)
in
respect of which any such Advance was made and (y) amounts not otherwise
reimbursed to the Trustee pursuant to Section 3.08(a)(ii) hereof;
(v) to
reimburse the Trustee for any Nonrecoverable Advance previously made by the
Trustee pursuant to Section 4.01(b) hereof, such right of reimbursement pursuant
to this subclause (v) being limited to amounts not otherwise reimbursed to
the
Trustee pursuant to Section 3.08(a)(iii) hereof; and
(vi) to
clear
and terminate the Distribution Account upon termination of this Agreement
pursuant to Section 9.01.
(c) The
Trustee shall withdraw funds from the Carryover Reserve Fund for distribution
to
the Offered Certificates and the Class C Certificates in the manner specified
in
Sections 4.02(b) (and to withhold from the amounts so withdrawn the amount
of
any taxes that it is authorized to retain pursuant to the third paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Carryover Reserve Fund for the following purposes:
(i) to
withdraw any amount deposited in the Carryover Reserve Fund and not required
to
be deposited therein; and
(ii) to
clear
and terminate the Carryover Reserve Fund upon the termination of this Agreement
pursuant to Section 9.01.
(d) The
Supplemental Interest Trustee shall withdraw funds from the Cap Contract Reserve
Fund for distribution to the Covered Certificates in the manner specified in
Section 4.02(e) (and to withhold from the amounts so withdrawn the amount of
any
taxes that it is authorized to retain pursuant to the third paragraph of Section
8.11). In addition, the Supplemental Interest Trustee may from time to time
make
withdrawals from the Cap Contract Reserve Fund for the following
purposes:
56
(i) to
withdraw any amount deposited in the Cap Contract Reserve Fund and not required
to be deposited therein; and
(ii) to
clear
and terminate the Cap Contract Reserve Fund upon the earlier of (A) the Cap
Contract Scheduled Termination Date and (B) the termination of this Agreement
pursuant to Section 9.01.
(e) On
the
Business Day before any Class P Principal Distribution Date, the Trustee shall
transfer $100.00 from the Principal Reserve Fund to the Distribution Account
and
shall distribute such amount to the applicable Class of Class P Certificates
on
the related Class P Principal Distribution Date. Following the distribution
to
be made in accordance with the preceding sentence on the last Class P
Distribution Date, the Trustee shall then terminate the Principal Reserve
Fund.
SECTION
3.09. Maintenance
of Hazard Insurance; Maintenance of Primary Insurance Policies.
(a) The
Master Servicer shall cause to be maintained, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to the
lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan or (ii) the greater of (y) the outstanding principal
balance of the Mortgage Loan and (z) an amount such that the proceeds of
such policy shall be sufficient to prevent the Mortgagor and/or the mortgagee
from becoming a co-insurer. Each such policy of standard hazard insurance shall
contain, or have an accompanying endorsement that contains, a standard mortgagee
clause. Any amounts collected by the Master Servicer under any such policies
(other than the amounts to be applied to the restoration or repair of the
related Mortgaged Property or amounts released to the Mortgagor in accordance
with the Master Servicer’s normal servicing procedures) shall be deposited in
the Certificate Account. Any cost incurred by the Master Servicer in maintaining
any such insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for their
benefit, be added to the principal balance of the Mortgage Loan, notwithstanding
that the terms of the Mortgage Loan so permit. Such costs shall be recoverable
by the Master Servicer out of late payments by the related Mortgagor or out
of
proceeds of liquidation of the Mortgage Loan or Subsequent Recoveries to the
extent permitted by Section 3.08. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
or
maintained on property acquired in respect of a Mortgage other than pursuant
to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property is located
at
the time of origination of the Mortgage Loan in a federally designated special
flood hazard area and such area is participating in the national flood insurance
program, the Master Servicer shall cause flood insurance to be maintained with
respect to such Mortgage Loan. Such flood insurance shall be in an amount equal
to the least of (i) the outstanding principal balance of the related
Mortgage Loan, (ii) the replacement value of the improvements which are
part of such Mortgaged Property, and (iii) the maximum amount of such
insurance available for the related Mortgaged Property under the national flood
insurance program.
57
(b) [Reserved].
(c) The
Master Servicer shall not take any action which would result in non-coverage
under any applicable Primary Insurance Policy of any loss which, but for the
actions of the Master Servicer, would have been covered thereunder. The Master
Servicer shall not cancel or refuse to renew any such Primary Insurance Policy
that is in effect at the date of the initial issuance of the Certificates and
is
required to be kept in force hereunder unless the replacement Primary Insurance
Policy for such canceled or non-renewed policy is maintained with a Qualified
Insurer.
Except
with respect to any Lender PMI Mortgage Loans, the Master Servicer shall not
be
required to maintain any Primary Insurance Policy (i) with respect to any
Mortgage Loan with a Loan-to-Value Ratio less than or equal to 80% as of any
date of determination or, based on a new appraisal, the principal balance of
such Mortgage Loan represents 80% or less of the new appraised value or
(ii) if maintaining such Primary Insurance Policy is prohibited by
applicable law. With respect to the Lender PMI Mortgage Loans, the Master
Servicer shall maintain the Primary Insurance Policy for the life of such
Mortgage Loans, unless otherwise provided for in the related Mortgage Note
or
prohibited by law.
The
Master Servicer agrees to effect the timely payment of the premiums on each
Primary Insurance Policy, and such costs not otherwise recoverable shall be
recoverable by the Master Servicer from the related proceeds of liquidation
and
Subsequent Recoveries.
(d) In
connection with its activities as Master Servicer of the Mortgage Loans, the
Master Servicer agrees to present on behalf of itself, the Trustee and
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary to
permit recovery under any Primary Insurance Policies respecting defaulted
Mortgage Loans. Any amounts collected by the Master Servicer under any Primary
Insurance Policies shall be deposited in the Certificate Account.
SECTION
3.10. Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
(a) Except
as
otherwise provided in this Section, when any property subject to a Mortgage
has
been conveyed by the Mortgagor, the Master Servicer shall to the extent that
it
has knowledge of such conveyance, enforce any due-on-sale clause contained
in
any Mortgage Note or Mortgage, to the extent permitted under applicable law
and
governmental regulations, but only to the extent that such enforcement will
not
adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer is not required to exercise
such rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies
the
terms and conditions contained in the Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such Mortgage Note or Mortgage is not
otherwise so required under such Mortgage Note or Mortgage as a condition to
such transfer. In the event that the Master Servicer is prohibited by law from
enforcing any such due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, or if nonenforcement is otherwise
permitted hereunder, the Master Servicer is authorized, subject to
Section 3.10(b), to take or enter into an assumption and modification
agreement from or with the person to whom such property has been or is about
to
be conveyed, pursuant to which such person becomes liable under the Mortgage
Note and, unless prohibited by applicable state law, the Mortgagor remains
liable thereon, provided that the Mortgage Loan shall continue to be covered
(if
so covered before the Master Servicer enters such agreement) by the applicable
Required Insurance Policies. The Master Servicer, subject to
Section 3.10(b), is also authorized with the prior approval of the insurers
under any Required Insurance Policies to enter into a substitution of liability
agreement with such Person, pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the Mortgage Note. Notwithstanding the foregoing, the Master Servicer
shall not be deemed to be in default under this Section by reason of any
transfer or assumption which the Master Servicer reasonably believes it is
restricted by law from preventing, for any reason whatsoever.
58
(b) Subject
to the Master Servicer’s duty to enforce any due-on-sale clause to the extent
set forth in Section 3.10(a), in any case in which a Mortgaged Property has
been conveyed to a Person by a Mortgagor, and such Person is to enter into
an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Master Servicer shall prepare and deliver
or
cause to be prepared and delivered to the Trustee for signature and shall
direct, in writing, the Trustee to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed and such modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
as
are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. In connection with
any
such assumption, no material term of the Mortgage Note may be changed. In
addition, the substitute Mortgagor and the Mortgaged Property must be acceptable
to the Master Servicer in accordance with its underwriting standards as then
in
effect. Together with each such substitution, assumption or other agreement
or
instrument delivered to the Trustee for execution by it, the Master Servicer
shall deliver an Officer’s Certificate signed by a Servicing Officer stating
that the requirements of this subsection have been met in connection therewith.
The Master Servicer shall notify the Trustee that any such substitution or
assumption agreement has been completed by forwarding to the Trustee the
original of such substitution or assumption agreement, which in the case of
the
original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as
all
other documents and instruments constituting a part thereof. Any fee collected
by the Master Servicer for entering into an assumption or substitution of
liability agreement will be retained by the Master Servicer as additional
servicing compensation.
SECTION
3.11. Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
(a) The
Master Servicer shall use reasonable efforts to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In connection
with such foreclosure or other conversion, the Master Servicer shall follow
such
practices and procedures as it shall deem necessary or advisable and as shall
be
normal and usual in its general mortgage servicing activities and meet the
requirements of the insurer under any Required Insurance Policy; provided,
however, that the Master Servicer shall not be required to expend its own funds
in connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after reimbursement
to
itself of such expenses and (ii) that such expenses will be recoverable to
it
through the proceeds of liquidation of the Mortgage Loan and Subsequent
Recoveries (respecting which it shall have priority for purposes of withdrawals
from the Certificate Account). The Master Servicer shall be responsible for
all
other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the proceeds
of
liquidation of the Mortgage Loan and Subsequent Recoveries with respect to
the
related Mortgaged Property, as provided in the definition of Liquidation
Proceeds. If the Master Servicer has knowledge that a Mortgaged Property which
the Master Servicer is contemplating acquiring in foreclosure or by deed in
lieu
of foreclosure is located within a 1 mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or other
site with environmental or hazardous waste risks known to the Master Servicer,
the Master Servicer will, prior to acquiring the Mortgaged Property, consider
such risks and only take action in accordance with its established environmental
review procedures.
59
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of the Certificateholders. The Trustee’s name shall be placed
on the title to such REO Property solely as the Trustee hereunder and not in
its
individual capacity. The Master Servicer shall ensure that the title to such
REO
Property references the Pooling and Servicing Agreement and the Trustee’s
capacity thereunder. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall either itself or through an agent selected by the Master
Servicer protect and conserve such REO Property in the same manner and to such
extent as is customary in the locality where such REO Property is located and
may, incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the Master Servicer
deems to be in the best interest of the Certificateholders for the period prior
to the sale of such REO Property. The Master Servicer shall prepare for and
deliver to the Trustee a statement with respect to each REO Property that has
been rented showing the aggregate rental income received and all expenses
incurred in connection with the maintenance of such REO Property at such times
as is necessary to enable the Trustee to comply with the reporting requirements
of the REMIC Provisions. The net monthly rental income, if any, from such REO
Property shall be deposited in the Certificate Account no later than the close
of business on each Determination Date. The Master Servicer shall perform the
tax reporting and withholding required by Sections 1445 and 6050J of the
Code with respect to foreclosures and abandonments, the tax reporting required
by Section 6050H of the Code with respect to the receipt of mortgage
interest from individuals and any tax reporting required by Section 6050P
of the Code with respect to the cancellation of indebtedness by certain
financial entities, by preparing such tax and information returns as may be
required, in the form required, and delivering the same to the Trustee for
filing.
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, and that 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.
60
In
the
event of a default on a Mortgage Loan one or more of whose obligor is not a
United States Person, as that term is defined in Section 7701(a)(30) of the
Code, in connection with any foreclosure or acquisition of a deed in lieu of
foreclosure (together, “foreclosure”) in respect of such Mortgage Loan, the
Master Servicer will cause compliance with the provisions of Treasury Regulation
Section 1.1445-2(d)(3) (or any successor thereto) necessary to assure that
no withholding tax obligation arises with respect to the proceeds of such
foreclosure except to the extent, if any, that proceeds of such foreclosure
are
required to be remitted to the obligors on such Mortgage Loan.
The
decision of the Master Servicer to foreclose on a defaulted Mortgage Loan shall
be subject to a determination by the Master Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any REO Properties, net of
reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall
be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate Account. To the
extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for such calendar month, such excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as any income from
an
REO Property, will be applied in the following order of priority: first, to
reimburse the Master Servicer for any related unreimbursed Servicing Advances
and Master Servicing Fees; second, to reimburse the Master Servicer or the
trustee for any unreimbursed Advances; third, to reimburse the Certificate
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer or the Trustee pursuant to
Section 3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued
and unpaid interest (to the extent no Advance has been made for such amount
or
any such Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Adjusted Net Mortgage Rate to the Due Date occurring in the
month in which such amounts are required to be distributed; and fifth, as a
recovery of principal of the Mortgage Loan. Excess Proceeds, if any, from the
liquidation of a Liquidated Mortgage Loan will be retained by the Master
Servicer as additional servicing compensation pursuant to
Section 3.14.
61
The
Master Servicer, in its sole discretion, shall have the right to purchase for
its own account from the Trust Fund any Mortgage Loan which is 151 days or
more
delinquent at a price equal to the Purchase Price; provided, however, that
the
Master Servicer may only exercise this right on or before the next to the last
day of the calendar month in which such Mortgage Loan became 151 days delinquent
(such month, the “Eligible
Repurchase Month”);
provided further, that any such Mortgage Loan which becomes current but
thereafter becomes delinquent may be purchased by the Master Servicer pursuant
to this Section in any ensuing Eligible Repurchase Month. The Purchase Price
for
any Mortgage Loan purchased under this Section 3.11 shall be deposited in the
Certificate Account and the Trustee, upon receipt of a certificate from the
Master Servicer in the form of Exhibit N to this Agreement, shall release
or cause to be released to the purchaser of such Mortgage Loan the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment prepared by the purchaser of such Mortgage Loan, in each case without
recourse, as shall be necessary to vest in the purchaser of such Mortgage Loan
any Mortgage Loan released pursuant hereto and the purchaser of such Mortgage
Loan shall succeed to all the Trustee’s right, title and interest in and to such
Mortgage Loan and all security and documents related thereto. Such assignment
shall be an assignment outright and not for security. The purchaser of such
Mortgage Loan shall thereupon own such Mortgage Loan, and all security and
documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
(b) Countrywide
may agree to a modification of any Mortgage Loan (the “Modified
Mortgage Loan”)
if (i)
the modification is in lieu of a refinancing and (ii) the Mortgage Rate on
the
Modified Mortgage Loan is approximately a prevailing market rate for
newly-originated mortgage loans having similar terms and (iii) Countrywide
purchases the Modified Mortgage Loan from the Trust Fund as described below.
Effective immediately after the modification, and, in any event, on the same
Business Day on which the modification occurs, all interest of the Trustee
in
the Modified Mortgage Loan shall automatically be deemed transferred and
assigned to Countrywide and all benefits and burdens of ownership thereof,
including the right to accrued interest thereon from the date of modification
and the risk of default thereon, shall pass to Countrywide. The Master Servicer
shall promptly deliver to the Trustee a certification of a Servicing Officer
to
the effect that all requirements of this paragraph have been satisfied with
respect to the Modified Mortgage Loan. For federal income tax purposes, the
Trustee shall account for such purchase as a prepayment in full of the Modified
Mortgage Loan.
Countrywide
shall remit the Purchase Price for any Modified Mortgage Loan to the Master
Servicer for deposit into the Certificate Account pursuant to Section 3.05
within one Business Day after the purchase of the Modified Mortgage Loan. Upon
receipt by the Trustee of written notification of any such deposit signed by
a
Servicing Officer, the Trustee shall release to Countrywide the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the Countrywide
any Modified Mortgage Loan previously transferred and assigned pursuant hereto.
Countrywide covenants and agrees to indemnify the Trust Fund against any
liability for any “prohibited transaction” taxes and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder as
a
result of any modification of a Mortgage Loan effected pursuant to this
subsection (b), any holding of a Modified Mortgage Loan by the Trust Fund or
any
purchase of a Modified Mortgage Loan by Countrywide (but such obligation shall
not prevent Countrywide or any other appropriate Person from in good faith
contesting any such tax in appropriate proceedings and shall not prevent
Countrywide from withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). Countrywide shall have no right of
reimbursement for any amount paid pursuant to the foregoing indemnification,
except to the extent that the amount of any tax, interest, and penalties,
together with interest thereon, is refunded to the Trust Fund or
Countrywide.
62
SECTION
3.12. Trustee
to Cooperate; Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer
of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Master Servicer will immediately notify the Trustee by
delivering, or causing to be delivered a “Request for Release” substantially in
the form of Exhibit N of this Agreement. Upon receipt of such request, the
Trustee shall promptly release the related Mortgage File to the Master Servicer,
and the Trustee shall at the Master Servicer’s direction execute and deliver to
the Master Servicer the request for reconveyance, deed of reconveyance or
release or satisfaction of mortgage or such instrument releasing the lien of
the
Mortgage in each case provided by the Master Servicer, together with the
Mortgage Note with written evidence of cancellation on the Mortgage Note. The
Master Servicer is authorized to cause the removal from the registration on
the
MERS® System of such Mortgage and to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments
of
satisfaction or cancellation or of partial or full release. Expenses incurred
in
connection with any instrument of satisfaction or deed of reconveyance shall
be
chargeable to the related Mortgagor. From time to time and as shall be
appropriate for the servicing or foreclosure of any Mortgage Loan, including
for
such purpose, collection under any policy of flood insurance, any fidelity
bond
or errors or omissions policy, or for the purposes of effecting a partial
release of any Mortgaged Property from the lien of the Mortgage or the making
of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Mortgage File, the Trustee shall, upon delivery to
the
Trustee of a Request for Release in the form of Exhibit M signed by a
Servicing Officer, release the Mortgage File to the Master Servicer. Subject
to
the further limitations set forth below, the Master Servicer shall cause the
Mortgage File or documents so released to be returned to the Trustee when the
need therefor by the Master Servicer no longer exists, unless the Mortgage
Loan
is liquidated and the proceeds thereof are deposited in the Certificate Account,
in which case the Master Servicer shall deliver to the Trustee a Request for
Release in the form of Exhibit N, signed by a Servicing
Officer.
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.
63
SECTION
3.13. Documents,
Records and Funds in Possession of Master Servicer to be Held for the
Trustee.
Notwithstanding
any other provisions of this Agreement, the Master Servicer shall transmit
to
the Trustee as required by this Agreement all documents and instruments in
respect of a Mortgage Loan coming into the possession of the Master Servicer
from time to time and shall account fully to the Trustee for any funds received
by the Master Servicer or which otherwise are collected by the Master Servicer
as Liquidation Proceeds, Insurance Proceeds or Subsequent Recoveries in respect
of any Mortgage Loan. All Mortgage Files and funds collected or held by, or
under the control of, the Master Servicer in respect of any Mortgage Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds and any Subsequent Recoveries, including but not limited
to, any funds on deposit in the Certificate Account, shall be held by the Master
Servicer for and on behalf of the Trustee and shall be and remain the sole
and
exclusive property of the Trustee, subject to the applicable provisions of
this
Agreement. The Master Servicer also agrees that it shall not create, incur
or
subject any Mortgage File or any funds that are deposited in the Certificate
Account, Distribution Account or any Escrow Account, or any funds that otherwise
are or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy,
writ
of attachment or other encumbrance, or assert by legal action or otherwise
any
claim or right of setoff against any Mortgage File or any funds collected on,
or
in connection with, a Mortgage Loan, except, however, that the Master Servicer
shall be entitled to set off against and deduct from any such funds any amounts
that are properly due and payable to the Master Servicer under this
Agreement.
SECTION
3.14. Servicing
Compensation.
As
compensation for its activities hereunder, the Master Servicer shall be entitled
to retain or withdraw from the Certificate Account an amount equal to the Master
Servicing Fee; provided, that the aggregate Master Servicing Fee with respect
to
any Distribution Date shall be reduced (i) by an amount equal to the aggregate
of the Prepayment Interest Shortfalls, if any, with respect to such Distribution
Date, but not by more than the Compensating Interest for that Distribution
Date,
and (ii) with respect to the first Distribution Date, an amount equal to any
amount to be deposited into the Distribution Account by the Depositor pursuant
to Section 2.01(a) and not so deposited.
Additional
servicing compensation in the form of Excess Proceeds, Prepayment Interest
Excess, assumption fees, late payment charges and all income and gain net of
any
losses realized from Permitted Investments on the Certificate Account and the
Distribution Account shall be retained by the Master Servicer to the extent
not
required to be deposited in the Certificate Account pursuant to
Section 3.05. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its master servicing activities hereunder
(including payment of any premiums for hazard insurance and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement therefor
except as specifically provided in this Agreement.
64
SECTION
3.15. Access
to Certain Documentation.
The
Master Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders and/or Certificate Owners and the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer. Nothing
in this Section shall limit the obligation of the Master Servicer to observe
any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Master Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of this
Section.
SECTION
3.16. Annual
Statement as to Compliance.
(a) The
Master Servicer shall deliver to the Depositor and the Trustee on or before
March 15 of each year, commencing with its 2008 fiscal year, an Officer’s
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer under
this Agreement, has been made under such officer’s supervision and (ii) to the
best of such officer’s knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement, in all material respects
throughout such year (or applicable portion thereof), or, if there has been
a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status thereof.
(b) The
Master Servicer shall cause each Subservicer to deliver to the Depositor and the
Trustee on or before March 15 of each year, commencing with its 2008 fiscal
year, an Officer’s Certificate stating, as to the signer thereof, that (i) a
review of the activities of such Subservicer during the preceding calendar
year
(or applicable portion thereof) and of the performance of the Subservicer under
the applicable Subservicing Agreement or primary servicing agreement, has been
made under such officer’s supervision and (ii) to the best of such officer’s
knowledge, based on such review, such Subservicer has fulfilled all its
obligations under the applicable Subservicing Agreement or primary servicing
agreement, in all material respects throughout such year (or applicable portion
thereof), or, if there has been a failure to fulfill any such obligation in
any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
(c) The
Trustee shall forward a copy of each such statement to each Rating Agency.
SECTION
3.17. Errors
and Omissions Insurance; Fidelity Bonds.
The
Master Servicer shall for so long as it acts as master servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as
Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA or FHLMC for
persons performing servicing for mortgage loans purchased by FNMA or FHLMC.
In
the event that any such policy or bond ceases to be in effect, the Master
Servicer shall obtain a comparable replacement policy or bond from an insurer
or
issuer, meeting the requirements set forth above as of the date of such
replacement.
65
SECTION
3.18. Notification
of Adjustments.
On
each
Adjustment Date, the Master Servicer shall make interest rate and scheduled
payment adjustments for each Mortgage Loan in compliance with the requirements
of the related Mortgage and Mortgage Note and applicable regulations. The Master
Servicer shall execute and deliver the notices required by each Mortgage and
Mortgage Note and applicable regulations regarding interest rate adjustments.
The Master Servicer also shall provide timely notification to the Trustee of
all
applicable data and information regarding such interest rate adjustments and
the
Master Servicer’s methods of implementing such interest rate adjustments. Upon
the discovery by the Master Servicer or the Trustee that the Master Servicer
has
failed to adjust or has incorrectly adjusted a Mortgage Rate or a monthly
payment pursuant to the terms of the related Mortgage Note and Mortgage, the
Master Servicer shall immediately deposit in the Certificate Account from its
own funds the amount of any interest loss caused thereby without reimbursement
therefor; provided, however, the Master Servicer shall be held harmless with
respect to any interest rate adjustments made by any servicer prior to the
Master Servicer.
SECTION
3.19. Cap
Contract.
The
Cap
Contract will not be an asset of the Trust Fund or of any REMIC. The Master
Servicer, on behalf of the Supplemental Interest Trustee, shall cause to be
deposited any amounts received from time to time with respect to the Cap
Contract into the Cap Contract Reserve Fund.
The
Master Servicer, on behalf of the Supplemental Interest Trustee, shall prepare
and deliver any notices required to be delivered under the Cap
Contract.
Upon
the
Supplemental Interest Trustee obtaining actual knowledge of a Failure to Pay
or
Deliver (as defined in the applicable Confirmation) under the Cap Contract,
the
Supplemental Interest Trustee shall demand payment from the Guarantor under
the
applicable Guarantee.
The
Master Servicer, on behalf of the Supplemental Interest Trustee, shall act
as
calculation agent and/or shall terminate the Cap Contract, in each case upon
the
occurrence of certain events of default or termination events to the extent
specified in or pursuant to the Confirmation. Upon any such termination, the
Cap
Contract Counterparty will be obligated to pay the Supplemental Interest Trustee
for the benefit of the Supplemental Interest Trust an amount in respect of
such
termination. Any amounts received by the Supplemental Interest Trustee or the
Master Servicer for the benefit of the Supplemental Interest Trust in respect
of
such termination shall be deposited and held in the Cap Contract Reserve Fund
to
pay unpaid Current Interest, Interest Carry Forward Amounts, Unpaid Realized
Loss Amounts and Net Rate Carryover Amounts on the Classes of LIBOR Certificates
and to restore and maintain the Overcollateralization Amount at the required
level as provided in Section 4.10 hereof on the Distribution Dates following
such termination to and including the Cap Contract Scheduled Termination Date.
On the Cap Contract Scheduled Termination Date, after all other distributions
to
be made on such date have been made pursuant to the terms of this Agreement,
if
any such amounts received by the Supplemental Interest Trustee or the Master
Servicer with respect thereto in respect of such termination remain in the
Cap
Contract Reserve Fund, such amounts shall be distributed by the Supplemental
Interest Trustee to the Underwriter.
66
SECTION
3.20. Prepayment
Charges.
(a) Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Master Servicer may not
waive any Prepayment Charge or portion thereof required by the terms of the
related Mortgage Note unless (i) such Mortgage Loan is in default or the Master
Servicer believes that such a default is imminent, and the Master Servicer
determines that such waiver would maximize recovery of Liquidation Proceeds
for
such Mortgage Loan, taking into account the value of such Prepayment Charge,
or
(ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors’ rights
generally or (2) due to acceleration in connection with a foreclosure or other
involuntary payment, or (B) the enforceability is otherwise limited or
prohibited by applicable law. In the event of a Principal Prepayment in full
or
in part with respect to any Mortgage Loan, the Master Servicer shall deliver
to
the Trustee an Officer’s Certificate substantially in the form of Exhibit T no
later than the third Business Day following the immediately succeeding
Determination Date with a copy to the Class P Certificateholders. If the Master
Servicer has waived or does not collect all or a portion of a Prepayment Charge
relating to a Principal Prepayment in full or in part due to any action or
omission of the Master Servicer, other than as provided above, the Master
Servicer shall deliver to the Trustee, together with the Principal Prepayment
in
full or in part, the amount of such Prepayment Charge (or such portion thereof
as had been waived) for deposit into the Certificate Account (not later than
1:00 p.m. Pacific time on the immediately succeeding Master Servicer Advance
Date, in the case of such Prepayment Charge) for distribution in accordance
with
the terms of this Agreement.
(b) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee of
a
breach of the foregoing subsection (a), the party discovering the breach shall
give prompt written notice to the other parties.
(c) Countrywide
represents and warrants to the Depositor and the Trustee, as of the Closing
Date, that the information in the Prepayment Charge Schedule (including the
attached prepayment charge summary) is complete and accurate in all material
respects at the dates as of which the information is furnished and each
Prepayment Charge is permissible and enforceable in accordance with its terms
under applicable state law, except as the enforceability thereof is limited
due
to acceleration in connection with a foreclosure or other involuntary
payment.
(d) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee of
a
breach of the foregoing clause (c) that materially and adversely affects right
of the Holders of the Class P Certificates to any Prepayment Charge, the
party discovering the breach shall give prompt written notice to the other
parties. Within 60 days of the earlier of discovery by the Master Servicer
or
receipt of notice by the Master Servicer of breach, the Master Servicer shall
cure the breach in all material respects or shall pay into the Certificate
Account the amount of the Prepayment Charge that would otherwise be due from
the
Mortgagor, less any amount representing such Prepayment Charge previously
collected and paid by the Master Servicer into the Certificate
Account.
67
ARTICLE IV
DISTRIBUTIONS
AND
ADVANCES
BY THE MASTER SERVICER
SECTION
4.01. Advances.
(a) The
Master Servicer shall determine on or before each Master Servicer Advance Date
whether it is required to make an Advance pursuant to the definition thereof.
If
the Master Servicer determines it is required to make an Advance, it shall,
on
or before the Master Servicer Advance Date, either (i) deposit into the
Certificate Account an amount equal to the Advance or (ii) make an
appropriate entry in its records relating to the Certificate Account that any
Amount Held for Future Distribution has been used by the Master Servicer in
discharge of its obligation to make any such Advance. Any funds so applied
shall
be replaced by the Master Servicer by deposit in the Certificate Account no
later than the close of business on the next Master Servicer Advance Date.
The
Master Servicer shall be entitled to be reimbursed from the Certificate Account
for all Advances of its own funds made pursuant to this Section as provided
in
Section 3.08. The obligation to make Advances with respect to any Mortgage
Loan shall continue if such Mortgage Loan has been foreclosed or otherwise
terminated and the related Mortgaged Property has not been
liquidated.
(b) If
the
Master Servicer determines that it will be unable to comply with its obligation
to make the Advances as and when described in the second sentence of Section
4.01(a), it shall use its best efforts to give written notice thereof to the
Trustee (each such notice a “Trustee Advance Notice”; and such notice may be
given by telecopy), not later than 3:00 P.M., New York time, on the Business
Day
immediately preceding the related Master Servicer Advance Date, specifying
the
amount that it will be unable to deposit (each such amount an “Advance
Deficiency”)
and
certifying that such Advance Deficiency constitutes an Advance hereunder and
is
not a Nonrecoverable Advance. If the Trustee receives a Trustee Advance Notice
on or before 3:30 P.M., New York time on a Master Servicer Advance Date, the
Trustee shall, not later than 3:00 P.M., New York time, on the related
Distribution Date, deposit in the Distribution Account an amount equal to the
Advance Deficiency identified in such Trustee Advance Notice unless it is
prohibited from so doing by applicable law. Notwithstanding the foregoing,
the
Trustee shall not be required to make such deposit if the Trustee shall have
received written notification from the Master Servicer that the Master Servicer
has deposited or caused to be deposited in the Certificate Account an amount
equal to such Advance Deficiency. All Advances made by the Trustee pursuant
to
this Section 4.01(b) shall accrue interest on behalf of the Trustee at the
Trustee Advance Rate from and including the date such Advances are made to
but
excluding the date of repayment, with such interest being an obligation of
the
Master Servicer and not the Trust Fund. The Master Servicer shall reimburse
the
Trustee for the amount of any Advance made by the Trustee pursuant to this
Section 4.01(b) together with accrued interest, not later than the fifth day
following the related Master Servicer Advance Date. In the event that the Master
Servicer does not reimburse the Trustee in accordance with the requirements
of
the preceding sentence, the Trustee shall have the right, but not the
obligation, to immediately (a) terminate all of the rights and obligations
of
the Master Servicer under this Agreement in accordance with Section 7.01 and
(b)
subject to the limitations set forth in Section 3.04, assume all of the rights
and obligations of the Master Servicer hereunder.
68
(c) The
Master Servicer shall, not later than the close of business on the second
Business Day immediately preceding each Distribution Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the Trustee)
that indicates (i) the Mortgage Loans with respect to which the Master Servicer
has determined that the related Scheduled Payments should be advanced and (ii)
the amount of the related Scheduled Payments. The Master Servicer shall deliver
to the Trustee on the related Master Servicer Advance Date an Officer’s
Certificate of a Servicing Officer indicating the amount of any proposed Advance
determined by the Master Servicer to be a Nonrecoverable Advance.
SECTION
4.02. Priorities
of Distribution.
(a) Distributions
of Interest Funds.
On each
Distribution Date, the Interest Funds for such Distribution Date shall be
allocated by the Trustee from the Distribution Account in the following
order:
(1) from
Interest Funds for each Loan Group, concurrently, to each related Class of
Senior Certificates, Current Interest and Interest Carry Forward Amount, pro
rata based on their respective entitlements;
(2) from
Interest Funds for all of the Loan Groups, in the following order:
(i) to
each
related Class of Senior Certificates, any unpaid Current Interest and Interest
Carry Forward Amount, pro rata based on their respective entitlements to the
extent not paid pursuant to clause (a)(1) above;
(ii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, the Current Interest for each such Class and such Distribution Date;
and
(iii) any
remainder as part of the Excess Cashflow.
(b) Distributions
of Principal Distribution Amount.
On each
Distribution Date, the Principal Distribution Amount for each Loan Group for
such Distribution Date shall be allocated by the Trustee from the Distribution
Account in the following order with all distributions pursuant to this clause
(b) being made first from the Principal Remittance Amount:
(1) For
each
Distribution Date prior to the Stepdown Date or on which a Trigger Event is
in
effect, in the following order:
(A) concurrently,
(i) from
the
Principal Distribution Amount for Loan Group 1, sequentially:
(a) to
the
Class A-R Certificates, until its Class Certificate Balance is reduced to zero;
69
(b) concurrently,
to the Class 1-A-1 and Class 1-A-2 Certificates, pro rata, until their
respective Class Certificate Balances are reduced to zero; and
(c) concurrently,
to the Classes of Group 2 Senior Certificates (after the distribution of the
Principal Distribution Amount for Loan Group 2 as provided in clause
(b)(1)(A)(ii)(a) below) and the Classes of Group 3 Senior Certificates (after
the distribution of the Principal Distribution Amount for Loan Group 3 as
provided in clause (b)(1)(A)(iii)(a) below), pro rata, on the basis of their
respective Class Certificate Balances, until their respective Class Certificate
Balances are reduced to zero;
(ii) from
the
Principal Distribution Amount for Loan Group 2, sequentially:
(a) concurrently,
to the Class 2-A-1 and Class 2-A-2 Certificates, pro rata, until their
respective Class Certificate Balances are reduced to zero; and
(b) concurrently,
to the Classes of Group 1 Senior Certificates (after the distribution of the
Principal Distribution Amount for Loan Group 1 as provided in clause
(b)(1)(A)(i)(a) above) and the Classes of Group 3 Senior Certificates (after
the
distribution of the Principal Distribution Amount for Loan Group 3 as provided
in clause (b)(1)(A)(iii)(a) below), pro rata, on the basis of their respective
Class Certificate Balances, until their respective Class Certificate Balances
are reduced to zero;
(iii) from
the
Principal Distribution Amount for Loan Group 3, sequentially:
(a) concurrently,
to the Class 3-A-1 and Class 3-A-2 Certificates, pro rata, until their
respective Class Certificate Balances are reduced to zero; and
(b) concurrently,
to the Classes of Group 1 Senior Certificates (after the distribution of the
Principal Distribution Amount for Loan Group 1 as provided in clause
(b)(1)(A)(i)(a) above) and the Classes of Group 2 Senior Certificates (after
the
distribution of the Principal Distribution Amount for Loan Group 2 as provided
in clause (b)(1)(A)(ii)(a) above), pro rata, on the basis of their respective
Class Certificate Balances, until their respective Class Certificate Balances
are reduced to zero;
70
(B) from
the
remaining Principal Distribution Amounts for each Loan Group, in the following
order:
(i) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, until their respective Class Certificate Balances are reduced to zero;
and
(ii) any
remainder as part of the Excess Cashflow.
(2) For
each
Distribution Date on or after the Stepdown Date and so long as a Trigger Event
is not in effect, from the Principal Distribution Amounts from each loan group,
in the following order:
(A) in
an
amount up to the Senior Principal Distribution Target Amount, pro rata, based
on
the related Senior Principal Distribution Target Amount for the Group 1 Senior
Certificates, the Group 2 Senior Certificates and the Group 3 Senior
Certificates, concurrently,
(i) in
an
amount up to the Group 1 Senior Principal Distribution Amount, concurrently,
to
the Class 1-A-1 and Class 1-A-2 Certificates, pro rata, until their respective
Class Certificate Balances are reduced to zero;
(ii) in
an
amount up to the Group 2 Senior Principal Distribution Amount, concurrently,
to
the Class 2-A-1 and Class 2-A-2 Certificates, pro rata, until their respective
Class Certificate Balances are reduced to zero; and
(iii) in
an
amount up to the Group 3 Senior Principal Distribution Amount, concurrently,
to
the Class 3-A-1 and Class 3-A-2 Certificates, pro rata, until their respective
Class Certificate Balances are reduced to zero;
provided,
however, that if the aggregate Class Certificate Balance of the Senior
Certificates in a Senior Certificate Group is reduced to zero, then any
remaining unpaid Senior Principal Distribution Target Amount will be allocated
between the remaining Senior Certificate Groups, pro rata based on the aggregate
Class Certificate Balance of the related Senior Certificates and distributed,
pro rata, to those Classes of Senior Certificates, until their respective Class
Certificate Balances are reduced to zero; and
(B) from
the
remaining Principal Distribution Amounts for each Loan Group, in the following
order:
(i) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, the Subordinated Class Principal Distribution Target Amount for each
such
Class, until their respective Class Certificate Balances are reduced to zero;
and
71
(ii) any
remainder as part of the Excess Cashflow.
(c) Distributions
of Excess Cashflow. With
respect to any Distribution Date, any Excess Cashflow will be distributed to
the
Classes of Certificates in the following order, in each case to the extent
of
remaining Excess Cashflow:
(1) to
the
Classes of Offered Certificates then entitled to receive distributions in
respect of principal, in an aggregate amount equal to the Extra Principal
Distribution Amount distributed to such Classes of Certificates as part of
each
Principal Distribution Amount pursuant to Section 4.02(b) hereof;
(2) concurrently,
to each Class of Senior Certificates, pro rata, based on its entitlement, in
each case in an amount equal to any Interest Carry Forward Amount for each
such
Class;
(3) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, in each case in an amount equal to any unpaid Current Interest and
Interest Carry Forward Amount for each such Class;
(4) to
each
Class of Senior Certificates, in an amount equal to the Unpaid Realized Loss
Amount for each such Class, concurrently and on a pro rata basis based on the
aggregate Unpaid Realized Loss Amount for each Senior Certificate Group, as
follows: (i) sequentially, to the Class 1-A-1 and Class 1-A-2 Certificates,
in
that order, (ii) sequentially, to the Class 2-A-1 and Class 2-A-2 Certificates,
in that order, and (iii) sequentially, to the Class 3-A-1 and Class 3-A-2
Certificates, in that order, to the extent needed to pay any Unpaid Realized
Loss Amount for each such Class;
(5) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, in each case in an amount equal to the Unpaid Realized Loss Amount for
each such Class;
(6) concurrently,
to each Class of Senior Certificates, pro rata, based on its entitlement, to
the
extent needed to pay any unpaid Net Rate Carryover for each such
Class;
(7) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, to the extent needed to pay any unpaid Net Rate Carryover for each such
Class;
(8) to
the
Class C Certificates, an amount up to the Class C Distributable Amount for
such
Distribution Date; and
(9) to
the
Class A-R Certificates.
72
(d) Distributions
from the Carryover Reserve Fund. On
the
first Distribution Date, amounts on deposit in the Carryover Reserve Fund shall
be distributed in the following order of priority:
(1) first,
concurrently to each Class of Senior Certificates, pro rata, based upon the
amount of any Net Rate Carryover with respect to each such Class of
Certificates; and
(2) second,
sequentially, to all of the Classes of Subordinated Certificates, beginning
with
the Class of Subordinated Certificates with the highest distribution priority
in
each loan group, in each case based upon the amount of any Net Rate Carryover
with respect to each such Class of Certificates.
Any
amounts remaining on deposit in the Carryover Reserve Fund after payment of
any
Net Rate Carryover on the Certificates will be distributed to the
Underwriter.
(e) On
each
Distribution Date on or prior to the earlier of (i) the Cap Contract Scheduled
Termination Date and (ii) the date on which the aggregate Class Certificate
Balance of the Covered Certificates is reduced to zero, amounts on deposit
in
the Cap Contract Reserve Fund will be withdrawn therefrom and, following all
other distributions on such Distribution Date, distributed as
follows:
(1) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, in each case in an amount equal to any remaining Current Interest and
Interest Carry Forward Amount for such Class;
(2) to
the
Class or Classes of Certificates then entitled to receive distributions in
respect of principal, in an aggregate amount up to the Overcollateralization
Deficiency Amount remaining unpaid following the distribution of principal
pursuant to Section 4.02(b) above, payable in the amounts and priorities
described in clauses (1)(A) and (1)(B) thereunder;
(3) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, to the extent needed to pay any remaining Net Rate Carryover for each
such Class; and
(4) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates, in that
order, in each case in an amount equal to the remaining Unpaid Realized Loss
Amount for each such Class.
Any
amount remaining in the Cap Contract Reserve Fund on each Distribution Date
shall remain on deposit therein. On the earlier of the Distribution Date in
January 2017 and termination of this agreement any amounts on deposit in the
Cap
Contract Reserve Fund after all other distributions shall be distributed to
the
Underwriter.
73
(f) On
each
Distribution Date, the related Prepayment Charge Amount with respect to Loan
Group 1, Loan Group 2 and Loan Group 3 shall be distributed to the Class 1-P,
Class 2-P and Class 3-P Certificates, respectively.
(g) Application
of Applied Realized Loss Amounts.
On each
Distribution Date, the Trustee shall allocate any Applied Realized Loss Amount,
first,
to
reduce the Class Certificate Balances of the Class M-11, Class M-10, Class
M-8,
Class M-7, Class M-6, Class M-5, Class M-4, Class M-3, Class M-2 and Class
M-1
Certificates, sequentially, in that order, until their respective Class
Certificate Balances are reduced to zero and, second,
(i) if
the aggregate Class Certificate Balance of the Group 1 Senior Certificates
exceeds the aggregate Stated Principal Balance of the Mortgage Loans in Loan
Group 1, the amount of such excess will be applied, sequentially, to reduce
the
Class Certificate Balances of the Class 1-A-2 and Class 1-A-1 Certificates,
in
that order, until their respective Class Certificate Balances are reduced to
zero, (ii) if the aggregate Class Certificate Balance of the Group 2 Senior
Certificates exceeds the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 2, the amount of such excess will be applied, sequentially,
to reduce the Class Certificate Balances of the Class 2-A-2 and Class 1-A-2
Certificates, in that order, until their respective Class Certificate Balances
are reduced to zero, and (iii) if the aggregate Class Certificate Balance of
the
Group 3 Senior Certificates exceeds the aggregate Stated Principal Balance
of
the Mortgage Loans in Loan Group 3, the amount of such excess will be applied,
sequentially, to reduce the Class Certificate Balances of the Class 3-A-2 and
Class 3-A-1 Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero.
(h) Application
of Subsequent Recoveries.
On each
Distribution Date, the Trustee shall allocate the amount of the Subsequent
Recoveries, if any, to increase the Class Certificate Balance of the Classes
of
Certificates to which Applied Realized Loss Amounts have been previously
allocated, first,
pro
rata based on the Applied Realized Loss Amounts previously allocated the Group
1
Senior Certificates, Group 2 Senior Certificates and Group 3 Senior
Certificates, (a) sequentially, to the Class 1-A-1 and Class 1-A-2 Certificates,
in that order, by not more than the amount of the Unpaid Realized Loss Amount
for each such Class, (b) sequentially, to the Class 2-A-1 and Class 2-A-2
Certificates, in that order, not by more than the amount of the Unpaid Realized
Loss Amount for each such Class and (c) sequentially, to the Class 3-A-1 and
Class 3-A-2 Certificates, in that order, by not more than the amount of the
Unpaid Realized Loss Amount for each such Class, and second,
sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class M-11
Certificates, in that order, by not more than the amount of the Unpaid Realized
Loss Amount of each such Class.
Holders
of Certificates to which any Subsequent Recoveries have been allocated shall
not
be entitled to any payment in respect of Current Interest on the amount of
such
increases for any Accrual Period preceding the Distribution Date on which such
increase occurs.
SECTION
4.03. [Reserved].
SECTION
4.04. [Reserved].
SECTION
4.05. [Reserved].
74
SECTION
4.06. Monthly
Statements to Certificateholders.
(a) Concurrently
with each distribution on a Distribution Date, the Trustee will forward by
mail
to each Rating Agency and make available to Certificateholders on the Trustee’s
website (xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting
forth the information contained in Exhibit U.
(b) The
Trustee’s responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy
of
the information provided by the Master Servicer.
(c) On
or
before the fifth Business Day following the end of each Prepayment Period (but
in no event later than the third Business Day prior to the related Distribution
Date), the Master Servicer shall deliver to the Trustee (which delivery may
be
by electronic data transmission) a report in substantially the form set forth
as
Schedule VI to this Agreement.
(d) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
cause to be furnished to each Person who at any time during the calendar year
was a Certificateholder, a statement containing the information set forth in
items (1), (2) and (7) of Exhibit U aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time in
effect.
SECTION
4.07. Determination
of Pass-Through Rates for COFI Certificates.
The
Pass-Through Rate for each Class of COFI Certificates for each Accrual Period
after the initial Accrual Period shall be determined by the Trustee as provided
below on the basis of the Index and the applicable formulae appearing in
footnotes corresponding to the COFI Certificates in the table relating to the
Certificates in the Preliminary Statement.
Except
as
provided below, with respect to each Accrual Period following the initial
Accrual Period, the Trustee shall not later than two Business Days prior to
such
Accrual Period but following the publication of the applicable Index determine
the Pass-Through Rate at which interest shall accrue in respect of the COFI
Certificates during the related Accrual Period.
Except
as
provided below, the Index to be used in determining the respective Pass-Through
Rates for the COFI Certificates for a particular Accrual Period shall be COFI
for the second calendar month preceding the Outside Reference Date for such
Accrual Period. If at the Outside Reference Date for any Accrual Period, COFI
for the second calendar month preceding such Outside Reference Date has not
been
published, the Trustee shall use COFI for the third calendar month preceding
such Outside Reference Date. If COFI for neither the second nor third calendar
months preceding any Outside Reference Date has been published on or before
the
related Outside Reference Date, the Index for such Accrual Period and for all
subsequent Accrual Periods shall be the National Cost of Funds Index for the
third calendar month preceding such Accrual Period (or the fourth preceding
calendar month if such National Cost of Funds Index for the third preceding
calendar month has not been published by such Outside Reference Date). In the
event that the National Cost of Funds Index for neither the third nor fourth
calendar months preceding an Accrual Period has been published on or before
the
related Outside Reference Date, then for such Accrual Period and for each
succeeding Accrual Period, the Index shall be LIBOR, determined in the manner
set forth below.
75
With
respect to any Accrual Period for which the applicable Index is LIBOR, LIBOR
for
such Accrual Period will be established by the Trustee on the related Interest
Determination Date as provided in Section 4.08.
In
determining LIBOR and any Pass-Through Rate for the COFI Certificates or any
Reserve Interest Rate, the Trustee may conclusively rely and shall be protected
in relying upon the offered quotations (whether written, oral or on the Reuters
Screen) from the Reference Banks or the New York City banks as to LIBOR or
the
Reserve Interest Rate, as appropriate, in effect from time to time. The Trustee
shall not have any liability or responsibility to any Person for (i) the
Trustee’s selection of New York City banks for purposes of determining any
Reserve Interest Rate or (ii) its inability, following a good-faith reasonable
effort, to obtain such quotations from the Reference Banks or the New York
City
banks or to determine such arithmetic mean, all as provided for in this Section
4.07.
The
establishment of LIBOR and each Pass-Through Rate for the COFI Certificates
by
the Trustee shall (in the absence of manifest error) be final, conclusive and
binding upon each Holder of a Certificate and the Trustee.
SECTION
4.08. Determination
of Pass-Through Rates for LIBOR Certificates.
(a) On
each
Interest Determination Date so long as any LIBOR Certificates are outstanding,
the Trustee will determine LIBOR on the basis of the British Bankers’
Association (“BBA”) “Interest Settlement Rate” for one-month deposits in U.S.
dollars as quoted on the Bloomberg Terminal as of each LIBOR Determination
Date.
(b) If
on any
Interest Determination Date, LIBOR cannot be determined as provided in paragraph
(A) of this Section 4.08, the Trustee shall either (i) request each Reference
Bank to inform the Trustee of the quotation offered by its principal London
office for making one-month United States dollar deposits in leading banks
in
the London interbank market, as of 11:00 a.m. (London time) on such Interest
Determination Date or (ii) in lieu of making any such request, rely on such
Reference Bank quotations that appear at such time on the Reuters Screen LIBO
Page (as defined in the International Swap Dealers Association Inc. Code of
Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition), to the
extent available. LIBOR for the next Accrual Period will be established by
the
Trustee on each interest Determination Date as follows:
(i) If
on any
Interest Determination Date two or more Reference Banks provide such offered
quotations, LIBOR for the next applicable Accrual Period shall be the arithmetic
mean of such offered quotations (rounding such arithmetic mean upwards if
necessary to the nearest whole multiple of 1/32%).
(ii) If
on any
Interest Determination Date only one or none of the Reference Banks provides
such offered quotations, LIBOR for the next Accrual Period shall be whichever
is
the higher of (i) LIBOR as determined on the previous Interest Determination
Date or (ii) the Reserve Interest Rate. The “Reserve Interest Rate” shall be the
rate per annum which the Trustee determines to be either (i) the arithmetic
mean
(rounded upwards if necessary to the nearest whole multiple of 1/32%) of the
one-month United States dollar lending rates that New York City banks selected
by the Trustee are quoting, on the relevant Interest Determination Date, to
the
principal London offices of at least two of the Reference Banks to which such
quotations are, in the opinion of the Trustee, being so made, or (ii) in the
event that the Trustee can determine no such arithmetic mean, the lowest
one-month United States dollar lending rate which New York City banks selected
by the Trustee are quoting on such Interest Determination Date to leading
European banks.
76
(iii) If
on any
Interest Determination Date the Trustee is required but is unable to determine
the Reserve Interest Rate in the manner provided in paragraph (b) above, LIBOR
for the related Classes of Certificates shall be LIBOR as determined on the
preceding applicable Interest Determination Date. If on the initial LIBOR
Determination Date, the Trustee is required but unable to determine LIBOR in
the
manner provided above, LIBOR for next Interest Accrual Period will be the
Initial LIBOR Rate.
Until
all
of the LIBOR Certificates are paid in full, the Trustee will at all times retain
at least four Reference Banks for the purpose of determining LIBOR with respect
to each Interest Determination Date. The Master Servicer initially shall
designate the Reference Banks. Each “Reference Bank” shall be a leading bank
engaged in transactions in Eurodollar deposits in the international Eurocurrency
market, shall not control, be controlled by, or be under common control with,
the Trustee and shall have an established place of business in London. If any
such Reference Bank should be unwilling or unable to act as such or if the
Master Servicer should terminate its appointment as Reference Bank, the Trustee
shall promptly appoint or cause to be appointed another Reference Bank. The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
(c) The
Pass-Through Rate for each Class of LIBOR Certificates for each Accrual Period
shall be determined by the Trustee on each Interest Determination Date so long
as the LIBOR Certificates are outstanding on the basis of LIBOR and the
respective formulae appearing in 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.
77
The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by
the Trustee shall (in the absence of manifest error) be final, conclusive and
binding upon each Holder of a Certificate and the Trustee.
SECTION
4.09. Determination
of MTA.
(a)
On each
related Interest Determination Date, so long as the MTA Certificates are
outstanding, the Trustee shall determine MTA on the basis of the most recent
MTA
figure available as of such related Interest Determination Date.
(b) If
on any
Interest Determination Date, MTA is no longer available, the Trustee shall
select a new index for the MTA Certificates that is based on comparable
information. When the Trustee selects a new index for the MTA Certificates,
the
Pass-Through Margin for each Class of MTA Certificates will increase or decrease
by the difference between the average MTA for the final three years it was
in
effect and the average of the most recent three years for the replacement index.
The Pass-Through Margin for each Class of MTA Certificates will be increased
by
that difference if the average MTA is greater than the average replacement
index, and the Pass-Through Margin for each Class of MTA Certificates will
be
decreased by that difference if the replacement index is greater than the
average MTA.
(c) The
Pass-Through Rate for each Class of MTA Certificates for each Accrual Period
shall be determined by the Trustee on each Interest Determination Date so long
as the MTA Certificates are outstanding on the basis of MTA and the respective
formulae appearing in footnotes corresponding to the MTA Certificates in the
table relating to the Certificates in the Preliminary Statement.
The
determination of MTA and the Pass-Through Rates for the MTA Certificates by
the
Trustee shall (in the absence of manifest error) be final, conclusive and
binding upon each Holder of a MTA Certificate and the Trustee
SECTION
4.10. Supplemental
Interest Trust.
On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), which shall be maintained by the Supplemental Interest
Trustee, who initially, shall be the Trustee. The assets of the Supplemental
Interest Trust shall consist of the Supplemental Interest Trustee’s rights and
obligations under the Cap Contract and the assets in the Cap Contract Reserve
Fund. The Supplemental Interest Trustee shall hold the assets of the
Supplemental interest Trust in trust for the benefit of the Holders of the
Certificates. The assets held in the Supplemental interest Trust shall not
constitute assets of the Trust Fund or any REMIC created hereunder.
78
ARTICLE
V
THE CERTIFICATES
THE CERTIFICATES
SECTION
5.01. The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in the minimum dollar
denominations, integral dollar multiples in excess thereof and aggregate dollar
denominations as set forth in the following table:
|
Class
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Original
Certificate Principal Balance
|
|
1-A-1
|
$25,000.00
|
$1.00
|
$
140,798,000.00
|
|
1-A-2
|
$25,000.00
|
$1.00
|
$
15,644,000.00
|
|
2-A-1
|
$25,000.00
|
$1.00
|
$
557,768,000.00
|
|
2-A-2
|
$25,000.00
|
$1.00
|
$
61,974,000.00
|
|
3-A-1
|
$25,000.00
|
$1.00
|
$
147,344,000.00
|
|
3-A-2
|
$25,000.00
|
$1.00
|
$
16,371,000.00
|
|
M-1
|
$25,000.00
|
$1.00
|
$
9,972,000.00
|
|
M-2
|
$25,000.00
|
$1.00
|
$
7,978,000.00
|
|
M-3
|
$25,000.00
|
$1.00
|
$
5,485,000.00
|
|
M-4
|
$25,000.00
|
$1.00
|
$
3,490,000.00
|
|
M-5
|
$25,000.00
|
$1.00
|
$
3,490,000.00
|
|
M-6
|
$25,000.00
|
$1.00
|
$
3,490,000.00
|
|
M-7
|
$25,000.00
|
$1.00
|
$
3,490,000.00
|
|
M-8
|
$25,000.00
|
$1.00
|
$
3,490,000.00
|
|
M-9
|
$25,000.00
|
$1.00
|
$
3,490,000.00
|
|
M-10
|
$25,000.00
|
$1.00
|
$
4,986,000.00
|
|
M-11
|
$100,000.00
|
$1.00
|
$
4,488,000.00
|
|
A-R
|
$99.95(1)
|
N/A
|
$100
|
|
C
|
N/A
|
N/A
|
N/A
|
|
1-P
|
(2)
|
(2)
|
$100
|
|
2-P
|
(2)
|
(2)
|
$100
|
|
3-P
|
(2)
|
(2)
|
$100
|
|
(1)
|
The
Tax Matters Person Certificate may be issued in a denomination of
$0.05.
|
|
(2)
|
The
Class 1-P, Class 2-P and Class 3-P Certificates are issuable in minimum
notional amounts equal to a 20% Percentage Interest and any amount
in
excess thereof.
|
Subject
to Section 9.02 respecting the final distribution on the Certificates, on
each Distribution Date the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a
bank
or other entity having appropriate facilities therefor, if (i) such Holder
has so notified the Trustee at least five Business Days prior to the related
Record Date and (ii) such Holder shall hold (A) a Notional Amount
Certificate, (B) 100% of the Class Certificate Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder
appearing in the Certificate Register.
79
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trustee by an authorized officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the countersignature and delivery of such Certificates
or
did not hold such offices at the date of such Certificate. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at
the
direction of the Depositor, or any affiliate of the Depositor.
The
Depositor shall provide, or cause to be provided, to the Trustee on a continuous
basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION
5.02. Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The
Trustee shall maintain, or cause to be maintained in accordance with the
provisions of Section 5.06, a Certificate Register for the Trust Fund in
which, subject to the provisions of subsections (b) and (c) below and to
such reasonable regulations as it may prescribe, the Trustee shall provide
for
the registration of Certificates and of transfers and exchanges of Certificates
as provided in this Agreement. Upon surrender for registration of transfer
of
any Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates
are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the holder thereof or
his
attorney duly authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In the event that a transfer
is
to be made in reliance upon an exemption from the Securities Act and such laws,
in order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such Certificateholder’s
prospective transferee shall each certify to the Trustee in writing the facts
surrounding the transfer in substantially the forms set forth in
Exhibit J-2 (the “Transferor
Certificate”)
and
(i) deliver a letter in substantially the form of either Exhibit K (the
“Investment
Letter”)
or
Exhibit L-1 (the “Rule 144A
Letter”)
or
(ii) there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made pursuant to
an
exemption from the Securities Act; provided, however, that in the case of the
delivery of an Investment Letter in connection with the transfer of any Class
C
or Class P Certificate to a transferee that is formed with the purpose of
issuing notes backed by such Class C or Class P Certificate, as the case may
be,
clause (b) and (c) of the form of Investment Letter shall not be applicable
and
shall be deleted by such transferee. The Depositor shall provide to any Holder
of a Private Certificate and any prospective transferee designated by any such
Holder, information regarding the related Certificates and the Mortgage Loans
and such other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such
Certificate without registration thereof under the Securities Act pursuant
to
the registration exemption provided by Rule 144A. The Trustee and the
Master Servicer shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including
providing to the Depositor such information regarding the Certificates, the
Mortgage Loans and other matters regarding the Trust Fund as the Depositor
shall
reasonably request to meet its obligation under the preceding sentence. Each
Holder of a Private Certificate desiring to effect such transfer shall, and
does
hereby agree to, indemnify the Trustee and the Depositor, the Sellers, the
NIM
Insurer and the Master Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
80
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(in the event such Certificate is a Private Certificate, such requirement is
satisfied only by the Trustee’s receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L-1, or in the
event such Certificate is a Residual Certificate, such requirement is satisfied
only by the Trustee’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that (x) such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA
or a plan or arrangement subject to Section 4975 of the Code, or a person acting
on behalf of any such plan or arrangement or using the assets of any such plan
or arrangement to effect such transfer or (y) in the case of a Certificate
that
is an ERISA-Restricted Certificate and that has been the subject of an
ERISA-Qualifying Underwriting, if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 (“PTCE
95-60”))
and
that the purchase and holding of such Certificates satisfy the requirements
for
exemptive relief under Sections I and III of PTCE 95-60 or (ii) in the case
of
any ERISA-Restricted Certificate presented for registration in the name of
an
employee benefit plan or arrangement subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee or any other person acting on behalf of any such
plan
or arrangement, or using such plan’s or arrangement’s assets, an Opinion of
Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, addressed to
the
Trustee and the Master Servicer to the effect that the purchase and holding
of
such ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code and will
not
subject the Trustee or the Master Servicer to any obligation in addition to
those expressly undertaken in this Agreement or to any liability (such Opinion
of Counsel, a “Benefit
Plan Opinion”).
For
purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Residual Certificate, in the event the representation
letter or Benefit Plan Opinion referred to in the preceding sentence is not
so
furnished, one of the representations in clause (i), as appropriate, shall
be
deemed to have been made to the Trustee by the transferee’s (including an
initial acquiror’s) acceptance of the ERISA-Restricted Certificate.
Notwithstanding anything else to the contrary in this Agreement, any purported
transfer of an ERISA-Restricted Certificate to or on behalf of an employee
benefit plan or other plan or arrangement subject to ERISA or to Section 4975
of
the Code without the delivery to the Trustee of a Benefit Plan Opinion of
Counsel satisfactory to the Trustee as described above shall be void and of
no
effect.
81
So
long
as the Supplemental Interest Trust is in effect, no transfer of a Covered
Certificate (other than a transfer of a Covered Certificate to an affiliate
of
the Depositor (either directly or through a nominee) in connection with the
initial issuance of the Certificates) shall be made unless the Trustee shall
have received a representation letter from the transferee of such Covered
Certificate substantially in the form of Exhibit L-2 (the “Covered Certificate
Letter”) to the effect that (i) such transferee is not a Plan, or (ii) that the
purchase and holding of the Covered Certificate satisfies the requirements
for
exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX
96-23, the service provider exemption provided under Section 408(b)(17) of
ERISA
and Section 4975(d)(20) of the Code or a similar exemption. In the event that
such a representation letter is not delivered, one of the foregoing
representations, as appropriate, shall be deemed to have been made by the
transferee’s (including an initial acquiror’s) acceptance of the Covered
Certificate. In the event that such representation is violated, such transfer
or
acquisition shall be void and of no effect.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trustee shall be under no liability to any Person for any registration
of
transfer of any ERISA-Restricted Certificate that is in fact not permitted
by
this Section 5.02(b) or for making any payments due on such Certificate to
the
Holder thereof or taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the transfer was registered by the
Trustee in accordance with the foregoing requirements.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
82
(ii) Except
in
connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Residual Certificate to, an affiliate of the Depositor (either directly or
through a nominee) in connection with the initial issuance of the Certificates,
no Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless the Trustee shall have been furnished with
an
affidavit (a “Transfer
Affidavit”)
of the
initial owner or the proposed transferee in the form attached hereto as
Exhibit I.
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee and to provide to
the
Trustee a certificate substantially in the form attached hereto as Exhibit
J-1
(the “Residual
Transferor Certificate”)
stating that it has no knowledge that such Person is not a Permitted
Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by Section 5.02(b) and this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
Transfer was registered after receipt of the related Transfer Affidavit,
Transferor Certificate and either the Rule 144A Letter or the Investment
Letter, if required. The Trustee shall be entitled but not obligated to recover
from any Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered by
the
Trustee shall be paid and delivered by the Trustee to the last preceding
Permitted Transferee of such Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Master
Servicer or any Seller, to the effect that the elimination of such restrictions
will not cause any REMIC hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax
on
the Trust Fund, a Certificateholder or another Person. Each Person holding
or
acquiring any Ownership Interest in a Residual Certificate hereby consents
to
any amendment of this Agreement which, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Residual Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a
Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
83
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Book-Entry Certificates; (iii) ownership and transfers of
registration of the Book-Entry Certificates on the books of the Depository
shall
be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to
be
inconsistent if they are made with respect to different Certificate Owners;
and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
If
(x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the
Certificate Balance of the Book-Entry Certificates together advise the Trustee
and the Depository through the Depository Participants in writing that the
continuation of a book-entry system through the Depository is no longer in
the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
“Definitive
Certificates”)
to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Master Servicer, the Depositor nor the Trustee shall
be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Master Servicer shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references in this Agreement
to
obligations imposed upon or to be performed by the Depository shall be deemed
to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the
Depository.
84
SECTION
5.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Certificate and (b) there is delivered to the Master Servicer and the
Trustee such security or indemnity as may be required by them to save each
of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new
Certificate under this Section 5.03, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION
5.04. Persons
Deemed Owners.
The
Master Servicer, the NIM Insurer, the Trustee and any agent of the Master
Servicer, the NIM Insurer or the Trustee may treat the Person in whose name
any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the NIM Insurer, the Trustee nor
any agent of the Master Servicer, the NIM Insurer or the Trustee shall be
affected by any notice to the contrary.
SECTION
5.05. Access
to List of Certificateholders’ Names and Addresses.
If
three
or more Certificateholders and/or Certificate Owners (a) request such
information in writing from the Trustee, (b) state that such Certificateholders
and/or Certificate Owners desire to communicate with other Certificateholders
and/or Certificate Owners with respect to their rights under this Agreement
or
under the Certificates, and (c) provide a copy of the communication which such
Certificateholders and/or Certificate Owners propose to transmit, or if the
Depositor or Master Servicer shall request such information in writing from
the
Trustee, then the Trustee shall, within ten Business Days after the receipt
of
such request, (x) provide the Depositor, the Master Servicer or such
Certificateholders and/or Certificate Owners at such recipients’ expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any, and (y) assist the Depositor, the Master Servicer or such
Certificateholders and/or Certificate Owners at such recipients’ expense with
obtaining from the Depository a list of the related Depository Participants
acting on behalf of Certificate Owners of Book Entry Certificates. The Depositor
and every Certificateholder and Certificate Owner, by receiving and holding
a
Certificate or beneficial interest therein, agree that the Trustee shall not
be
held accountable by reason of the disclosure of any such information as to
the
list of the Certificateholders and/or Depository Participants hereunder,
regardless of the source from which such information was derived.
SECTION
5.06. Maintenance
of Office or Agency.
The
Trustee will maintain or cause to be maintained at its expense an office or
offices or agency or agencies in New York City where Certificates may be
surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
85
ARTICLE
VI
THE DEPOSITOR AND THE MASTER SERVICER
THE DEPOSITOR AND THE MASTER SERVICER
SECTION
6.01. Respective
Liabilities of the Depositor and the Master Servicer.
The
Depositor and the Master Servicer shall each be liable in accordance with this
Agreement only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them in this Agreement.
SECTION
6.02. Merger
or Consolidation of the Depositor or the Master Servicer.
The
Depositor will keep in full effect its existence, rights and franchises as
a
corporation under the laws of the United States or under the laws of one of
the
states thereof and will obtain and preserve its qualification to do business
as
a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
or any of the Mortgage Loans and to perform its duties under this Agreement.
The
Master Servicer will keep in effect its existence, rights and franchises as
a
limited partnership under the laws of the United States or under the laws of
one
of the states thereof and will obtain and preserve its qualification or
registration to do business as a foreign partnership in each jurisdiction in
which such qualification or registration is or shall be necessary to protect
the
validity and enforceability of this Agreement or any of the Mortgage Loans
and
to perform its duties under this Agreement.
Any
Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Master Servicer shall be a party, or any person succeeding
to the business of the Depositor or the Master Servicer, shall be the successor
of the Depositor or the Master Servicer, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any
of
the parties hereto, anything in this Agreement to the contrary notwithstanding;
provided,
however,
that
the successor or surviving Person to the Master Servicer shall be qualified
to
service mortgage loans on behalf of, FNMA or FHLMC.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Master Servicer, the Master Servicer shall provide (x) written notice to the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Master
Servicer.
SECTION
6.03. Limitation
on Liability of the Depositor, the Sellers, the Master Servicer, the NIM Insurer
and Others.
None
of
the Depositor, the Master Servicer, the NIM Insurer or any Seller or any of
the
directors, officers, employees or agents of the Depositor, the Master Servicer,
the NIM Insurer or any Seller shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of
any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided,
however,
that
this provision shall not protect the Depositor, the Master Servicer, any Seller
or any such Person against any breach of representations or warranties made
by
it in this Agreement or protect the Depositor, the Master Servicer, any Seller
or any such Person from any liability which would otherwise be imposed by
reasons of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Depositor, the Master Servicer, the NIM Insurer, each Seller
and
any director, officer, employee or agent of the Depositor, the Master Servicer,
the NIM Insurer or each Seller may rely in good faith on any document of any
kind prima facie
properly
executed and submitted by any Person respecting any matters arising under this
Agreement. The Depositor, the Master Servicer, the NIM Insurer, each Seller
and
any director, officer, employee or agent of the Depositor, the Master Servicer,
the NIM Insurer or any Seller shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with
any
audit, controversy or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement or the Certificates,
other than any loss, liability or expense related to any specific Mortgage
Loan
or Mortgage Loans (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or gross negligence
in the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. None of the Depositor, the Master Servicer,
the NIM Insurer or any Seller shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided,
however,
that
any of the Depositor, the Master Servicer, the NIM Insurer or any Seller may
in
its discretion undertake any such action that it may deem necessary or desirable
in respect of this Agreement and the rights and duties of the parties hereto
and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer, the NIM Insurer and each Seller shall be
entitled to be reimbursed therefor out of the Certificate Account.
86
SECTION
6.04. Limitation
on Resignation of Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (a) upon appointment of a successor servicer that is
reasonably acceptable to the Trustee and the NIM Insurer and the written
confirmation from each Rating Agency (which confirmation shall be furnished
to
the Depositor, the Trustee and the NIM Insurer) that such resignation will
not
cause such Rating Agency to reduce the then-current rating of the Certificates
or (b) upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination under clause (b)
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No resignation
of
the Master Servicer shall become effective until the Trustee or a successor
master servicer shall have assumed the Master Servicer’s responsibilities,
duties, liabilities (other than those liabilities arising prior to the
appointment of such successor) and obligations under this Agreement and the
Depositor shall have received the information described in the following
sentence. As a condition to the effectiveness of any such resignation, at least
15 calendar days prior to the effective date of such resignation, the Master
Servicer shall provide (x) written notice to the Depositor of any successor
pursuant to this Section and (y) in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to the resignation of the Master Servicer.
87
ARTICLE
VII
DEFAULT
SECTION
7.01. Events
of Default.
“Event
of Default,”
wherever used in this Agreement, means any one of the following
events:
(i) any
failure by the Master Servicer to deposit in the Certificate Account or remit
to
the Trustee any payment required to be made under the terms of this Agreement,
which failure shall continue unremedied for five days after the date upon which
written notice of such failure shall have been given to the Master Servicer
by
the Trustee, the NIM Insurer or the Depositor or to the Master Servicer, the
NIM
Insurer and the Trustee by the Holders of Certificates having not less than
25%
of the Voting Rights evidenced by the Certificates in the applicable Certificate
Group; or
(ii) any
failure by the Master Servicer to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Master Servicer
contained in this Agreement (except with respect to a failure related to a
Limited Exchange Act Reporting Obligation), which failure materially affects
the
rights of Certificateholders, that failure continues unremedied for a period
of
60 days after the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee, the NIM Insurer or the Depositor,
or to the Master Servicer and the Trustee by the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the Certificates
in the applicable Certificate Group; provided, however, that the sixty day
cure
period shall not apply to the initial delivery of the Mortgage File for Delay
Delivery Mortgage Loans nor the failure to substitute or repurchase in lieu
of
delivery; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises for the appointment of a receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 consecutive days;
or
(iv) the
Master Servicer shall consent to the appointment of a receiver or liquidator
in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings of or relating to the Master Servicer or all or
substantially all of the property of the Master Servicer; or
(v) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of, or commence a
voluntary case under, any applicable insolvency or reorganization statute,
make
an assignment for the benefit of its creditors, or voluntarily suspend payment
of its obligations; or
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(vi) the
Master Servicer shall fail to reimburse in full the Trustee within five days
of
the Master Servicer Advance Date for any Advance made by the Trustee pursuant
to
Section 4.01(b) together with accrued and unpaid interest.
If
an
Event of Default described in clauses (i) to (vi) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee may, or, if an Event of Default described
in
clauses (i) to (v) of this Section shall occur, then, and in each and every
such
case, so long as such Event of Default shall not have been remedied, at the
direction of either the NIM Insurer or the Holders of Certificates evidencing
not less than 66-2/3% of the Voting Rights, evidenced by the Certificates;
the
Trustee shall by notice in writing to the Master Servicer (with a copy to each
Rating Agency and the Depositor), terminate all of the rights and obligations
of
the Master Servicer under this Agreement and in and to the Mortgage Loans and
the proceeds thereof, other than its rights as a Certificateholder hereunder.
In
addition, if during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Master Servicer shall fail
to
observe or perform any of the obligations that constitute a Limited Exchange
Act
Reporting Obligation or the obligations set forth in Section 3.16(a) or Section
11.07(a)(1) and (2), and such failure continues for the lesser of 10 calendar
days or such period in which the applicable Exchange Act Report can be filed
timely (without taking into account any extensions), so long as such failure
shall not have been remedied, the Trustee shall, but only at the direction
of
the Depositor, terminate all of the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof, other than its rights as a Certificateholder hereunder. The Depositor
shall not be entitled to terminate the rights and obligations of the Master
Servicer if a failure of the Master Servicer to identify a Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
On
and
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer hereunder, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The Trustee
shall thereupon make any Advance which the Master Servicer failed to make
subject to Section 4.01 hereof whether or not the obligations of the Master
Servicer have been terminated pursuant to this Section. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Master Servicer
to pay amounts owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be credited
to the Certificate Account, or thereafter be received with respect to the
Mortgage Loans.
Notwithstanding
any termination of the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to receive, out of any late collection of a Scheduled
Payment on a Mortgage Loan which was due prior to the notice terminating such
Master Servicer’s rights and obligations as Master Servicer hereunder and
received after such notice, that portion thereof to which such Master Servicer
would have been entitled pursuant to Sections 3.08(a)(i) through (viii),
and any other amounts payable to such Master Servicer hereunder the entitlement
to which arose prior to the termination of its activities under this
Agreement.
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If
the
Master Servicer is terminated, the Trustee shall provide the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of the
Master Servicer as set forth herein.
SECTION
7.02. Trustee
to Act; Appointment of Successor.
On
and
after the time the Master Servicer receives a notice of termination pursuant
to
Section 7.01, the Trustee shall, subject to and to the extent provided in
Section 3.04, be the successor to the Master Servicer in its capacity as
master servicer under this Agreement and the transactions set forth or provided
for in this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Master Servicer by the terms
and
provisions of this Agreement and applicable law including the obligation
to make
Advances pursuant to Section 4.01. As compensation therefor, the Trustee
shall be entitled to all funds relating to the Mortgage Loans that the Master
Servicer would have been entitled to charge to the Certificate Account or
Distribution Account if the Master Servicer had continued to act hereunder.
Notwithstanding the foregoing, if the Trustee has become the successor to
the
Master Servicer in accordance with Section 7.01, the Trustee may, if it
shall be unwilling to so act, or shall, if it is prohibited by applicable
law
from making Advances pursuant to Section 4.01 or if it is otherwise unable
to so act, (i) appoint any established mortgage loan servicing institution
reasonably acceptable to the NIM Insurer (as evidenced by the prior written
consent of the NIM Insurer), or (ii) if it is unable for 60 days to appoint
a
successor servicer reasonably acceptable to the NIM Insurer, petition a court
of
competent jurisdiction to appoint any established mortgage loan servicing
institution, the appointment of which does not adversely affect the then-current
rating of the Certificates and the NIM Insurer guaranteed notes (without
giving
any effect to any policy or guaranty provided by the NIM Insurer) by each
Rating
Agency as the successor to the Master Servicer hereunder in the assumption
of
all or any part of the responsibilities, duties or liabilities of the Master
Servicer hereunder. Any successor to the Master Servicer shall be an institution
which is a FNMA and FHLMC approved seller/servicer in good standing, which
has a
net worth of at least $15,000,000, and which is willing to service the Mortgage
Loans and (i) executes and delivers to the Depositor and the Trustee an
agreement accepting such delegation and assignment, which contains an assumption
by such Person of the rights, powers, duties, responsibilities, obligations
and
liabilities of the Master Servicer (other than liabilities of the Master
Servicer under Section 6.03 incurred prior to termination of the Master
Servicer under Section 7.01), with like effect as if originally named as a
party to this Agreement; and provided further that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior
to
such assignment and delegation will not be qualified or reduced as a result
of
such assignment and delegation and (ii) provides to the Depositor in writing,
fifteen (15) days prior to the effective date of such appointment and in
form
and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement master
servicer. The Trustee shall provide written notice to the Depositor of such
successor pursuant to this Section. Pending appointment of a successor to
the
Master Servicer hereunder, the Trustee, unless the Trustee is prohibited
by law
from so acting, shall, subject to Section 3.04, act in such capacity as
hereinabove provided. In connection with such appointment and assumption,
the
Trustee may make such arrangements for the compensation of such successor
out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of the Master Servicing
Fee permitted to be paid to the Master Servicer hereunder. The Trustee and
such
successor shall take such action, consistent with this Agreement, as shall
be
necessary to effectuate any such succession. Neither the Trustee nor any
other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder
or
any portion thereof or any failure to perform, or any delay in performing,
any
duties or responsibilities hereunder, in either case caused by the failure
of
the Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
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Any
successor to the Master Servicer as master servicer shall give notice to
the NIM
Insurer and the Mortgagors of such change of servicer and shall, during the
term
of its service as master servicer maintain in force the policy or policies
that
the Master Servicer is required to maintain pursuant to Section 3.09.
In
connection with the termination or resignation of the Master Servicer hereunder,
either (i) the successor Master Servicer, including the Trustee if the
Trustee is acting as successor Master Servicer, shall represent and warrant
that
it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with
the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor Master Servicer shall cooperate with the successor Master Servicer
either (x) in causing MERS to execute and deliver an assignment of Mortgage
in
recordable form to transfer the Mortgage from MERS to the Trustee and to
execute
and deliver such other notices, documents and other instruments as may be
necessary or desirable to effect a transfer of such Mortgage Loan or servicing
of such Mortgage Loan on the MERS® System to the successor Master Servicer or
(y) in causing MERS to designate on the MERS® System the successor Master
Servicer as the servicer of such Mortgage Loan. The predecessor Master Servicer
shall file or cause to be filed any such assignment in the appropriate recording
office. The successor Master Servicer shall cause such assignment to be
delivered to the Trustee promptly upon receipt of the original with evidence
of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
SECTION
7.03. Notification
to Certificateholders.
(a) Upon
any
termination of or appointment of a successor to the Master Servicer, the
Trustee
shall give prompt written notice thereof to Certificateholders and to each
Rating Agency.
(b) Within
60
days after the occurrence of any Event of Default, the Trustee shall transmit
by
mail to all Certificateholders notice of each such Event of Default hereunder
known to the Trustee, unless such Event of Default shall have been cured
or
waived.
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ARTICLE
VIII
CONCERNING
THE TRUSTEE
SECTION
8.01. Duties
of Trustee.
The
Trustee, prior to the occurrence of an Event of Default and after the curing
of
all Events of Default that may have occurred, shall undertake to perform
such
duties and only such duties as are specifically set forth in this Agreement.
In
case an Event of Default has occurred and remains uncured, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and
use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own
affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee
that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they are in the form required
by this Agreement; provided,
however,
that
the Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act
or its
own willful misconduct; provided,
however,
that:
(i) unless
an
Event of Default known to the Trustee shall have occurred and be continuing,
the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee and the Trustee may conclusively rely, as to the truth
of
the statements and the correctness of the opinions expressed therein, upon
any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine
and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be
finally proven that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction of
Holders of Certificates evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Agreement; and
(1) without
in any way limiting the provisions of this Section 8.01 or Section 8.02, the
Trustee shall be entitled to rely conclusively on the information delivered
to
it by the Master Servicer in a Trustee Advance Notice in determining whether
it
is required to make an Advance under Section 4.01(b), shall have no
responsibility to ascertain or confirm any information contained in any Trustee
Advance Notice, and shall have no obligation to make any Advance under Section
4.01(b) in the absence of a Trustee Advance Notice or actual knowledge of a
Responsible Officer of the Trustee that (A) an Advance was not made by the
Master Servicer and (B) such Advance is not a Nonrecoverable
Advance.
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SECTION
8.02. Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 8.01:
(i) the
Trustee may request and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officers’ Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party or
parties and the Trustee shall have no responsibility to ascertain or confirm
the
genuineness of any signature of any such party or parties;
(ii) the
Trustee may consult with counsel, financial advisers or accountants and the
advice of any such counsel, financial advisers or accountants and any Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) the
Trustee shall not be liable for any action taken, suffered or omitted by it
in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(iv) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by the NIM Insurer or Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each
Class of Certificates;
(v) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or
attorneys;
(vi) the
Trustee shall not be required to risk or expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it;
(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);
93
(viii) the
Trustee shall not be deemed to have knowledge of an Event of Default until
a
Responsible Officer of the Trustee shall have received written notice thereof;
and
(ix) the
Trustee shall be under no obligation to exercise any of the trusts, rights
or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
the NIM Insurer or any of the Certificateholders, pursuant to the provisions
of
this Agreement, unless the NIM Insurer or such Certificateholders shall have
offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby.
SECTION
8.03. Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained in this Agreement and in the Certificates shall be taken
as
the statements of the Depositor or a Seller, as the case may be, and the
Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of
the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS®
System other than with respect to the Trustee’s execution and counter-signature
of the Certificates. The Trustee shall not be accountable for the use or
application by the Depositor or the Master Servicer of any funds paid to
the
Depositor or the Master Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor or the Master
Servicer.
SECTION
8.04. Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
SECTION
8.05. Trustee’s
Fees and Expenses.
The
Trustee, as compensation for its activities hereunder, shall be entitled
to
withdraw from the Distribution Account on each Distribution Date an amount
equal
to the Trustee Fee for such Distribution Date. The Trustee and any director,
officer, employee or agent of the Trustee shall be indemnified by the Master
Servicer and held harmless against any loss, liability or expense (including
reasonable attorney’s fees and expenses) (i) incurred in connection with
any claim or legal action relating to (a) this Agreement, (b) the
Certificates or (c) in connection with the performance of any of the
Trustee’s duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance
of
any of the Trustee’s duties hereunder or incurred by reason of any action of the
Trustee taken at the direction of the Certificateholders and (ii) resulting
from any error in any tax or information return prepared by the Master Servicer.
Such indemnity shall survive the termination of this Agreement or the
resignation or removal of the Trustee hereunder. Without limiting the foregoing,
the Master Servicer covenants and agrees, except as otherwise agreed upon
in
writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee’s negligence, bad faith or
willful misconduct, to pay or reimburse the Trustee, for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Agreement with respect to:
(A) the reasonable compensation and the expenses and disbursements of its
counsel not associated with the closing of the issuance of the Certificates,
(B) the reasonable compensation, expenses and disbursements of any
accountant, engineer or appraiser that is not regularly employed by the Trustee,
to the extent that the Trustee must engage such persons to perform acts or
services hereunder and (C) printing and engraving expenses in connection
with preparing any Definitive Certificates. Except as otherwise provided
in this
Agreement, the Trustee shall not be entitled to payment or reimbursement
for any
routine ongoing expenses incurred by the Trustee in the ordinary course of
its
duties as Trustee, Registrar, Tax Matters Person or Paying Agent hereunder
or
for any other expenses.
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SECTION
8.06. Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which
would
not cause either of the Rating Agencies to reduce or withdraw their respective
then current ratings of the Certificates (or having provided such security
from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes reports
of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth
in its most recent report of condition so published. In case at any time
the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07. The entity serving as Trustee may
have normal banking and trust relationships with the Depositor and its
affiliates or the Master Servicer and its affiliates; provided,
however,
that
such entity cannot be an affiliate of the Master Servicer other than the
Trustee
in its role as successor to the Master Servicer.
SECTION
8.07. Resignation
and Removal of Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer
and each Rating Agency not less than 60 days before the date specified in
such
notice when, subject to Section 8.08, such resignation is to take effect,
and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Trustee shall provide
(x) written notice to the Depositor of any successor pursuant to this Section
and (y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Trustee.
95
If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 hereof and shall fail to resign after written
request
thereto by the NIM Insurer or the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)
a
tax is imposed with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund is located and the imposition of such tax would be avoided
by
the appointment of a different trustee, or (iv) during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Trustee fails to comply with its obligations under the last sentence
of Section 7.01, in the preceding paragraph, Section 8.09 or Article XI and
such
failure is not remedied within the lesser of 10 calendar days or such period
in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions), then, in the case of clauses (i) through (iii),
the Depositor, the NIM Insurer or the Master Servicer, and in the case of
clause
(iv), the Depositor, may remove the Trustee and appoint a successor trustee,
reasonably acceptable to the NIM Insurer, by written instrument, in triplicate,
one copy of which instrument shall be delivered to the Trustee, one copy
of
which shall be delivered to the Master Servicer, one copy of which shall
be
delivered to the NIM Insurer and one copy of which shall be delivered to
the
successor trustee.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may
at any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Trustee to the Master Servicer, one complete set to the Trustee so removed,
one
complete set to the NIM Insurer and one complete set to the successor so
appointed. Notice of any removal of the Trustee shall be given to each Rating
Agency by the successor trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in
Section 8.08.
SECTION
8.08. Successor
Trustee.
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and
the
Master Servicer an instrument accepting such appointment hereunder and thereupon
the resignation or removal of the predecessor trustee shall become effective
and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with the like effect as if originally named as trustee
in
this Agreement. The Depositor, the Master Servicer and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming
in
the successor trustee all such rights, powers, duties, and obligations.
No
successor trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06 hereof, is reasonably acceptable to
the NIM
Insurer, its appointment shall not adversely affect the then -current ratings
of
the Certificates and has provided to the Depositor in writing and in form
and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to a replacement Trustee.
96
Upon
acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to the NIM Insurer and all Holders of Certificates. If
the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Depositor.
SECTION
8.09. Merger
or Consolidation of Trustee.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the
Trustee
hereunder, provided that such corporation shall be eligible under the provisions
of Section 8.06 without the execution or filing of any paper or further act
on the part of any of the parties hereto, anything in this Agreement to the
contrary notwithstanding.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation
of the
Trustee, the Trustee shall provide (x) written notice to the Depositor of
any
successor pursuant to this Section and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement Trustee.
SECTION
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust
Fund
or property securing any Mortgage Note may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and reasonably acceptable to the NIM Insurer to act as co-trustee
or
co-trustees jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons,
in
such capacity and for the benefit of the Certificateholders, such title to
the
Trust Fund or any part thereof, whichever is applicable, and, subject to
the
other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in the case
an
Event of Default shall have occurred and be continuing, the Trustee alone
shall
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.08.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
97
(i) To
the
extent necessary to effectuate the purposes of this Section 8.10, all
rights, powers, duties and obligations conferred or imposed upon the Trustee,
except for the obligation of the Trustee under this Agreement to advance funds
on behalf of the Master Servicer, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act), except
to
the extent that under any law of any jurisdiction in which any particular act
or
acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified
to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the applicable Trust Fund or
any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Trustee;
(ii) No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder and such appointment shall not, and
shall not be deemed to, constitute any such separate trustee or co-trustee
as
agent of the Trustee;
(iii) The
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee; and
(iv) The
Master Servicer, and not the Trustee, shall be liable for the payment of
reasonable compensation, reimbursement and indemnification to any such separate
trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Master Servicer and the Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
98
SECTION
8.11. Tax
Matters.
It
is
intended that the assets with respect to which any REMIC election is to be
made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a “real estate mortgage investment conduit” as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee
is
hereby appointed to act as agent) on behalf of any such REMIC and that in
such
capacity it shall: (a) prepare and file, or cause to be prepared and filed,
in a
timely manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax
Return
(Form 1066 or any successor form adopted by the Internal Revenue Service)
and
prepare and file or cause to be prepared and filed with the Internal Revenue
Service and applicable state or local tax authorities income tax or information
returns for each taxable year with respect to any such REMIC, containing
such
information and at the times and in the manner as may be required by the
Code or
state or local tax laws, regulations, or rules, and furnish or cause to be
furnished to Certificateholders the schedules, statements or information
at such
times and in such manner as may be required thereby; (b) within thirty days
of
the Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c)
make or
cause to be made elections that such assets be treated as a REMIC on the
federal
tax return for its first taxable year (and, if necessary, under applicable
state
law); (d) prepare and forward, or cause to be prepared and forwarded, to
the
Certificateholders and to the Internal Revenue Service and, if necessary,
state
tax authorities, all information returns and reports as and when required
to be
provided to them in accordance with the REMIC Provisions, including without
limitation, the calculation of any original issue discount using the Prepayment
Assumption; (e) provide information necessary for the computation of tax
imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman)
of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax); (f) to the extent that they are under its control conduct matters relating
to such assets at all times that any Certificates are outstanding so as to
maintain the status as a REMIC under the REMIC Provisions; (g) not knowingly
or
intentionally take any action or omit to take any action that would cause
the
termination of the tax status of any REMIC; (h) pay, from the sources specified
in the third paragraph of this Section 8.11, the amount of any federal or
state
tax, including prohibited transaction taxes as described below, imposed on
any
such REMIC prior to its termination when and as the same shall be due and
payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings
and
shall not prevent the Trustee from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings); (i) ensure that federal,
state
or local income tax or information returns shall be signed by the Trustee
or
such other person as may be required to sign such returns by the Code or
state
or local laws, regulations or rules; (j) maintain records relating to any
such
REMIC, including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined
at
such intervals as may be required by the Code, as may be necessary to prepare
the foregoing returns, schedules, statements or information; and (k) as and
when
necessary and appropriate, represent any such REMIC in any administrative
or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable
year of
any such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any
such
REMIC, and otherwise act on behalf of any such REMIC in relation to any tax
matter or controversy involving it.
99
In
order
to enable the Trustee to perform its duties as set forth in this Agreement,
the
Depositor shall provide, or cause to be provided, to the Trustee within ten
(10)
days after the Closing Date all information or data that the Trustee requests
in
writing and determines to be relevant for tax purposes to the valuations
and
offering prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flows of the Certificates
and
the Mortgage Loans. Thereafter, the Depositor shall provide to the Trustee
promptly upon written request therefor, any such additional information or
data
that the Trustee may, from time to time, reasonably request in order to enable
the Trustee to perform its duties as set forth in this Agreement. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims
or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause
to
be provided, accurate information or data to the Trustee on a timely
basis.
In
the
event that any tax is imposed on “prohibited transactions” of any REMIC
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of such REMIC as defined in Section 860G(c) of the Code,
on any contribution to any REMIC hereunder after the Startup Day pursuant
to
Section 860G(d) of the Code, or any other tax is imposed, including, without
limitation, any minimum tax imposed upon any REMIC hereunder pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if
not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by
the
Trustee of any of its obligations under this Agreement, (ii) the Master
Servicer, in the case of any such minimum tax, or if such tax arises out
of or
results from a breach by the Master Servicer or a Seller of any of their
obligations under this Agreement, (iii) any Seller, if any such tax arises
out
of or results from that Seller’s obligation to repurchase a Mortgage Loan
pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or in the event
that the Trustee, the Master Servicer or any Seller fails to honor its
obligations under the preceding clauses (i),(ii) or (iii), any such tax will
be
paid with amounts otherwise to be distributed to the Certificateholders,
as
provided in Section 3.08(b).
The
Trustee shall treat the rights of the Holders of the Floating Rate Certificates
to receive payments from the Carryover Shortfall Reserve Fund as rights in
a
notional principal contract written by the Holders of the Class C Certificates
in respect of any Net Carryover distributed in favor of the Holders of the
Floating Rate Certificates. Thus, with respect to the preceding sentence,
the
Floating Rate Certificates shall be treated as representing ownership of
a REMIC
regular interests coupled with contractual rights.
The
Trustee shall treat the Carryover Reserve Fund as an outside reserve fund
within
the meaning of Treasury Regulation 1.860G-2(h) that is owned by the holders
of
the Class C Certificates, and that is not an asset of any REMIC created
hereunder. The Trustee shall treat the rights of the holders of the Floating
Rate Certificates to receive payments from the Carryover Reserve Fund as
rights
in a notional principal contract written by the Holders of the Class C
Certificates in respect of any monies distributed pursuant to Sections 4.02(c)
and 4.02(e) herein, in favor of the Holders of the Floating Rate Certificates.
Thus, the Floating Rate Certificates and the Class C Certificates shall be
treated as representing ownership of not only a Master REMIC regular interest,
but also ownership of an interest in an interest rate cap contract.
100
The
Trustee shall treat the Cap Contract Reserve Fund as an outside reserve fund
within the meaning of Treasury Regulation 1.860G-2(h) that is owned by the
Underwriter and that is not an asset of any REMIC created hereunder. The
Trustee
shall treat the rights of the holders of the Covered Certificates to receive
payments from the Cap Contract Reserve Fund as rights in an interest rate
Cap
Contract written by the Cap Contract Counterparty. Thus, the Covered
Certificates shall be treated as representing ownership of not only a Master
REMIC regular interest, but also ownership of an interest in an interest
rate
Cap Contract. For purposes of determining the issue price of the Master REMIC
regular interests, the Trustee shall assume that the Cap Contract has a value
of
$128,000.
SECTION
8.12. Monitoring
of Significance Percentage.
With
respect to each Distribution Date, the Trustee shall calculate the “significance
percentage” (as defined in Item 1115 of Regulation AB) of each derivative
instrument, if any, based on the aggregate Class Certificate Balance of the
related Classes of Covered Certificates for such derivative instrument and
Distribution Date (after all distributions to be made thereon on such
Distribution Date) and based on the methodology provided in writing by or
on
behalf of Countrywide no later than the fifth Business Day preceding such
Distribution Date. On each Distribution Date, the Trustee shall provide to
Countrywide a written report (which written report may include similar
information with respect to other derivative instruments relating to
securitization transactions sponsored by Countrywide) specifying the
“significance percentage” of each derivative instrument, if any, for that
Distribution Date. If the “significance percentage” of any derivative instrument
exceeds 7.0% with respect to any Distribution Date, the Trustee shall make
a
separate notation thereof in the written report described in the preceding
sentence. Such written report may contain such assumptions and disclaimers
as
are deemed necessary and appropriate by the Trustee.
101
ARTICLE
IX
TERMINATION
SECTION
9.01. Termination
upon Liquidation or Purchase of all Mortgage Loans.
Subject
to Section 9.03, the obligations and responsibilities of the Depositor, the
Sellers, the Master Servicer and the Trustee created hereby with respect
to the
Trust Fund shall terminate upon the earlier of (a) the purchase by the Master
Servicer or NIM Insurer (the party exercising such purchase option, the
“Terminator”) of all of the Mortgage Loans (and REO Properties) at the price
equal to the sum of (i) 100% of the Stated Principal Balance of each Mortgage
Loan (other than in respect of an REO Property), (ii) accrued interest thereon
at the applicable Mortgage Rate (or, if such repurchase is effected by the
Master Servicer, at the applicable Adjusted Mortgage Rate, (iii) the appraised
value of any REO Property (up to the Stated Principal Balance of the related
Mortgage Loan), such appraisal to be conducted by an appraiser mutually agreed
upon by the Terminator and the Trustee, (iv) any remaining unpaid costs and
damages incurred by the Trust Fund that arises out of a violation of any
predatory or abusive lending law that also constitutes an actual breach of
clause (46) on Schedule III-A, in all cases plus accrued and unpaid interest
thereon at the applicable Adjusted Mortgage Rate, and (v) plus, if the
Terminator is the NIM Insurer, any unreimbursed Servicing Advances, and the
principal portion of any unreimbursed Advances, made on the Mortgage Loans
prior
to the exercise of such repurchase, and (b) the later of (i) the maturity
or
other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property
and
(ii) the distribution to the Certificateholders of all amounts required to
be
distributed to them pursuant to this Agreement, as applicable. In no event
shall
the trusts created hereby continue beyond the earlier of (i) the expiration
of
21 years from the death of the last survivor of the descendants of Xxxxxx
X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. James’s,
living on the date hereof and (ii) the Latest Possible Maturity
Date.
The
right
to purchase all Mortgage Loans and REO Properties by the Terminator pursuant
to
the immediately preceding paragraph shall be conditioned upon (1) the Pool
Stated Principal Balance, at the time of any such repurchase, is less than
or
equal to ten percent (10%) of the Cut-off Date Pool Principal Balance and
(2)
unless the NIM Insurer otherwise consents, the purchase price for such Mortgage
Loans and REO Properties shall result in a final distribution on any NIM
Insurer
guaranteed notes that is sufficient (x) to pay such notes in full and (y)
to pay
any amounts due and payable to the NIM Insurer pursuant to the indenture
related
to such notes. The preceding notwithstanding, on any Distribution Date on
which
each of the Master Servicer and the NIM Insurer shall have the option to
purchase all the Mortgage Loans (and REO Properties) in remaining in the
Trust
Fund pursuant to this Section 9.01, the NIM Insurer’s purchase option shall
require the prior written consent of the Master Servicer.
The
Supplemental Interest Trust shall terminate on the earlier of (i) the reduction
of the aggregate Class Certificate Balance of the Covered Certificates to
zero
and (ii) the termination of this Agreement.
SECTION
9.02. Final
Distribution on the Certificates.
If
on any
Determination Date, the Master Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than
the
funds in the Certificate Account, the Master Servicer shall direct the Trustee
promptly to send a final distribution notice to each Certificateholder. If
the
Terminator elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, at least 20 days prior to the date notice is to be mailed to
the affected Certificateholders, the Terminator shall notify the Depositor
and
the Trustee of the date the Master Servicer intends to terminate the Trust
Fund
and of the applicable repurchase price of the Mortgage Loans and REO
Properties.
102
Notice
of
any termination of the Trust Fund, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by
letter
to Certificateholders mailed not earlier than the 10th
day and
no later than the 15th
day of
the month next preceding the month of such final distribution. Any such notice
shall specify (a) the Distribution Date upon which final distribution on
the Certificates will be made upon presentation and surrender of Certificates
at
the office therein designated, (b) the amount of such final distribution,
(c) the location of the office or agency at which such presentation and
surrender must be made, and (d) that the Record Date otherwise applicable
to such Distribution Date is not applicable, distributions being made only
upon
presentation and surrender of the Certificates at the office therein specified.
The Terminator will give such notice to each Rating Agency at the time such
notice is given to the affected Certificateholders.
In
the
event such notice is given, the Master Servicer shall cause all funds in
the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on or before the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect
of the
Certificates. Upon such final deposit with respect to the Trust Fund and
the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class, in each case on the
final
Distribution Date and in the order set forth in Section 4.02, in proportion
to their respective Percentage Interests, with respect to Certificateholders
of
the same Class, an amount equal to (i) as to each Class of Regular
Certificates, the Certificate Balance thereof plus accrued interest thereon
(or
on their Notional Amount, if applicable) in the case of an interest bearing
Certificate and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
Notwithstanding the reduction of the Class Certificate Balance of any Class
of
Certificates to zero, such Class will be outstanding hereunder (solely for
the
purpose of receiving distributions and not for any other purpose) until the
termination of the respective obligations and responsibilities of the Depositor,
each Seller, the Master Servicer and the Trustee hereunder in accordance
with
Article IX.
In
the
event that any affected Certificateholders shall not surrender its Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Trustee shall give a second written notice
to the
remaining Certificateholders to surrender their Certificates for cancellation
and receive the final distribution with respect thereto. If within six months
after the second notice all the applicable Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or
may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part
of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation then, the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets
of
the Trust Fund which remain subject to this Agreement.
103
SECTION
9.03. Additional
Termination Requirements.
(a) In
the
event the Terminator exercises its purchase option as provided in
Section 9.01, the REMICs shall be terminated in accordance with the
following additional requirements, unless the Trustee has been supplied with
an
Opinion of Counsel, at the expense of the Terminator, to the effect that the
failure to comply with the requirements of this Section 9.03 will not
(i) result in the imposition of taxes on “prohibited transactions” on any
REMIC as defined in section 860F of the Code, or (ii) cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(1) The
Master Servicer shall establish a 90-day liquidation period and notify the
Trustee thereof, which shall in turn specify the first day of such period in
a
statement attached to the final Tax Return of each REMIC subject to termination
hereto pursuant to Treasury Regulation Section 1.860F-1. The Master Servicer
shall prepare a plan of complete liquidation and shall otherwise satisfy all
the
requirements of a qualified liquidation under Section 860F of the Code and
any
regulations thereunder, as evidenced by an Opinion of Counsel delivered to
the
Trustee and the Depositor obtained at the expense of the Terminator;
and
(2) Within
90
days after the time of adoption of such a plan of complete liquidation, the
Trustee shall sell all of the assets of each REMIC subject to termination hereto
to the Terminator for cash in accordance with Section 9.01.
(b) The
Trustee, as agent for any REMIC created hereunder, hereby agrees to adopt and
sign such a plan of complete liquidation upon the written request of the Master
Servicer, and the receipt of the Opinion of Counsel referred to in
Section 9.03(a)(1) and to take such other action in connection therewith as
may be reasonably requested by the Terminator.
(c) By
their
acceptance of the Certificates, the Holders thereof hereby authorize the Master
Servicer to prepare and the Trustee to adopt and sign a plan of each complete
liquidation.
104
ARTICLE
X
MISCELLANEOUS
PROVISIONS
SECTION
10.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, each Seller,
the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any
defective provision in this Agreement or to supplement any provision in this
Agreement which may be inconsistent with any other provision in this Agreement,
(iii) to conform this Agreement to the Prospectus and Prospectus Supplement
provided to investors in connection with the initial offering of the
Certificates, (iv) to add to the duties of the Depositor, any Seller or the
Master Servicer, (v) to modify, alter, amend, add to or rescind any of the
terms
or provisions contained in this Agreement to comply with any rules or
regulations promulgated by the Securities and Exchange Commission from time
to
time, (vi) to add any other provisions with respect to matters or questions
arising hereunder or (vii) to modify, alter, amend, add to or rescind any
of the
terms or provisions contained in this Agreement; provided that any action
pursuant to clauses (vi) or (vii) above shall not, as evidenced by an Opinion
of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee
or the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall be deemed
not to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating
Agency
stating that the amendment would not result in the downgrading or withdrawal
of
the respective ratings then assigned to the Certificates; it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent
a
determination only as to the credit issues affecting any such rating.
Notwithstanding the foregoing, no amendment that significantly changes the
permitted activities of the trust created by this Agreement may be made without
the consent of a Majority in Interest of each Class of Certificates affected
by
such amendment. Each party to this Agreement hereby agrees that it will
cooperate with each other party in amending this Agreement pursuant to clause
(v) above. The Trustee, each Seller, the Depositor and the Master Servicer
also
may at any time and from time to time amend this Agreement without the consent
of the Certificateholders to modify, eliminate or add to any of its provisions
to such extent as shall be necessary or helpful to (i) maintain the
qualification of any REMIC as a REMIC under the Code, (ii) avoid or minimize
the
risk of the imposition of any tax on any REMIC pursuant to the Code that
would
be a claim at any time prior to the final redemption of the Certificates
or
(iii) comply with any other requirements of the Code, provided that the Trustee
has been provided an Opinion of Counsel, which opinion shall be an expense
of
the party requesting such opinion but in any case shall not be an expense
of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any
such
requirements of the Code.
This
Agreement may also be amended from time to time by the Depositor, each Seller,
the Master Servicer and the Trustee with the consent of the Holders of a
Majority in Interest of each Class of Certificates in the applicable Certificate
Group affected thereby for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments required to be distributed on any Certificate without
the
consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates
in a
manner other than as described in (i), without the consent of the Holders
of
Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating 66-2/3% or (iii) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Certificates in the applicable
Certificate Group then outstanding.
105
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 in this Agreement
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed
to be
an original, and such counterparts shall constitute but one and the same
instrument.
106
SECTION
10.03. Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION
10.04. Intention
of Parties.
(a) It
is the
express intent of the parties hereto that the conveyance of the (i) of the
Mortgage Loans by the Sellers to the Depositor and (ii) Trust Fund by the
Depositor to the Trustee each be, and be construed as, an absolute sale thereof
to the Trustee. It is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of any Seller or the Depositor, as the case may be, or if for any
other
reason this Agreement is held or deemed to create a security interest in
either
such assets, then (i) this Agreement shall be deemed to be a security
agreement (within the meaning of the Uniform Commercial Code of the State
of New
York) with respect to all such assets and security interests and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant pursuant to the terms of this Agreement (i) by each Seller to
the
Depositor or (ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets that constitute
the Trust Fund, whether now owned or hereafter acquired.
Each
Seller and the Depositor for the benefit of the Certificateholders shall,
to the
extent consistent with this Agreement, take such actions as may be necessary
to
ensure that, if this Agreement were deemed to create a security interest
in the
Trust Fund, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as
such
throughout the term of the Agreement. The Depositor shall arrange for filing
any
Uniform Commercial Code continuation statements in connection with any security
interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
(b) The
Depositor hereby represents that:
(i) This
Agreement creates a valid and continuing security interest (as defined in the
Uniform Commercial Code as enacted in the State of New York (the “NY UCC”)) in
the Mortgage Notes in favor of the Trustee, which security interest is prior
to
all other liens, and is enforceable as such as against creditors of and
purchasers from the Depositor.
(ii) The
Mortgage Notes constitutes “instruments” within the meaning of the NY
UCC.
(iii) Immediately
prior to the assignment of each Mortgage Loan to the Trustee, the Depositor
owns
and has good and marketable title to such Mortgage Loan free and clear of any
lien, claim or encumbrance of any Person.
107
(iv) The
Depositor has received all consents and approvals required by the terms of the
Mortgage Loans to the sale of the Mortgage Loans hereunder to the
Trustee.
(v) All
original executed copies of each Mortgage Note that are required to be delivered
to the Trustee pursuant to Section 2.01 have been delivered to the
Trustee.
(vi) Other
than the security interest granted to the Trustee pursuant to this Agreement,
the Depositor has not pledged, assigned, sold, granted a security interest
in,
or otherwise conveyed any of the Mortgage Loans. The Depositor has not
authorized the filing of and is not aware of any financing statements against
the Depositor that include a description of collateral covering the Mortgage
Loans other than any financing statement relating to the security interest
granted to the Trustee hereunder or that has been terminated. The Depositor
is
not aware of any judgment or tax lien filings against the
Depositor.
(c) The
Master Servicer shall take such action as is reasonably necessary to maintain
the perfection and priority of the security interest of the Trustee in the
Mortgage Loans; provided, however, that the obligation to deliver the Mortgage
File to the Trustee pursuant to Section 2.01 shall be solely the Depositor’s
obligation and the Master Servicer shall not be responsible for the safekeeping
of the Mortgage Files by the Trustee.
(d) It
is
understood and agreed that the representations and warranties set forth in
subsection (b) above shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any
of
the foregoing representations and warranties set forth in subsection (b) above,
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
SECTION
10.05. Notices.
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual
knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Master Servicer or the Trustee and the
appointment of any successor;
4. The
repurchase or substitution of Mortgage Loans pursuant to
Section 2.03;
5. The
final
payment
to Certificateholders; and
6. Any
rating action involving the long-term credit rating of Countrywide, which notice
shall be made by first class mail within two Business Days after the
Trustee gains actual knowledge of such a rating action.
108
In
addition, the Trustee shall promptly furnish to each Rating Agency copies of
the
following:
1. Each
report to Certificateholders described in Section 4.06;
2. Each
annual statement as to compliance described in Section 3.16;
3. Each
annual independent public accountants’ servicing report described in Section
11.07; and
4. Any
notice of a purchase of a Mortgage Loan pursuant to Section 2.02, 2.03 or
3.11.
(b) All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered by first class mail, by courier
or
by facsimile transmission to (1) in the case of the Depositor, CWALT, Inc.,
0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxx Xxxxx, (2) in the case of Countrywide, Countrywide Home Loans,
Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx, or such other address as may be hereafter
furnished to the Depositor and the Trustee by Countrywide in writing, (3) in
the
case of Park Granada LLC, c/o Countrywide Financial Corporation, 0000 Xxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxx Xxxxx, or such other address as may be hereafter furnished
to
the Depositor and the Trustee by Park Granada in writing, (4) in the case of
Park Monaco Inc., c/o Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000, Attention: Xxxx
Xxxxx, or such other address as may be hereafter furnished to the Depositor
and
the Trustee by Park Monaco in writing, (5) in the case of Park Sienna LLC,
c/o
Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, facsimile number: (000) 000-0000, Attention: Xxxx Xxxxx, or such other
address as may be hereafter furnished to the Depositor and the Trustee by Park
Sienna in writing, (6) in the case of the Master Servicer, Countrywide Home
Loans Servicing LP, 000 Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000,
facsimile number (000) 000-0000, Attention: Xxxx Xxxx, or such other address
as
may be hereafter furnished to the Depositor and the Trustee by the Master
Servicer in writing, (7) in the case of the Trustee, The Bank of New York,
000
Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, facsimile number: (000) 000-0000,
Attention: Mortgage-Backed Securities Group, CWALT, Inc. Series 2007-HY3, or
such other address as the Trustee may hereafter furnish to the Depositor or
Master Servicer, and (8) in the case of the Rating Agencies, the address
specified therefor in the definition corresponding to the name of such Rating
Agency. Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
SECTION
10.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders of the
Certificates.
109
SECTION
10.07. Assignment.
Notwithstanding
anything to the contrary contained in this Agreement, except as provided
in
Section 6.02, this Agreement may not be assigned by the Master Servicer
without the prior written consent of the Trustee and the Depositor.
SECTION
10.08. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the
trust
created by this Agreement, or otherwise affect the rights, obligations
and
liabilities of the parties hereto or any of them.
No
Certificateholder shall have any right to vote (except as provided in this
Agreement) or in any manner otherwise control the operation and management
of
the Trust Fund, or the obligations of the parties hereto, nor shall anything
set
forth in this Agreement or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time
as
partners or members of an association; nor shall any Certificateholder
be under
any liability to any third party by reason of any action taken by the parties
to
this Agreement pursuant to any provision of this Agreement.
No
Certificateholder shall have any right by virtue or by availing itself
of any
provisions of this Agreement to institute any suit, action or proceeding
in
equity or at law upon or under or with respect to this Agreement, unless
such
Holder previously shall have given to the Trustee a written notice of an
Event
of Default and of the continuance thereof, as provided in this Agreement,
and
unless the Holders of Certificates evidencing not less than 25% of the
Voting
Rights evidenced by the Certificates shall also have made written request
to the
Trustee to institute such action, suit or proceeding in its own name as
Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity
as it
may require against the costs, expenses, and liabilities to be incurred
therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute
any
such action, suit or proceeding; it being understood and intended, and
being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain
or seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner provided in this Agreement
and
for the common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 10.08, each and every
Certificateholder and the Trustee shall be entitled to such relief as can
be
given either at law or in equity.
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.
110
SECTION
10.10. Certificates
Nonassessable and Fully Paid.
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust
Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by
the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION
10.11. [Reserved].
SECTION
10.12. Protection
of Assets.
(a) Except
for transactions and activities entered into in connection with the
securitization that is the subject of this Agreement, the Trust Fund created
by
this Agreement is not authorized and has no power to:
(i) borrow
money or issue debt;
(ii) merge
with another entity, reorganize, liquidate or sell assets; or
(iii) engage
in
any business or activities.
(b) Each
party to this Agreement agrees that it will not file an involuntary bankruptcy
petition against the Trustee or the Trust Fund or initiate any other form of
insolvency proceeding until after the Certificates have been paid.
SECTION
10.13. Rights
of the NIM Insurer.
(a) The
rights of the NIM Insurer under this Agreement shall exist only so long as
either:
(1) the
notes
certain, payments on which are guaranteed by the NIM Insurer, remain outstanding
or
(2) the
NIM
Insurer is owed amounts paid by it with respect to that guaranty.
(b) The
rights of the NIM Insurer under this Agreement are exercisable by the NIM
Insurer only so long as no default by the NIM Insurer under its guaranty of
certain payments under notes backed or secured by the Class C or Class P
Certificates has occurred and is continuing. If the NIM Insurer is the subject
of any insolvency proceeding, the rights of the NIM Insurer under this Agreement
will be exercisable by the NIM Insurer only so long as:
(1) the
obligations of the NIM Insurer under its guaranty of notes backed or secured
by
the Class C or Class P Certificates have not been disavowed and
(2)
Countrywide
and the Trustee have received reasonable assurances that the NIM Insurer will
be
able to satisfy its obligations under its guaranty of notes backed or secured
by
the Class C or Class P Certificates.
(c) The
NIM
Insurer is a third party beneficiary of this Agreement to the same extent as
if
it were a party to this Agreement and may enforce any of those rights under
this
Agreement.
(d) A
copy of
any documents of any nature required by this Agreement to be delivered by the
Trustee, or to the Trustee or the Rating Agencies, shall in each case at the
same time also be delivered to the NIM Insurer. Any notices required to be
given
by the Trustee, or to the Trustee or the Rating Agencies, shall in each case
at
the same time also be given to the NIM Insurer. If the Trustee receives a notice
or document that is required hereunder to be delivered to the NIM Insurer,
and
if such notice or document does not indicate that a copy thereof has been
previously sent to the NIM Insurer, the Trustee shall send the NIM Insurer
a
copy of such notice or document. If such document is an Opinion of Counsel,
the
NIM Insurer shall be an addressee thereof or such Opinion of Counsel shall
contain language permitting the NIM Insurer to rely thereon as if the NIM
Insurer were an addressee thereof.
(e) Anything
in this Agreement that is conditioned on not resulting in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies shall also be conditioned on not resulting in the downgrading or
withdrawal of the ratings then assigned by the Rating Agencies to the notes
backed or secured by the Class C or Class P Certificates (without giving effect
to any policy or guaranty provided by the NIM Insurer).
111
ARTICLE
XI
EXCHANGE
ACT REPORTING
SECTION
11.01. Filing
Obligations.
The
Master Servicer, the Trustee and each Seller shall reasonably cooperate with
the
Depositor in connection with the satisfaction of the Depositor’s reporting
requirements under the Exchange Act with respect to the Trust Fund. In addition
to the information specified below, if so requested by the Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act, the
Master Servicer, the Trustee and each Seller shall (and the Master Servicer
shall cause each Subservicer to) provide the Depositor with (a) such information
which is available to such Person without unreasonable effort or expense and
within such timeframe as may be reasonably requested by the Depositor to comply
with the Depositor’s reporting obligations under the Exchange Act and (b) to the
extent such Person is a party (and the Depositor is not a party) to any
agreement or amendment required to be filed, copies of such agreement or
amendment in XXXXX-compatible form.
SECTION
11.02. Form
10-D Filings.
(a) In
accordance with the Exchange Act, the Trustee shall prepare for filing and
file
within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act) with the Commission with respect to the Trust Fund,
a
Form 10-D with copies of the Monthly Statement and, to the extent delivered
to
the Trustee, no later than 10 days following the Distribution Date, such
other
information identified by the Depositor or the Master Servicer, in writing,
to
be filed with the Commission (such other information, the “Additional Designated
Information”). If the Depositor or Master Servicer directs that any Additional
Designated Information is to be filed with any Form 10-D, the Depositor or
Master Servicer, as the case may be, shall specify the Item on Form 10-D
to
which such information is responsive and, with respect to any Exhibit to
be
filed on Form 10-D, the Exhibit number. Any information to be filed on Form
10-D
shall be delivered to the Trustee in XXXXX-compatible form or as otherwise
agreed upon by the Trustee and the Depositor or the Master Servicer, as the
case
may be, at the Depositor’s expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor’s expense. At the reasonable
request of, and in accordance with the reasonable directions of, the Depositor
or the Master Servicer, subject to the two preceding sentences, the Trustee
shall prepare for filing and file an amendment to any Form 10-D previously
filed
with the Commission with respect to the Trust Fund. The Master Servicer shall
sign the Form 10-D filed on behalf of the Trust Fund.
(b) No
later
than each Distribution Date, each of the Master Servicer and the Trustee
shall
notify (and the Master Servicer shall cause any Subservicer to notify) the
Depositor and the Master Servicer of any Form 10-D Disclosure Item, together
with a description of any such Form 10-D Disclosure Item in form and substance
reasonably acceptable to the Depositor. In addition to such information as
the
Master Servicer and the Trustee are obligated to provide pursuant to other
provisions of this Agreement, if so requested by the Depositor, each of the
Master Servicer and the Trustee shall provide such information which is
available to the Master Servicer and the Trustee, as applicable, without
unreasonable effort or expense regarding the performance or servicing of
the
Mortgage Loans (in the case of the Trustee, based on the information provided
by
the Master Servicer) as is reasonably required to facilitate preparation
of
distribution reports in accordance with Item 1121 of Regulation AB. Such
information shall be provided concurrently with the delivery of the reports
specified in Section 4.06(c) in the case of the Master Servicer and the Monthly
Statement in the case of the Trustee, commencing with the first such report
due
not less than five Business Days following such request.
112
(c) The
Trustee shall not have any responsibility to file any items (other than those
generated by it) that have not been received in a format suitable (or readily
convertible into a format suitable) for electronic filing via the XXXXX system
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it or that are readily convertible to
such
format). The Trustee shall have no liability to the Certificateholders, the
Trust Fund, the Master Servicer, the Depositor or the NIM Insurer with respect
to any failure to properly prepare or file any of Form 10-D to the extent that
such failure is not the result of any negligence, bad faith or willful
misconduct on its part.
SECTION
11.03. Form
8-K Filings.
The
Master Servicer shall prepare and file on behalf of the Trust Fund any Form
8-K
required by the Exchange Act. Each Form 8-K must be signed by the Master
Servicer. Each of the Master Servicer (and the Master Servicer shall cause
any
Subservicer to promptly notify) and the Trustee shall promptly notify the
Depositor and the Master Servicer (if the notifying party is not the Master
Servicer), but in no event later than one (1) Business Day after its occurrence,
of any Reportable Event of which it has actual knowledge. Each Person shall
be
deemed to have actual knowledge of any such event to the extent that it relates
to such Person or any action or failure to act by such Person. Concurrently
with
any Supplemental Transfer, Countrywide shall notify the Depositor and the Master
Servicer, if any material pool characteristic of the actual asset pool at the
time of issuance of the Certificates differs by 5% or more (other than as a
result of the pool assets converting into cash in accordance with their terms)
from the description of the asset pool in the Prospectus
Supplement.
SECTION
11.04. Form
10-K Filings.
Prior
to
March 30th of each year, commencing in 2008 (or such earlier date as may
be
required by the Exchange Act), the Depositor shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. A senior officer in charge of the servicing function of the Master Servicer
shall sign each Form 10-K filed on behalf of the Trust Fund. Such Form 10-K
shall include as exhibits each (i) annual compliance statement described
under
Section 3.16, (ii) annual report on assessments of compliance with the Servicing
Criteria described under Section 11.07 and (iii) accountant’s report described
under Section 11.07. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx
Certification required to be included therewith, as described in Section
11.05.
If
the
Item 1119 Parties listed on Exhibit X have changed since the Closing Date,
no
later than March 1 of each year, the Master Servicer shall provide each of
the
Master Servicer (and the Master Servicer shall provide any Subservicer) and
the
Trustee with an updated Exhibit X setting forth the Item 1119 Parties. No
later
than March 15 of each year, commencing in 2008, the Master Servicer and the
Trustee shall notify (and the Master Servicer shall cause any Subservicer
to
notify) the Depositor and the Master Servicer of any Form 10-K Disclosure
Item,
together with a description of any such Form 10-K Disclosure Item in form
and
substance reasonably acceptable to the Depositor. Additionally, each of the
Master Servicer and the Trustee shall provide, and shall cause each Reporting
Subcontractor retained by the Master Servicer or the Trustee, as applicable,
and
in the case of the Master Servicer shall cause each Subservicer, to provide,
the
following information no later than March 15 of each year in which a Form
10-K
is required to be filed on behalf of the Trust Fund: (i) if such Person’s report
on assessment of compliance with servicing criteria described under Section
11.07 or related registered public accounting firm attestation report described
under Section 11.07 identifies any material instance of noncompliance,
notification of such instance of noncompliance and (ii) if any such Person’s
report on assessment of compliance with Servicing Criteria or related registered
public accounting firm attestation report is not provided to be filed as
an
exhibit to such Form 10-K, information detailing the explanation why such
report
is not included.
113
SECTION
11.05. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx
Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
of the Commission promulgated thereunder (including any interpretations thereof
by the Commission’s staff)). No later than March 15 of each year, beginning in
2008, the Master Servicer and the Trustee shall (unless such person is the
Certifying Person), and the Master Servicer shall cause each Subservicer and
each Reporting Subcontractor and the Trustee shall cause each Reporting
Subcontractor to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying
Person”)
a
certification (each, a “Performance
Certification”),
in
the form attached hereto as Exhibit V-1 (in the case of a Subservicer or any
Reporting Subcontractor of the Master Servicer or a Subservicer) and Exhibit
V-2
(in the case of the Trustee or any Reporting Subcontractor of the Trustee),
on
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The senior officer in charge of the servicing function of
the
Master Servicer shall serve as the Certifying Person on behalf of the Trust
Fund. Neither the Master Servicer nor the Depositor will request delivery of
a
certification under this clause unless the Depositor is required under the
Exchange Act to file an annual report on Form 10-K with respect to the Trust
Fund. In the event that prior to the filing date of the Form 10-K in March
of
each year, the Trustee or the Depositor has actual knowledge of information
material to the Xxxxxxxx-Xxxxx Certification, the Trustee or the Depositor,
as
the case may be, shall promptly notify the Master Servicer and the Depositor.
The respective parties hereto agree to cooperate with all reasonable requests
made by any Certifying Person or Certification Party in connection with such
Person’s attempt to conduct any due diligence that such Person reasonably
believes to be appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx
Certification or portion thereof with respect to the Trust Fund.
SECTION
11.06. Form
15 Filing.
Prior
to
January 30 of the first year in which the Depositor is able to do so under
applicable law, the Depositor shall file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange
Act.
SECTION
11.07. Report
on Assessment of Compliance and Attestation.
114
(a) On
or
before March 15 of each calendar year, commencing in 2008:
(i) Each
of
the Master Servicer and the Trustee shall deliver to the Depositor and the
Master Servicer a report (in form and substance reasonably satisfactory to
the
Depositor) regarding the Master Servicer’s or the Trustee’s, as applicable,
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be signed by
an
authorized officer of such Person and shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit
W
hereto delivered to the Depositor concurrently with the execution of this
Agreement. To the extent any of the Servicing Criteria are not applicable to
such Person, with respect to asset-backed securities transactions taken as
a
whole involving such Person and that are backed by the same asset type backing
the Certificates, such report shall include such a statement to that effect.
The
Depositor and the Master Servicer, and each of their respective officers and
directors shall be entitled to rely on upon each such servicing criteria
assessment.
(ii) Each
of
the Master Servicer and the Trustee shall deliver to the Depositor and the
Master Servicer a report of a registered public accounting firm reasonably
acceptable to the Depositor that attests to, and reports on, the assessment
of
compliance made by Master Servicer or the Trustee, as applicable, and delivered
pursuant to the preceding paragraphs. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
and
the Exchange Act, including, without limitation that in the event that an
overall opinion cannot be expressed, such registered public accounting firm
shall state in such report why it was unable to express such an opinion. Such
report must be available for general use and not contain restricted use
language. To the extent any of the Servicing Criteria are not applicable to
such
Person, with respect to asset-backed securities transactions taken as a whole
involving such Person and that are backed by the same asset type backing the
Certificates, such report shall include such a statement that that
effect.
(iii) The
Master Servicer shall cause each Subservicer and each Reporting Subcontractor
to
deliver to the Depositor an assessment of compliance and accountant’s
attestation as and when provided in paragraphs (a) and (b) of this Section
11.07.
(iv) The
Trustee shall cause each Reporting Subcontractor to deliver to the Depositor
and
the Master Servicer an assessment of compliance and accountant’s attestation as
and when provided in paragraphs (a) and (b) of this Section.
(v) The
Master Servicer and the Trustee shall execute (and the Master Servicer shall
cause each Subservicer to execute, and the Master Servicer and the Trustee
shall
cause each Reporting Subcontractor to execute) a reliance certificate to enable
the Certification Parties to rely upon each (i) annual compliance statement
provided pursuant to Section 3.16, (ii) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section 11.07
and
(iii) accountant’s report provided pursuant to this Section 11.07 and shall
include a certification that each such annual compliance statement or report
discloses any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the certificates
provided for in this Section 11.07. In the event the Master Servicer, any
Subservicer, the Trustee or Reporting Subcontractor is terminated or resigns
during the term of this Agreement, such Person shall provide a certification
to
the Certifying Person pursuant to this Section 11.07 with respect to the period
of time it was subject to this Agreement or provided services with respect
to
the Trust Fund, the Certificates or the Mortgage Loans.
115
(b) In
the
event the Master Servicer, any Subservicer, the Trustee or Reporting
Subcontractor is terminated or resigns during the term of this Agreement, such
Person shall provide documents and information required by this Section 11.07
with respect to the period of time it was subject to this Agreement or provided
services with respect to the Trust Fund, the Certificates or the Mortgage
Loans.
(c) Each
assessment of compliance provided by a Subservicer pursuant to Section
11.07(a)(3) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit W hereto delivered to the
Depositor concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Section 11.07(a)(3) or (4) need not address any elements of the Servicing
Criteria other than those specified by the Master Servicer or the Trustee,
as
applicable, pursuant to Section 11.07(a)(1).
SECTION
11.08. Use
of
Subservicers and Subcontractors.
(a) The
Master Servicer shall cause any Subservicer used by the Master Servicer (or
by
any Subservicer) for the benefit of the Depositor to comply with the provisions
of Section 3.16 and this Article XI to the same extent as if such Subservicer
were the Master Servicer (except with respect to the Master Servicer’s duties
with respect to preparing and filing any Exchange Act Reports or as the
Certifying Person). The Master Servicer shall be responsible for obtaining
from
each Subservicer and delivering to the Depositor any servicer compliance
statement required to be delivered by such Subservicer under Section 3.16,
any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 11.07 and any certification required to be delivered
to the Certifying Person under Section 11.05 as and when required to be
delivered. As
a
condition to the succession to any Subservicer as subservicer under this
Agreement by any Person (i) into which such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to any Subservicer,
the Master Servicer shall provide to the Depositor, at least 15 calendar days
prior to the effective date of such succession or appointment, (x) written
notice to the Depositor of such succession or appointment and (y) in writing
and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K.
(b) It
shall
not be necessary for the Master Servicer, any Subservicer or the Trustee to
seek
the consent of the Depositor or any other party hereto to the utilization of
any
Subcontractor. The Master Servicer or the Trustee, as applicable, shall promptly
upon request provide to the Depositor (or any designee of the Depositor, such
as
the Master Servicer or administrator) a written description (in form and
substance satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by such Person (or in the case of the Master Servicer
or
any Subservicer), specifying (i) the identity of each such Subcontractor, (ii)
which (if any) of such Subcontractors are “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, and (iii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (ii)
of
this paragraph.
116
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Trustee, as applicable, shall cause
any such Subcontractor used by such Person (or in the case of the Master
Servicer or any Subservicer) for the benefit of the Depositor to comply with
the
provisions of Sections 11.07 and 11.09 of this Agreement to the same extent
as
if such Subcontractor were the Master Servicer (except with respect to the
Master Servicer’s duties with respect to preparing and filing any Exchange Act
Reports or as the Certifying Person) or the Trustee, as applicable. The Master
Servicer or the Trustee, as applicable, shall be responsible for obtaining
from
each Subcontractor and delivering to the Depositor and the Master Servicer,
any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 11.05 and Section 11.07, in each case as and when
required to be delivered.
SECTION
11.09. Amendments.
In
the
event the parties to this Agreement desire to further clarify or amend any
provision of this Article XI, this Agreement shall be amended to reflect the
new
agreement between the parties covering matters in this Article XI pursuant
to
Section 10.01, which amendment shall not require any Opinion of Counsel or
Rating Agency confirmations or the consent of any Certificateholder or the
NIM
Insurer. If, during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Master Servicer is no longer
an
Affiliate of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Master Servicer in this Article XI with respect to
the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Master Servicer satisfactory to the Depositor, and such Master Servicer has
agreed to provide a Xxxxxxxx-Xxxxx Certification to the Depositor substantially
in the form of Exhibit Y and the certifications referred to in Section
11.07.
SECTION
11.10. Reconciliation
of Accounts.
Any
reconciliation of Accounts performed by any party hereto, or any Subservicer
or
Subcontractor shall be prepared no later than 45 calendar days after the bank
statement cutoff date.
* * * * * *
117
IN
WITNESS WHEREOF, the Depositor, the Trustee, the Sellers and the Master Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above
written.
|
CWALT,
INC.,
as Depositor |
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: First Vice President | ||
|
THE
BANK OF NEW YORK,
as Trustee |
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxx | |
|
Name: Xxxxxxx Xxxxxx |
||
| Title: Assistant Treasurer | ||
|
COUNTRYWIDE
HOME LOANS, INC.,
as a Seller |
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: First Vice President | ||
|
PARK
GRANADA LLC,
as a Seller |
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: First Vice President | ||
|
PARK
MONACO INC.,
as a Seller |
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: First Vice President | ||
|
PARK
SIENNA LLC,
as a Seller |
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: First Vice President | ||
|
COUNTRYWIDE
HOME LOANS SERVICING LP,
as Master Servicer |
||
| |
By: |
COUNTRYWIDE GP, INC. |
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: First Vice President | ||
|
Acknowledged
solely
with respect to the Trustee’s obligations under Section
4.01(b):
|
||
|
THE
BANK OF NEW YORK, in its individual
capacity
|
||
| |
|
|
| By: /s/ Xxxx Xxxxxxxx | ||
|
|
||
| Title: Vice President | ||
SCHEDULE
I
Mortgage
Loan Schedule
[Delivered
at Closing to Trustee]
S-I-1
SCHEDULE
II-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Countrywide
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule II-A to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule II-A shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”) relating
to the above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC,
as a seller, CWALT, Inc., as depositor, Countrywide Home Loans Servicing LP,
as
master servicer and The Bank of New York, as trustee.
(1) Countrywide
is duly organized as a New York corporation and is validly existing and in
good
standing under the laws of the State of New York and is duly authorized and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide in any state in which a
Mortgaged Property is located or is otherwise not required under applicable
law
to effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under the Pooling and Servicing Agreement in accordance with the
terms thereof.
(2) Countrywide
has the full corporate power and authority to sell each Countrywide Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has duly
authorized by all necessary corporate action on the part of Countrywide the
execution, delivery and performance of the Pooling and Servicing Agreement;
and
the Pooling and Servicing Agreement, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a legal, valid
and binding obligation of Countrywide, enforceable against Countrywide in
accordance with its terms, except that (a) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide
,
the sale of the Countrywide Mortgage Loans by Countrywide under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
Countrywide and will not (A) result in a material breach of any term or
provision of the charter or by-laws of Countrywide or (B) materially
conflict with, result in a material breach, violation or acceleration of, or
result in a material default under, the terms of any other material agreement
or
instrument to which Countrywide is a party or by which it may be bound, or
(C) constitute a material violation of any statute, order or regulation
applicable to Countrywide of any court, regulatory body, administrative agency
or governmental body having jurisdiction over Countrywide; and Countrywide
is
not in breach or violation of any material indenture or other material agreement
or instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair Countrywide’s ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-A-1
(4) Countrywide
is an approved servicer of conventional mortgage loans for FNMA or FHLMC and
is
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act.
(5) No
litigation is pending or, to the best of Countrywide’s knowledge, threatened,
against Countrywide that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the ability
of Countrywide to sell the Countrywide Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
of,
or compliance by Countrywide with, the Pooling and Servicing Agreement or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Countrywide has obtained the
same.
(7) Countrywide
intends to treat the transfer of the Countrywide Mortgage Loans to the Depositor
as a sale of the Countrywide Mortgage Loans for all tax, accounting and
regulatory purposes.
(8) Countrywide
is a member of MERS in good standing, and will comply in all material respects
with the rules and procedures of MERS in connection with the servicing of the
MERS Mortgage Loans in the Trust Fund for as long as such Mortgage Loans are
registered with MERS.
S-II-A-2
SCHEDULE
II-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Park Granada
Park
Granada LLC (“Park Granada”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-B to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this Schedule II-B
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the “Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna
LLC, as a seller, Countrywide Home Loans, Inc., as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The
Bank
of New York, as trustee.
(1) Park
Granada is a limited liability company duly formed and validly existing and
in
good standing under the laws of the State of Delaware.
(2) Park
Granada has the full corporate power and authority to sell each Park Granada
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of Park
Granada the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Granada, enforceable
against Park Granada in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Granada,
the sale of the Park Granada Mortgage Loans by Park Granada under the Pooling
and Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
Park
Granada and will not (A) result in a material breach of any term or provision
of
the certificate of formation or the limited liability company agreement of
Park
Granada or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Park Granada is a party or
by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Park Granada of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park
Granada; and Park Granada is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Granada’s ability to perform or meet any of
its obligations under the Pooling and Servicing Agreement.
S-II-B-1
(4) No
litigation is pending or, to the best of Park Granada’s knowledge, threatened,
against Park Granada that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Granada to sell the Park Granada Mortgage Loans or to perform any
of its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Granada
of,
or compliance by Park Granada with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Granada has obtained the
same.
(6) Park
Granada intends to treat the transfer of the Park Granada Mortgage Loans to
the
Depositor as a sale of the Park Granada Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-B-2
SCHEDULE
II-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Park Monaco
Park
Monaco Inc. (“Park Monaco”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-C to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this Schedule II-C
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the “Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Park Monaco, as a seller, Countrywide, as a seller, Park Granada LLC,
as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park
Monaco is a corporation duly formed and validly existing and in good standing
under the laws of the State of Delaware.
(2) Park
Monaco has the full corporate power and authority to sell each Park Monaco
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of Park
Monaco the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Monaco, enforceable
against Park Monaco in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Monaco,
the sale of the Park Monaco Mortgage Loans by Park Monaco under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
Park
Monaco and will not (A) result in a material breach of any term or provision
of
the certificate of incorporation or by-laws of Park Monaco or (B) materially
conflict with, result in a material breach, violation or acceleration of, or
result in a material default under, the terms of any other material agreement
or
instrument to which Park Monaco is a party or by which it may be bound, or
(C)
constitute a material violation of any statute, order or regulation applicable
to Park Monaco of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Park Monaco; and Park Monaco is
not
in breach or violation of any material indenture or other material agreement
or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair Park Monaco’s ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-C-1
(4) No
litigation is pending or, to the best of Park Monaco’s knowledge, threatened,
against Park Monaco that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the ability
of Park Monaco to sell the Park Monaco Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Monaco
of,
or compliance by Park Monaco with, the Pooling and Servicing Agreement or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Monaco has obtained the
same.
(6) Park
Monaco intends to treat the transfer of the Park Monaco Mortgage Loans to the
Depositor as a sale of the Park Monaco Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-C-2
SCHEDULE
II-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Park Sienna
Park
Sienna Inc. (“Park Sienna”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-D to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this Schedule II-D
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the “Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Park Monaco, as a seller, Countrywide, as a seller, Park Granada LLC,
as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park
Sienna is a limited liability company duly formed and validly existing and
in
good standing under the laws of the State of Delaware.
(2) Park
Sienna has the full corporate power and authority to sell each Park Sienna
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of Park
Sienna the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Sienna, enforceable
against Park Sienna in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Sienna,
the sale of the Park Sienna Mortgage Loans by Park Sienna under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
Park
Sienna and will not (A) result in a material breach of any term or provision
of
the certificate of formation or the limited liability company agreement of
Park
Sienna or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Park Sienna is a party or by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Park Sienna of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park Sienna;
and Park Sienna is not in breach or violation of any material indenture or
other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
Park Sienna’s ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
S-II-D-1
(4) No
litigation is pending or, to the best of Park Sienna’s knowledge, threatened,
against Park Sienna that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the ability
of Park Sienna to sell the Park Sienna Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Sienna
of,
or compliance by Park Sienna with, the Pooling and Servicing Agreement or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Sienna has obtained the
same.
(6) Park
Sienna intends to treat the transfer of the Park Sienna Mortgage Loans to the
Depositor as a sale of the Park Sienna Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-D-2
SCHEDULE
III-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Countrywide as to all of the Mortgage Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-A to the Depositor, the Master Servicer and
the
Trustee, with respect to all of the Mortgage Loans as of the Closing Date,
or if
so specified herein, as of the Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule III-A shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among Countrywide, as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) The
information set forth on Schedule I to the Pooling and Servicing Agreement
with
respect to each Mortgage Loan is true and correct in all material respects
as of
the Closing Date.
(2) As
of the
Closing Date, all payments due with respect to each Mortgage Loan prior to
the
Cut-off Date have been made.
(3) No
Mortgage Loan had a Loan-to-Value Ratio at origination in excess of
100.00%.
(4) Each
Mortgage is a valid and enforceable first lien on the Mortgaged Property subject
only to (a) the lien of non delinquent current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of
such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal made
in connection with the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage.
(5) [Reserved].
(6) There
is
no delinquent tax or assessment lien against any Mortgaged
Property.
(7) There
is
no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal of or
interest on such Mortgage Note.
S-III-A-1
(8) There
are
no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with, the
lien
of such Mortgage, except those which are insured against by the title insurance
policy referred to in item (12) below.
(9) As
of the
Closing Date, to the best of Countrywide’s knowledge, each Mortgaged Property is
free of material damage and in good repair.
(10) Each
Mortgage Loan at origination complied in all material respects with applicable
local, state and federal laws, including, without limitation, usury, equal
credit opportunity, predatory and abusive lending laws, real estate settlement
procedures, truth-in-lending and disclosure laws, and consummation of the
transactions contemplated hereby will not involve the violation of any such
laws.
(11) As
of the
Closing Date, neither Countrywide nor any prior holder of any Mortgage has
modified the Mortgage in any material respect (except that a Mortgage Loan
may
have been modified by a written instrument which has been recorded or submitted
for recordation, if necessary, to protect the interests of the
Certificateholders and the original or a copy of which has been delivered to
the
Trustee); satisfied, cancelled or subordinated such Mortgage in whole or in
part; released the related Mortgaged Property in whole or in part from the
lien
of such Mortgage; or executed any instrument of release, cancellation,
modification or satisfaction with respect thereto.
(12) A
lender’s policy of title insurance together with a condominium endorsement and
extended coverage endorsement, if applicable, in an amount at least equal to
the
Cut-off Date Stated Principal Balance of each such Mortgage Loan or a commitment
(binder) to issue the same was effective on the date of the origination of
each
Mortgage Loan, each such policy is valid and remains in full force and effect,
and each such policy was issued by a title insurer qualified to do business
in
the jurisdiction where the Mortgaged Property is located and acceptable to
FNMA
or FHLMC and is in a form acceptable to FNMA or FHLMC, which policy insures
Countrywide and successor owners of indebtedness secured by the insured
Mortgage, as to the first priority lien of the Mortgage subject to the
exceptions set forth in paragraph (4) above and against any loss by reason
of
the invalidity or unenforceability of the lien resulting from the provisions
of
the Mortgage providing for adjustment in the mortgage interest rate and/or
monthly payment; to the best of Countrywide’s knowledge, no claims have been
made under such mortgage title insurance policy and no prior holder of the
related Mortgage, including Countrywide, has done, by act or omission, anything
which would impair the coverage of such mortgage title insurance
policy.
(13) With
respect to each Mortgage Loan, all mortgage rate and payment adjustments, if
any, made on or prior to the Cut-off Date have been made in accordance with
the
terms of the related Mortgage Note or subsequent modifications, if any, and
applicable law.
(14) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended) by an entity that satisfied at
the
time of origination the requirements of Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended.
S-III-A-2
(15) To
the
best of Countrywide’s knowledge, all of the improvements which were included for
the purpose of determining the Appraised Value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property.
(16) To
the
best of Countrywide’s knowledge, no improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or regulation.
To the best of Countrywide’s knowledge, all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities, unless the lack thereof would not have a material adverse effect
on
the value of such Mortgaged Property, and the Mortgaged Property is lawfully
occupied under applicable law.
(17) Each
Mortgage Note and the related Mortgage are genuine, and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms and under applicable law. To the best of Countrywide’s knowledge, all
parties to the Mortgage Note and the Mortgage had legal capacity to execute
the
Mortgage Note and the Mortgage and each Mortgage Note and Mortgage have been
duly and properly executed by such parties.
(18) The
proceeds of the Mortgage Loans have been fully disbursed, there is no
requirement for future advances thereunder and any and all requirements as
to
completion of any on-site or off-site improvements and as to disbursements
of
any escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making, or closing or recording the Mortgage Loans were
paid.
(19) The
related Mortgage contains customary and enforceable provisions which render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure.
(20) With
respect to each Mortgage constituting a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses
are
or will become payable by the Certificateholders to the trustee under the deed
of trust, except in connection with a trustee’s sale after default by the
Mortgagor.
(21) Each
Mortgage Note and each Mortgage is in substantially one of the forms acceptable
to FNMA or FHLMC, with such riders as have been acceptable to FNMA or FHLMC,
as
the case may be.
(22) There
exist no deficiencies with respect to escrow deposits and payments, if such
are
required, for which customary arrangements for repayment thereof have not been
made, and no escrow deposits or payments of other charges or payments due
Countrywide have been capitalized under the Mortgage or the related Mortgage
Note.
S-III-A-3
(23) The
origination, underwriting and collection practices used by Countrywide with
respect to each Mortgage Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(24) There
is
no pledged account or other security other than real estate securing the
Mortgagor’s obligations in respect of any Mortgage Loan.
(25) No
Mortgage Loan has a shared appreciation feature, or other contingent interest
feature.
(26) Each
Mortgage Loan contains a customary “due on sale” clause.
(27) As
of the
Closing Date, approximately 42.08%, 27.30% and 31.57% of the Mortgage Loans
in
Loan Group 1, Loan Group 2 and Loan Group 3, respectively, by aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group, provide
for a
Prepayment Charge.
(28) Each
Mortgage Loan that had a Loan-to-Value Ratio at origination in excess of 80%
is
the subject of a Primary Insurance Policy that insures that portion of the
principal balance equal to a specified percentage times the sum of the remaining
principal balance of the related Mortgage Loan, the accrued interest thereon
and
the related foreclosure expenses. The specified coverage percentage for mortgage
loans with terms to maturity of between 25 and 30 years is 12% for Loan-to-Value
Ratios between 80.01% and 85.00%, 25% for Loan-to-Value Ratios between 85.01%
and 90.00%, 30% for Loan-to-Value Ratios between 90.01% and 95.00% and 35%
for
Loan-to-Value Ratios between 95.01% and 100%. The specified coverage percentage
for mortgage loans with terms to maturity of up to 20 years ranges from 6%
to
12% for Loan-to-Value Ratios between 80.01% to 85.00%; from 12% to 20% for
Loan-to-Value Ratios between 85.01% to 90.00% and 20% to 25% for Loan-to-Value
Ratios between 90.01% to 95.00%. Each such Primary Insurance Policy is issued
by
a Qualified Insurer. All provisions of any such Primary Insurance Policy have
been and are being complied with, any such policy is in full force and effect,
and all premiums due thereunder have been paid. Any Mortgage subject to any
such
Primary Insurance Policy obligates either the Mortgagor or the mortgagee
thereunder to maintain such insurance and to pay all premiums and charges in
connection therewith, subject, in each case, to the provisions of Section
3.09(b) of the Pooling and Servicing Agreement. The Mortgage Rate for each
Mortgage Loan is net of any such insurance premium.
(29) As
of the
Closing Date, the improvements upon each Mortgaged Property are covered by
a
valid and existing hazard insurance policy with a generally acceptable carrier
that provides for fire and extended coverage and coverage for such other hazards
as are customary in the area where the Mortgaged Property is located in an
amount which is at least equal to the lesser of (i) the maximum insurable value
of the improvements securing such Mortgage Loan or (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds of such policy shall be sufficient to prevent the Mortgagor and/or
the mortgagee from becoming a co-insurer. If the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a blanket policy
for the condominium unit. All such individual insurance policies and all flood
policies referred to in item (29) below contain a standard mortgagee clause
naming Countrywide or the original mortgagee, and its successors in interest,
as
mortgagee, and Countrywide has received no notice that any premiums due and
payable thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance
at
the Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor.
S-III-A-4
(30) If
the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, a flood
insurance policy in a form meeting the requirements of the current guidelines
of
the Flood Insurance Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
not less than the least of (A) the original outstanding principal balance of
the
Mortgage Loan, (B) the minimum amount required to compensate for damage or
loss
on a replacement cost basis, or (C) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973, as
amended.
(31) To
the
best of Countrywide’s knowledge, there is no proceeding occurring, pending or
threatened for the total or partial condemnation of the Mortgaged
Property.
(32) There
is
no material monetary default existing under any Mortgage or the related Mortgage
Note and, to the best of Countrywide’s knowledge, there is no material event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration under the Mortgage or the related Mortgage Note; and Countrywide
has not waived any default, breach, violation or event of
acceleration.
(33) Each
Mortgaged Property is improved by a one- to four-family residential dwelling
including condominium units and dwelling units in PUDs, which, to the best
of
Countrywide’s knowledge, does not include cooperatives or mobile homes and does
not constitute other than real property under state law.
(34) Each
Mortgage Loan is being master serviced by the Master Servicer.
(35) Any
future advances made prior to the Cut-off Date have been consolidated with
the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term
reflected on the Mortgage Loan Schedule. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan. The Mortgage
Note
does not permit or obligate the Master Servicer to make future advances to
the
Mortgagor at the option of the Mortgagor.
(36) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed, but is not yet due and payable. Except for (A) payments in the nature
of escrow payments, and (B) interest accruing from the date of the Mortgage
Note
or date of disbursement of the Mortgage proceeds, whichever is later, to the
day
which precedes by one month the Due Date of the first installment of principal
and interest, including without limitation, taxes and insurance payments, the
Master Servicer has not advanced funds, or induced, solicited or knowingly
received any advance of funds by a party other than the Mortgagor, directly
or
indirectly, for the payment of any amount required by the Mortgage.
S-III-A-5
(37) All
of
the Mortgage Loans were underwritten in all material respects in accordance
with
Countrywide’s underwriting guidelines as set forth in the Prospectus Supplement.
Each of the remaining Mortgage Loans were underwritten in all material respects
in accordance with the procedures set forth in the Prospectus under “The
Mortgage Pool - Underwriting Process”.
(38) Other
than with respect to any Streamlined Documentation Mortgage Loan as to which
the
loan-to-value ratio of the related Original Mortgage Loan was less than 90%
at
the time of the origination of such Original Mortgage Loan, prior to the
approval of the Mortgage Loan application, an appraisal of the related Mortgaged
Property was obtained from a qualified appraiser, duly appointed by the
originator, who had no interest, direct or indirect, in the Mortgaged Property
or in any loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; such appraisal
is
in a form acceptable to FNMA and FHLMC.
(39) None
of
the Mortgage Loans is a graduated payment mortgage loan or a growing equity
mortgage loan, and none of the Mortgage Loans is subject to a buydown or similar
arrangement.
(40) Any
leasehold estate securing a Mortgage Loan has a term of not less than five
years
in excess of the term of the related Mortgage Loan.
(41) The
Mortgage Loans were selected from among the outstanding adjustable-rate one-
to
four-family mortgage loans in the portfolios of the Sellers at the Closing
Date
as to which the representations and warranties made as to the Mortgage Loans
set
forth in this Schedule III can be made. Such selection was not made in a manner
intended to adversely affect the interests of Certificateholders.
(42) Except
for 1 Mortgage Loan in Loan Group 1 and 35 Mortgage Loans in Loan Group 2,
respectively, each Mortgage Loan in Loan Group 1, Loan Group 2 and Loan Group
3
has a payment date on or before the Due Date in the month of the first
Distribution Date.
(43) With
respect to any Mortgage Loan as to which an affidavit has been delivered to
the
Trustee certifying that the original Mortgage Note is a Lost Mortgage Note,
if
such Mortgage Loan is subsequently in default, the enforcement of such Mortgage
Loan or of the related Mortgage by or on behalf of the Trustee will not be
materially adversely affected by the absence of the original Mortgage Note.
A
“Lost Mortgage Note” is a Mortgage Note the original of which was permanently
lost or destroyed and has not been replaced.
(44) The
Mortgage Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
S-III-A-6
(45) No
loan
is a High Cost Loan or Covered Loan, as applicable (as such terms are defined
in
the then current Standard & Poor’s LEVELS®
Version
5.7 Glossary Revised, Appendix E) and no mortgage loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act.
(46) None
of
the Mortgage Loans is a “high cost” loan as defined by applicable predatory and
abusive lending laws.
(47) None
of
the Mortgage Loans is covered by the Home Ownership and Equity Protection Act
of
1994 (“HOEPA”).
(48) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.).
(49) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.).
(50) No
Mortgage Loan is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
(Mass. Gen. Laws ch. 183C).
(51) There
is
no Mortgage Loan in the Trust Fund that was originated on or after October
1,
2002 and before March 7, 2003, which is secured by property located in the
State
of Georgia.
(52) There
is
no Mortgage Loan in the Trust Fund that was originated on or after March 7,
2003, which is a “high cost home loan” as defined under the Georgia Fair Lending
Act.
(53) No
Mortgage Loan in the Trust Fund is a “high cost home,” “covered” (excluding home
loans defined as "covered home loans" pursuant to the New Jersey Home Ownership
Security Act of 2002), “high risk home” or “predatory” loan under any applicable
state, federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or additional
legal liability for residential mortgage loans having high interest rates,
points and/or fees).
(54) No
Mortgage Loan originated prior to October 1, 2002 will impose prepayment
penalties for a term in excess of five years after origination.
(55) With
respect to each Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage or the related Mortgage Note requires the borrower to submit
to
arbitration to resolve any dispute arising out of or relating in any way to
the
Mortgage Loan transaction.
S-III-A-7
SCHEDULE
III-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-B to the Depositor, the Master Servicer and
the
Trustee, with respect to the Countrywide Mortgage Loans as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule III-B shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Countrywide, as a seller, Park Granada LLC, as a seller, Park Monaco
Inc.,
as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing
LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Immediately
prior to the assignment of each Countrywide Mortgage Loan to the Depositor,
Countrywide had good title to, and was the sole owner of, such Countrywide
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE
III-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
Park
Granada LLC (“Park Granada”) hereby makes the representations and warranties set
forth in this Schedule III-C to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Granada Mortgage Loans as of the Closing
Date.
Capitalized terms used but not otherwise defined in this Schedule III-C shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Granada LLC, as a seller,
Park Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The
Bank
of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Granada Mortgage Loan to the Depositor,
Park Granada had good title to, and was the sole owner of, such Park Granada
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
same pursuant to the Pooling and Servicing Agreement.
S-III-C-1
SCHEDULE
III-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
Park
Monaco Inc. (“Park Monaco”) hereby makes the representations and warranties set
forth in this Schedule III-D to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Monaco Mortgage Loans as of the Closing Date,
or if so specified herein, as of the Cut-off Date. Capitalized terms used but
not otherwise defined in this Schedule III-D shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among Countrywide Home
Loans, Inc., as a seller, Park Monaco, as a seller, Park Granada LLC, as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Immediately
prior to the assignment of each Park Monaco Mortgage Loan to the Depositor,
Park
Monaco had good title to, and was the sole owner of, such Park Monaco Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest and
had full right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same pursuant to the
Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE
III-E
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
Park
Sienna LLC (“Park Sienna”) hereby makes the representations and warranties set
forth in this Schedule III-E to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Sienna Mortgage Loans as of the Closing Date,
or if so specified herein, as of the Cut-off Date. Capitalized terms used but
not otherwise defined in this Schedule III-E shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among Countrywide Home
Loans, Inc., as a seller, Park Sienna LLC, as a seller, Park Monaco Inc., as
a
seller, Park Granada LLC, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Immediately
prior to the assignment of each Park Sienna Mortgage Loan to the Depositor,
Park
Sienna had good title to, and was the sole owner of, such Park Sienna Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest and
had full right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same pursuant to the
Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE
IV
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY3
Representations
and Warranties of the Master Servicer
Countrywide
Home Loans Servicing LP (“Countrywide Servicing”) hereby makes the
representations and warranties set forth in this Schedule IV to the Depositor,
the Sellers and the Trustee, as of the Closing Date. Capitalized terms used
but
not otherwise defined in this Schedule IV shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among Countrywide Home
Loans, Inc., as a seller, Park Granada LLC, as a seller, Park Monaco Inc.,
as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Countrywide
Servicing is duly organized as a limited partnership and is validly existing
and
in good standing under the laws of the State of Texas and is duly authorized
and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide Servicing in any state in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary to
perform any of its obligations under the Pooling and Servicing Agreement in
accordance with the terms thereof.
(2) Countrywide
Servicing has the full partnership power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has duly
authorized by all necessary partnership action on the part of Countrywide
Servicing the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Countrywide Servicing,
enforceable against Countrywide Servicing in accordance with its terms, except
that (a) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors’ rights
generally and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide
Servicing, the servicing of the Mortgage Loans by Countrywide Servicing under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Countrywide Servicing and will not (A) result in a material
breach of any term or provision of the certificate of limited partnership,
partnership agreement or other organizational document of Countrywide Servicing
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any other
material agreement or instrument to which Countrywide Servicing is a party
or by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Countrywide Servicing of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
Countrywide Servicing; and Countrywide Servicing is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair the ability of Countrywide Servicing
to perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-IV-1
(4) Countrywide
Servicing is an approved servicer of conventional mortgage loans for FNMA or
FHLMC and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No
litigation is pending or, to the best of Countrywide Servicing’s knowledge,
threatened, against Countrywide Servicing that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Countrywide Servicing to service the Mortgage Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
Servicing of, or compliance by Countrywide Servicing with, the Pooling and
Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Countrywide Servicing has obtained the same.
(7) Countrywide
Servicing is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
S-IV-2
SCHEDULE
V
Principal
Balances Schedule
*[Attached
to Prospectus Supplement, if applicable.]
S-V-1
SCHEDULE
VI
Form
of
Monthly Master Servicer Report
|
LOAN
LEVEL REPORTING SYSTEM
|
||||
|
DATABASE
STRUCTURE
|
||||
|
[MONTH,
YEAR]
|
||||
|
Field
Number
|
Field
Name
|
Field
Type
|
Field
Width
|
Dec
|
|
1
|
INVNUM
|
Numeric
|
4
|
|
|
2
|
INVBLK
|
Numeric
|
4
|
|
|
3
|
INACNU
|
Character
|
8
|
|
|
4
|
BEGSCH
|
Numeric
|
15
|
2
|
|
5
|
SCHPRN
|
Numeric
|
13
|
2
|
|
6
|
TADPRN
|
Numeric
|
11
|
2
|
|
7
|
LIQEPB
|
Numeric
|
11
|
2
|
|
8
|
ACTCOD
|
Numeric
|
11
|
|
|
9
|
ACTDAT
|
Numeric
|
4
|
|
|
10
|
INTPMT
|
Numeric
|
8
|
|
|
11
|
PRNPMT
|
Numeric
|
13
|
2
|
|
12
|
ENDSCH
|
Numeric
|
13
|
2
|
|
13
|
SCHNOT
|
Numeric
|
13
|
2
|
|
14
|
SCHPAS
|
Numeric
|
7
|
3
|
|
15
|
PRINPT
|
Numeric
|
7
|
3
|
|
16
|
PRIBAL
|
Numeric
|
11
|
2
|
|
17
|
LPIDTE
|
Numeric
|
13
|
2
|
|
18
|
DELPRN
|
Numeric
|
7
|
|
|
19
|
PPDPRN
|
Numeric
|
11
|
2
|
|
20
|
DELPRN
|
Numeric
|
11
|
2
|
|
21
|
NXTCHG
|
Numeric
|
8
|
|
|
22
|
ARMNOT
|
Numeric
|
7
|
3
|
|
23
|
ARMPAS
|
Numeric
|
7
|
3
|
|
24
|
ARMPMT
|
Numeric
|
11
|
2
|
|
25
|
ZZTYPE
|
Character
|
2
|
|
|
26
|
ISSUID
|
Character
|
1
|
|
|
27
|
KEYNAME
|
Character
|
8
|
|
|
TOTAL
|
240
|
|||
|
Suggested
Format:
|
DBASE
file
Modem
transmission
|
|
||
S-VI-1
SCHEDULE
VII
Prepayment
Charge Schedule
S-VII-1
EXHIBIT
A
[FORM
OF
SENIOR CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
[SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).]
[UNTIL
THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT
TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF
COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE’S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER’S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS
BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR TO A PERSON INVESTING ASSETS
OF,
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT
TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
A-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
of
all Certificates of
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Sellers,
the Master Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
A-2
This
certifies that
is
the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate
Initial Certificate Balance
of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among the Depositor, Countrywide Home Loans,
Inc., as a
seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master Servicer”),
and The
Bank of New York, as trustee (the “Trustee”). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions
and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
[Until
this certificate has been the subject of an ERISA-Qualifying Underwriting,
no
transfer of a Certificate of this Class shall be made unless the Trustee
shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of
any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, or (ii) in
the
case of any such
Certificate presented for registration in the name of an employee benefit
plan
subject to ERISA
or
a
plan or
arrangement subject to Section 4975
of the
Code
(or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement,
an
Opinion of Counsel satisfactory to the Trustee to the effect that the purchase
and holding of such Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and will
not
subject the Trustee or the Master Servicer to any obligation in addition
to
those undertaken in the Agreement, which Opinion of Counsel shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund. Unless
the transferee delivers the Opinion of Counsel described above, such
representation shall be deemed to have been made to the Trustee by the
Transferee’s acceptance of a Certificate of this Class and by a beneficial
owner’s acceptance of its interest in a Certificate of this Class.
Notwithstanding anything else to the contrary herein, until such certificate
has
been the subject of an ERISA-Qualifying Underwriting, any purported transfer
of
a Certificate of this Class to, or to a person investing assets of, an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section
4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
*
* *
A-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
|
THE
BANK OF NEW YORK,
as
Trustee
By
______________________
|
Countersigned:
By
_______________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
A-4
EXHIBIT
B
[FORM
OF
SUBORDINATED CERTIFICATE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
B-1
[NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF
OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF
SUCH
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING AND
THE
TRANSFEREE
IS AN
INSURANCE COMPANY, A REPRESENTATION THAT THE TRANSFEREE
IS
PURCHASING SUCH CERTIFICATE WITH FUNDS CONTAINED IN AN“INSURANCE
COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN SECTION V(e)
OF
PROHIBITED
TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND THE PURCHASE AND HOLDING OF THE
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS
I AND
III OF PTCE 95-60, OR (B)
AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT
TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL
BE
VOID AND OF NO EFFECT.]
B-2
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
of
all Certificates of
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[
]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional mortgage
loans
(the “Mortgage Loans”) secured by first liens on one- to four-family residential
properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Sellers,
the Master Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
B-3
This
certifies that
is
the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate
Initial Certificate Balance
of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among the Depositor, Countrywide Home Loans,
Inc., as a
seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master Servicer”),
and The
Bank of New York, as trustee (the “Trustee”). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions
and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
[No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Securities
Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer is
to be
made in reliance upon an exemption from the Securities Act and such laws,
in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such Certificateholder’s
prospective transferee shall each certify to the Trustee in writing the facts
surrounding the transfer. In the event that such a transfer is to be made
within
three years from the date of the initial issuance of Certificates pursuant
hereto, there shall also be delivered (except in the case of a transfer pursuant
to Rule 144A of the Securities Act) to the Trustee an Opinion of Counsel
that
such transfer may be made pursuant to an exemption from the Securities Act
and
such state securities laws, which Opinion of Counsel shall not be obtained
at
the expense of the Trustee, the Sellers,
the Master Servicer or the Depositor. The Holder hereof desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt
or is not made in accordance with such federal and state laws.]
B-4
[No
transfer of a Certificate of this Class shall be made unless the Trustee
shall
have received either (i) a representation letter
from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of
or
investing plan assets of any
such
benefit plan or arrangement, which representation letter shall not be an
expense
of the Trustee, the Master Servicer or the Trust Fund, (ii) if such certificate
has been the subject of an ERISA-Qualifying Underwriting and the transferee
is
an insurance company, a representation that the transferee is purchasing
such
Certificate with funds contained in an “insurance company general account” (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificate
satisfy
the requirements for exemptive relief
under
Sections I and III of PTCE 95-60, or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of
the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund.
Notwithstanding
anything else to the contrary herein, any purported transfer of a Certificate
of
this Class to or on behalf of an employee benefit plan subject to ERISA or
a
plan or arrangement subject to Section 4975 of the Code without the opinion
of
counsel satisfactory to the Trustee as described above shall be void and
of no
effect.]
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
*
*
*
B-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
|
THE
BANK OF NEW YORK,
as
Trustee
By
______________________
|
Countersigned:
By
______________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
B-6
EXHIBIT
C-1
[FORM
OF
RESIDUAL CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT (i)
SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR ARRANGEMENT SUBJECT
TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF OF OR INVESTING
THE
ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR
(ii)
IF
SUCH
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING AND
THE
TRANSFEREE
IS AN
INSURANCE COMPANY, A REPRESENTATION THAT THE TRANSFEREE
IS
PURCHASING SUCH CERTIFICATE WITH FUNDS CONTAINED IN AN“INSURANCE
COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN SECTION V(e)
OF
PROHIBITED
TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND THE PURCHASE AND HOLDING OF THE
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS
I AND
III OF PTCE 95-60, OR (B)
AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT
TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL
BE
VOID AND OF NO EFFECT.
[THIS
CERTIFICATE REPRESENTS THE “TAX MATTERS PERSON RESIDUAL INTEREST” ISSUED UNDER
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE TRANSFERRED
TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE TRANSFEREE
OF THE
DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
of
all Certificates of
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
A-R
evidencing
the distributions allocable to the Class A-R Certificates with respect to
a
Trust Fund consisting primarily of a pool of conventional
mortgage
loans
(the “Mortgage Loans”) secured by first liens on one- to four-family residential
properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Sellers,
the Master Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
C-1-2
This
certifies that
is
the
registered owner of the Percentage Interest (obtained by dividing the
Denomination of this Certificate by the aggregate Initial Certificate
Balance
of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting of the Mortgage Loans
deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of the Cut-off Date specified
above (the “Agreement”) among the Depositor, Countrywide Home Loans, Inc., as
a
seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master Servicer”),
and The
Bank of New York, as trustee (the “Trustee”). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions
and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Class A-R Certificate at
the
Corporate Trust Office or the office or agency maintained by the Trustee
in New
York, New York.
No
transfer of a Class A-R Certificate shall be made unless the Trustee shall
have
received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of
any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
certificate has been the subject of an ERISA-Qualifying Underwriting and
the
transferee is an insurance company, a representation that the transferee
is
purchasing such Certificate with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief
under
Sections I and III of PTCE 95-60, or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of
the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer
of
a Class A-R Certificate to or on behalf of an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code without
the
opinion of counsel satisfactory to the Trustee as described above shall be
void
and of no effect.
C-1-3
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-1-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
|
THE
BANK OF NEW YORK,
as
Trustee
By
______________________
|
Countersigned:
By
___________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-1-5
EXHIBIT
C-2
[FORM
OF
CLASS P CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CLASS P CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE EXTENT
DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS P CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT (i)
SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR ARRANGEMENT SUBJECT
TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF OF OR INVESTING
THE
ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR
(ii)
IF
SUCH
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING AND
THE
TRANSFEREE
IS AN
INSURANCE COMPANY, A REPRESENTATION THAT THE TRANSFEREE
IS
PURCHASING SUCH CERTIFICATE WITH FUNDS CONTAINED IN AN“INSURANCE
COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN SECTION V(e)
OF
PROHIBITED
TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND THE PURCHASE AND HOLDING OF THE
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS
I AND
III OF PTCE 95-60, OR (B)
AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT
TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL
BE
VOID AND OF NO EFFECT.
C-2-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
of
all Certificates of
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Alternative
Loan Trust 200____-____
Mortgage
Pass-Through Certificates, Series 200____-____
evidencing
a percentage interest in the distributions allocable to the Class P Certificates
with respect to a Trust Fund consisting primarily of a pool of conventional
mortgage loans (the “Mortgage Loans”) secured by first and second liens on one-
to four-family residential properties
CWALT,
Inc., as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Master Servicer or the Trustee referred
to
below or any of their respective affiliates. Neither this Certificate nor
the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
C-2-2
This
certifies that __________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of
this Certificate by the aggregate Initial Notional Amount of all Certificates
of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of the Cut-off Date specified
above (the “Agreement”) among the Depositor, Countrywide Home Loans, Inc., as a
seller (“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco,
Inc., as a seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park
Sienna” and, together with CHL, Park Granada and Park Monaco, the “Sellers”),
Countrywide Home Loans Servicing LP, as master servicer (the “Master Servicer”),
and The Bank of New York, as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class
P
Certificates on such Distribution Date pursuant to Section 4.02 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month immediately preceding such Distribution
Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the
related
Record Date and such Certificateholder shall hold 100% of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Balance
of
$1,000,000 or more, or, if not, by check mailed by first class mail to the
address of such Certificateholder appearing in the Certificate Register.
The
final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the Corporate Trust
Office
or such other location specified in the notice to Certificateholders of such
final distribution.
C-2-3
No
transfer of a Class P Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Act and any applicable
state securities laws or is exempt from the registration requirements under
the
Act and such laws. In the event that a transfer is to be made in reliance
upon
an exemption from the Act and such laws, in order to assure compliance with
the
Act and such laws, the Certificateholder desiring to effect such transfer
and
such Certificateholder’s prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer. In the event that
such a
transfer is to be made within two years from the date of the initial issuance
of
Certificates, there shall also be delivered (except in the case of a transfer
pursuant to Rule 144A of the Regulations promulgated pursuant to the Act)
to the
Trustee an Opinion of Counsel that such transfer may be made pursuant to
an
exemption from the Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Master Servicer
or the
Depositor. The Holder hereof desiring to effect such transfer shall, and
does
hereby agree to, indemnify the Trustee, the Certificate and the Depositor
against any liability that may result if the transfer is not so exempt or
is not
made in accordance with such federal and state laws.
No
transfer of a Class P Certificate shall be made unless the Trustee shall
have
received either (i)
a
representation letter from the transferee of a
Class
P
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of
any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
Class P Certificate has been the subject of an ERISA-Qualifying Underwriting
and
the transferee is an insurance company, a representation that the transferee
is
purchasing such Class P Certificate with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such
Class P
Certificate
satisfy the requirements for exemptive relief under Sections I and III of
PTCE
95-60, or (iii) in the case of a
Class
P
Certificate presented for registration in the name of an employee benefit
plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the
Code
(or comparable provisions of any subsequent enactments), a trustee of any
such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of
the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer
of
a
Class
P
Certificate to or on behalf of an employee benefit plan subject to ERISA
or a
plan or arrangement subject to Section 4975 of the Code without the opinion
of
counsel satisfactory to the Trustee as described above shall be void and
of no
effect.
C-2-4
This
Class P Certificate may not be pledged or used as collateral for any other
obligation if it would cause any portion of the Trust Fund to be treated
as a
taxable mortgage pool under Section 7701(i) of the Code.
Each
Holder of this Class P Certificate will be deemed to have agreed to be bound
by
the transfer restrictions set forth in the Agreement and all other terms
and
provisions of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless the certificate of authentication hereon has been
manually executed by an authorized officer of the Trustee.
*
*
*
C-2-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
|
THE
BANK OF NEW YORK,
as
Trustee
By
______________________
Name:
Title:
|
Countersigned:
By
___________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-2-6
EXHIBIT
C-3
[FORM
OF
CLASS C CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CLASS C CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE EXTENT
DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS C CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS C CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING ON BEHALF OF ANY
SUCH
PLAN OR ARRANGEMENT OR USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT
THAT TRANSFER, OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT TO SECTION 4975
OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
C-3-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
of
all Certificates of
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
CHL
Mortgage Pass-Through Trust 200____-____
Mortgage
Pass-Through Certificates, Series 200____-____
evidencing
a percentage interest in the distributions allocable to the Class C Certificates
with respect to a Trust Fund consisting primarily of a pool of conventional
mortgage loans (the “Mortgage Loans”) secured by first and second liens on one-
to four-family residential properties
CWALT,
Inc., as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Master Servicer or the Trustee referred
to
below or any of their respective affiliates. Neither this Certificate nor
the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
C-3-2
This
certifies that __________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of
this Certificate by the aggregate Initial Notional Amount of all Certificates
of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by CWALT, Inc. (the “Depositor”). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of the Cut-off Date specified
above (the “Agreement”) among
the
Depositor, Countrywide Home Loans, Inc., as a seller (“CHL”), Park Granada LLC,
as a seller (“Park Granada”), Park Monaco, Inc., as a seller (“Park Monaco”),
and Park Sienna LLC, as a seller (“Park Sienna” and, together with CHL, Park
Granada and Park Monaco, the “Sellers”), Countrywide Home Loans Servicing LP, as
master servicer (the “Master Servicer”),
and The
Bank of New York, as trustee (the “Trustee”).
To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject
to
the terms, provisions and conditions of the Agreement, to which Agreement
the
Holder of this Certificate by virtue of the acceptance hereof assents and
by
which such Holder is bound.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class
C
Certificates on such Distribution Date pursuant to Section 4.02 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month immediately preceding such Distribution
Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the
related
Record Date and such Certificateholder shall hold 100% of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Balance
of
$1,000,000 or more, or, if not, by check mailed by first class mail to the
address of such Certificateholder appearing in the Certificate Register.
The
final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the Corporate Trust
Office
or such other location specified in the notice to Certificateholders of such
final distribution.
No
transfer of a Class C Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Act and any applicable
state securities laws or is exempt from the registration requirements under
the
Act and such laws. In the event that a transfer is to be made in reliance
upon
an exemption from the Act and such laws, in order to assure compliance with
the
Act and such laws, the Certificateholder desiring to effect such transfer
and
such Certificateholder’s prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer. In the event that
such a
transfer is to be made within two years from the date of the initial issuance
of
Certificates, there shall also be delivered (except in the case of a transfer
pursuant to Rule 144A of the Regulations promulgated pursuant to the Act)
to the
Trustee an Opinion of Counsel that such transfer may be made pursuant to
an
exemption from the Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Master Servicer
or the
Depositor. The Holder hereof desiring to effect such transfer shall, and
does
hereby agree to, indemnify the Trustee, the Certificate and the Depositor
against any liability that may result if the transfer is not so exempt or
is not
made in accordance with such federal and state laws.
C-3-3
No
transfer of a Class C Certificate shall be made unless the Trustee shall
have
received either (i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Trustee, to the
effect that such transferee is not an employee benefit plan subject to section
406 of ERISA or a plan subject to section 4975 of the Code, or a Person acting
on behalf of any such plan or using the assets of any such plan, or (ii)
in the
case of any Class C Certificate presented for registration in the name of
an
employee benefit plan subject to ERISA, or a plan subject to section 4975
of the
Code (or comparable provisions of any subsequent enactments), or a trustee
of
any such plan or any other person acting on behalf of or investing plan assets
of any such plan, an Opinion of Counsel satisfactory to the Trustee to the
effect that the purchase or holding of such Class C Certificate will not
result
in a non-exempt prohibited transaction under ERISA or Section 4975 of the
Code
and will not subject the Trustee to any obligation in addition to those
expressly undertaken in the Agreement, which Opinion of Counsel shall not
be an
expense of the Trustee. Notwithstanding anything else to the contrary herein,
any purported transfer of a Class C Certificate to or on behalf of an employee
benefit plan subject to section 406 of ERISA or a plan subject to section
4975
of the Code without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no
effect.
This
Class C Certificate may not be pledged or used as collateral for any other
obligation if it would cause any portion of the Trust Fund to be treated
as a
taxable mortgage pool under Section 7701(i) of the Code.
Each
Holder of this Class C Certificate will be deemed to have agreed to be bound
by
the transfer restrictions set forth in the Agreement and all other terms
and
provisions of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless the certificate of authentication hereon has been
manually executed by an authorized officer of the Trustee.
*
*
*
C-3-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
|
THE
BANK OF NEW YORK,
as
Trustee
By
______________________
Name:
Title:
|
Countersigned:
By
___________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-3-5
EXHIBIT
C-4
[RESERVED]
C-4-1
EXHIBIT
D
[FORM
OF
NOTIONAL AMOUNT CERTIFICATE]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTION
IN
RESPECT OF PRINCIPAL.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
[UNTIL
THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT
TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF
COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE’S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER’S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS
BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR A PERSON INVESTING ASSETS OF,
AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
D-1
|
Certificate
No.
|
:
|
|
|
Cut-off
Date
|
:
|
|
|
First
Distribution Date
|
:
|
|
|
Initial
Certificate Balance
of
this Certificate
(“Denomination”)
|
:
|
$
|
|
Initial
Certificate Balance
of
all Certificates of
this
Class
|
:
|
$
|
|
CUSIP
|
:
|
|
|
Interest
Rate
|
:
|
|
|
Maturity
Date
|
:
|
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[
]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional
mortgage
loans
(the “Mortgage Loans”) secured by first liens on one- to four-family residential
properties
CWALT,
Inc., as Depositor
The
Notional Amount of this certificate at any time, may be less than the Notional
Amount as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is
not
guaranteed by the Depositor, the Sellers,
the Master Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
D-2
This
certifies that
is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained
by dividing the denomination of this Certificate by the aggregate Initial
Notional Amount of all Certificates of the Class to which this Certificate
belongs)
in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by CWALT, Inc. (the “Depositor”). The Trust Fund
was created pursuant to a Pooling and Servicing Agreement dated as of
the
Cut-off
Date specified above (the “Agreement”) among the Depositor, Countrywide Home
Loans, Inc., as a
seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco, Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master Servicer”),
and The
Bank of New York, as trustee (the “Trustee”). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions
and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
[Until
this certificate has been the subject of an ERISA-Qualifying Underwriting,
no
transfer of a Certificate of this Class shall be made unless the Trustee
shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section 4975
of the Code, or a person acting on behalf of or investing plan assets of
any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, or (ii) in
the
case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), a trustee of any such benefit plan or arrangement or any other
person acting on behalf of any such benefit plan or arrangement, an Opinion
of
Counsel satisfactory to the Trustee to the effect that the purchase and holding
of such Certificate will not result in a non-exempt prohibited transaction
under
Section 406 of ERISA or Section 4975 of the Code, and will not subject the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund. When the transferee delivers
the
Opinion of Counsel described above, such representation shall be deemed to
have
been made to the Trustee by the Transferee’s acceptance of a Certificate of this
Class and by a beneficial owner’s acceptance of its interest in a Certificate of
this Class. Notwithstanding anything else to the contrary herein, until such
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to, or a person investing
assets of, an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code without the opinion of counsel satisfactory
to the Trustee as described above shall be void and of no effect.]
Reference
is hereby made to the further provisions of this Certificate set forth on
the
reverse hereof, which further provisions shall for all purposes have the
same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory
of the
Trustee.
*
* *
D-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
|
THE
BANK OF NEW YORK,
as
Trustee
By
______________________
|
Countersigned:
By
_____________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
D-4
EXHIBIT
E
[FORM
OF]
REVERSE OF CERTIFICATES
CWALT,
INC.
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated
as
CWALT, Inc. Mortgage Pass-Through Certificates, of the Series specified on
the
face hereof (herein collectively called the “Certificates”), and representing a
beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such day
is
not a Business Day, the Business Day immediately following (the “Distribution
Date”), commencing on the first Distribution Date specified on the face hereof,
to the Person in whose name this Certificate is registered at the close of
business on the applicable Record Date in an amount equal to the product
of the
Percentage Interest evidenced by this Certificate and the amount required
to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next
preceding the month of such Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the
related
Record Date and such Certificateholder shall satisfy the conditions to receive
such form of payment set forth in the Agreement, or, if not, by check mailed
by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be
made in
like manner, but only upon presentment and surrender of such Certificate
at the
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
E-1
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.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the Corporate Trust Office or the office or agency maintained by the Trustee
in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
Fund will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons
in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax
or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the Sellers
and the
Trustee and any agent of the Depositor or the Trustee may treat the Person
in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, nor any such agent shall be affected
by
any notice to the contrary.
E-2
On
any
Distribution Date on which the Pool Stated Principal Balance is less than
or
equal to 10%
of
the Cut-off Date Pool Principal Balance, the Master Servicer will have the
option, subject to the limitations set forth in the Agreement, to repurchase,
in
whole, from the Trust Fund all remaining Mortgage Loans and all property
acquired in respect of the Mortgage Loans at a purchase price determined
as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund
or
the disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to
the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named
in the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
E-3
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
_______________________________________________________________________
Dated:
_________________________
Signature
by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to,
_______________________________________________________________
___________________________________________________________________________________________________________________________________________,
___________________________________________________________________________________________________________________________________________
for
the
account of _____________________________________________________________________________________________________________________________,
account
number ________________________, or, if mailed by check, to
__________________________________________________________________________________.
Applicable
statements should be mailed to
__________________________________________________________________________________________________________,
___________________________________________________________________________________________________________________________________________.
This
information is provided by
____________________________________________________________________________________________________________,
the
assignee named above, or
____________________________________________________________________________________________________________________,
as
its
agent.
E-4
STATE
OF
)
)
ss.:
COUNTY
OF
)
On
the
_____day of ___________________, 20__ before me, a notary public in and for
said
State, personally appeared _____________________________________,
known
to me who, being by me duly sworn, did depose and say that he executed the
foregoing instrument.
_____________________________
Notary
Public
[Notarial
Seal]
E-5
EXHIBIT
F
[FORM
OF]
INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_______________
_______________
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc.
(“Countrywide”),
as a
Seller, Park Granada LLC, as a Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller,
Countrywide Home
Loans Servicing LP, as Master Servicer, and The Bank of New York,
as
Trustee, Mortgage
Pass-Through Certificates, Series 200_-_
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that, as to each Initial
Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Initial
Mortgage
Loan paid in full or listed on the attached schedule) it has
received:
(i)
(a)
the original Mortgage Note endorsed in the following form: “Pay to the order of
__________, without recourse” or (b) with respect to any Lost Mortgage Note, a
lost note affidavit from Countrywide
stating
that the original Mortgage Note was lost or destroyed; and
(ii)
a
duly executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement.
F-1
The
Trustee makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents contained in each Mortgage
File of any of the Initial
Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such
Initial
Mortgage
Loan.
F-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:
|
F-3
EXHIBIT
G
[FORM
OF]
DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_____________________
_____________________
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc. (“Countrywide”), as a Seller, Park Granada LLC, as a Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, and The Bank of New
York, as
Trustee, Mortgage
Pass-Through Certificates, Series 200_-_
|
Gentlemen:
Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto (the “Schedule A”),
delivered by the undersigned, as Trustee, on the Closing Date in accordance
with
Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”). The undersigned hereby certifies that, as to
each Delay Delivery Initial
Mortgage
Loan listed on Schedule A attached hereto (other than any Initial
Mortgage
Loan paid in full or listed on Schedule B attached hereto) it has
received:
| (i) |
the
original Mortgage Note, endorsed by Countrywide
or
the originator of such Mortgage Loan, without recourse in the following
form: “Pay to the order of _______________ without recourse”, with all
intervening endorsements that show a complete chain of endorsement
from
the originator to Countrywide,
or, if the original Mortgage Note has been lost or destroyed and
not
replaced, an original lost note affidavit from Countrywide,
stating that the original Mortgage Note was lost or destroyed,
together
with a copy of the related Mortgage Note;
|
G-1
| (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];
|
| (iii) |
in
the case of each
Initial
Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment
of the Mortgage to “The Bank of New York, as trustee under the Pooling and
Servicing Agreement dated as of [month] 1, 2004,
without recourse”, or, in the case of each
Initial
Mortgage Loan with respect to property located in the State of
California
that is not a MERS Mortgage Loan, a duly executed assignment of
the
Mortgage in blank (each such assignment, when duly and validly
completed,
to be in recordable form and sufficient to effect the assignment
of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
|
| (iv) |
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the
presence of
a MIN in the case of each MERS Mortgage Loan)];
|
| (v) |
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
| (vi) |
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing Date.
|
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
Countrywide
cannot
deliver the original recorded Mortgage or all interim recorded assignments
of
the Mortgage satisfying the requirements of clause (ii), (iii) or (iv), as
applicable, the Trustee has received, in lieu thereof, a true and complete
copy
of such Mortgage and/or such assignment or assignments of the Mortgage, as
applicable, each certified by Countrywide,
the
applicable title company, escrow agent or attorney, or the originator of
such
Initial
Mortgage
Loan, as the case may be, to be a true and complete copy of the original
Mortgage or assignment of Mortgage submitted for recording.
G-2
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Initial
Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi),
(viii), (xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in
Article
I
of the
Pooling and Servicing Agreement accurately reflects information set forth
in the
Mortgage File.
The
Trustee has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations as
to:
(i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents contained in each Mortgage 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-3
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
|
THE
BANK OF NEW YORK,
as
Trustee
By
______________________
Name:
Title:
|
G-4
EXHIBIT
H
[FORM
OF]
FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_______________
_______________
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc. (“Countrywide”), as a Seller, Park Granada LLC, as a Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, and The Bank of New
York, as
Trustee, Mortgage
Pass-Through Certificates, Series 200_-_
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Initial
Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Initial
Mortgage
Loan paid in full or listed on the attached Document Exception Report) it
has
received:
| (i) |
the
original Mortgage Note, endorsed by Countrywide
or
the originator of such Mortgage Loan, without recourse in the following
form: “Pay to the order of _______________ without recourse”, with all
intervening endorsements that show a complete chain of endorsement
from
the originator to Countrywide,
or, if the original Mortgage Note has been lost or destroyed and
not
replaced, an original lost note affidavit from Countrywide,
stating that the original Mortgage Note was lost or destroyed,
together
with a copy of the related Mortgage Note;
|
| (ii) |
in
the case of each Initial
Mortgage
Loan that is not a MERS Mortgage Loan, the original recorded Mortgage,
[and in the case of each
Initial
Mortgage Loan that is a MERS Mortgage Loan, the original Mortgage,
noting
thereon the presence of the MIN of the Mortgage Loan and language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a
MOM Loan, with evidence of recording indicated thereon, or a copy
of the
Mortgage certified by the public recording office in which such
Mortgage
has been recorded];
|
| (iii) |
in
the case of each Initial
Mortgage
Loan that is not a MERS Mortgage Loan, a duly executed assignment
of the
Mortgage to “The Bank of New York, as trustee under the Pooling and
Servicing Agreement dated as of [month] 1, 2004,
without recourse”, or, in the case of each
Initial
Mortgage Loan with respect to property located in the State of
California
that is not a MERS Mortgage Loan, a duly executed assignment of
the
Mortgage in blank (each such assignment, when duly and validly
completed,
to be in recordable form and sufficient to effect the assignment
of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
|
| (iv) |
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the
presence of
a MIN in the case of each
Initial
Mortgage Loan that is a MERS Mortgage Loan)];
|
| (v) |
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
| (vi) |
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing Date.
|
In
the
event that in connection with any Initial
Mortgage
Loan that is not a MERS Mortgage Loan Countrywide
cannot
deliver the original recorded Mortgage or all interim recorded assignments
of
the Mortgage satisfying the requirements of clause (ii), (iii) or (iv), as
applicable, the Trustee has received, in lieu thereof, a true and complete
copy
of such Mortgage and/or such assignment or assignments of the Mortgage, as
applicable, each certified by Countrywide,
the
applicable title company, escrow agent or attorney, or the originator of
such
Initial
Mortgage
Loan, as the case may be, to be a true and complete copy of the original
Mortgage or assignment of Mortgage submitted for recording.
H-1
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Initial
Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi),
(viii), (xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in
Article
I
of the
Pooling and Servicing Agreement accurately reflects information set forth
in the
Mortgage File.
The
Trustee has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations as
to:
(i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents contained in each Mortgage 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.
H-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:
|
H-3
EXHIBIT
I
[FORM
OF]
TRANSFER AFFIDAVIT
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
STATE
OF
)
)
ss.:
COUNTY
OF )
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of ,
the
proposed Transferee of an Ownership Interest in a Class A-R Certificate (the
“Certificate”) issued pursuant to the Pooling and Servicing Agreement, dated as
of _________ __, 2___ (the “Agreement”), by and among CWALT, Inc., as depositor
(the “Depositor”), Countrywide Home Loans, Inc. (the “Company”), as
a
Seller, Park Granada LLC, as a
Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller (and together
with
the Company, Park Granada and Park Monaco, the “Sellers”), Countrywide Home
Loans Servicing LP, as Master Servicer and The Bank of New York, as Trustee.
Capitalized terms used, but not defined herein or in Exhibit 1 hereto, shall
have the meanings ascribed to such terms in the Agreement. The Transferee
has
authorized the undersigned to make this affidavit on behalf of the
Transferee.
2. The
Transferee is not an employee benefit plan that is subject to Title I of
ERISA
or to section 4975 of the Internal Revenue Code of 1986, nor is it acting
on
behalf of or with plan assets of any such plan. The Transferee is, as of
the
date hereof, and will be, as of the date of the Transfer, a Permitted
Transferee. The Transferee will endeavor to remain a Permitted Transferee
for so
long as it retains its Ownership Interest in the Certificate. The Transferee
is
acquiring its Ownership Interest in the Certificate for its own
account.
3. The
Transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is
through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise
liable
for the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such subsequent Transferee
is a Permitted Transferee and, at the time of Transfer, such Person does
not
have actual knowledge that the affidavit is false.
I-1
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record
holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
(attached hereto as Exhibit 2 and incorporated herein by reference) and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory
sales.
The Transferee expressly agrees to be bound by and to abide by the provisions
of
Section 5.02(c) of the Agreement and the restrictions noted on the face of
the
Certificate. The Transferee understands and agrees that any breach of any
of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom
the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person
that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit J-1 to the Agreement
(a “Transferor Certificate”) to the effect that such Transferee has no actual
knowledge that the Person to which the Transfer is to be made is not a Permitted
Transferee.
7. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the Class A-R
Certificates.
8. The
Transferee’s taxpayer identification number is ______________.
9. The
Transferee is a U.S. Person as defined in Code section 7701(a)(30) and,
unless the Transferor (or any subsequent transferor) expressly waives such
requirement, will not cause income from the Certificate to be attributable
to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
I-2
10. The
Transferee is aware that the Class A-R Certificates may be “noneconomic residual
interests” within the meaning of Treasury Regulation Section 1.860E-1(c) and
that the transferor of a noneconomic residual interest will remain liable
for
any taxes due with respect to the income on such residual interest, unless
no
significant purpose of the transfer was to impede the assessment or collection
of tax. In addition, as the Holder of a noneconomic residual interest, the
Transferee may incur tax liabilities in excess of any cash flows generated
by
the interest and the Transferee hereby represents that it intends to pay
taxes
associated with holding the residual interest as they become due.
11. The
Transferee has provided financial statements or other financial information
requested by the Transferor in connection with the transfer of the Certificate
to permit the Transferor to assess the financial capability of the Transferee
to
pay such taxes. The Transferee historically has paid its debts as they have
come
due and intends to pay its debts as they come due in the future.
12.
Unless
the Transferor (or any subsequent transferor) expressly waives such requirement,
the Transferee (and any subsequent transferee) certifies (or will certify),
respectively, that the transfer satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula Test” imposed by Treasury
Regulation § 1.860E-1(c)(7).
* * *
I-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf by its duly authorized officer, this_____ day of ___________,
2___.
|
________________________________________________
PRINT
NAME OF TRANSFEREE
By
______________________
Name:
Title:
|
[Corporate
Seal]
ATTEST:
_____________________________
[Assistant]
Secretary
Personally
appeared before me the above-named
,
known
or proved to me to be the same person who executed the foregoing instrument
and
to be the
of the
Transferee, and acknowledged that he executed the same as his free act and
deed
and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
|
______________________________________
NOTARY
PUBLIC
My
Commission expires the
___
day of______________, 20__
|
I-4
WAIVER
OF
REQUIREMENT THAT TRANSFEREE CERTIFIES TRANSFER OF CERTIFICATE SATISFIES CERTAIN
REGULATORY “SAFE HARBORS”
The
Transferor hereby waives the requirement that the Transferee certify that
the
transfer of the Certificate satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula Test” imposed by Treasury
Regulation § 1.860E-1(c)(7).
|
CWALT,
INC.
By
______________________
Name:
Title:
|
I-5
EXHIBIT
1
to
EXHIBIT
I
Certain
Definitions
“Asset
Test”: A transfer satisfies the Asset Test if: (i) At
the
time of the transfer, and at the close of each of the transferee's two fiscal
years preceding the transferee's fiscal year of transfer, the transferee's
gross
assets for financial reporting purposes exceed $100 million and its net assets
for financial reporting purposes exceed $10 million. The gross assets and
net
assets of a transferee do not include any obligation of any “related person” or
any other asset if a principal purpose for holding or acquiring the other
asset
is to permit the transferee to satisfy such monetary conditions;
(ii)
The
transferee must be an “eligible corporation” and must agree in writing that any
subsequent transfer of the interest will be to another eligible corporation
in a
transaction that satisfies paragraphs 9 through 11 of this Transfer Affidavit
and the Asset Test. A transfer fails to meet the Asset Test if the transferor
knows, or has reason to know, that the transferee will not honor the
restrictions on subsequent transfers of the Certificate; and
(iii)
A
reasonable person would not conclude, based on the facts and circumstances
known
to the transferor on or before the date of the transfer, that the taxes
associated with the Certificate will not be paid. The consideration given
to the
transferee to acquire the Certificate is only one factor to be considered,
but
the transferor will be deemed to know that the transferee cannot or will
not pay
if the amount of consideration is so low compared to the liabilities assumed
that a reasonable person would conclude that the taxes associated with holding
the Certificate will not be paid. For purposes of applying the Asset Test,
(i)
an “eligible
corporation” means any domestic C corporation (as defined in section 1361(a)(2)
of the Code) other than
(A)
a
corporation which is exempt from, or is not subject to, tax under section
11 of
the Code, (B)
an
entity
described in section 851(a) or 856(a) of the Code, (C)
A
REMIC,
or (D)
an
organization to which part I of subchapter T of chapter 1 of subtitle A of
the
Code applies; (ii)
a
“related person” is any person that
(A)
bears
a
relationship to the transferee enumerated in section 267(b) or 707(b)(1)
of the
Code, using “20 percent” instead of “50 percent” where it appears under the
provisions, or (B)
is
under
common control (within the meaning of section 52(a) and (b)) with the
transferee.
“Formula
Test”: A transfer satisfies the formula test if the present value of the
anticipated tax liabilities associated with holding the Certificate does
not
exceed the sum of
(i)
the
present value of any consideration given to the transferee to acquire the
Certificate; (ii)
the
present value of the expected future distributions on the Certificate; and
(iii)
the
present value of the anticipated tax savings associated with holding the
Certificate as the issuing REMIC generates losses. For
purposes of applying the Formula Test: (i) The
transferee is assumed to pay tax at a rate equal to the highest rate of tax
specified in section 11(b)(1) of the Code. If the transferee has been subject
to
the alternative minimum tax under section 55 of the Code in the preceding
two
years and will compute its taxable income in the current taxable year using
the
alternative minimum tax rate, then the tax rate specified in section 55(b)(1)(B)
of the Code may be used in lieu of the highest rate specified in section
11(b)(1) of the Code; (ii)
The
transfer must satisfy paragraph 9 of the Transfer Affidavit; and (iii)
Present
values are computed using a discount rate equal to the Federal short-term
rate
prescribed by section 1274(d) of the Code for the month of the transfer and
the
compounding period used by the taxpayer.
I-6
“Ownership
Interest”: As to any Certificate, any ownership interest in such Certificate,
including any interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial.
“Permitted
Transferee”: Any person other than (i) the United States, any State or political
subdivision thereof, or any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization or any agency or
instrumentality of either of the foregoing, (iii) an organization (except
certain farmers’ cooperatives described in section 521 of the Code) that is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by
section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to
any
Class A-R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct
of a
trade or business within the United States, or a trust if a court within
the
United States is able to exercise primary supervision over the administration
of
the trust and one or more United States persons have authority to control
all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service
Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon
an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class
A-R
Certificate to such Person may cause any REMIC formed under the Agreement
to
fail to qualify as a REMIC at any time that any Certificates are Outstanding.
The terms “United States,” “State” and “International Organization” shall have
the meanings set forth in section 7701 of the Code or successor provisions.
A
corporation will not be treated as an instrumentality of the United States
or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home
Loan
Mortgage Corporation, a majority of its board of directors is not selected
by
such government unit.
“Person”:
Any individual, corporation, limited liability company, partnership, joint
venture, bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Transfer”:
Any direct or indirect transfer or sale of any Ownership Interest in a
Certificate, including the acquisition of a Certificate by the
Depositor.
“Transferee”:
Any Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
I-7
EXHIBIT
2
to
EXHIBIT
I
Section
5.02(c) of the Agreement
(c) Each
Person who has or who acquires any Ownership Interest in a Class A-R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Class A-R Certificate are expressly
subject to the following provisions:
(1) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of
any
change or impending change in its status as a Permitted Transferee.
(2) Except
in
connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Class A-R Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the
Certificates, no Ownership
Interest in a Class A-R Certificate may be registered on the Closing Date
or
thereafter transferred, and the Trustee shall not register the Transfer of
any
Class A-R Certificate unless, the Trustee shall have been furnished with
an
affidavit (a “Transfer Affidavit”) of the initial owner or the proposed
transferee in the form attached hereto as Exhibit I.
(3) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Class A-R
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Class A-R Certificate and (C) not to Transfer its Ownership Interest in
a
Class A-R Certificate, or to cause the Transfer of an Ownership Interest
in a
Class A-R Certificate to any other Person, if it has actual knowledge that
such
Person is not a Permitted Transferee.
I-8
(4) Any
attempted or purported Transfer of any Ownership Interest in a Class A-R
Certificate in violation of the provisions of this Section 5.02(c) shall
be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Class A-R Certificate
in
violation of the provisions of this Section 5.02(c), then the last preceding
Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Class A-R
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Class A-R Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or taking any other action
with
respect to such Holder under the provisions of this Agreement so long as
the
Transfer was registered after receipt of the related Transfer Affidavit and
Transferor Certificate. The Trustee shall be entitled but not obligated to
recover from any Holder of a Class A-R Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such subsequent
time
as it became other than a Permitted Transferee, all payments made on such
Class
A-R Certificate at and after either such time. Any such payments so recovered
by
the Trustee shall be paid and delivered by the Trustee to the last preceding
Permitted Transferee of such Certificate.
(5) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Class A-R Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Class A-R Certificate set forth in this section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Class A-R Certificate may be deleted) with respect to Transfers occurring
after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trustee, the Sellers or the Master Servicer, to
the
effect that the elimination of such restrictions will not cause any constituent
REMIC of any REMIC formed hereunder to fail to qualify as a REMIC at any
time
that the Certificates are outstanding or result in the imposition of any
tax on
the Trust Fund, a Certificateholder or another Person. Each Person holding
or
acquiring any ownership Interest in a Class A-R Certificate hereby consents
to
any amendment of this Agreement that, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record ownership
of, or any beneficial interest in, a Class A-R Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and
(b)
to provide for a means to compel the Transfer of a Class A-R Certificate
that is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
I-9
EXHIBIT
J-1
[FORM
OF]
TRANSFEROR CERTIFICATE
(RESIDUAL)
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx
X.
Xxxxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx
-
0X
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
Re:
CWALT, Inc. Mortgage Pass-Through Certificates,
Series
200_-_, Class
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
to the
extent we are disposing of a Class A-R Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee.
|
Very
truly yours,
______________________________________
Print
Name of Transferor
By
___________________________
Authorized
Officer
|
J-1-1
EXHIBIT
J-2
[FORM
OF]
TRANSFEROR CERTIFICATE
(PRIVATE)
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx
X.
Xxxxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx
-
0X
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
Re:
CWALT, Inc. Mortgage Pass-Through Certificates,
Series
200_-_, Class
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act,
(b) we
have not offered or sold any Certificates to, or solicited offers to buy
any
Certificates from, any person, or otherwise approached or negotiated with
any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the
Act.
|
Very
truly yours,
______________________________________
Print
Name of Transferor
By
___________________________
Authorized
Officer
|
J-2-1
EXHIBIT
K
[FORM
OF]
INVESTMENT LETTER (NON-RULE 144A)
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx
X.
Xxxxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx
-
0X
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_, Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an “accredited investor,”
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(d)
either (i) we are not an employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or a plan or
arrangement that is subject to Section 4975 of the Internal Revenue Code
of
1986, as amended, nor are we acting on behalf of or investing the assets
of any
such benefit plan or arrangement to effect such acquisition or (ii) if the
Certificates have been the subject of an ERISA-Qualifying Underwriting and
we
are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy
the requirements for exemptive relief
under
Sections I and III of PTCE 95-60, (e) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of
such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below),
(f)
we have not offered or sold any Certificates to, or solicited offers to buy
any
Certificates from, any person, or otherwise approached or negotiated with
any
person with respect thereto, or taken any other action which would result
in a
violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under
the
Act or is exempt from such registration requirements, and if requested, we
will
at our expense provide an opinion of counsel satisfactory to the addressees
of
this Certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) the purchaser or transferee of
such
Certificate has executed and delivered to you a certificate to substantially
the
same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and
Servicing Agreement.
|
Very
truly yours,
______________________________________
Print
Name of Transferor
By
___________________________
Authorized
Officer
|
K-1
EXHIBIT
L-1
[FORM
OF]
RULE 144A LETTER
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx
X.
Xxxxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx
-
0X
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_, Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had
the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) either (i) we are not an employee benefit plan that is
subject
to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of or investing the
assets
of any such benefit plan or arrangement to effect such acquisition or (ii)
if
the Certificates have been the subject of an ERISA-Qualifying Underwriting
and
we are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy
the requirements for exemptive relief
under
Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting
on our
behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means
of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities
Act or
that would render the disposition of the Certificates a violation of Section
5
of the Securities Act or require registration pursuant thereto, nor will
act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates, (f) we are a “qualified institutional buyer” as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex
1
or Annex 2. We are aware that the sale to us is being made in reliance on
Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may
be
resold, pledged or transferred only (i) to a person reasonably believed to
be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities
Act.
|
Very
truly yours,
______________________________________
Print
Name of Transferor
By
___________________________
Authorized
Officer
|
L-1-1
ANNEX
1 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis either at least $100,000 in securities or, if Buyer is
a
dealer, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities (except for the excluded securities referred to
below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
|
___
|
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as
amended.
|
|
___
|
Bank.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any State, territory or the District of Columbia, the
business
of which is substantially confined to banking and is supervised
by the
State or territorial banking commission or similar official or
is a
foreign bank or equivalent institution, and (b) has an audited
net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a
copy of which is attached hereto.
|
|
___
|
Savings
and Loan.
The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a
foreign
savings and loan association or equivalent institution and (b)
has an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a
copy of which is attached hereto.
|
L-1-2
|
___
|
Broker-dealer.
The Buyer is a dealer registered pursuant to Section 15 of the
Securities
Exchange Act of 1934.
|
|
___
|
Insurance
Company.
The Buyer is an insurance company whose primary and predominant
business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a
State,
territory or the District of
Columbia.
|
|
___
|
State
or Local Plan.
The Buyer is a plan established and maintained by a State, its
political
subdivisions, or any agency or instrumentality of the State or
its
political subdivisions, for the benefit of its
employees.
|
|
___
|
ERISA
Plan.
The Buyer is an employee benefit plan within the meaning of Title
I of the
Employee Retirement Income Security Act of
1974.
|
|
___
|
Investment
Advisor.
The Buyer is an investment advisor registered under the Investment
Advisors Act of 1940.
|
|
___
|
Small
Business Investment Company.
Buyer is a small business investment company licensed by the U.S.
Small
Business Administration under Section 301(c) or (d) of the Small
Business
Investment Act of 1958.
|
|
___
|
Business
Development Company.
Buyer is a business development company as defined in Section 202(a)(22)
of the Investment Advisors Act of
1940.
|
3. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities
that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each
of the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a bank or savings and
loan
is provided above, the Buyer agrees that it will furnish to such parties
updated
annual financial statements promptly after they become available.
|
______________________________________
Print
Name of Buyer
By
___________________________________
Name:
Title:
Date:____________________________
|
L-1-3
ANNEX
2 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their
market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
|
___
|
The
Buyer owned $
in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
|
___
|
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $
in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
L-1-4
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands
that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer’s own
account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of
such
purchase.
|
______________________________________
Print
Name of Buyer
or Adviser
By
___________________________________
Name:
Title:
IF
AN ADVISER
____________________________________
Print
Name of Buyer
Date:________________________________
|
X-0-0
XXXXXXX
X-0
[FORM
OF]
ERISA LETTER (COVERED CERTIFICATES)
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx
X.
Xxxxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx - 0X
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates, we certify that
we
are not, and are not acquiring the Certificates on behalf of or with plan
assets
of an“employee
benefit plan” as defined in section 3(3) of ERISA that is subject to Title I of
ERISA, a “plan” as defined in section 4975 of the Code that is subject to
section 4975 of the Code, or any person investing on behalf of or with plan
assets (as defined in 29 CFR §2510.3-101 or otherwise under ERISA) of such an
employee benefit plan or plan, or (ii) the purchase and holding of the
Certificates satisfy the requirements for exemptive relief under XXXX 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or a similar exemption. We
understand that, in the event that such representation is violated, such
transfer or acquisition shall be void and of no effect.
|
Very
truly yours,
______________________________________
Print
Name of Transferee
By
___________________________
Authorized
Officer
|
L-2-1
EXHIBIT
M
[FORM
OF]
REQUEST FOR RELEASE
(for
Trustee)
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
|
Loan
Information
|
|
|
Name
of Mortgagor:
|
_______________________________________________
|
|
Servicer
Loan No.:
|
_______________________________________________
|
|
Trustee
|
|
|
Name:
|
_______________________________________________
|
|
Address:
|
_______________________________________________
|
|
_______________________________________________
|
|
|
_______________________________________________
|
|
|
Trustee
|
|
|
Mortgage
File No.:
|
_______________________________________________
|
The
undersigned Master Servicer hereby acknowledges that it has received from
The
Bank of New York, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the “Documents”). All capitalized terms not otherwise defined in this Request
for Release shall have the meanings given them in the Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series among the Trustee, Countrywide Home Loans, Inc.,
as
a
Seller, Park Granada LLC, as a
Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home
Loans Servicing LP, as Master Servicer and CWALT, Inc., as
Depositor.
|
( )
|
Mortgage
Note dated _______________, 20__, in the original principal sum
of
$___________,
made by ____________________________, payable to, or endorsed to
the order
of, the Trustee.
|
|
( )
|
Mortgage
recorded on __________________
as
instrument no. ______________________ in the County Recorder’s Office of
the County of _________________________,
State of _______________________
in
book/reel/docket _________________________ of official records
at
page/image _______________________________.
|
M-1
|
( )
|
Deed
of Trust recorded on ______________________ as instrument no. ___________
in the County Recorder’s Office of the County of __________________________,
State of _____________________
in
book/reel/docket _________________________
of
official records at page/image
____________________________.
|
|
( )
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on
_____________________ as instrument no. __________________ in the
County
Recorder’s Office of the County of _____________________, State of
___________________ in book/reel/docket ________________ of official
records at page/image
______________________.
|
|
( )
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
( ) _________________________________________________________________
( ) _________________________________________________________________
( ) _________________________________________________________________
( ) _________________________________________________________________
The
undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The
Master Servicer shall hold and retain possession of the Documents in trust
for
the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Master Servicer shall not cause or knowingly permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Servicer assert or
seek
to assert any claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The
Master Servicer shall return each and every Document previously requested
from
the Mortgage File to the Trustee when the need therefor no longer exists,
unless
the Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except as expressly
provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Master Servicer shall at all times
be
earmarked for the account of the Trustee, and the Master Servicer shall keep
the
Documents and any proceeds separate and distinct from all other property
in the
Master Servicer’s possession, custody or control.
M-2
|
COUNTRYWIDE
HOME LOANS
SERVICING
LP
By
__________________________________
Its:
__________________________________
|
Date:_________________,
20__
M-3
EXHIBIT
N
[FORM
OF]
REQUEST FOR RELEASE OF DOCUMENTS
|
To:
The Bank of New York
|
Attn:
Mortgage Custody
Services
|
|
Re:
|
The
Pooling & Servicing Agreement dated [month] 1, 200_,
among Countrywide Home Loans, Inc., as a
Seller, Park Granada LLC, as a Seller,
Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer,
CWALT, Inc. and The Bank of New York,
as Trustee
|
Ladies
and Gentlemen:
In
connection with the administration of the Mortgage Loans held by you as Trustee
for CWALT, Inc., we request the release of the Mortgage Loan File for the
Mortgage Loan(s) described below, for the reason indicated.
FT
Account #: Pool
#:
Mortgagor’s
Name, Address and Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents (check one)
|
1.
|
Mortgage
Loan paid in full (Countrywide Home Loans, Inc. hereby certifies
that all
amounts have been received).
|
|
2.
|
Mortgage
Loan Liquidated (Countrywide Home Loans, Inc. hereby certifies
that all
proceeds of foreclosure, insurance, or other liquidation have been
finally
received).
|
|
3.
|
Mortgage
Loan in Foreclosure.
|
|
4.
|
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
[RESERVED]
O-1
EXHIBIT
P
[RESERVED]
P-1
EXHIBIT
Q
CURRENT
STANDARD & POOR’S LEVELSâ
VERSION
5.6 GLOSSARY REVISED, APPENDIX E
APPENDIX
E - Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that
certain loans classified by the relevant statute as Covered are included
in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et
seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et
seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat.
Xxx.
§§ 5-3.5-101 et
seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan
Lending
Practices Act, Conn. Gen. Stat
§§
36a-746 et
seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code
§§
26-1151.01 et
seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
Q-1
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§
494.0078
et
seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code
Xxx.
§§ 7-6A-1 et
seq.
Effective
October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code
Xxx.
§§ 7-6A-1 et
seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection
Act
of 1994, 15 U.S.C. § 1639, 12
C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments
October
1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp.
Stat.
tit. 815, §§ 137/5 et
seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx.
§§
16a-1-101 et
seq.
Sections
16a-1-301 and 16a-3-207
became
effective April 14, 1999;
Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207) and;
|
|
High
APR Consumer Loan (id. § 16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev. Stat. §§ 360.100
et
seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
Q-2
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9
A,
§§ 8-101 et
seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§
32.00
et
seq.
and 209 C.M.R. §§ 40.01
et
seq.
Effective
March 22, 2001 and amended
from
time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat.
§§
598D.010 et
seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B 22
et
seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et
seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or
after
April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et
seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
Q-3
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code Xxx.
§§
1349.25 et
seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code
Xxx.
§§ 37-23-10 et
seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et
seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
|
Standard
& Poor’s Covered Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code
Xxx.
§§ 7-6A-1 et
seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B
22
et
seq.
Effective November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
Q-4
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et
seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security
Act
of 2002, N.J. Rev. Stat. §§ 46:10B 22 et
seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev.Stat. §§ 58-21A-1 et
seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et
seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/ Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code
Xxx.
§§ 37-23-10 et
seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Q-5
EXHIBIT
R
[FORM
OF]
CAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
R-1
EXHIBIT
S-1
[RESERVED]
S-1-1
EXHIBIT
S-2
[RESERVED]
S-2-1
EXHIBIT
T
[FORM
OF]
OFFICER’S CERTIFICATE WITH RESPECT TO PREPAYMENTS
MORTGAGE
BACKED CERTIFICATES,
Series
200_-__
[Date]
Via
Facsimile
__________________,
as
Trustee
_______________
_______________________
Dear
Sir
or Madam:
Reference
is made to the Pooling and Servicing Agreement, dated as of _________, 200_,
(the “Pooling and Servicing Agreement”) among [CWMBS, Inc.], as Depositor,
[Countrywide Home Loans, Inc.], as a Seller, [Park
Granada LLC], as a Seller,
[Park
Monaco Inc.], as a Seller, [Park Sienna LLC], as a Seller, [Countrywide Home
Loans Servicing LP], as Master Servicer and __________________, as Trustee.
Capitalized terms used herein shall have the meanings ascribed to such terms
in
the Pooling and Servicing Agreement.
__________________
hereby certifies that he/she is a Servicing Officer, holding the office set
forth beneath his/her name and hereby further certifies as follows:
With
respect to the Distribution Date in _________ 200_ and each Mortgage Loan
set
forth in the attached schedule:
1.
A
Principal Prepayment in full or in part was received during the related
Prepayment Period;
2.
Any
Prepayment Charge due under the terms of the Mortgage Note with respect to
such
Principal Prepayment was or was not, as indicated on the attached schedule
using
“Yes” or “No”, received from the Mortgagor and deposited in the Certificate
Account;
3.
As to
each Mortgage Loan set forth on the attached schedule for which all or part
of
the Prepayment Charge required in connection with the Principal Prepayment
was
waived by the Master Servicer, such waiver was, as indicated on the attached
schedule, based upon:
(i)
the
Master Servicer’s determination that such waiver would maximize recovery of
Liquidation Proceeds for such Mortgage Loan, taking into account the value
of
such Prepayment Charge, or
T-1
(ii)(A)
the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium,
receivership, or other similar law relating to creditors’ rights generally or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law; and
4.
We
certify that all amounts due in connection with the waiver of a Prepayment
Charge inconsistent with clause 3 above which are required to be deposited
by
the Master Servicer pursuant to Section 3.19 of the Pooling and Servicing
Agreement, have been or will be so deposited.
[COUNTRYWIDE
HOME
LOANS, INC.],
as
Master
Servicer
T-2
SCHEDULE
OF MORTGAGE LOANS FOR WHICH A PREPAYMENT WAS RECEIVED DURING THE RELATED
PREPAYMENT PERIOD
|
Loan
Number
|
Clause
2: Yes/No
|
Clause
3: (i) or (ii)
|
T-3
EXHIBIT
U
MONTHLY
STATEMENT
[On
file
with Trustee]
U-1
EXHIBIT
V-1
[FORM
OF]
PERFORMANCE CERTIFICATION
(Servicer)
[On
file
with Trustee]
V-1-1
EXHIBIT
V-2
[FORM
OF]
PERFORMANCE CERTIFICATION
(Trustee)
[On
file
with Trustee]
V-2-1
EXHIBIT
W
[FORM
OF]
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by [the Master Servicer] [Trustee]
[Name of Subservicer] shall address, at a minimum, the criteria identified
as
below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
W-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
|
W-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
|
W-3
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
W-4
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
W-5
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
|
|
[NAME
OF MASTER SERVICER] [NAME OF TRUSTEE] [NAME OF CO-TRUSTEE] [NAME
OF
SUBSERVICER]
Date: __________________________
By:
________________________________
Name:
Title:
|
W-6
EXHIBIT
X
[FORM
OF]
LIST OF ITEM 1119 PARTIES
ALTERNATIVE
LOAN TRUST 200_-__
MORTGAGE
PASS-THROUGH CERTIFICATES,
Series
200_-__
[Date]
|
Party
|
Contact
Information
|
X-1
EXHIBIT
Y
FORM
OF
XXXXXXXX-XXXXX CERTIFICATION
(REPLACEMENT
OF MASTER SERVICER)
Y-1
