EXHIBIT 99.1
The Pooling and Servicing Agreement
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
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 2006
-----------------------------------
ALTERNATIVE LOAN TRUST 2006-2CB
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-2CB
========================
Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans...............................II-1
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans................II-4
SECTION 2.03. Representations, Warranties and Covenants of the
Sellers and Master Servicer................................II-6
SECTION 2.04. Representations and Warranties of the Depositor as
to the Mortgage Loans......................................II-8
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions..............................................II-9
SECTION 2.06. Execution and Delivery of Certificates.....................II-9
SECTION 2.07. REMIC Matters..............................................II-9
SECTION 2.08. Covenants of the Master Servicer..........................II-10
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans.................III-1
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers..............................................III-2
SECTION 3.03. Rights of the Depositor and the Trustee in Respect
of the Master Servicer....................................III-2
SECTION 3.04. Trustee to Act as Master Servicer.........................III-2
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account.............................III-3
SECTION 3.06. Collection of Taxes, Assessments and Similar
Items; Escrow Accounts....................................III-5
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans..............................III-6
SECTION 3.08. Permitted Withdrawals from the Certificate Account
and the Distribution Account..............................III-6
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies................................III-8
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption
Agreements................................................III-9
SECTION 3.11. Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.....................III-10
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files..........III-13
SECTION 3.13. Documents, Records and Funds in Possession of
Master Servicer to be Held for the Trustee...............III-14
SECTION 3.14. Servicing Compensation...................................III-14
SECTION 3.15. Access to Certain Documentation..........................III-14
SECTION 3.16. Annual Statement as to Compliance........................III-15
SECTION 3.17. Errors and Omissions Insurance; Fidelity Bonds...........III-15
i
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances...................................................IV-1
SECTION 4.02. Priorities of Distribution.................................IV-2
SECTION 4.03. [Reserved].................................................IV-6
SECTION 4.04. Allocation of Realized Losses..............................IV-6
SECTION 4.05. [Reserved].................................................IV-7
SECTION 4.06. Monthly Statements to Certificateholders...................IV-7
SECTION 4.07. Determination of Pass-Through Rates for COFI
Certificates...............................................IV-7
SECTION 4.08. Determination of Pass-Through Rates for LIBOR
Certificates...............................................IV-8
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates............................................V-1
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates....................................V-1
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...........V-5
SECTION 5.04. Persons Deemed Owners.......................................V-6
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses...................................................V-6
SECTION 5.06. Maintenance of Office or Agency.............................V-6
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the
Master Servicer............................................VI-1
SECTION 6.02. Merger or Consolidation of the Depositor or the
Master Servicer............................................VI-1
SECTION 6.03. Limitation on Liability of the Depositor, the
Sellers, the Master Servicer and Others....................VI-1
SECTION 6.04. Limitation on Resignation of Master Servicer...............VI-2
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.........................................VII-1
SECTION 7.02. Trustee to Act; Appointment of Successor..................VII-3
SECTION 7.03. Notification to Certificateholders........................VII-4
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee........................................VIII-1
SECTION 8.02. Certain Matters Affecting the Trustee....................VIII-2
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage
Loans....................................................VIII-3
SECTION 8.04. Trustee May Own Certificates.............................VIII-3
SECTION 8.05. Trustee's Fees and Expenses..............................VIII-3
SECTION 8.06. Eligibility Requirements for Trustee.....................VIII-3
SECTION 8.07. Resignation and Removal of Trustee.......................VIII-4
SECTION 8.08. Successor Trustee........................................VIII-5
SECTION 8.09. Merger or Consolidation of Trustee.......................VIII-5
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee............VIII-5
ii
SECTION 8.11. Tax Matters..............................................VIII-7
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all
Mortgage Loans.............................................IX-1
SECTION 9.02. Final Distribution on the Certificates.....................IX-1
SECTION 9.03. Additional Termination Requirements........................IX-2
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment...................................................X-1
SECTION 10.02. Recordation of Agreement; Counterparts......................X-2
SECTION 10.03. Governing Law...............................................X-2
SECTION 10.04. Intention of Parties........................................X-2
SECTION 10.05. Notices.....................................................X-4
SECTION 10.06. Severability of Provisions..................................X-5
SECTION 10.07. Assignment..................................................X-5
SECTION 10.08. Limitation on Rights of Certificateholders..................X-5
SECTION 10.09. Inspection and Audit Rights.................................X-6
SECTION 10.10. Certificates Nonassessable and Fully Paid...................X-6
SECTION 10.11. [Reserved]..................................................X-6
SECTION 10.12. Protection of Assets........................................X-6
ARTICLE XI
EXCHANGE ACT REPORTING
SECTION 11.01. Filing Obligations.........................................XI-7
SECTION 11.02. Form 10-D Filings..........................................XI-7
SECTION 11.03. Form 8-K Filings...........................................XI-8
SECTION 11.04. Form 10-K Filings..........................................XI-8
SECTION 11.05. Xxxxxxxx-Xxxxx Certification...............................XI-8
SECTION 11.06. Form 15 Filing.............................................XI-9
SECTION 11.07. Report on Assessment of Compliance and Attestation.........XI-9
SECTION 11.08. Use of Subservicers and Subcontractors....................XI-10
SECTION 11.09. Amendments................................................XI-11
SCHEDULES
Schedule I Mortgage Loan Schedule....................................S-I-1
Schedule II-A Representations and Warranties of Countrywide..........S-II-A-1
Schedule II-B Representations and Warranties of Park Granada.........S-II-B-1
Schedule II-C Representations and Warranties of Park Monaco Inc......S-II-C-1
Schedule II-D Representations and Warranties of Park Sienna LLC......S-II-D-1
Schedule III-A Representations and Warranties of Countrywide as
to the Mortgage Loans.................................S-III-A-1
Schedule III-B Representations and Warranties of Countrywide as
to the Countrywide Mortgage Loans.....................S-III-B-1
Schedule III-C Representations and Warranties of Park Granada as
to the Park Granada Mortgage Loans....................S-III-C-1
iii
Schedule III-D Representations and Warranties of Park Monaco Inc.
as to the Park Monaco Inc. Mortgage Loans............ S-III-D-1
Schedule III-E Representations and Warranties of Park Sienna LLC
as to the Park Sienna LLC Mortgage Loans..............S-III-E-1
Schedule IV Representations and Warranties of the Master
ervicer..................................................S-IV-1
Schedule V Principal Balance Schedules (if applicable)...............S-V-1
Schedule VI Form of Monthly Master Servicer Report...................S-VI-I
iv
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional
Amount Certificates).........................................A-1
Exhibit B: Form of Subordinated Certificate.............................B-1
Exhibit C-1: Form of Class A-R Certificate..............................C-1-1
Exhibit C-2: [Reserved].................................................C-2-1
Exhibit C-3: [Reserved] ................................................C-3-1
Exhibit D: Form of Notional Amount Certificate..........................D-1
Exhibit E: Form of Reverse of Certificates..............................E-1
Exhibit F-1: Form of Initial Certification of Trustee...................F-1-1
Exhibit F-2: [Reserved].................................................F-2-1
Exhibit G-1: Form of Delay Delivery Certification of Trustee............G-1-1
Exhibit G-2: [Reserved].................................................G-2-1
Exhibit H-1: Form of Final Certification of Trustee.....................H-1-1
Exhibit H-2: [Reserved].................................................H-2-1
Exhibit I: Form of Transfer Affidavit...................................I-1
Exhibit J-1: Form of Transferor Certificate (Residual)..................J-1-1
Exhibit J-2: Form of Transferor Certificate (Private)...................J-2-1
Exhibit K: Form of Investment Letter [Non-Rule 144A]....................K-1
Exhibit L: Form of Rule 144A Letter.....................................L-1
Exhibit M: Form of Request for Release (for Trustee)....................M-1
Exhibit N: Form of Request for Release of Documents
(Mortgage Loan - Paid in Full, Repurchased
and Replaced)................................................N-1
Exhibit O: [Reserved]...................................................O-1
Exhibit P: [Reserved]...................................................P-1
Exhibit Q: Then current Standard & Poor's LEVELS(R)
Version 5.6 Glossary Revised, Appendix E.....................Q-1
Exhibit R: [Reserved]...................................................R-1
Exhibit S-1: [Reserved].................................................S-1-1
Exhibit S-2: [Reserved].................................................S-2-1
Exhibit T: Monthly Statement............................................T-1
Exhibit U-1: Form of Performance Certification (Subservicer)............U-1-1
Exhibit U-2: Form of Performance Certification (Trustee)................U-2-1
Exhibit V: Form of Servicing Criteria to be Addressed in
Assessment of Compliance Statement...........................V-1
Exhibit W: List of Item 1119 Parties....................................W-1
Exhibit X: Form of Xxxxxxxx-Xxxxx Certification
(Replacement of Master Servicer).............................X-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of January 1, 2006,
among CWALT, INC., a Delaware corporation, as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC. ("Countrywide"), a New York corporation, as a
seller (a "Seller"), PARK GRANADA LLC ("Park Granada"), a Delaware limited
liability company, as a seller (a "Seller"), PARK MONACO INC. ("Park Monaco"),
a Delaware corporation, as a seller (a "Seller"), PARK SIENNA LLC ("Park
Sienna"), a Delaware limited liability company, as a seller (a "Seller"),
COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership, as master
servicer (the "Master Servicer"), and THE BANK OF NEW YORK, a banking
corporation organized under the laws of the State of New York, as trustee (the
"Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to the
Trustee in return for the Certificates. For federal income tax purposes, the
Trust Fund will consist of two real estate mortgage investment conduits (each a
"REMIC" or, in the alternative, the "Subsidiary REMIC" and the "Master REMIC,"
respectively). Each Certificate, other than the Class A-R Certificate, will
represent ownership of one or more regular interests in the Master REMIC for
purposes of the REMIC Provisions. The Class A-R Certificate will represent
ownership of the sole class of residual interest in the Subsidiary REMIC and the
Master REMIC. The Master REMIC will hold as assets the several classes of
uncertificated Subsidiary REMIC Interests (other than the Class SR-A-R
Interest). The Subsidiary REMIC will hold as assets all property of the Trust
Fund. Each Subsidiary REMIC Interest (other than the Class SR-A-R Interest) is
hereby designated as a regular interest in the Subsidiary REMIC. The latest
possible maturity date of all REMIC regular interests created herein shall be
the Latest Possible Maturity Date.
The following table sets forth characteristics of the Master REMIC Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount and, in addition, one
Residual Certificate representing the Tax Matters Person Certificate may be
issued in a different amount):
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Integral
Initial Class Pass-Through Multiples in
Class Certificate Rate Minimum Excess of
Designation Balance (per annum) Denomination Minimum
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Class A-1 $216,560,000 5.50% $25,000.00 $1,000.00
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Class A-2 $31,692,000 5.50% $25,000.00 $1,000.00
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Class A-3 $40,000,000 5.50% $25,000.00 $1,000.00
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Class A-4 $128,663,000 (1) $25,000.00 $1,000.00
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Class A-5 (2) (3) $25,000.00(4) $1,000.00(4)
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Class A-6 $27,600,000 5.50% $25,000.00 $1,000.00
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Class A-7 $63,894,000 6.00% $1,000.00 $1,000.00
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Class A-8 $31,276,000 6.00% $1,000.00 $1,000.00
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Class A-9 $70,370,000 6.00% $25,000.00 $1,000.00
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Class A-10 $2,932,000 6.00% $25,000.00 $1,000.00
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Class A-11 $67,410,000 6.00% $25,000.00 $1,000.00
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Class A-12 $2,697,000 6.00% $25,000.00 $1,000.00
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Class A-13 $74,343,000 6.00% $25,000.00 $1,000.00
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Class A-14 $63,123,000 5.50% $25,000.00 $1,000.00
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Class A-15 $7,014,000 5.50% $25,000.00 $1,000.00
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Class X (5) (6) $25,000.00(4) $1,000.00(4)
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Class PO $7,168,915 (7) $25,000.00 $1,000.00
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Class A-R(8) $100 6.00% (9) (9)
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Class M $26,641,500 6.00% $25,000.00 $1,000.00
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Class B-1 $7,992,300 6.00% $25,000.00 $1,000.00
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Class B-2 $7,104,200 6.00% $25,000.00 $1,000.00
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Class B-3 $4,440,100 6.00% $100,000.00 $1,000.00
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Class B-4 $3,996,100 6.00% $100,000.00 $1,000.00
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Class B-5 $3,108,134.85 6.00% $100,000.00 $1,000.00
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________________________________________
(1) The Class A-4 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of LIBOR plus 0.40%, subject to a
maximum and minimum Pass-Through Rate of 7.50% and 0.40% per annum,
respectively. The Pass-Through Rate for the Class A-4 Certificates during
the initial Interest Accrual Period is 4.87% per annum.
(2) The Class A-5 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount (initially, $128,663,000).
(3) The Class A-5 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of 7.10% minus LIBOR, subject to a
maximum and minimum Pass-Through Rate of 7.10% and 0.00% per annum,
respectively. The Pass-Through Rate for the Class A-5 Certificates during
the initial Interest Accrual Period is 2.63% per annum.
(4) Minimum denomination is based on the Notional Amount of such Class.
2
(5) The Class X Certificates will be Notional Amount Certificates, will have
no Class Certificate Balance and will bear interest on its Notional
Amount (initially, $663,420,591).
(6) The Pass-Through Rate for the Class X Certificates for the Interest
Accrual Period for any Distribution Date will be equal to the excess of
(a) the weighted average of the Adjusted Net Mortgage Rates of the
Non-Discount Mortgage Loans, weighted on the basis of the Stated
Principal Balance thereof as of the Due Date in the preceding calendar
month (after giving effect to Principal Prepayments received in the
Prepayment Period related to such prior Due Date), over (b) 6.00%. The
Pass-Through Rate for the Class X Certificates for the Interest Accrual
Period for the first Distribution Date is 0.45358% per annum.
(7) The Class PO Certificates will be Principal Only Certificates and will
not receive any distributions of interest.
(8) The Class A-R Certificates represent the sole Class of residual interest
in the Master REMIC.
(9) The Class A-R Certificate shall be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of $0.01.
The following table specifies the class designation, interest rate, and
principal amount for each class of Subsidiary REMIC Interests:
--------------------------------------------------------------------------------
Subsidiary Initial Principal Corresponding
REMIC Interest Balance Interest Rate Certificates
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SR-A-1 $216,560,000 5.50% Class A-1
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SR-A-2 $31,692,000 5.50% Class A-2
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SR-A-3 $40,000,000 5.50% Class A-3
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$128,663,000 7.50% Class A-4, Class
XX-X-0 X-0 (1)
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SR-A-6 $27,600,000 5.50% Class A-6
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SR-A-7 $63,894,000 6.00% Class A-7
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SR-A-8 $31,276,000 6.00% Class A-8
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SR-A-9 $70,370,000 6.00% Class A-9
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SR-A-10 $2,932,000 6.00% Class A-10
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SR-A-11 $67,410,000 6.00% Class A-11
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SR-A-12 $2,697,000 6.00% Class A-12
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SR-A-13 $74,343,000 6.00% Class A-13
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SR-A-14 $63,123,000 5.50% Class A-14
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SR-A-15 $7,014,000 5.50% Class A-15
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SR-PO $7,168,915 (2) Class PO
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SR-X (3) (4) Class X
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SR-$100 $100.00 6.00% Class A-R
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SR-M $26,641,500 6.00% Class M
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SR-B-1 $7,992,300 6.00% Class B-1
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SR-B-2 $7,104,200 6.00% Class B-2
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SR-B-3 $4,440,100 6.00% Class B-3
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SR-B-4 $3,996,100 6.00% Class B-4
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SR-B-5 $3,108,134.85 6.00% Class B-5
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SR-A-R (5) (5) N/A
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3
________________________
(1) The Class A-5 Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on the SR-A-4 Subsidiary
REMIC Interest. Specifically, for each Interest Accrual Period, the Class
A-5 Certificates are entitled to interest accruals on the SR-A-4 Subsidiary
REMIC Interest at a per annum rate equal to 7.10% minus LIBOR, but not less
than 0.00% per annum.
(2) This Subsidiary REMIC Interest will be a principal only Interest and will
not be entitled to receive any distributions of interest.
(3) This Subsidiary REMIC Interest will be an interest only Interest and will
not be entitled to receive any distributions of principal.
(4) The Class SR-X Subsidiary Interest is entitled to receive on each
Distribution Date a specified portion of the interest payable on each
Non-Discount Mortgage Loan equal to all of the interest payable on such
mortgage loan in excess of an Adjusted Net Mortgage Rate of 6.00%.
(5) The SR-A-R is the sole Class of residual interest in the Subsidiary REMIC.
It pays no interest or principal.
On each Distribution Date, the Available Funds shall be distributed with
respect to the Subsidiary REMIC interests in the following manner:
(1) Interest is to be distributed with respect to each Subsidiary REMIC
Regular Interest at the rate, or according to the formulas, described above; and
(2) Principal is to be distributed with respect to each Subsidiary REMIC
Interest in the same manner and in the same amount as principal is distributed
with respect to each Subsidiary REMIC Regular Interest's Corresponding Class or
Classes of Certificates.
On each Distribution Date, Realized Losses (and increases in Principal
Balances attributable to Subsequent Recoveries) shall be allocated among the
Subsidiary REMIC Interests in the same manner that Realized Losses (and
increases in Class Certificate Balances attributable to Subsequent Recoveries)
are allocated among each Subsidiary REMIC Interest's Corresponding Class or
Classes of Certificates.
4
Set forth below are designations of Classes or Components of Certificates
and other defined terms to the categories used herein:
Accretion Directed Certificates None.
Accretion Directed Components None.
Accrual Certificates......... None.
Accrual Components........... None.
Book-Entry Certificates...... All Classes of Certificates other than the
Physical Certificates.
COFI Certificates............ None.
Combined Certificates........ None.
Component Certificates....... None.
Components................... For purposes of calculating distributions of
principal and/or interest, the Component
Certificates, if any, will be comprised of
multiple payment components having the
designations, Initial Component Balances or
Notional Amounts, as applicable, and
Pass-Through Rates set forth below:
Initial Pass-Through
Designation Component Balance Rate
----------- ----------------- -------------
N/A N/A N/A
Delay Certificates........... All interest-bearing Classes of Certificates other
than the Non-Delay Certificates, if any.
ERISA-Restricted
Certificates............... The Residual Certificates and Private
Certificates; until an ERISA-Qualifying
Underwriting has occurred with respect to such
Class, the Class PO and Class X Certificates; and
any Certificate of a Class that ceases to satisfy
the applicable rating requirement under the
Underwriter's Exemption.
Floating Rate Certificates... Class A-4 Certificates.
Inverse Floating Rate
Certificates............... Class A-5 Certificates.
LIBOR Certificates........... Floating Rate Certificates and Inverse Floating
Rate Certificates.
Non-Delay Certificates....... LIBOR Certificates.
Notional Amount Certificates. Class A-5 and Class X Certificates.
Notional Amount Components... None.
Offered Certificates......... All Classes of Certificates other than the Private
Certificates.
5
Physical Certificates........ Private Certificates and the Residual
Certificates.
Planned Principal Classes.... None.
Principal Only Certificates.. Class PO Certificates.
Private Certificates......... Class B-3, Class B-4 and Class B-5 Certificates.
Rating Agencies.............. Fitch and Xxxxx'x.
Regular Certificates......... All Classes of Certificates, other than the
Residual Certificates.
Residual Certificates........ Class A-R Certificates.
Scheduled Principal Classes.. None.
Senior Certificates.......... Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class A-8, Class A-9, Class A-10,
Class A-11, Class A-12, Class A-13, Class A-14,
Class A-15 Class X, Class PO and Class A-R
Certificates.
Subordinated Certificates ... Class M, Class B-1, Class B-2, Class B-3,
Class B-4 and Class B-5 Certificates.
Targeted Principal Classes... None.
Underwriter(s)............... Countrywide Securities Corporation.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
6
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: With respect to any Class of Accrual Certificates
and any Distribution Date prior to the Accrual Termination Date, the amount
allocable to interest on such Class of Accrual Certificates with respect to
such Distribution Date pursuant to Section 4.02(a)(ii).
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any time,
the per annum rate equal to the Mortgage Rate less the Master Servicing Fee
Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan, and at any
time, the per annum rate equal to the Mortgage Rate less the sum of the Trustee
Fee Rate and the Master Servicing Fee Rate. For purposes of determining whether
any Substitute Mortgage Loan is a Discount Mortgage Loan or a Non-Discount
Mortgage Loan and for purposes of calculating the applicable PO Percentage and
the applicable Non-PO Percentage, each Substitute Mortgage Loan shall be deemed
to have an Adjusted Net Mortgage Rate equal to the Adjusted Net Mortgage Rate of
the Deleted Mortgage Loan for which it is substituted.
Advance: The payment required to be made by the Master Servicer with
respect to any Distribution Date pursuant to Section 4.01, the amount of any
such payment being equal to the aggregate of payments of principal and interest
(net of the Master Servicing Fee) on the Mortgage Loans that were due on the
related Due Date and not received by the Master Servicer as of the close of
business on the related Determination Date, together with an amount equivalent
to interest on each Mortgage Loan as to which the related Mortgaged Property is
a REO Property net of any net income on such REO Property, less the aggregate
amount of any such delinquent payments that the Master Servicer has determined
would constitute a Nonrecoverable Advance, if advanced.
Aggregate Planned Balance: With respect to any group of Planned
Principal Classes or Components and any Distribution Date, the amount set forth
for such group for such Distribution Date in Schedule V hereto.
Aggregate Targeted Balance: With respect to any group of Targeted
Principal Classes or Components and any Distribution Date, the amount set forth
for such group for such Distribution Date in Schedule V hereto.
I-1
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Allocable Share: As to any Distribution Date and any Mortgage Loan
(i) with respect to the Class PO Certificates, zero, (ii) with respect to the
Class X Certificates, (a) the ratio that the excess, if any, of the Adjusted Net
Mortgage Rate with respect to such Mortgage Loan, over the Required Coupon bears
to such Adjusted Net Mortgage Rate or (b) if the Adjusted Net Mortgage Rate with
respect to such Mortgage Loan does not exceed the Required Coupon, zero, and
(iii) with respect to each other Class of Certificates the product of (a) the
lesser of (I) the ratio that the Required Coupon bears to the Adjusted Net
Mortgage Rate of such Mortgage Loan and (II) one, multiplied by (b) the ratio
that the amount calculated with respect to such Distribution Date for such Class
pursuant to clause (i) of the definition of Class Optimal Interest Distribution
Amount (without giving effect to any reduction of such amount pursuant to
Section 4.02(d)) bears to the amount calculated with respect to such
Distribution Date for each Class of Certificates pursuant to clause (i) of the
definition of Class Optimal Interest Distribution Amount (without giving effect
to any reduction of such amount pursuant to Section 4.02(d)).
Amount Available for Senior Principal: As to any Distribution Date,
Available Funds for such Distribution Date, reduced by the aggregate amount
distributable (or allocable to the Accrual Amount, if applicable) on such
Distribution Date in respect of interest on the Senior Certificates pursuant to
Section 4.02(a)(ii).
Amount Held for Future Distribution: As to any Distribution Date,
the aggregate amount held in the Certificate Account at the close of business on
the related Determination Date on account of (i) Principal Prepayments received
after the related Prepayment Period and Liquidation Proceeds and Subsequent
Recoveries received in the month of such Distribution Date and (ii) all
Scheduled Payments due after the related Due Date.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to a
Mortgage Loan other than a Refinancing Mortgage Loan, the lesser of (a) the
value of the Mortgaged Property based upon the appraisal made at the time of
the origination of such Mortgage Loan and (b) the sale price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; (ii) with
respect to a Refinancing Mortgage Loan other than a Streamlined Documentation
Mortgage Loan, the value of the Mortgaged Property based upon the appraisal
made-at the time of the origination of such Refinancing Mortgage Loan; and
(iii) with respect to a Streamlined Documentation Mortgage Loan, (a) if the
loan-to-value ratio with respect to the Original Mortgage Loan at the time of
the origination thereof was 80% or less and the loan amount of the new
mortgage loan is $650,000 or less, the value of the Mortgaged Property based
upon the appraisal made at the time of the origination of the Original
Mortgage Loan and (b) if the loan-to-value ratio with respect to the Original
Mortgage Loan at the time of the origination thereof was greater than 80% or
the loan amount of the new loan being originated is greater than $650,000, the
value of the Mortgaged Property based upon the appraisal (which may be a
drive-by appraisal) made at the time of the origination of such Streamlined
Documentation Mortgage Loan.
Available Funds: As to any Distribution Date, the sum of (a) the
aggregate amount held in the Certificate Account at the close of business on
the related Determination Date, including any Subsequent Recoveries, net of
the Amount Held for Future Distribution and net of amounts permitted to be
withdrawn from the Certificate Account pursuant to clauses (i)-(viii),
inclusive, of Section 3.08(a) and amounts permitted to be withdrawn from the
Distribution Account pursuant to clauses (i)-(v) inclusive of Section 3.08(b),
(b) the amount of the related Advance and (c) in connection with Defective
Mortgage
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Loans, as applicable, the aggregate of the Purchase Prices and Substitution
Adjustment Amounts deposited on the related Distribution Account Deposit Date.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York, or the
States of California or Texas or the city in which the Corporate Trust Office of
the Trustee is located are authorized or obligated by law or executive order to
be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Account: The separate Eligible Account or Accounts
created and maintained by the Master Servicer pursuant to Section 3.05 with a
depository institution in the name of the Master Servicer for the benefit of the
Trustee on behalf of Certificateholders and designated "Countrywide Home Loans
Servicing LP, in trust for the registered holders of Alternative Loan Trust
2006-2CB, Mortgage Pass-Through Certificates, Series 2006-2CB."
Certificate Balance: With respect to any Certificate (other than a
Notional Amount Certificate) at any date, the maximum dollar amount of principal
to which the Holder thereof is then entitled hereunder, such amount being equal
to the Denomination thereof (A) plus any increase in the Certificate Balance of
such Certificate pursuant to Section 4.02 due to the receipt of Subsequent
Recoveries, (B) minus the sum of (i) all distributions of principal previously
made with respect thereto and (ii) all Realized Losses allocated thereto and, in
the case of any Subordinated Certificates, all other reductions in Certificate
Balance previously allocated thereto pursuant to Section 4.04 and (C) in the
case of any Class of Accrual Certificates, increased by the Accrual Amount added
to the Class Certificate Balance of such Class prior to such date. The Notional
Amount Certificates have no Certificate Balances.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate. For the
purposes of this Agreement, in order for a Certificate Owner to enforce any of
its rights hereunder, it shall first have to provide evidence of its beneficial
ownership interest in a Certificate that is reasonably satisfactory to the
Trustee, the Depositor, and/or the Master Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section
5.02 hereof.
Certificateholder or Holder: The person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor or any affiliate of the Depositor
shall be deemed not to be Outstanding and the Percentage Interest evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests necessary to effect such consent has been
obtained; provided, however, that if any such Person (including the Depositor)
owns 100% of the Percentage Interests evidenced by a Class of Certificates,
such Certificates shall be deemed to be Outstanding for purposes of any
provision hereof (other than the second sentence of Section 10.01 hereof) that
requires the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to
rely conclusively on a certification of the Depositor or any affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
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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 Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or, with respect to any interest
bearing Component, the sum of (i) one month's interest accrued during the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
related Class Certificate Balance, Component Balance, Notional Amount or
Component Notional Amount, as applicable, immediately prior to such Distribution
Date subject to reduction as provided in Section 4.02(d) and (ii) any Class
Unpaid Interest Amounts for such Class or Component.
Class PO Deferred Amount: As to any Distribution Date, the aggregate
of the applicable PO Percentage of each Realized Loss to be allocated to the
Class PO Certificates on such Distribution Date on or prior to the Senior Credit
Support Depletion Date or previously allocated to the Class PO Certificates and
not yet paid to the Holders of the Class PO Certificates.
Class Subordination Percentage: With respect to any Distribution
Date and each Class of Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Certificate Balance of such Class of Certificates
immediately prior to such Distribution Date divided by (b) the aggregate of the
Class Certificate Balances immediately prior to such Distribution Date of all
Classes of Certificates.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to clause
(ii) of the definition of Class Optimal Interest Distribution Amount.
Closing Date: January 30, 2006.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: The Monthly Weighted Average Cost of Funds Index for the
Eleventh District Savings Institutions published by the Federal Home Loan Bank
of San Francisco.
COFI Certificates: As specified in the Preliminary Statement.
Combined Certificates: As specified in the Preliminary Statement.
Combined Certificates Payment Rule: Not applicable.
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Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: As to any Distribution Date, an amount equal
to the product of one-twelfth of 0.125% and the aggregate Stated Principal
Balance of the Mortgage Loans as of the Due Date in the prior calendar month.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Component and any
Distribution Date, the Initial Component Balance thereof on the Closing Date,
(A) plus any increase in the Component Balance of such Component pursuant to
Section 4.02 due to the receipt of Subsequent Recoveries, (B) minus the sum of
all amounts applied in reduction of the principal balance of such Component and
Realized Losses allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of New York at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, 0X, Xxx
Xxxx, Xxx Xxxx 00000 (Attn: Mortgage-Backed Securities Group, CWALT, Inc. Series
2006-2CB), facsimile no. (000) 000-0000, and which is the address to which
notices to and correspondence with the Trustee should be directed.
Countrywide: Countrywide Home Loans, Inc., a New York corporation,
and its successors and assigns, in its capacity as the seller of the Countrywide
Mortgage Loans to the Depositor.
Countrywide Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Countrywide is the applicable Seller.
Cut-off Date: In the case of any Mortgage Loan, the later of (i) the
date of origination of such Mortgage Loan and (ii) January 1, 2006.
Cut-off Date Pool Principal Balance: $888,025,350.44.
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Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any Scheduled Payment
that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: As defined in Section 2.02(a) hereof.
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to the Trustee on the
Closing Date. The number of Delay Delivery Mortgage Loans shall not exceed 50%
of the aggregate number of Mortgage Loans as of the Closing Date. To the extent
that Countrywide Home Loans Servicing LP shall be in possession of any Mortgage
Files with respect to any Delay Delivery Mortgage Loan, until delivery of such
Mortgage File to the Trustee as provided in Section 2.01, Countrywide Home Loans
Servicing LP shall hold such files as Master Servicer hereunder, as agent and in
trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c) hereof.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
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.
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Determination Date: As to any Distribution Date, the 22nd day of
each month or if such 22nd day is not a Business Day the next preceding
Business Day; provided, however, that if such 22nd day or such Business Day,
whichever is applicable, is less than two Business Days prior to the related
Distribution Date, the Determination Date shall be the first Business Day
which is two Business Days preceding such Distribution Date.
Discount Mortgage Loan: Any Mortgage Loan with an Adjusted Net
Mortgage Rate that is less than the Required Coupon.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New York
in trust for registered holders of Alternative Loan Trust 2006-2CB, Mortgage
Pass-Through Certificates, Series 2006-2CB." 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 February 2006.
Due Date: With respect to any Distribution Date, the first day of
the calendar month in which that Distribution Date occurs.
XXXXX: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of Xxxxx'x or Fitch and one of the two highest short-term
ratings of S&P, if S&P is a Rating Agency, at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
(a) the trust department of a federal or state chartered depository institution
or (b) a trust company, acting in its fiduciary capacity or (iv) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
Eligible Repurchase Month: As defined in Section 3.11 hereof.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
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ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a) hereof.
Event of Default: As defined in Section 7.01 hereof.
Excess 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 Rate: As to each Mortgage Loan, the sum of the Master
Servicing Fee Rate and the Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Certification: As defined in Section 2.02(a) hereof.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance
Group, or such other address as Fitch may hereafter furnish to the Depositor and
the Master Servicer.
FNMA: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
Form 10-D Disclosure Item: With respect to any Person, any
material litigation or governmental proceedings pending (a) against such
Person, or (b) against any of the Trust Fund, the Depositor, the Trustee, the
co-trustee, the Master Servicer or any Subservicer if such Person has actual
knowledge thereof.
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Form 10-K Disclosure Item: With respect to any Person, (a) any
Form 10-D Disclosure Item and (b) any affiliations or relationships between
such Person and any Item 1119 Party.
Index: With respect to any Interest Accrual Period for the COFI
Certificates, if any, the then-applicable index used by the Trustee pursuant
to Section 4.07 to determine the applicable Pass-Through Rate for such
Interest Accrual Period for the COFI Certificates.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Certification: As defined in Section 2.02(a) hereof.
Initial Component Balance: As specified in the Preliminary
Statement.
Insurance Policy: With respect to any Mortgage Loan included in
the Trust Fund, any insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for any
Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates, its corresponding Subsidiary REMIC Regular Interest and any
Distribution Date, the calendar month prior to the month of such Distribution
Date. With respect to any Class of Non-Delay Certificates, its corresponding
Subsidiary REMIC Regular Interest and any Distribution Date, the one month
period commencing on the 25th day of the month preceding the month in which
such Distribution Date occurs and ending on the 24th day of the month in which
such Distribution Date occurs.
Interest Determination Date: With respect to (a) any Interest
Accrual Period for any LIBOR Certificates and (b) any Interest Accrual Period
for the COFI Certificates for which the applicable Index is LIBOR, the second
Business Day prior to the first day of such Interest Accrual Period.
Interest Distribution Amount: Not applicable.
Item 1119 Party: The Depositor, any Seller, the Master Servicer,
the Trustee, any Subservicer, any originator identified in the Prospectus
Supplement and any other material transaction party, as identified in Exhibit
W hereto, as updated pursuant to Section 11.04.
Latest Possible Maturity Date: The Distribution Date following the
third anniversary of the scheduled maturity date of the Mortgage Loan having
the latest scheduled maturity date as of the Cut-off Date.
Lender PMI Mortgage Loan: Certain Mortgage Loans as to which the
lender (rather than the borrower) acquires the Primary Insurance Policy and
charges the related borrower an interest premium.
LIBOR: The London interbank offered rate for one-month United
States dollar deposits calculated in the manner described in Section 4.08.
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LIBOR Certificates: As specified in the Preliminary Statement.
Limited Exchange Act Reporting Obligations: The obligations of the
Master Servicer under Section 3.16(b), Section 6.02 and Section 6.04 with
respect to notice and information to be provided to the Depositor and Article
XI (except Section 11.07(a)(1) and (2)).
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which the Master Servicer has determined (in accordance with this Agreement)
that it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of an REO
Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise
or amounts received in connection with any condemnation or partial release of
a Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Master Servicing Fees,
Servicing Advances and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to
any date of determination, the fraction (expressed as a percentage) the
numerator of which is the principal balance of the related Mortgage Loan at
such date of determination and the denominator of which is the Appraised Value
of the related Mortgaged Property.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: With respect to any Cooperative Unit, the rent paid
by the Mortgagor to the Cooperative Corporation pursuant to the Proprietary
Lease.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least
51% of the Percentage Interests evidenced by all Certificates of such Class.
Master REMIC: As described in the Preliminary Statement.
Master Servicer: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors and assigns, in its capacity as master
servicer hereunder.
Master Servicer Advance Date: As to any Distribution Date, 12:30
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month preceding the month of such Distribution Date, subject to
reduction as provided in Section 3.14.
Master Servicing Fee Rate: With respect to each Mortgage Loan, 0.25%
per annum.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
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MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS (R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as
mortgagee, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
If Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody's may
hereafter furnish to the Depositor or the Master Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans as from time to time are
transferred and assigned to the Trustee pursuant to the provisions hereof and
that are held as a part of the Trust Fund (including any REO Property), the
mortgage loans so held being identified in the Mortgage Loan Schedule,
notwithstanding foreclosure or other acquisition of title of the related
Mortgaged Property.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Deleted Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Fund and from time to time subject to this Agreement, attached hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the Mortgaged
Property, including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
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(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is either (a)
a detached single family dwelling (b) a dwelling in a de minimis PUD,
(c) a condominium unit or PUD (other than a de minimis PUD), (d) a
two- to four-unit residential property or (e) a Cooperative Unit;
(xi) the Mortgage Rate;
(xii) a code indicating whether the Mortgage Loan is a Lender PMI
Mortgage Loan and, in the case of any Lender PMI Mortgage Loan, a
percentage representing the amount of the related interest premium
charged to the borrower;
(xiii) the purpose for the Mortgage Loan;
(xiv) the type of documentation program pursuant to which the Mortgage
Loan was originated;
(xv) 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; and
(xvi) a code indicating whether the Mortgage Loan is a MERS Mortgage \
Loan.
Such schedule shall also set forth the total of the amounts
described under (iv) and (v) above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage
Note from time to time, net of any interest premium charged by the mortgagee
to obtain or maintain any Primary Insurance Policy.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which, with respect to a Cooperative Loan, is the related Coop Shares
and Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of
Funds Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the Compensating Interest for that
Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Discount Mortgage Loan: Any Mortgage Loan with an Adjusted Net
Mortgage Rate that is greater than or equal to the Required Coupon.
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Non-PO Formula Principal Amount: As to any Distribution Date, the
sum of (i) the sum of the applicable Non-PO Percentage of (a) the principal
portion of each Scheduled Payment (without giving effect to any reductions
thereof caused by any Debt Service Reductions or Deficient Valuations) due on
each Mortgage Loan on the related Due Date, (b) the Stated Principal Balance of
each Mortgage Loan that was repurchased by a Seller or purchased by the Master
Servicer pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan
received with respect to such Distribution Date, (d) any Insurance Proceeds or
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of the Liquidation Proceeds
allocable to principal received during the calendar month preceding the month of
such Distribution Date with respect to such Mortgage Loan, and (f) all Principal
Prepayments received during the related Prepayment Period and (ii) (A) any
Subsequent Recoveries received during the calendar month preceding the month of
such Distribution Date, or (B) with respect to Subsequent Recoveries
attributable to a Discount Mortgage Loan which incurred a Realized Loss after
the Senior Credit Support Depletion Date, the Non-PO Percentage of any such
Subsequent Recoveries received during the calendar month preceding the month of
such Distribution Date.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage) the numerator of which is the Adjusted Net Mortgage
Rate of such Discount Mortgage Loan and the denominator of which is the Required
Coupon. As to any Non-Discount Mortgage Loan, 100%.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds, or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to Class A-5 Certificates and any
Distribution Date, an amount equal to the Class Certificate Balance of the Class
A-4 Certificates immediately prior to such Distribution Date. With respect to
any Distribution Date and the Class X Certificates, an amount equal to the
aggregate of the Stated Principal Balances of the Non-Discount Mortgage Loans as
of the Due Date in the preceding calendar month (after giving effect to
Principal Prepayments received in the Prepayment Period related to such Due
Date).
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) in the case of the
Depositor, signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, a Managing Director, a Vice President (however denominated), an
Assistant Vice President, the Treasurer, the Secretary, or one of the Assistant
Treasurers or Assistant Secretaries of the Depositor, (ii) in the case of the
Master Servicer, signed by the President, an Executive Vice President, a Vice
President, an Assistant Vice President, the Treasurer, or one of the Assistant
Treasurers or Assistant Secretaries of Countrywide GP, Inc., its general
partner, (iii) if provided for in this Agreement, signed by a Servicing Officer,
as the case may be, and
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delivered to the Depositor and the Trustee, as the case may be, as required by
this Agreement or (iv) in the case of any other Person, signed by an authorized
officer of such Person.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for a Seller, the Depositor or the Master Servicer, including, in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of a Seller, the Depositor and the Master Servicer, (ii)
not have any direct financial interest in a Seller, the Depositor or the Master
Servicer or in any affiliate thereof, and (iii) not be connected with a Seller,
the Depositor or the Master Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Optional Termination: The termination of the trust created hereunder
in connection with the purchase of the Mortgage Loans pursuant to Section
9.01(a) hereof.
Original Applicable Credit Support Percentage: With respect to each
of the following Classes of Subordinated Certificates, the corresponding
percentage described below, as of the Closing Date:
Class M...........6.00%
Class B-1.........3.00%
Class B-2.........2.10%
Class B-3.........1.30%
Class B-4.........0.80%
Class B-5.........0.35%
Original Mortgage Loan: The mortgage loan refinanced in connection
with the origination of a Refinancing Mortgage Loan.
Original Subordinate Principal Balance: The aggregate of the Class
Certificate Balances of the Subordinated Certificates as of the Closing Date.
OTS: The Office of Thrift Supervision.
Outside Reference Date: As to any Interest Accrual Period for the
COFI Certificates, the close of business on the tenth day thereof.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan
with a Stated Principal Balance greater than zero, which was not the subject
of a Principal Prepayment in Full prior to such Due Date or during the related
Prepayment Period and which did not become a Liquidated Mortgage Loan prior to
such Due Date.
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Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial.
Park Granada: Park Granada LLC, a Delaware limited liability
company, and its successors and assigns, in its capacity as the seller of the
Park Granada Mortgage Loans to the Depositor.
Park Granada Mortgage Loans: The Mortgage Loans identified as such
on the Mortgage Loan Schedule for which Park Granada is the applicable Seller.
Park Monaco: Park Monaco Inc., a Delaware corporation, and its
successors and assigns, in its capacity as the seller of the Park Monaco
Mortgage Loans to the Depositor.
Park Monaco Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Monaco is the applicable Seller.
Park Sienna: Park Sienna LLC, a Delaware limited liability company,
and its successors and assigns, in its capacity as the seller of the Park Sienna
Mortgage Loans to the Depositor.
Park Sienna Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Sienna is the applicable Seller.
Pass-Through Rate: For any interest bearing Class of Certificates
or Component, the per annum rate set forth or calculated in the manner
described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Performance Certification: As defined in Section 11.05.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith
and credit of the United States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia
receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result
in the downgrading or withdrawal of the ratings then
assigned to the Certificates by each Rating Agency;
(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
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United States or of any state thereof and subject to
supervision and examination by federal and/or state
banking authorities, provided that the commercial paper
and/or long term unsecured debt obligations of such
depository institution or trust company (or in the case
of the principal depository institution in a holding
company system, the commercial paper or long-term
unsecured debt obligations of such holding company, but
only if Xxxxx'x is not a Rating Agency) are then rated
one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such
securities, or such lower ratings as will not result in
the downgrading or withdrawal of the rating then
assigned to the Certificates by either Rating Agency;
(v) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case
entered into with a depository institution or trust
company (acting as principal) described in clause (iv)
above;
(vi) units of a taxable money-market portfolio having the
highest rating assigned by each Rating Agency (except if
Fitch is a Rating Agency and has not rated the
portfolio, the highest rating assigned by Moody's) and
restricted to obligations issued or guaranteed by the
United States of America or entities whose obligations
are backed by the full faith and credit of the United
States of America and repurchase agreements
collateralized by such obligations; and
(vii) such other relatively risk free investments bearing
interest or sold at a discount acceptable to each Rating
Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the
Certificates by either Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) an "electing large
partnership" as defined in Section 775 of the Code, (vi) a Person that is not a
citizen or resident of the United States, a corporation, partnership, or other
entity created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI or any applicable successor form, and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Residual Certificate to such Person may cause any
REMIC hereunder to fail to qualify as a REMIC at any time that the Certificates
are outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated
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as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject to
tax and, with the exception of the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, association, joint
venture, limited liability company, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Principal Classes: As specified in the Preliminary
Statement.
PO Formula Principal Amount: As to any Distribution Date, the sum of
(i) the sum of the applicable PO Percentage of (a) the principal portion of each
Scheduled Payment (without giving effect to any reductions thereof caused by any
Debt Service Reductions or Deficient Valuations) due on each Mortgage Loan on
the related Due Date, (b) the Stated Principal Balance of each Mortgage Loan
that was repurchased by the applicable Seller or purchased by the Master
Servicer pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan
received with respect to such Distribution Date, (d) any Insurance Proceeds or
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans that
are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date, (e) with respect to each Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the amount of Liquidation Proceeds
allocable to principal received during the month preceding the month of such
Distribution Date with respect to such Mortgage Loan, and (f) all Principal
Prepayments received during the related Prepayment Period and (ii) with respect
to Subsequent Recoveries attributable to a Discount Mortgage Loan which incurred
a Realized Loss after the Senior Credit Support Depletion Date, the PO
Percentage of any such Subsequent Recoveries received during the calendar month
preceding the month of such Distribution Date.
PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage) the numerator of which is the excess of the Required
Coupon over the Adjusted Net Mortgage Rate of such Discount Mortgage Loan and
the denominator of which is such Required Coupon. As to any Non-Discount
Mortgage Loan, 0%.
Pool Stated Principal Balance: The aggregate of the Stated Principal
Balances of the Outstanding Mortgage Loans.
Prepayment Interest Excess: As to any Principal Prepayment received
by the Master Servicer from the first day through the fifteenth day of any
calendar month (other than the calendar month in which the Cut-off Date occurs),
all amounts paid by the related Mortgagor in respect of interest on such
Principal Prepayment. All Prepayment Interest Excess shall be paid to the Master
Servicer as additional master servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received on or after the sixteenth day of the
month preceding the month of such Distribution Date (or, in the case of the
first Distribution Date, on or after January 1, 2006) and on or before the last
day of the month preceding the month of such Distribution Date, the amount, if
any, by which one month's interest at the related Mortgage Rate, net of the
Master Servicing Fee Rate, on such Principal Prepayment exceeds the amount of
interest paid in connection with such Principal Prepayment.
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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 of such Distribution Date (or, in the case of the first Distribution
Date, from January 1, 2006) through the 15th day of the calendar month of such
Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Prime Rate: The prime commercial lending rate of The Bank of New
York, as publicly announced to be in effect from time to time. The Prime Rate
shall be adjusted automatically, without notice, on the effective date of any
change in such prime commercial lending rate. The Prime Rate is not necessarily
The Bank of New York's lowest rate of interest.
Principal Only Certificates: As specified in the Preliminary
Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance
with the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Priority Amount: As to any Distribution Date, an amount equal to
the sum of (i) the product of (A) the Scheduled Principal Distribution Amount,
(B) the Shift Percentage and (C) the Priority Percentage and (ii) the product
of (A) the Unscheduled Principal Distribution Amount, (B) the Shift Percentage
and (C) the Priority Percentage.
Priority Percentage: As to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate Class
Certificate Balance of the Class A-9 and Class A-10 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Class Certificate Balance of the Certificates (other than the Class PO
Certificates) immediately prior to that Distribution Date.
Private Certificate: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date, the Subordinated
Principal Distribution Amount and any Class of Subordinated Certificates, the
portion of the Subordinated Principal Distribution Amount allocable to such
Class, equal to the product of the Subordinated Principal Distribution Amount on
such Distribution Date and a fraction, the numerator of which is the related
Class Certificate Balance thereof and the denominator of which is the aggregate
of the Class Certificate Balances of the Subordinated Certificates.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Prospectus: The Prospectus dated January 27, 2006 generally relating
to mortgage pass-through certificates to be sold by the Depositor.
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Prospectus Supplement: The Prospectus Supplement, dated January 27,
2006, relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by a Seller pursuant to Section 2.02 or 2.03 hereof or purchased at
the option of the Master Servicer pursuant to Section 3.11, an amount equal to
the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of such purchase, (ii) accrued interest thereon at the applicable Mortgage
Rate (or at the applicable Adjusted Mortgage Rate if (x) the purchaser is the
Master Servicer or (y) if the purchaser is Countrywide and Countrywide is an
affiliate of the Master Servicer) from the date through which interest was last
paid by the Mortgagor to the Due Date in the month in which the Purchase Price
is to be distributed to Certificateholders and (iii) costs and damages incurred
by the Trust Fund in connection with a repurchase pursuant to Section 2.03
hereof that arises out of a violation of any predatory or abusive lending law
with respect to the related Mortgage Loan.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of business
and each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and to
write the insurance provided by the insurance policy issued by it, approved as a
FNMA-approved mortgage insurer and having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount (not less than zero or more than the Stated Principal Balance of the
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus (ii) interest at the Adjusted Net Mortgage Rate from the Due
Date as to which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Adjusted Net Mortgage
Rate and to principal of the Liquidated Mortgage Loan. With respect to each
Mortgage Loan which has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
To the extent the Master Servicer receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced by such Subsequent Recoveries.
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Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the Cooperative Corporation and the originator of such
Mortgage Loan which establishes the rights of such originator in the Cooperative
Property.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Reference Bank: As defined in Section 4.08(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. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or any similar state laws, the amount, if any,
by which (i) interest collectible on such Mortgage Loan for the most recently
ended calendar month is less than (ii) interest accrued thereon for such month
pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the
meaning of section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K,
and in any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction Document,
even if the Depositor is not a party to such agreement (e.g., a servicing
agreement with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
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(b) termination of a Transaction Document (other than by expiration
of the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), even if the Depositor is not
a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Master Servicer only, if the Master Servicer
becomes aware of any bankruptcy or receivership with respect to Countrywide, the
Depositor, the Master Servicer, any Subservicer, the Trustee, any enhancement or
support provider contemplated by Items 1114(b) or 1115 of Regulation AB, or any
other material party contemplated by Item 1101(d)(1) of Regulation AB;
(d) with respect to the Trustee, the Master Servicer and the
Depositor only, the occurrence of an early amortization, performance trigger or
other event, including an Event of Default under this Agreement;
(e) the resignation, removal, replacement, substitution of the
Master Servicer, any Subservicer or the Trustee;
(f) with respect to the Master Servicer only, if the Master Servicer
becomes aware that (i) any material enhancement or support specified in Item
1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB that was
previously applicable regarding one or more Classes of the Certificates has
terminated other than by expiration of the contract on its stated termination
date or as a result of all parties completing their obligations under such
agreement; (ii) any material enhancement specified in Item 1114(a)(1) through
(3) of Regulation AB or Item 1115 of Regulation AB has been added with respect
to one or more Classes of the Certificates; or (iii) any existing material
enhancement or support specified in Item 1114(a)(1) through (3) of Regulation AB
or Item 1115 of Regulation AB with respect to one or more Classes of the
Certificates has been materially amended or modified; and
(g) with respect to the Trustee, the Master Servicer and the
Depositor only, a required distribution to Holders of the Certificates is not
made as of the required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Master Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to Section
11.08(b) to be "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB. References to a Reporting Subcontractor shall refer
only 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,
as appropriate.
Required Coupon: 6.00% per annum.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
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officers and also to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Restricted Classes: As defined in Section 4.02(e).
Xxxxxxxx-Xxxxx Certification: As defined in Section 11.05.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc. If S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish to
the Depositor and the Master Servicer.
Schedule: The Schedule set forth in Schedule V hereto.
Scheduled Balances: With respect to any Scheduled Principal Class or
Component and any Distribution Date appearing in Schedule V hereto, the
applicable amount appearing opposite such Distribution Date for such Class or
Component.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Scheduled Principal Distribution Amount: As to any Distribution
Date, an amount equal to the sum of the Non-PO Percentage of all amounts
described in subclauses (a) through (d) of clause (i) of the definition of
Non-PO Formula Principal Amount for such Distribution Date.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide, Park Granada, Park Monaco or Park Sienna, as
applicable.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of Subordinated Certificates has been reduced
to zero.
Senior Percentage: As to any Distribution Date, the percentage
equivalent of a fraction, not in excess of 100%, the numerator of which is the
aggregate of the Class Certificate Balances of each Class of Senior Certificates
(other than the Class PO Certificates) immediately prior to such Distribution
Date and the denominator of which is the aggregate of the Class Certificate
Balances of all Classes of Certificates (other than the Class PO Certificates)
immediately prior to such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during the
five years beginning on the first Distribution Date, 100%. The Senior Prepayment
Percentage for any Distribution Date occurring on or after the fifth anniversary
of the first Distribution Date will, except as provided herein, be as follows:
for any Distribution Date in the first year thereafter, the Senior Percentage
plus 70% of the Subordinated Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage plus 60%
of the Subordinated Percentage for such Distribution Date; for
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any Distribution Date in the third year thereafter, the Senior Percentage plus
40% of the Subordinated Percentage for such Distribution Date; for any
Distribution Date in the fourth year thereafter, the Senior Percentage plus 20%
of the Subordinated Percentage for such Distribution Date; and for any
Distribution Date thereafter, the Senior Percentage for such Distribution Date
(unless on any Distribution Date the Senior Percentage exceeds the initial
Senior Percentage, in which case the Senior Prepayment Percentage for such
Distribution Date will once again equal 100%). Notwithstanding the foregoing, no
decrease in the Senior Prepayment Percentage will occur unless both of the
Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date,
the sum, not less than zero, of the (i) Senior Percentage of the applicable
Non-PO Percentage of all amounts described in subclauses (a) through (d) of
clause (i) of the definition of "Non-PO Formula Principal Amount" for such
Distribution Date, (ii) with respect to each Mortgage Loan that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the lesser of (x) the Senior Percentage of the applicable
Non-PO Percentage of the Stated Principal Balance of such Mortgage Loan and (y)
the Senior Prepayment Percentage of the applicable Non-PO Percentage of the
amount of the Liquidation Proceeds allocable to principal received with respect
to such Mortgage Loan, and (iii) the sum of (x) the Senior Prepayment Percentage
of the applicable Non-PO Percentage of the amounts described in subclause (f) of
clause (i) of the definition of "Non-PO Formula Principal Amount" for such
Distribution Date plus (y) the Senior Prepayment Percentage of any Subsequent
Recoveries described in clause (ii) of the definition of "Non-PO Formula
Principal Amount" for such Distribution Date.
Senior Step Down Conditions: As of the first Distribution Date as to
which any decrease in the Senior Prepayment Percentage applies, (i) the
outstanding principal balance of all Mortgage Loans delinquent 60 days or more
(including Mortgage Loans in foreclosure, REO Property and Mortgage Loans the
mortgagors of which are in bankruptcy) (averaged over the preceding six month
period), as a percentage of the aggregate Class Certificate Balance of the
Subordinated Certificates on such Distribution Date, does not equal or exceed
50% and (ii) cumulative Realized Losses with respect to the Mortgage Loans do
not exceed (a) commencing with the Distribution Date on the fifth anniversary of
the first Distribution Date, 30% of the Original Subordinate Principal Balance,
(b) commencing with the Distribution Date on the sixth anniversary of the first
Distribution Date, 35% of the Original Subordinate Principal Balance, (c)
commencing with the Distribution Date on the seventh anniversary of the first
Distribution Date, 40% of the Original Subordinate Principal Balance, (d)
commencing with the Distribution Date on the eighth anniversary of the first
Distribution Date, 45% of the Original Subordinate Principal Balance, and (e)
commencing with the Distribution Date on the ninth anniversary of the first
Distribution Date, 50% of the Original Subordinate Principal Balance.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.09.
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.
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Shift Percentage: As to any Distribution Date occurring during the
five years beginning on the first Distribution Date, 0%. For any Distribution
Date occurring on or after the fifth anniversary of the first Distribution Date
as follows: for any Distribution Date in the first year thereafter, 30%; for any
Distribution Date in the second year thereafter, 40%; for any Distribution Date
in the third year thereafter, 60%; for any Distribution Date in the fourth year
thereafter, 80%; and for any Distribution Date thereafter, 100%.
SR-A-R Interest: The sole Class of "residual interest" in the
Subsidiary REMIC.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date, as specified
in the amortization schedule at the time relating thereto (before any adjustment
to such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to 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.
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 Mortgage Loans under the direction or authority of the Master
Servicer or a Subservicer or the Trustee, as the case may be.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordinated Percentage: As to any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date,
100% minus the Senior Prepayment Percentage for such Distribution Date.
Subordinated Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (A) the sum, not less than
zero, of (i) the Subordinated Percentage of the applicable Non-PO Percentage of
all amounts described in subclauses (a) through (d) of clause (i) of the
definition of Non-PO Formula Principal Amount for such Distribution Date, (ii)
with respect to each Mortgage Loan that became a Liquidated Mortgage Loan during
the calendar month preceding the month of such Distribution Date, the applicable
Non-PO Percentage of the amount of the Liquidation Proceeds allocated to
principal received with respect thereto remaining after application thereof
pursuant to clause (ii) of the definition of Senior Principal Distribution
Amount, up to the Subordinated Percentage of the applicable Non-PO Percentage of
the Stated Principal Balance of such Mortgage Loan, (iii) the
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Subordinated Prepayment Percentage of the applicable Non-PO Percentage of all
amounts described in subclause (f) of clause (i) of the definition of Non-PO
Formula Principal Amount for such Distribution Date, and (iv) the Subordinated
Prepayment Percentage of any Subsequent Recoveries described in clause (ii) of
the definition of Non-PO Formula Principal Amount for such Distribution Date,
over (B) the amount of any payments in respect of Class PO Deferred Amounts on
the related Distribution Date.
Subsequent Recoveries: As to any Distribution Date, with respect
to a Liquidated Mortgage Loan that resulted in a Realized Loss in a prior
calendar month, unexpected amounts received by the Master Servicer (net of any
related expenses permitted to be reimbursed pursuant to Section 3.08)
specifically related to such Liquidated Mortgage Loan.
Subservicer: Any person to whom the Master Servicer has contracted
for the servicing of all or a portion of the Mortgage Loans pursuant to
Section 3.02 hereof.
Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC Interests
or the SR-A-R Interest.
Subsidiary REMIC Regular Interest: Any one of the "regular
interests" in the Subsidiary REMIC described in the Preliminary Statement.
Substitute Mortgage Loan: A Mortgage Loan substituted by a Seller
for a Deleted Mortgage Loan which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit M, (i)
have a Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
more than 10% less than the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) be accruing interest at a rate no lower than and not more than 1% per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value
Ratio no higher than that of the Deleted Mortgage Loan; (iv) have a remaining
term to maturity no greater than (and not more than one year less than that of)
the Deleted Mortgage Loan; (v) not be a Cooperative Loan unless the Deleted
Mortgage Loan was a Cooperative Loan and (vi) comply with each representation
and warranty set forth in Section 2.03 hereof.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary
Statement.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and Treasury
regulation ss. 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.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
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Transaction Documents: This Agreement and any other document or
agreement entered into in connection with the Trust Fund, the Certificates or
the Mortgage Loans.
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the Cut-off Date to the extent not applied in computing
the Cut-off Date Principal Balance thereof; (ii) the Certificate Account, the
Distribution Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure or
otherwise; and (iv) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trustee Advance Rate: With respect to any Advance made by the
Trustee pursuant to Section 4.01(b), a per annum rate of interest determined as
of the date of such Advance equal to the Prime Rate in effect on such date plus
5.00%.
Trustee Fee: As to any Distribution Date, an amount equal to
one-twelfth of the Trustee Fee Rate multiplied by the Pool Stated Principal
Balance with respect to such Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.009% per
annum.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41,
67 Fed. Reg. 54487 (2002), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department of
Labor.
Underwriter(s): As specified in the Preliminary Statement.
Unscheduled Principal Distribution Amount: As to any Distribution
Date, an amount equal to the sum of (i) with respect to each Mortgage Loan that
became a Liquidated Mortgage Loan during the calendar month preceding the month
of such Distribution Date, the applicable Non-PO Percentage of the Liquidation
Proceeds allocable to the principal received with respect to such Mortgage Loan,
(ii) the applicable Non-PO Percentage of the amount described in subclause (f)
of clause (i) of the definition of "Non-PO Formula Principal Amount" for such
Distribution Date and (iii) any Subsequent Recoveries described in clause (ii)
of the definition of "Non-PO Formula Principal Amount" for such Distribution
Date.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates, if any (such Voting Rights to be allocated among
the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no Class of Notional Amount Certificates) shall
be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on such
date.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) Each Seller concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the
Depositor, without recourse, all its respective right, title and interest in and
to the related Mortgage Loans, including all interest and principal received or
receivable by such Seller, on or with respect to the Mortgage Loans after the
Cut-off Date and all interest and principal payments on the related Mortgage
Loans received prior to the Cut-off Date in respect of installments of interest
and principal due thereafter, but not including payments of principal and
interest due and payable on such Mortgage Loans, on or before the Cut-off Date.
On or prior to the Closing Date, Countrywide shall deliver to the Depositor or,
at the Depositor's direction, to the Trustee or other designee of the Depositor,
the Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule
(except that, in the case of the Delay Delivery Mortgage Loans (which may
include Countrywide Mortgage Loans, Park Granada Mortgage Loans, Park Monaco
Mortgage Loans and Park Sienna Mortgage Loans), such delivery may take place
within thirty (30) days following the Closing Date). Such delivery of the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Sellers and Depositor, for the Mortgage
Loans. With respect to any Mortgage Loan that does not have a first payment date
on or before the Due Date in the month of the first Distribution Date,
Countrywide shall deposit into the Distribution Account on or before the
Distribution Account Deposit Date relating to the first applicable Distribution
Date, an amount equal to one month's interest at the related Adjusted Mortgage
Rate on the Cut-off Date Principal Balance of such Mortgage Loan.
(b) Immediately upon the conveyance of the Mortgage Loans referred
to in clause (a), the Depositor sells, transfers, assigns, sets over and
otherwise conveys to the Trustee for the benefit of the Certificateholders,
without recourse, all the right, title and interest of the Depositor in and to
the Trust Fund together with the Depositor's right to require each Seller to
cure any breach of a representation or warranty made herein by such Seller, or
to repurchase or substitute for any affected Mortgage Loan, in accordance
herewith.
(c) In connection with the transfer and assignment set forth in
clause (b) above, the Depositor has delivered or caused to be delivered to the
Trustee (or, in the case of the Delay Delivery Mortgage Loans, will deliver or
cause to be delivered to the Trustee within thirty (30) days following the
Closing Date) for the benefit of the Certificateholders the following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) (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
(B) with respect to any Lost Mortgage Note,
a lost note affidavit from Countrywide stating that the
original Mortgage Note was lost or destroyed, together
with a copy of such Mortgage Note;
(ii) except as provided below and for each Mortgage Loan
that is not a MERS Mortgage Loan, the original recorded Mortgage or
a copy of such Mortgage certified by Countrywide as being a true and
complete copy of the Mortgage (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the Commonwealth
of Puerto Rico, a true copy of the Mortgage certified as such by the
applicable notary) and in the case of each MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the Mortgage
Loans and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was
not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded;
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(iii) in the case of each Mortgage Loan that is not a
MERS Mortgage Loan, a duly executed assignment of the Mortgage
(which may be included in a blanket assignment or assignments),
together with, except as provided below, all interim recorded
assignments of such mortgage (each such assignment, when duly and
validly completed, to be in recordable form and sufficient to effect
the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public
recording office, such assignment of the Mortgage may exclude the
information to be provided by the recording office; provided,
further, that such assignment of Mortgage need not be delivered in
the case of a Mortgage for which the related Mortgaged Property is
located in the Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption,
modification, written assurance or substitution agreement, if any;
(v) except as provided below, the original or duplicate
original lender's title policy or a printout of the electronic
equivalent and all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of
the following documents or instruments:
(A) The Coop Shares, together with a stock
power in blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
(E) The executed UCC-1 financing statement
with evidence of recording thereon which have been filed
in all places required to perfect the Seller's interest
in the Coop Shares and the Proprietary Lease; and
(F) The executed UCC-3 financing statements
or other appropriate UCC financing statements required
by state law, evidencing a complete and unbroken line
from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for
recordation).
In addition, in connection with the assignment of any MERS Mortgage
Loan, each Seller agrees that it will cause, at the Trustee's expense, the
MERS(R) System to indicate that the Mortgage Loans sold by such Seller to the
Depositor have been assigned by that Seller to the Trustee in accordance
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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(R)
System to identify the series of the Certificates issued in connection with such
Mortgage Loans. Each Seller further agrees that it will not, and will not permit
the Master Servicer to, and the Master Servicer agrees that it will not, alter
the information referenced in this paragraph with respect to any Mortgage Loan
sold by such Seller to the Depositor during the term of this Agreement unless
and until such Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage,
(b) all interim recorded assignments or (c) the lender's title policy (together
with all riders thereto) satisfying the requirements of clause (ii), (iii) or
(v) above, respectively, concurrently with the execution and delivery 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 such interim assignment, as the case
may be, with evidence of recording indicated thereon upon receipt thereof from
the public recording office, or a copy thereof, certified, if appropriate, by
the relevant recording office, but in no event shall any such delivery of the
original Mortgage and each such interim assignment or a copy thereof, certified,
if appropriate, by the relevant recording office, be made later than one year
following the Closing Date, or, in the case of clause (v) above, no later than
120 days following the Closing Date; provided, however, in the event the
Depositor is unable to deliver by such date each Mortgage and each such interim
assignment by reason of the fact that any such documents have not been returned
by the appropriate recording office, or, in the case of each such interim
assignment, because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver such documents to the
Trustee as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. The Depositor shall forward or cause to be
forwarded to the Trustee (a) from time to time additional original documents
evidencing an assumption or modification of a Mortgage Loan and (b) any other
documents required to be delivered by the Depositor or the Master Servicer to
the Trustee. In the event that the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan and the public
recording office requires the presentation of a "lost instruments affidavit and
indemnity" or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Master
Servicer shall execute and deliver or cause to be executed and delivered such a
document to the public recording office. In the case where a public recording
office retains the original recorded Mortgage or in the case where a Mortgage is
lost after recordation in a public recording office, Countrywide shall deliver
to the Trustee a copy of such Mortgage certified by such public recording office
to be a true and complete copy of the original recorded Mortgage.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter, the Trustee
shall (i) as the assignee thereof, affix the following language to each
assignment of Mortgage: "CWALT Series 2006-2CB, The Bank of New York, as
trustee", (ii) cause such assignment to be in proper form for recording in the
appropriate public office for real property records and (iii) cause to be
delivered for recording in the appropriate public office for real property
records the assignments of the Mortgages to the Trustee, except that, with
respect to any assignments of Mortgage as to which the Trustee has not received
the information required to prepare such assignment in recordable form, the
Trustee's obligation to do so and to deliver the same for such recording shall
be as soon as practicable after receipt of such information and in any event
within thirty (30) days after receipt thereof and that the Trustee need not
cause to be recorded any assignment which relates to a Mortgage Loan (a) the
Mortgaged Property and Mortgage File relating to which are located in
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California or (b) in any other jurisdiction (including Puerto Rico) under the
laws of which in the opinion of counsel the recordation of such assignment is
not necessary to protect the Trustee's and the Certificateholders' interest in
the related Mortgage Loan.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Trustee, will deposit in the Certificate Account the portion of such payment
that is required to be deposited in the Certificate Account pursuant to Section
3.05 hereof.
Notwithstanding anything to the contrary in this Agreement, within
thirty (30) days after the Closing Date, Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) shall either (i) deliver to
the Depositor, or at the Depositor's direction, to the Trustee or other designee
of the Depositor the Mortgage File as required pursuant to this Section 2.01 for
each Delay Delivery Mortgage Loan or (ii) either (A) substitute a Substitute
Mortgage Loan for the Delay Delivery Mortgage Loan or (B) repurchase the Delay
Delivery Mortgage Loan, which substitution or repurchase shall be accomplished
in the manner and subject to the conditions set forth in Section 2.03 (treating
each Delay Delivery Mortgage Loan as a Deleted Mortgage Loan for purposes of
such Section 2.03); provided, however, that if Countrywide fails to deliver a
Mortgage File for any Delay Delivery Mortgage Loan within the thirty (30) day
period provided in the prior sentence, Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) shall use its best
reasonable efforts to effect a substitution, rather than a repurchase of, such
Deleted Mortgage Loan and provided further that the cure period provided for in
Section 2.02 or in Section 2.03 shall not apply to the initial delivery of the
Mortgage File for such Delay Delivery Mortgage Loan, but rather Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) shall
have five (5) Business Days to cure such failure to deliver. At the end of such
thirty (30) day period the Trustee shall send a Delay Delivery Certification for
the Delay Delivery Mortgage Loans delivered during such thirty (30) day period
in accordance with the provisions of Section 2.02.
(d) Neither the Depositor nor the Trust will acquire or hold any
Mortgage Loan that would violate the representations made by Countrywide set
forth in clause (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-1 and declares
that it holds and will hold such documents and the other documents delivered to
it constituting the Mortgage Files, and that it holds or will hold such other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee acknowledges
that it will maintain possession of the Mortgage Notes in the State of
California, unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) an Initial Certification in the
form annexed hereto as Exhibit F-1. Based on its review and examination, and
only as to the documents identified in such Initial Certification, the Trustee
acknowledges that such documents appear regular on their face and relate to such
Mortgage Loan. The Trustee shall be under no duty or obligation to inspect,
review or examine said documents, instruments, certificates or other papers to
determine that the same are genuine, enforceable or appropriate for the
represented purpose or that they have actually been recorded in the real estate
records or that they are other than what they purport to be on their face.
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On or about the thirtieth (30th) day after the Closing Date, the
Trustee shall deliver to the Depositor, the Master Servicer and Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a
Delay Delivery Certification with respect to the Mortgage Loans in the form
annexed hereto as Exhibit G-1, with any applicable exceptions noted thereon.
Not later than 90 days after the Closing Date, the Trustee shall
deliver to the Depositor, the Master Servicer and Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) a Final
Certification with respect to the Mortgage Loans in the form annexed hereto as
Exhibit H-1, with any applicable exceptions noted thereon. If, in the course of
such review, the Trustee finds any document constituting a part of a Mortgage
File which does not meet the requirements of Section 2.01, the Trustee shall
list such as an exception in the Final Certification; provided, however that the
Trustee shall not make any determination as to whether (i) any endorsement is
sufficient to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment of
and transfer to the assignee thereof under the mortgage to which the assignment
relates. Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall promptly correct or cure such defect within 90
days from the date it was so notified of such defect and, if Countrywide does
not correct or cure such defect within such period, Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) shall either
(a) substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03, or (b) purchase such Mortgage Loan from the Trustee
within 90 days from the date Countrywide (on its own behalf and on behalf of
Park Granada, Park Monaco and Park Sienna) was notified of such defect in
writing at the Purchase Price of such Mortgage Loan; provided, however, that in
no event shall such substitution or purchase occur more than 540 days from the
Closing Date, except that if the substitution or purchase of a Mortgage Loan
pursuant to this provision is required by reason of a delay in delivery of any
documents by the appropriate recording office, and there is a dispute between
either the Master Servicer or Countrywide (on its own behalf and on behalf of
Park Granada, Park Monaco and Park Sienna) and the Trustee over the location or
status of the recorded document, then such substitution or purchase shall occur
within 720 days from the Closing Date. The Trustee shall deliver written notice
to each Rating Agency within 270 days from the Closing Date indicating each
Mortgage Loan (a) which has not been returned by the appropriate recording
office or (b) as to which there is a dispute as to location or status of such
Mortgage Loan. Such notice shall be delivered every 90 days thereafter until the
related Mortgage Loan is returned to the Trustee. Any such substitution pursuant
to (a) above or purchase pursuant to (b) above shall not be effected prior to
the delivery to the Trustee of the Opinion of Counsel required by Section 2.05
hereof, if any, and any substitution pursuant to (a) above shall not be effected
prior to the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit N. No substitution is permitted to be made
in any calendar month after the Determination Date for such month. The Purchase
Price for any such Mortgage Loan shall be deposited by Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) in the
Certificate Account on or prior to the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form of
Exhibit N hereto, the Trustee shall release the related Mortgage File to
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) and shall execute and deliver at Countrywide's (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) request such
instruments of transfer or assignment prepared by Countrywide, in each case
without recourse, as shall be necessary to vest in Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna), or its
designee, the Trustee's interest in any Mortgage Loan released pursuant hereto.
If pursuant to the foregoing provisions Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) repurchases an Mortgage
Loan that is a MERS Mortgage Loan, the Master Servicer shall either (i) cause
MERS to execute and deliver an assignment of the Mortgage in recordable form to
transfer the Mortgage
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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(R) System in accordance with MERS' rules
and regulations or (ii) cause MERS to designate on the MERS(R) System
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) or its designee as the beneficial holder of such Mortgage Loan.
(b) [Reserved].
(c) The Trustee shall retain possession and custody of each Mortgage
File in accordance with and subject to the terms and conditions set forth
herein. The Master Servicer shall promptly deliver to the Trustee, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the possession of the
Master Servicer from time to time.
(d) It is understood and agreed that the respective obligations of
each Seller to substitute for or to purchase any Mortgage Loan sold to the
Depositor by it which does not meet the requirements of Section 2.01 above shall
constitute the sole remedy respecting such defect available to the Trustee, the
Depositor and any Certificateholder against that Seller.
SECTION 2.03. Representations, Warranties and Covenants of the
Sellers and Master Servicer.
(a) Countrywide hereby makes the representations and warranties set
forth in (i) Schedule II-A, Schedule II-B, Schedule II-C and Schedule II-D
hereto, and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, (ii) Schedule III-A hereto,
and by this reference incorporated herein, to the Depositor, the Master Servicer
and the Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date with respect to all of the Mortgage Loans, and (iii) Schedule III-B
hereto, and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, or if so specified therein, as
of the Cut-off Date with respect to the Mortgage Loans that are Countrywide
Mortgage Loans. Park Granada hereby makes the representations and warranties set
forth in (i) Schedule II-B hereto, and by this reference incorporated herein, to
the Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii) Schedule III-C hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date with respect to the Mortgage Loans
that are Park Granada Mortgage Loans. Park Monaco hereby makes the
representations and warranties set forth in (i) Schedule II-C hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date and (ii) Schedule III-D hereto, and by this
reference incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off
Date with respect to the Mortgage Loans that are Park Monaco Mortgage Loans.
Park Sienna hereby makes the representations and warranties set forth in (i)
Schedule II-D hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date and (ii)
Schedule III-E hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date with respect to the Mortgage Loans
that are Park Sienna Mortgage Loans.
(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.
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(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty with respect to a Mortgage Loan made pursuant to
Section 2.03(a) that materially and adversely affects the interests of the
Certificateholders in that Mortgage Loan, the party discovering such breach
shall give prompt notice thereof to the other parties. Each Seller hereby
covenants that within 90 days of the earlier of its discovery or its receipt of
written notice from any party of a breach of any representation or warranty with
respect to a Mortgage Loan sold by it pursuant to Section 2.03(a) which
materially and adversely affects the interests of the Certificateholders in that
Mortgage Loan, it shall cure such breach in all material respects, and if such
breach is not so cured, shall, (i) if such 90-day period expires prior to the
second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Substitute
Mortgage Loan, in the manner and subject to the conditions set forth in this
Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from
the Trustee at the Purchase Price in the manner set forth below; provided,
however, that any such substitution pursuant to (i) above shall not be effected
prior to the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05 hereof, if any, and any such substitution pursuant to (i) above
shall not be effected prior to the additional delivery to the Trustee of a
Request for Release substantially in the form of Exhibit N and the Mortgage File
for any such Substitute Mortgage Loan. The Seller repurchasing a Mortgage Loan
pursuant to this Section 2.03(c) shall promptly reimburse the Master Servicer
and the Trustee for any expenses reasonably incurred by the Master Servicer or
the Trustee in respect of enforcing the remedies for such breach. With respect
to the representations and warranties described in this Section which are made
to the best of a Seller's knowledge, if it is discovered by either the
Depositor, a Seller or the Trustee that the substance of such representation and
warranty is inaccurate and such inaccuracy materially and adversely affects the
value of the related Mortgage Loan or the interests of the Certificateholders
therein, notwithstanding that Seller's lack of knowledge with respect to the
substance of such representation or warranty, such inaccuracy shall be deemed a
breach of the applicable representation or warranty. Any breach of a
representation set forth in clauses (44), (45), (46), (47), (48), (49), 50,
(51), (52), (53) or (54) of Schedule III-A with respect to a Mortgage Loan shall
be deemed to materially and adversely affect the Certificateholders.
With respect to any Substitute Mortgage Loan or Loans, sold to the
Depositor by a Seller, Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall deliver to the Trustee for the
benefit of the Certificateholders the Mortgage Note, the Mortgage, the related
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution is permitted to be made in
any calendar month after the Determination Date for such month. Scheduled
Payments due with respect to Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
related Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter that
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Substitute Mortgage Loan
or Loans and the Master Servicer shall deliver the amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, the Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects, and the
related Seller shall be deemed to have made with respect to such Substitute
Mortgage Loan or Loans, as of the date of substitution, the representations and
warranties made pursuant to Section 2.03(a) with respect to such Mortgage Loan.
Upon any such substitution and the deposit to the Certificate Account of the
amount required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee shall release the Mortgage
File held for the benefit of the Certificateholders relating to such Deleted
Mortgage Loan to the related Seller and shall execute and deliver at such
Seller's direction such instruments of transfer or assignment prepared by
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna), in each case without recourse, as shall be
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necessary to vest title in that Seller, or its designee, the Trustee's interest
in any Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which a Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
Substitute Mortgage Loans sold to the Depositor by that Seller as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans repurchased by that Seller (after application of the scheduled
principal portion of the monthly payments due in the month of substitution). The
amount of such shortage (the "Substitution Adjustment Amount") plus an amount
equal to the aggregate of any unreimbursed Advances with respect to such Deleted
Mortgage Loans shall be deposited in the Certificate Account by Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) on or
before the Distribution Account Deposit Date for the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Certificate Account
pursuant to Section 3.05 on or before the Distribution Account Deposit Date for
the Distribution Date in the month following the month during which that Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.05 and receipt of a Request for Release in the form of
Exhibit N hereto, the Trustee shall release the related Mortgage File held for
the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. It is understood and agreed that
the obligation under this Agreement of any Person to cure, repurchase or replace
any Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedy against such Persons respecting such breach available
to Certificateholders, the Depositor or the Trustee on their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
SECTION 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to each Mortgage Loan as of the date hereof or such other date set forth
herein that as of the Closing Date, and following the transfer of the Mortgage
Loans to it by each Seller, the Depositor had good title to the Mortgage Loans
and the Mortgage Notes were subject to no offsets, defenses or counterclaims.
The Depositor hereby assigns, transfers and conveys to the Trustee
all of its rights with respect to the Mortgage Loans including, without
limitation, the representations and warranties of each Seller made pursuant to
Section 2.03(a)(ii) hereof, together with all rights of the Depositor to require
each Seller to cure any breach thereof or to repurchase or substitute for any
affected Mortgage Loan in accordance with this Agreement.
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
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Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than 90
days after the Closing Date unless Countrywide delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause each REMIC created hereunder to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, a Seller, the Master Servicer,
or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering such
fact shall promptly (and in any event within five (5) Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna), at its option, to either
(i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to Countrywide the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
SECTION 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing directly or indirectly the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates and to perform the duties set forth in this Agreement, to the end
that the interests of the Holders of the Certificates may be adequately and
effectively protected.
SECTION 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests created
hereby. The "Startup Day" for purposes of the REMIC Provisions shall be the
Closing Date. The "tax matters person" with respect to each REMIC hereunder
shall be the Trustee and the Trustee shall hold the Tax Matters Person
Certificate. Each REMIC's fiscal year shall be the calendar year.
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SECTION 2.08. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the
Trustee as follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and requirements of
the insurer under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any affiliate
of the Depositor or the Trustee and prepared by the Master Servicer pursuant to
this Agreement will contain any untrue statement of a material fact or omit to
state a material fact necessary to make such information, certificate, statement
or report not misleading.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer
shall service and administer the Mortgage Loans in accordance with the terms of
this Agreement and customary and usual standards of practice of prudent mortgage
loan servicers. In connection with such servicing and administration, the Master
Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02 hereof, subject to the terms hereof (i)
to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this Agreement),
(iii) to collect any Insurance Proceeds and other Liquidation Proceeds (which,
for the purpose of this Section, includes any Subsequent Recoveries), and (iv)
to effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan; provided that the Master Servicer shall not
take any action that is inconsistent with or prejudices the interests of the
Trust Fund or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer shall represent and protect the interests of the
Trust Fund in the same manner as it protects its own interests in mortgage loans
in its own portfolio in any claim, proceeding or litigation regarding a Mortgage
Loan, and shall not make or permit any modification, waiver or amendment of any
Mortgage Loan which would cause any REMIC created hereunder to fail to qualify
as a REMIC or result in the imposition of any tax under Section 860F(a) or
Section 860G(d) of the Code. Without limiting the generality of the foregoing,
the Master Servicer, in its own name or in the name of the Depositor and the
Trustee, is hereby authorized and empowered by the Depositor and the Trustee,
when the Master Servicer believes it appropriate in its reasonable judgment, to
execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans, and with respect to
the Mortgaged Properties held for the benefit of the Certificateholders. The
Master Servicer shall prepare and deliver to the Depositor and/or the Trustee
such documents requiring execution and delivery by either or both of them as are
necessary or appropriate to enable the Master Servicer to service and administer
the Mortgage Loans to the extent that the Master Servicer is not permitted to
execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee shall execute such
documents and deliver them to the Master Servicer. The Master Servicer further
is authorized and empowered by the Trustee, on behalf of the Certificateholders
and the Trustee, in its own name or in the name of the Subservicer, when the
Master Servicer or the Subservicer, as the case may be, believes it appropriate
in its best judgment to register any Mortgage Loan on the MERS(R) System, or
cause the removal from the registration of any Mortgage Loan on the MERS(R)
System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
In accordance with the standards of the preceding paragraph, the
Master Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. The costs incurred by the Master Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
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calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a Subservicer pursuant to a subservicing agreement; provided,
however, that such subservicing arrangement and the terms of the related
subservicing agreement must provide for the servicing of such Mortgage Loans in
a manner consistent with the servicing arrangements contemplated hereunder.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Master Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the Master Servicer shall remain obligated and liable
to the Depositor, the Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Master Servicer alone were servicing and administering the Mortgage Loans.
All actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Master Servicer with the same
force and effect as if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or payments with respect to
the Mortgage Loans that are received by a Subservicer regardless of whether such
payments are remitted by the Subservicer to the Master Servicer.
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of
the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. Neither the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by the Master Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Master Servicer hereunder or
otherwise.
SECTION 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer
be the Master Servicer hereunder (including by reason of an Event of Default or
termination by the Depositor), the Trustee or its successor shall thereupon
assume all of the rights and obligations of the Master Servicer hereunder
arising thereafter (except that the Trustee shall not be (i) liable for losses
of the Master Servicer pursuant to Section 3.09 hereof or any acts or omissions
of the predecessor Master Servicer hereunder), (ii) obligated to make Advances
if it is prohibited from doing so by applicable law, (iii) obligated to
effectuate repurchases or substitutions of Mortgage Loans hereunder including,
but not limited to, repurchases or substitutions of Mortgage Loans pursuant to
Section 2.02 or 2.03 hereof, (iv) responsible for expenses of the Master
Servicer pursuant to Section 2.03 or (v) deemed to have made any representations
and warranties of the Master Servicer hereunder). Any such assumption shall be
subject to Section 7.02
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hereof. If the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default or termination by the
Depositor), the Trustee or its successor shall succeed to any rights and
obligations of the Master Servicer under each subservicing agreement.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best efforts
to effect the orderly and efficient transfer of the substitute subservicing
agreement to the assuming party.
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account.
(a) The Master Servicer shall make reasonable efforts in accordance
with the customary and usual standards of practice of prudent mortgage servicers
to collect all payments called for under the terms and provisions of the
Mortgage Loans to the extent such procedures shall be consistent with this
Agreement and the terms and provisions of any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due dates
for payments due on a Mortgage Note for a period not greater than 180 days;
provided, however, that the Master Servicer cannot extend the maturity of any
such Mortgage Loan past the date on which the final payment is due on the latest
maturing Mortgage Loan as of the Cut-off Date. In the event of any such
arrangement, the Master Servicer shall make Advances on the related Mortgage
Loan in accordance with the provisions of Section 4.01 during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements. The Master Servicer
shall not be required to institute or join in litigation with respect to
collection of any payment (whether under a Mortgage, Mortgage Note or otherwise
or against any public or governmental authority with respect to a taking or
condemnation) if it reasonably believes that enforcing the provision of the
Mortgage or other instrument pursuant to which such payment is required is
prohibited by applicable law.
(b) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit or cause to be deposited no
later than two Business Days after receipt (or, if the current long-term credit
rating of Countrywide is reduced below "A-" by S&P or Xxxxx, xx "X0" by Xxxxx'x,
the Master Servicer shall deposit or cause to be deposited on a daily basis
within one Business Day of receipt), except as otherwise specifically provided
herein, the following payments and collections remitted by Subservicers or
received by it in respect of Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans on or
before the Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, net of the Master Servicing Fee, Prepayment Interest Excess
and any lender-paid mortgage insurance premiums;
(iii) all Insurance Proceeds, Subsequent Recoveries and
Liquidation Proceeds, other than proceeds to be applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Master Servicer's normal servicing
procedures;
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(iv) any amount required to be deposited by the Master
Servicer or the Depositor pursuant to Section 3.05(e) in connection
with any losses on Permitted Investments for which it is
responsible;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.09(c) and in respect of net monthly
rental income from REO Property pursuant to Section 3.11 hereof;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant
to Section 4.01; and
(viii) any other amounts required to be deposited
hereunder.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for such Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause funds
to be deposited into the Certificate Account in an amount required to cause an
amount of interest to be paid with respect to such Mortgage Loan equal to the
amount of interest that has accrued on such Mortgage Loan from the preceding Due
Date at the Mortgage Rate net of the Master Servicing Fee.
The foregoing requirements for remittance by the Master Servicer
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of prepayment penalties,
late payment charges or assumption fees, if collected, need not be remitted by
the Master Servicer. In the event that the Master Servicer shall remit any
amount not required to be remitted, it may at any time withdraw or direct the
institution maintaining the Certificate Account to withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding. Such
withdrawal or direction may be accomplished by delivering written notice thereof
to the Trustee or such other institution maintaining the Certificate Account
which describes the amounts deposited in error in the Certificate Account. The
Master Servicer shall maintain adequate records with respect to all withdrawals
made pursuant to this Section. All funds deposited in the Certificate Account
shall be held in trust for the Certificateholders until withdrawn in accordance
with Section 3.08.
(c) [Reserved].
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer
to the Trustee pursuant to Section 3.08(a)(ix);
(ii) any amount deposited by the Master Servicer or the
Depositor pursuant to Section 3.05(e) in connection with any losses
on Permitted Investments for which it is responsible; and
(iii) any other amounts deposited hereunder which are
required to be deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not
required to be remitted, it may at any time direct the Trustee to withdraw such
amount from the Distribution Account, any provision
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herein to the contrary notwithstanding. Such direction may be accomplished by
delivering an Officer's Certificate to the Trustee which describes the amounts
deposited in error in the Distribution Account. All funds deposited in the
Distribution Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.08. In no event shall the Trustee incur
liability for withdrawals from the Distribution Account at the direction of the
Master Servicer.
(e) Each institution at which the Certificate Account or the
Distribution Account is maintained shall invest the funds therein as directed in
writing by the Master Servicer in Permitted Investments, which shall mature not
later than (i) in the case of the Certificate Account, the second Business Day
next preceding the related Distribution Account Deposit Date (except that if
such Permitted Investment is an obligation of the institution that maintains
such account, then such Permitted Investment shall mature not later than the
Business Day next preceding such Distribution Account Deposit Date) and (ii) in
the case of the Distribution Account, the Business Day next preceding the
Distribution Date (except that if such Permitted Investment is an obligation of
the institution that maintains such fund or account, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gain net of any losses realized from any such
investment of funds on deposit in the Certificate Account, or the Distribution
Account shall be for the benefit of the Master Servicer as servicing
compensation and shall be remitted to it monthly as provided herein. The amount
of any realized losses in the Certificate Account or the Distribution Account
incurred in any such account in respect of any such investments shall promptly
be deposited by the Master Servicer in the Certificate Account or paid to the
Trustee for deposit into the Distribution Account, as applicable. The Trustee in
its fiduciary capacity shall not be liable for the amount of any loss incurred
in respect of any investment or lack of investment of funds held in the
Certificate Account or the Distribution Account and made in accordance with this
Section 3.05.
(f) The Master Servicer shall give notice to the Trustee, each
Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Certificate Account prior to any change thereof. The Trustee
shall give notice to the Master Servicer, each Seller, each Rating Agency and
the Depositor of any proposed change of the location of the Distribution Account
prior to any change thereof.
SECTION 3.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish and maintain one
or more accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by the Master Servicer) for the
payment of taxes, assessments, hazard insurance premiums or comparable items for
the account of the Mortgagors. Nothing herein shall require the Master Servicer
to compel a Mortgagor to establish an Escrow Account in violation of applicable
law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to reimburse
the Master Servicer out of related collections for any payments made pursuant to
Sections 3.01 hereof (with respect to taxes and assessments and insurance
premiums) and 3.09 hereof (with respect to hazard insurance), to refund to any
Mortgagors any sums determined to be overages, to pay interest, if required by
law or the terms of the related Mortgage or Mortgage Note, to Mortgagors on
balances in the Escrow Account or to clear and terminate the Escrow
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Account at the termination of this Agreement in accordance with Section 9.01
hereof. The Escrow Accounts shall not be a part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in
Section 3.06(a) that are not timely paid by the Mortgagors on the date when the
tax, premium or other cost for which such payment is intended is due, but the
Master Servicer shall be required so to advance only to the extent that such
advances, in the good faith judgment of the Master Servicer, will be recoverable
by the Master Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford each Seller, the Depositor and the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but only
upon reasonable request and during normal business hours at the office
designated by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder and/or Certificate Owner which is a savings
and loan association, bank or insurance company certain reports and reasonable
access to information and documentation regarding the Mortgage Loans sufficient
to permit such Certificateholder and/or Certificate Owner to comply with
applicable regulations of the OTS or other regulatory authorities with respect
to investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder and/or Certificate
Owner for actual expenses incurred by the Master Servicer in providing such
reports and access.
SECTION 3.08. Permitted Withdrawals from the Certificate Account and
the Distribution Account.
(a) The Master Servicer may from time to time make withdrawals from
the Certificate Account for the following purposes:
(i) to pay to the Master Servicer (to the extent not
previously retained by the Master Servicer) the servicing
compensation to which it is entitled pursuant to Section 3.14, and
to pay to the Master Servicer, as additional servicing compensation,
earnings on or investment income with respect to funds in or
credited to the Certificate Account;
(ii) to reimburse each of the Master Servicer and the
Trustee for unreimbursed Advances made by it, such right of
reimbursement pursuant to this subclause (ii) being limited to
amounts received on the Mortgage Loan(s) in respect of which any
such Advance was made;
(iii) to reimburse each of the Master Servicer and the
Trustee for any Nonrecoverable Advance previously made by it;
(iv) to reimburse the Master Servicer for Insured
Expenses from the related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a)
unreimbursed Servicing Advances, the Master Servicer's right to
reimbursement pursuant to this clause (a) with respect to any
Mortgage Loan being limited to amounts received on such Mortgage
Loan(s) which represent late
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recoveries of the payments for which such advances were made
pursuant to Section 3.01 or Section 3.06 and (b) for unpaid Master
Servicing Fees as provided in Section 3.11 hereof;
(vi) to pay to the purchaser, with respect to each
Mortgage Loan or property acquired in respect thereof that has been
purchased pursuant to Section 2.02, 2.03 or 3.11, all amounts
received thereon after the date of such purchase;
(vii) to reimburse the Sellers, the Master Servicer or
the Depositor for expenses incurred by any of them and reimbursable
pursuant to Section 6.03 hereof;
(viii) to withdraw any amount deposited in the
Certificate Account and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit
Date, to withdraw an amount equal to the related Available Funds and
the Trustee Fee for such Distribution Date and remit such amount to
the Trustee for deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01 hereof.
The Master Servicer shall keep and maintain separate accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Certificate Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of any
taxes that it is authorized to withhold pursuant to the last paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to pay to the Master Servicer as additional
servicing compensation earnings on or investment income with respect
to funds in the Distribution Account;
(iii) to withdraw and return to the Master Servicer any
amount deposited in the Distribution Account and not required to be
deposited therein;
(iv) to reimburse the Trustee for any unreimbursed
Advances made by it pursuant to Section 4.01(b) hereof, such right
of reimbursement pursuant to this subclause (iv) being limited to
(x) amounts received on the related Mortgage Loan(s) in respect of
which any such Advance was made and (y) amounts not otherwise
reimbursed to the Trustee pursuant to Section 3.08(a)(ii) hereof;
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(v) to reimburse the Trustee for any Nonrecoverable
Advance previously made by the Trustee pursuant to Section 4.01(b)
hereof, such right of reimbursement pursuant to this subclause (v)
being limited to amounts not otherwise reimbursed to the Trustee
pursuant to Section 3.08(a)(iii) hereof; and
(vi) to clear and terminate the Distribution Account
upon termination of the Agreement pursuant to Section 9.01 hereof.
(c) [Reserved].
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies.
(a) The Master Servicer shall cause to be maintained, for each
Mortgage Loan, hazard insurance with extended coverage in an amount that is at
least equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (y) the outstanding principal
balance of the Mortgage Loan and (z) an amount such that the proceeds of such
policy shall be sufficient to prevent the Mortgagor and/or the mortgagee from
becoming a co-insurer. Each such policy of standard hazard insurance shall
contain, or have an accompanying endorsement that contains, a standard mortgagee
clause. Any amounts collected by the Master Servicer under any such policies
(other than the amounts to be applied to the restoration or repair of the
related Mortgaged Property or amounts released to the Mortgagor in accordance
with the Master Servicer's normal servicing procedures) shall be deposited in
the Certificate Account. Any cost incurred by the Master Servicer in maintaining
any such insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for their
benefit, be added to the principal balance of the Mortgage Loan, notwithstanding
that the terms of the Mortgage Loan so permit. Such costs shall be recoverable
by the Master Servicer out of late payments by the related Mortgagor or out of
the proceeds of liquidation of the Mortgage Loan or Subsequent Recoveries to the
extent permitted by Section 3.08 hereof. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor or
maintained on property acquired in respect of a Mortgage other than pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property is located at
the time of origination of the Mortgage Loan in a federally designated special
flood hazard area and such area is participating in the national flood insurance
program, the Master Servicer shall cause flood insurance to be maintained with
respect to such Mortgage Loan. Such flood insurance shall be in an amount equal
to the least of (i) the outstanding principal balance of the related Mortgage
Loan, (ii) the replacement value of the improvements which are part of such
Mortgaged Property, and (iii) the maximum amount of such insurance available for
the related Mortgaged Property under the national flood insurance program.
(b) The Master Servicer shall not take any action which would result
in non-coverage under any applicable Primary Insurance Policy of any loss which,
but for the actions of the Master Servicer, would have been covered thereunder.
The Master Servicer shall not cancel or refuse to renew any such Primary
Insurance Policy that is in effect at the date of the initial issuance of the
Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy is
maintained with a Qualified Insurer.
Except with respect to any Lender PMI Mortgage Loans, the Master
Servicer shall not be required to maintain any Primary Insurance Policy (i) with
respect to any Mortgage Loan with a Loan-to-Value Ratio less than or equal to
80% as of any date of determination or, based on a new appraisal, the principal
balance of such Mortgage Loan represents 80% or less of the new appraised value
or (ii) if maintaining such Primary Insurance Policy is prohibited by applicable
law. With respect to the Lender
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PMI Mortgage Loans, the Master Servicer shall maintain the Primary Insurance
Policy for the life of such Mortgage Loans, unless otherwise provided for in the
related Mortgage Note or prohibited by law.
The Master Servicer agrees to effect the timely payment of the
premiums on each Primary Insurance Policy, and such costs not otherwise
recoverable shall be recoverable by the Master Servicer from the related
proceeds of liquidation and Subsequent Recoveries.
(c) In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present on behalf of itself, the
Trustee and Certificateholders, claims to the insurer under any Primary
Insurance Policies and, in this regard, to take such reasonable action as shall
be necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Master Servicer under any
Primary Insurance Policies shall be deposited in the Certificate Account.
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of such conveyance, enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing, the Master
Servicer is not required to exercise such rights with respect to a Mortgage Loan
if the Person to whom the related Mortgaged Property has been conveyed or is
proposed to be conveyed satisfies the terms and conditions contained in the
Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under such Mortgage Note or Mortgage is not otherwise so required under such
Mortgage Note or Mortgage as a condition to such transfer. In the event that the
Master Servicer is prohibited by law from enforcing any such due-on-sale clause,
or if coverage under any Required Insurance Policy would be adversely affected,
or if nonenforcement is otherwise permitted hereunder, the Master Servicer is
authorized, subject to Section 3.10(b), to take or enter into an assumption and
modification agreement from or with the person to whom such property has been or
is about to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, unless prohibited by applicable state law, the Mortgagor
remains liable thereon, provided that the Mortgage Loan shall continue to be
covered (if so covered before the Master Servicer enters such agreement) by the
applicable Required Insurance Policies. The Master Servicer, subject to Section
3.10(b), is also authorized with the prior approval of the insurers under any
Required Insurance Policies to enter into a substitution of liability agreement
with such Person, pursuant to which the original Mortgagor is released from
liability and such Person is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, the Master Servicer shall not
be deemed to be in default under this Section by reason of any transfer or
assumption which the Master Servicer reasonably believes it is restricted by law
from preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.10(a) hereof, in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and such Person
is to enter into an assumption agreement or modification agreement or supplement
to the Mortgage Note or Mortgage that requires the signature of the Trustee, or
if an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Master Servicer shall prepare
and deliver or cause to be prepared and delivered to the Trustee for signature
and shall direct, in writing, the Trustee to execute the assumption agreement
with the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
III-9
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.
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
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statement with respect to each REO Property that has been rented showing the
aggregate rental income received and all expenses incurred in connection with
the maintenance of such REO Property at such times as is necessary to enable the
Trustee to comply with the reporting requirements of the REMIC Provisions. The
net monthly rental income, if any, from such REO Property shall be deposited in
the Certificate Account no later than the close of business on each
Determination Date. The Master Servicer shall perform the tax reporting and
withholding required by Sections 1445 and 6050J of the Code with respect to
foreclosures and abandonments, the tax reporting required by Section 6050H of
the Code with respect to the receipt of mortgage interest from individuals and
any tax reporting required by Section 6050P of the Code with respect to the
cancellation of indebtedness by certain financial entities, by preparing such
tax and information returns as may be required, in the form required, and
delivering the same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property as
soon as practicable in a manner that maximizes the Liquidation Proceeds thereof,
but in no event later than three years after its acquisition by the Trust Fund.
In that event, the Trustee shall have been supplied with an Opinion of Counsel
to the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to a three-year period, if applicable, will not result in the
imposition of taxes on "prohibited transactions" of any REMIC hereunder as
defined in section 860F of the Code or cause any REMIC hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding, the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel) after the expiration of such three-year
period. Notwithstanding any other provision of this Agreement, no Mortgaged
Property acquired by the Trust Fund shall be rented (or allowed to continue to
be rented) or otherwise used for the production of income by or on behalf of the
Trust Fund in such a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of section 860G(a)(8) of the Code or (ii) subject any REMIC hereunder to
the imposition of any federal, state or local income taxes on the income earned
from such Mortgaged Property under Section 860G(c) of the Code or otherwise,
unless the Master Servicer has agreed to indemnify and hold harmless the Trust
Fund with respect to the imposition of any such taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of a
deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer will cause compliance with the provisions of
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
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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.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Trust Fund any Mortgage Loan which is 151
days or more delinquent at a price equal to the Purchase Price; provided,
however, that the Master Servicer may only exercise this right on or before the
next to the last day of the calendar month in which such Mortgage Loan became
151 days delinquent (such month, the "Eligible Repurchase Month"); provided
further, that any such Mortgage Loan which becomes current but thereafter
becomes delinquent may be purchased by the Master Servicer pursuant to this
Section in any ensuing Eligible Repurchase Month. The Purchase Price for any
Mortgage Loan purchased hereunder shall be deposited in the Certificate Account
and the Trustee, upon receipt of a certificate from the Master Servicer in the
form of Exhibit N hereto, shall release or cause to be released to the purchaser
of such Mortgage Loan the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment prepared by the purchaser of such
Mortgage Loan, in each case without recourse, as shall be necessary to vest in
the purchaser of such Mortgage Loan any Mortgage Loan released pursuant hereto
and the purchaser of such Mortgage Loan shall succeed to all the Trustee's
right, title and interest in and to such Mortgage Loan and all security and
documents related thereto. Such assignment shall be an assignment outright and
not for security. The purchaser of such Mortgage Loan shall thereupon own such
Mortgage Loan, and all security and documents, free of any further obligation to
the Trustee or the Certificateholders with respect thereto.
(b) The Master Servicer may agree to a modification of any Mortgage
Loan (the "Modified Mortgage Loan") if (i) the modification is in lieu of a
refinancing and (ii) the Mortgage Rate on the Modified Mortgage Loan is
approximately a prevailing market rate for newly-originated mortgage loans
having similar terms and (iii) the Master Servicer purchases the Modified
Mortgage Loan from the Trust Fund as described below. Effective immediately
after the modification, and, in any event, on the same Business Day on which the
modification occurs, all interest of the Trustee in the Modified Mortgage Loan
shall automatically be deemed transferred and assigned to the Master Servicer
and all benefits and burdens of ownership thereof, including the right to
accrued interest thereon from the date of modification and the risk of default
thereon, shall pass to the Master Servicer. The Master Servicer shall promptly
deliver to the Trustee a certification of a Servicing Officer to the effect that
all requirements of this paragraph have been satisfied with respect to the
Modified Mortgage Loan. For federal income tax purposes, the Trustee shall
account for such purchase as a prepayment in full of the Modified Mortgage Loan.
The Master Servicer shall deposit the Purchase Price for any
Modified Mortgage Loan in the Certificate Account pursuant to Section 3.05
within one Business Day after the purchase of the Modified Mortgage Loan. Upon
receipt by the Trustee of written notification of any such deposit signed
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by a Servicing Officer, the Trustee shall release to the Master Servicer the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as shall be necessary to vest in
the Master Servicer any Modified Mortgage Loan previously transferred and
assigned pursuant hereto. The Master Servicer covenants and agrees to indemnify
the Trust Fund against any liability for any "prohibited transaction" taxes and
any related interest, additions, and penalties imposed on the Trust Fund
established hereunder as a result of any modification of a Mortgage Loan
effected pursuant to this subsection (b), any holding of a Modified Mortgage
Loan by the Trust Fund or any purchase of a Modified Mortgage Loan by the Master
Servicer (but such obligation shall not prevent the Master Servicer or any other
appropriate Person from in good faith contesting any such tax in appropriate
proceedings and shall not prevent the Master Servicer from withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings). The
Master Servicer shall have no right of reimbursement for any amount paid
pursuant to the foregoing indemnification, except to the extent that the amount
of any tax, interest, and penalties, together with interest thereon, is refunded
to the Trust Fund or the Master Servicer.
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by delivering, or causing to be delivered a "Request for Release"
substantially in the form of Exhibit N. Upon receipt of such request, the
Trustee shall promptly release the related Mortgage File to the Master Servicer,
and the Trustee shall at the Master Servicer's direction execute and deliver to
the Master Servicer the request for reconveyance, deed of reconveyance or
release or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage in each case provided by the Master Servicer, together with the
Mortgage Note with written evidence of cancellation thereon. The Master Servicer
is authorized to cause the removal from the registration on the MERS System of
such Mortgage and to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation or of partial or full release. Expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the related Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any fidelity bond or errors or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee shall, upon delivery to the Trustee
of a Request for Release in the form of Exhibit M signed by a Servicing Officer,
release the Mortgage File to the Master Servicer. Subject to the further
limitations set forth below, the Master Servicer shall cause the Mortgage File
or documents so released to be returned to the Trustee when the need therefor by
the Master Servicer no longer exists, unless the Mortgage Loan is liquidated and
the proceeds thereof are deposited in the Certificate Account, in which case the
Master Servicer shall deliver to the Trustee a Request for Release in the form
of Exhibit N, signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this Agreement,
the Master Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
III-13
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 on all of the
Mortgage Loans, if any, with respect to such Distribution Date, but not to
exceed the Compensating Interest for such Distribution Date, and (ii) with
respect to the first Distribution Date, an amount equal to any amount to be
deposited into the Distribution Account by the Depositor pursuant to Section
2.01(a) and not so deposited.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, prepayment penalties, assumption fees, late payment
charges and all income and gain net of any losses realized from Permitted
Investments shall be retained by the Master Servicer to the extent not required
to be deposited in the Certificate Account pursuant to Section 3.05 hereof. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its master servicing activities hereunder (including payment of
any premiums for hazard insurance and any Primary Insurance Policy and
maintenance of the other forms of insurance coverage required by this Agreement)
and shall not be entitled to reimbursement therefor except as specifically
provided in this Agreement.
SECTION 3.15. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders and/or Certificate Owners
and the examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer. Nothing
in this Section shall limit the obligation of the Master Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
III-14
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 2007 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 2007 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.
III-15
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances.
(a) The Master Servicer shall determine on or before each Master
Servicer Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make an
Advance, it shall, on or before the Master Servicer Advance Date, either (i)
deposit into the Certificate Account an amount equal to the Advance or (ii) make
an appropriate entry in its records relating to the Certificate Account that any
Amount Held for Future Distribution has been used by the Master Servicer in
discharge of its obligation to make any such Advance. Any funds so applied shall
be replaced by the Master Servicer by deposit in the Certificate Account no
later than the close of business on the next Master Servicer Advance Date. The
Master Servicer shall be entitled to be reimbursed from the Certificate Account
for all Advances of its own funds made pursuant to this Section as provided in
Section 3.08. The obligation to make Advances with respect to any Mortgage Loan
shall continue if such Mortgage Loan has been foreclosed or otherwise terminated
and the related Mortgaged Property has not been liquidated.
(b) If the Master Servicer determines that it will be unable to
comply with its obligation to make the Advances as and when described in the
second sentence of Section 4.01(a), it shall use its best efforts to give
written notice thereof to the Trustee (each such notice a "Trustee Advance
Notice"; and such notice may be given by telecopy), not later than 3:00 P.M.,
New York time, on the Business Day immediately preceding the related Master
Servicer Advance Date, specifying the amount that it will be unable to deposit
(each such amount an "Advance Deficiency") and certifying that such Advance
Deficiency constitutes an Advance hereunder and is not a Nonrecoverable Advance.
If the Trustee receives a Trustee Advance Notice on or before 3:30 P.M., New
York time on a Master Servicer Advance Date, the Trustee shall, not later than
3:00 P.M., New York time, on the related Distribution Date, deposit in the
Distribution Account an amount equal to the Advance Deficiency identified in
such Trustee Advance Notice unless it is prohibited from so doing by applicable
law. Notwithstanding the foregoing, the Trustee shall not be required to make
such deposit if the Trustee shall have received written notification from the
Master Servicer that the Master Servicer has deposited or caused to be deposited
in the Certificate Account an amount equal to such Advance Deficiency. All
Advances made by the Trustee pursuant to this Section 4.01(b) shall accrue
interest on behalf of the Trustee at the Trustee Advance Rate from and including
the date such Advances are made to but excluding the date of repayment, with
such interest being an obligation of the Master Servicer and not the Trust Fund.
The Master Servicer shall reimburse the Trustee for the amount of any Advance
made by the Trustee pursuant to this Section 4.01(b) together with accrued
interest, not later than the fifth day following the related Master Servicer
Advance Date. In the event that the Master Servicer does not reimburse the
Trustee in accordance with the requirements of the preceding sentence, the
Trustee shall have the right, but not the obligation, to immediately (a)
terminate all of the rights and obligations of the Master Servicer under this
Agreement in accordance with Section 7.01 and (b) subject to the limitations set
forth in Section 3.04, assume all of the rights and obligations of the Master
Servicer hereunder.
(c) The Master Servicer shall, not later than the close of business
on the second Business Day immediately preceding each Distribution Date, deliver
to the Trustee a report (in form and substance reasonably satisfactory to the
Trustee) that indicates (i) the Mortgage Loans with respect to which the Master
Servicer has determined that the related Scheduled Payments should be advanced
and (ii) the amount of the related Scheduled Payments. The Master Servicer shall
deliver to the Trustee on
IV-1
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) On each Distribution Date, the Trustee shall withdraw the
Available Funds from the Distribution Account and apply such funds to
distributions on the Certificates in the following order and priority and, in
each case, to the extent of Available Funds remaining:
(i) [reserved];
(ii) concurrently, to each interest-bearing Class of Senior
Certificates, an amount allocable to interest equal to the related
Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the Class
Optimal Interest Distribution Amount that would have been distributed
in the absence of such shortfall, provided that prior to an Accrual
Termination Date, the related Accrual Amount shall be distributed as
provided in Section 4.02(a)(iii);
(iii) [reserved];
(iv) to each Class of Senior Certificates, concurrently, as
follows:
(x) to the Class PO Certificates, the PO Formula Principal
Amount until its Class Certificate Balance is reduced to zero;
and
(y) on each Distribution Date, the Non-PO Formula Principal
Amount up to the amount of the Senior Principal Distribution
Amount for such Distribution Date will be distributed in the
following order of priority:
(1) to the Class A-R Certificates, until its Class
Certificate Balance is reduced to zero; and
(2) concurrently:
(A) 17.4546324558%, concurrently, to the
Class A-11, Class A-12 and Class A-13
Certificates, pro rata, until their
respective Class Certificate Balances
are reduced to zero; and
(B) 82.5453675442% in the following
order of priority:
(i) concurrently, to the Class A-9
and Class A-10 Certificates, pro
rata, the Priority Amount, until
their respective Class Certificate
Balances are reduced to zero;
(ii) concurrently:
(a) 75.00%, in the following
order of priority:
(v) up to $1,000 on
each Distribution
Date, concurrently,
to the Class A-1 and
Class A-2
Certificates, pro
rata, until their
respective Class
Certificate Balances
are reduced to zero;
IV-2
(w) up to $1,377,000
on each Distribution
Date, concurrently,
to the Class A-3,
Class A-14 and Class
A-15 Certificates,
pro rata, until
their respective
Class Certificate
Balances are reduced
to zero;
(x) concurrently, to
the Class A-1 and
Class A-2
Certificates, pro
rata, until their
respective Class
Certificate Balances
are reduced to zero;
(y) concurrently, to
the Class A-3, Class
A-14 and Class A-15
Certificates, pro
rata, until their
respective Class
Certificate Balances
are reduced to zero;
and
(z) to the Class A-6
Certificates, until
its Class
Certificate Balance
is reduced to zero;
and
(b) 25.00%, to the Class A-4
Certificates, until its Class
Certificate Balance is reduced
to zero;
(iii) sequentially, to the Class
A-7 and Class A-8 Certificates, in
that order, until their respective
Class Certificate Balances are
reduced to zero; and
(iv) concurrently, to the Class A-9
and Class A-10 Certificates, pro
rata, without regard to the
Priority Amount, until their
respective Class Certificate
Balances are reduced to zero;
(v) to the Class PO Certificates, any Class PO Deferred Amount,
up to an amount not to exceed the amount calculated pursuant to clause
(A) of the definition of the Subordinated Principal Distribution
Amount actually received or advanced for such Distribution Date (with
such amount to be allocated first from amounts calculated pursuant to
(A)(i) and (ii) then (iii) of the definition of Subordinated Principal
Distribution Amount);
(vi) to each Class of Subordinated Certificates, subject to
subparagraph (e) below, in the following order of priority:
(A) to the Class M Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount
for such Class for such Distribution Date;
(B) to the Class M Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(C) to the Class B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount
for such Class for such Distribution Date;
(D) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
IV-3
(E) to the Class B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount
for such Class for such Distribution Date;
(F) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(G) to the Class B-3 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(H) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(I) to the Class B-4 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(J) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(K) to the Class B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount
for such Class for such Distribution Date; and
(L) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(vii) [reserved]; and
(viii) to the Class A-R Certificates, any remaining funds in the
Trust Fund.
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Class Certificate Balance of the Class PO
Certificates.
On any Distribution Date, to the extent the Amount Available for
Senior Principal is insufficient to make the full distribution required to be
made pursuant to subclause (iv)(x) above, (A) the amount distributable on the
Class PO Certificates in respect of principal pursuant to such subclause (iv)(x)
shall be equal to the product of (1) the Amount Available for Senior Principal
and (2) a fraction, the numerator of which is the PO Formula Principal Amount
and the denominator of which is the sum of the PO Formula Principal Amount and
the Senior Principal Distribution Amount and (B) the amount distributable on the
Senior Certificates, other than the Class PO Certificates, in respect of
principal pursuant to clause (iv)(y) shall be equal to the product of (1) the
Amount Available for Senior Principal and (2) a fraction, the numerator of which
is the Senior Principal Distribution Amount and the denominator of which is the
sum of the Senior Principal Distribution Amount and the PO Formula Principal
Amount.
IV-4
(b) On each Distribution Date prior to and including the applicable
Accrual Termination Date with respect to each Class or Component of Accrual
Certificates, the Accrual Amount for such Class or Component for such
Distribution Date shall not (except as provided in the second to last sentence
in this paragraph) be distributed as interest with respect to such Class or
Component of Accrual Certificates, but shall instead be added to the related
Class Certificate Balance or Component Balance of such Class or Component, as
applicable, on the related Distribution Date. With respect to any Distribution
Date prior to and including the applicable Accrual Termination Date on which
principal payments on any Class or Component of Accrual Certificates are
distributed pursuant to Section 4.02(a)(iv)(y), the related Accrual Amount shall
be deemed to have been added on such Distribution Date to the related Class
Certificate Balance or Component Balance (and included in the amount
distributable on the related Class or Classes or Component of Accretion Directed
Certificates pursuant to Section 4.02(a)(iii) for such Distribution Date) and
the related distribution thereon shall be deemed to have been applied
concurrently towards the reduction of all or a portion of the amount so added
and, to the extent of any excess, towards the reduction of the Class Certificate
Balance or Component Balance of such Class or Component of Accrual Certificates
immediately prior to such Distribution Date. Notwithstanding any such
distribution, each such Class or Component shall continue to be a Class of
Accrual Certificates on each subsequent Distribution Date until the applicable
Accrual Termination Date.
(c) On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth in Section
4.02(a)(iv)(y), the portion of Available Funds available to be distributed as
principal of the Senior Certificates (other than the Class PO Certificates)
shall be distributed concurrently, as principal, on such Classes, pro rata, on
the basis of their respective Class Certificate Balances, until the Class
Certificate Balances thereof are reduced to zero.
(d) On each Distribution Date, the amount referred to in clause (i)
of the definition of Class Optimal Interest Distribution Amount for each Class
of Certificates for such Distribution Date shall be reduced by (i) the related
Class' pro rata share of Net Prepayment Interest Shortfalls based on such Class'
Class Optimal Interest Distribution Amount for such Distribution Date, without
taking into account such Net Prepayment Interest Shortfalls and (ii) the related
Class' Allocable Share of the interest portion of a Debt Service Reduction, and
each Relief Act Reduction incurred during the calendar month preceding the month
of such Distribution Date.
(e) Notwithstanding the priority and allocation contained in Section
4.02(a)(vi), if, on any Distribution Date, with respect to any Class of
Subordinated Certificates (other than the Class of Subordinated Certificates
then outstanding with the highest priority of distribution), the sum of the
related Class Subordination Percentages of such Class and of all Classes of
Subordinated Certificates which have a higher numerical Class designation than
such Class (the "Applicable Credit Support Percentage") is less than the
Original Applicable Credit Support Percentage for such Class, no distribution of
Principal Prepayments will be made to any such Classes (the "Restricted
Classes") and the amount of such Principal Prepayments otherwise distributable
to the Restricted Classes shall be distributed to any Classes of Subordinated
Certificates having lower numerical Class designations than such Class, pro
rata, based on their respective Class Certificate Balances immediately prior to
such Distribution Date and shall be distributed in the sequential order provided
in Section 4.02(a)(vi).
(f) [Reserved].
(g) If the amount of a Realized Loss on a Mortgage Loan has been
reduced by application of Subsequent Recoveries with respect to such Mortgage
Loan, an amount equal to the amount of such Subsequent Recoveries will be
applied sequentially, in the order of payment priority, to increase the Class
Certificate Balance of each Class of Certificates to which Realized Losses have
been allocated, but in each case by not more than the amount of Realized Losses
previously allocated to that
IV-5
Class of Certificates pursuant to Section 4.04. Holders of such Certificates
will not be entitled to any payment in respect of the Class Optimal Interest
Distribution Amount on the amount of such increases for any Interest Accrual
Period preceding the Distribution Date on which such increase occurs. Any such
increases shall be applied pro rata to the Certificate Balance of each
Certificate of such Class.
SECTION 4.03. [Reserved].
SECTION 4.04. Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall
determine the total amount of Realized Losses with respect to the related
Distribution Date. For purposes of allocating losses to the Subordinated
Certificates, the Class M Certificates will be deemed to have a lower numerical
Class designation, and to be of a higher relative payment priority, than each
other Class of Subordinated Certificates.
Realized Losses with respect to any Distribution Date shall be
allocated as follows:
(i) the applicable PO Percentage of any Realized Loss shall be
allocated to the Class PO Certificates until the Class Certificate Balance
thereof is reduced to zero; and
(ii) the applicable Non-PO Percentage of any Realized Loss shall be
allocated first to the Subordinated Certificates in reverse order of their
respective numerical Class designations (beginning with the Class of
Subordinated Certificates then outstanding with the highest numerical Class
designation) until the respective Class Certificate Balance of each such
Class is reduced to zero, and second to the Senior Certificates (other than
any Notional Amount Certificates, if applicable, and the Class PO
Certificates), pro rata on the basis of their respective Class Certificate
Balances or, in the case of any Class of Accrual Certificates or Accrual
Component, on the basis of the lesser of their respective Class Certificate
Balances or Component Balance, as applicable, and their respective initial
Class Certificate Balances or Component Balance, as applicable, in each
case immediately prior to the related Distribution Date, until the
respective Class Certificate Balance or Component Balance of each such
Class or Component is reduced to zero; provided, however, that the Non-PO
Percentage of any Realized Losses on the Mortgage Loans that would
otherwise be allocated the Class A-1, Class A-9, Class A-11 and Class A-14
Certificates shall instead be allocated to the Class A-2, Class A-10, Class
A-12 and Class A-15, respectively, until their respective Class Certificate
Balances are reduced to zero.
(b) The Class Certificate Balance of the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation shall
be reduced on each Distribution Date by the sum of (i) the amount of any
payments on the Class PO Certificates in respect of Class PO Deferred Amounts
and (ii) the amount, if any, by which the aggregate of the Class Certificate
Balances of all outstanding Classes of Certificates (after giving effect to the
distribution of principal and the allocation of Realized Losses and Class PO
Deferred Amounts on such Distribution Date) exceeds the Pool Stated Principal
Balance for the following Distribution Date.
(c) Any Realized Losses allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 4.04(a) above shall be allocated among the Certificates of such Class
in proportion to their respective Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or to any
Component or any reduction in the Certificate Balance of a Certificate, pursuant
to Section 4.04(a) above shall be accomplished by reducing the Certificate
Balance or Component Balance thereof, as applicable,
IV-6
immediately following the distributions made on the related Distribution Date in
accordance with the definition of "Certificate Balance" or "Component Balance,"
as the case may be. All Realized Losses allocated to a Class of Component
Certificates will be allocated, pro rata, to the related Components.
(e) [Reserved]
SECTION 4.05. [Reserved]
SECTION 4.06. Monthly Statements to Certificateholders.
(a) Concurrently with each distribution on a Distribution Date, the
Trustee will forward by electronic delivery 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 T hereto.
(b) The Trustee's responsibility for disbursing the above
information to the Certificateholders is limited to the availability, timeliness
and accuracy of the information provided by the Master Servicer.
(c) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day prior to
the related Distribution Date), the Master Servicer shall deliver to the Trustee
(which delivery may be by electronic data transmission) a report in
substantially the form set forth as Schedule VI hereto.
(d) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at any
time during the calendar year was a Certificateholder, a statement containing
the information set forth in items (1), (2) and (7) of Exhibit T hereto,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in effect.
SECTION 4.07. Determination of Pass-Through Rates for COFI
Certificates.
The Pass-Through Rate for each Class of COFI Certificates for each
Interest Accrual Period after the initial Interest Accrual Period shall be
determined by the Trustee as provided below on the basis of the Index and the
applicable formulae appearing in footnotes corresponding to the COFI
Certificates in the table relating to the Certificates in the Preliminary
Statement.
Except as provided below, with respect to each Interest Accrual
Period following the initial Interest Accrual Period, the Trustee shall not
later than two Business Days prior to such Interest Accrual Period but following
the publication of the applicable Index determine the Pass-Through Rate at which
interest shall accrue in respect of the COFI Certificates during the related
Interest Accrual Period.
Except as provided below, the Index to be used in determining the
respective Pass-Through Rates for the COFI Certificates for a particular
Interest Accrual Period shall be COFI for the second calendar month preceding
the Outside Reference Date for such Interest Accrual Period. If at the Outside
Reference Date for any Interest Accrual Period, COFI for the second calendar
month preceding such Outside Reference Date has not been published, the Trustee
shall use COFI for the third calendar month preceding such Outside Reference
Date. If COFI for neither the second nor third calendar months preceding any
Outside Reference Date has been published on or before the related Outside
Reference
IV-7
Date, the Index for such Interest Accrual Period and for all subsequent Interest
Accrual Periods shall be the National Cost of Funds Index for the third calendar
month preceding such Interest Accrual Period (or the fourth preceding calendar
month if such National Cost of Funds Index for the third preceding calendar
month has not been published by such Outside Reference Date). In the event that
the National Cost of Funds Index for neither the third nor fourth calendar
months preceding an Interest Accrual Period has been published on or before the
related Outside Reference Date, then for such Interest Accrual Period and for
each succeeding Interest Accrual Period, the Index shall be LIBOR, determined in
the manner set forth below.
With respect to any Interest Accrual Period for which the applicable
Index is LIBOR, LIBOR for such Interest Accrual Period will be established by
the Trustee on the related Interest Determination Date as provided in Section
4.08.
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 a Class of LIBOR Certificates
for the next Interest Accrual Period will be established by the Trustee on each
interest Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next applicable
Interest Accrual Period shall be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of
the Reference Banks provides such offered quotations, LIBOR for the
next Interest Accrual Period shall be whichever is the higher of (i)
LIBOR as determined on the previous Interest Determination Date or
(ii) the
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Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate
per annum which the Trustee determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of
1/32%) of the one-month United States dollar lending rates that New
York City banks selected by the Trustee are quoting, on the relevant
Interest Determination Date, to the principal London offices of at
least two of the Reference Banks to which such quotations are, in the
opinion of the Trustee, being so made, or (ii) in the event that the
Trustee can determine no such arithmetic mean, the lowest one-month
United States dollar lending rate which New York City banks selected
by the Trustee are quoting on such Interest Determination Date to
leading European banks.
(iii) If on any Interest Determination Date the Trustee is
required but is unable to determine the Reserve Interest Rate in the
manner provided in paragraph (b) above, LIBOR for the related Classes
of Certificates shall be LIBOR as determined on the preceding
applicable Interest Determination Date. If on the initial LIBOR
Determination Date, the calculation agent is required but unable to
determine LIBOR in the manner provided above, LIBOR for the next
Interest Accrual Period will be 4.47%.
Until all of the LIBOR Certificates are paid in full, the Trustee
will at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each Interest Determination Date. The Master
Servicer initially shall designate the Reference Banks. Each "Reference Bank"
shall be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or be
under common control with, the Trustee and shall have an established place of
business in London. If any such Reference Bank should be unwilling or unable to
act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Trustee shall promptly appoint or cause to be appointed
another Reference Bank. The Trustee shall have no liability or responsibility to
any Person for (i) the selection of any Reference Bank for purposes of
determining LIBOR or (ii) any inability to retain at least four Reference Banks
which is caused by circumstances beyond its reasonable control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Trustee on each Interest
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Trustee may conclusively rely and shall be protected in relying upon the offered
quotations (whether written, oral or on the Dow Xxxxx Markets) from the BBA
designated banks, the Reference Banks or the New York City banks as to LIBOR,
the Interest Settlement Rate or the Reserve Interest Rate, as appropriate, in
effect from time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee's selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City banks
or to determine such arithmetic mean, all as provided for in this Section 4.08.
The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
Subject to Section 9.02 hereof respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at a
bank or other entity having appropriate facilities therefor, if (i) such Holder
has so notified the Trustee at least five Business Days prior to the related
Record Date and (ii) such Holder shall hold (A) a Notional Amount Certificate,
(B) 100% of the Class Certificate Balance of any Class of Certificates or (C)
Certificates of any Class with aggregate principal Denominations of not less
than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the countersignature and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.06 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any
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Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer in substantially the forms
set forth in Exhibit J (the "Transferor Certificate") and (i) deliver a letter
in substantially the form of either Exhibit K (the "Investment Letter") or
Exhibit L (the "Rule 144A Letter") or (ii) there shall be delivered to the
Trustee at the expense of the transferor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act. The
Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Trustee and the Master Servicer shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor, the Sellers and the Master Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the transferee
of such Certificate acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit K or Exhibit L,
or in the event such Certificate is a Residual Certificate, such requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit I), to the effect that (x) such
transferee is not an employee benefit plan or arrangement subject to Section 406
of ERISA or a plan or arrangement subject to Section 4975 of the Code, 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, a representation that the
transferee is an insurance company which is purchasing such Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60 or
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(ii) in the case of any ERISA-Restricted Certificate presented for registration
in the name of an employee benefit plan or arrangement subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee or any other person
acting on behalf of any such plan or arrangement or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the Trustee, which
Opinion of Counsel shall not be an expense of either the Trustee, the Master
Servicer or the Trust Fund, addressed to the Trustee and the Master Servicer to
the effect that the purchase and holding of such ERISA-Restricted Certificate
will not result in a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code and will not subject the Trustee or the Master
Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Residual Certificate,
in the event the representation letter or Opinion of Counsel referred to in the
preceding sentence is not so furnished, one of the representations in clause
(i), as appropriate, shall be deemed to have been made to the Trustee by the
transferee's (including an initial acquiror's) acceptance of the
ERISA-Restricted Certificate. Notwithstanding anything else to the contrary
herein, any purported transfer of an ERISA-Restricted Certificate to or on
behalf of 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 an Opinion
of Counsel satisfactory to the Trustee as described above shall be void and of
no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) 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
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Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee
shall become a Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Residual Certificate that is in fact
not permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under the
provisions of this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter,
if required. The Trustee shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in fact not
a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Master
Servicer or any Seller, to the effect that the elimination of such restrictions
will not cause any REMIC hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax on
the Trust Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Residual Certificate hereby consents to
any amendment of this Agreement which, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record ownership
of, or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
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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 herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Master Servicer and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
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SECTION 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master
Servicer or the Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Trustee nor any agent of the
Master Servicer or the Trustee shall be affected by any notice to the contrary.
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders and/or Certificate Owners (a)
request such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders and/or Certificate Owners propose to
transmit, or if the Depositor or Master Servicer shall request such information
in writing from the Trustee, then the Trustee shall, within ten Business Days
after the receipt of such request, (x) provide the Depositor, the Master
Servicer or such Certificateholders and/or Certificate Owners at such
recipients' expense the most recent list of the Certificateholders of such Trust
Fund held by the Trustee, if any, and (y) assist the Depositor, the Master
Servicer or such Certificateholders and/or Certificate Owners at such
recipients' expense with obtaining from the Depository a list of the related
Depository Participants acting on behalf of Certificate Owners of Book Entry
Certificates. The Depositor and every Certificateholder and Certificate Owner,
by receiving and holding a Certificate or beneficial interest therein, agree
that the Trustee shall not be held accountable by reason of the disclosure of
any such information as to the list of the Certificateholders and/or Depository
Participants hereunder, regardless of the source from which such information was
derived.
SECTION 5.06. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense
an office or offices or agency or agencies in New York City where Certificates
may be surrendered for registration of transfer or exchange. The Trustee
initially designates its Corporate Trust Office for such purposes. The Trustee
will give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor will keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement. The Master Servicer will keep in effect its
existence, rights and franchises as a limited partnership under the laws of the
United States or under the laws of one of the states thereof and will obtain and
preserve its qualification or registration to do business as a foreign
partnership in each jurisdiction in which such qualification or registration is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation,
at least 15 calendar days prior to the effective date of any merger or
consolidation of the Master Servicer, the Master Servicer shall provide (x)
written notice to the Depositor of any successor pursuant to this Section and
(y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a replacement Master Servicer.
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers,
the Master Servicer and Others.
None of the Depositor, the Master Servicer or any Seller or any of
the directors, officers, employees or agents of the Depositor, the Master
Servicer or any Seller shall be under any liability to the Certificateholders
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor, the Master Servicer, any
Seller or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Master Servicer, any Seller or
any such Person from any liability which would otherwise be imposed by reasons
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor, the Master Servicer, each Seller and any director, officer,
employee or agent of the Depositor, the Master Servicer or each Seller may rely
in good faith on
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any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, each Seller and any director, officer, employee or agent of the
Depositor, the Master Servicer or any Seller shall be indemnified by the Trust
Fund and held harmless against any loss, liability or expense incurred in
connection with any audit, controversy or judicial proceeding relating to a
governmental taxing authority or any legal action relating to this Agreement or
the Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder. None of the Depositor,
the Master Servicer or any Seller shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that any of the Depositor, the Master Servicer or
any Seller may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and each Seller shall be
entitled to be reimbursed therefor out of the Certificate Account.
SECTION 6.04. Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrade or withdrawal of the
rating of any of the Certificates or (b) upon determination that its duties
hereunder are no longer permissible under applicable law. Any such determination
under clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor master
servicer shall have assumed the Master Servicer's responsibilities, duties,
liabilities and obligations hereunder 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.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit in the
Certificate Account or remit to the Trustee any payment required to be
made under the terms of this Agreement, which failure shall continue
unremedied for five days after the date upon which written notice of
such failure shall have been given to the Master Servicer by the
Trustee or the Depositor or to the Master Servicer and the Trustee by
the Holders of Certificates having not less than 25% of the Voting
Rights evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform in
any material respect any other of the covenants or agreements on the
part of the Master Servicer contained in this Agreement (except with
respect to a failure related to a Limited Exchange Act Reporting
Obligation), which failure materially affects the rights of
Certificateholders, that failure continues unremedied for a period of
60 days after the date on which written notice of such failure shall
have been given to the Master Servicer by the Trustee or the
Depositor, or to the Master Servicer and the Trustee by the Holders of
Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates; provided, however, that the sixty-day
cure period shall not apply to the initial delivery of the Mortgage
File for Delay Delivery Mortgage Loans nor the failure to substitute
or repurchase in lieu of delivery; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60
consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) the Master Servicer shall fail to reimburse in full the
Trustee within five days of the Master Servicer Advance Date for any
Advance made by the Trustee pursuant to Section 4.01(b) together with
accrued and unpaid interest.
If an Event of Default described in clauses (i) to (vi) of this
Section shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or, if an
Event of Default described in clauses (i) to (v) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, at the direction of the
VII-1
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
hereunder.
If the Master Servicer is terminated, the Trustee shall provide the
Depositor in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a successor master servicer in the event the Trustee should succeed to the
duties of the Master Servicer as set forth herein.
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SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 hereof, the Trustee shall, subject to and
to the extent provided in Section 3.04, be the successor to the Master Servicer
in its capacity as master servicer under this Agreement and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof and applicable law including the obligation to make
Advances pursuant to Section 4.01. As compensation therefor, the Trustee shall
be entitled to all funds relating to the Mortgage Loans that the Master Servicer
would have been entitled to charge to the Certificate Account or Distribution
Account if the Master Servicer had continued to act hereunder. Notwithstanding
the foregoing, if the Trustee has become the successor to the Master Servicer in
accordance with Section 7.01 hereof, the Trustee may, if it shall be unwilling
to so act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 hereof or if it is otherwise unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
mortgage loan servicing institution the appointment of which does not adversely
affect the then current rating of the Certificates, by each Rating Agency as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder.
Any successor to the Master Servicer shall be an institution which is a FNMA and
FHLMC approved seller/servicer in good standing, which has a net worth of at
least $15,000,000, and which is willing to service the Mortgage Loans and (i)
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, which contains an assumption by such Person of
the rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer (other than liabilities of the Master Servicer under Section
6.03 hereof incurred prior to termination of the Master Servicer under Section
7.01), with like effect as if originally named as a party to this Agreement; and
provided further that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced, as a result of such assignment and delegation and
(ii) provides to the Depositor in writing fifteen days prior to the effective
date of such appointment and in form and substance reasonably satisfactory to
the Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a replacement master servicer. The Trustee shall provide written notice to the
Depositor of such successor pursuant to this Section. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to Section 3.04 hereof, act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of the
Master Servicing Fee permitted to be paid to the Master Servicer hereunder. The
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither the
Trustee nor any other successor master servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give
notice to the Mortgagors of such change of servicer and shall, during the term
of its service as master servicer maintain in force the policy or policies that
the Master Servicer is required to maintain pursuant to Section 3.09.
In connection with the termination or resignation of the Master
Servicer hereunder, either (i) the successor Master Servicer, including the
Trustee if the Trustee is acting as successor Master Servicer, shall represent
and warrant that it is a member of MERS in good standing and shall agree to
VII-3
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, or (ii) the predecessor Master Servicer shall cooperate with the successor
Master Servicer either (x) in causing MERS to execute and deliver an assignment
of Mortgage in recordable form to transfer the Mortgage from MERS to the Trustee
and to execute and deliver such other notices, documents and other instruments
as may be necessary or desirable to effect a transfer of such Mortgage Loan or
servicing of such Mortgage Loan on the MERS(R) System to the successor Master
Servicer or (y) in causing MERS to designate on the MERS(R) System the successor
Master Servicer as the servicer of such Mortgage Loan. The predecessor Master
Servicer shall file or cause to be filed any such assignment in the appropriate
recording office. The successor Master Servicer shall cause such assignment to
be delivered to the Trustee promptly upon receipt of the original with evidence
of recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
VII-4
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) unless an Event of Default known to the Trustee shall have
occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement which it
believed in good faith to be genuine and to have been duly executed by
the proper authorities respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be finally proven that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates evidencing
not less than 25% of the Voting Rights of Certificates relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Agreement; and
(iv) without in any way limiting the provisions of this Section
8.01 or Section 8.02 hereof, the Trustee shall be entitled to rely
conclusively on the information delivered to it by the Master Servicer
in a Trustee Advance Notice in determining whether or not it is
required to make an Advance under Section 4.01(b), shall have no
responsibility to ascertain or confirm any information contained in
any Trustee Advance Notice, and shall have no obligation to make any
Advance under Section 4.01(b) in the absence of a Trustee Advance
Notice or actual knowledge
VIII-1
of a Responsible Officer of the Trustee that (A) such Advance was not made by
the Master Servicer and (B) such Advance is not a Nonrecoverable Advance.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties and the Trustee shall have no responsibility to ascertain or
confirm the genuineness of any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing so to do by Holders of Certificates evidencing not less than
25% of the Voting Rights allocated to each Class of Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents, accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers
hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it;
(vii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer
of the investment security);
(viii) the Trustee shall not be deemed to have knowledge of an
Event of Default until a Responsible Officer of the Trustee shall have
received written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any of
the trusts, rights or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which may be incurred therein or
thereby.
VIII-2
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or a Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the MERS
System other than with respect to the Trustee's execution and counter-signature
of the Certificates. The Trustee shall not be accountable for the use or
application by the Depositor or the Master Servicer of any funds paid to the
Depositor or the Master Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor or the Master
Servicer.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Distribution Account on each Distribution Date an
amount equal to the Trustee Fee for such Distribution Date. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified by the
Master Servicer and held harmless against any loss, liability or expense
(including reasonable attorney's fees) (i) incurred in connection with any claim
or legal action relating to (a) this Agreement, (b) the Certificates or (c) in
connection with the performance of any of the Trustee's duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Trustee's duties
hereunder or incurred by reason of any action of the Trustee taken at the
direction of the Certificateholders and (ii) resulting from any error in any tax
or information return prepared by the Master Servicer. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Trustee hereunder. Without limiting the foregoing, the Master Servicer covenants
and agrees, except as otherwise agreed upon in writing by the Depositor and the
Trustee, and except for any such expense, disbursement or advance as may arise
from the Trustee's negligence, bad faith or willful misconduct, to pay or
reimburse the Trustee, for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage such persons to perform acts
or services hereunder and (C) printing and engraving expenses in connection with
preparing any Definitive Certificates. Except as otherwise provided herein, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause either of the Rating Agencies to reduce or withdraw
their respective then current ratings of the Certificates (or having provided
such security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of
VIII-3
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 8.06, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07 hereof. The entity serving as Trustee may have normal banking and
trust relationships with the Depositor and its affiliates or the Master Servicer
and its affiliates; provided, however, that such entity cannot be an affiliate
of the Master Servicer other than the Trustee in its role as successor to the
Master Servicer.
SECTION 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to Section 8.08, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As a condition to the effectiveness of any such resignation, at
least 15 calendar days prior to the effective date of such resignation, the
Trustee shall provide (x) written notice to the Depositor of any successor
pursuant to this Section and (y) in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to the resignation of the Trustee.
If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 hereof and shall fail to resign
after written request thereto by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,(iii) a
tax is imposed with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund is located and the imposition of such tax would be avoided by
the appointment of a different trustee or (iv) during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Trustee fails to comply with its obligations under the last sentence
of Section 7.01, the preceding paragraph, Section 8.09 or Article XI and such
failure is not remedied within the lesser of 10 calendar days or such period in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions), then, in the case of clauses (i) through (iii),
the Depositor or the Master Servicer, or in the case of clause (iv), the
Depositor, may remove the Trustee and appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the Trustee, one copy of which shall be delivered to the Master Servicer and one
copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered by the successor Trustee to the Master Servicer, one complete
set to the Trustee so removed, one complete set to the successor so appointed
and one complete set to the Depositor, together with a written description of
the basis of such removal. Notice of any removal of the Trustee shall be given
to each Rating Agency by the successor trustee.
VIII-4
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08 hereof.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Master Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 hereof, its appointment shall
not adversely affect the then current rating of the Certificates and such
successor trustee has provided to the Depositor in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to a replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.06 hereof without the execution or filing of any
paper or further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
As a condition to the effectiveness of any merger or consolidation,
at least 15 calendar days prior to the effective date of any merger or
consolidation of the Trustee, the Trustee shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Trustee.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or
VIII-5
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Master Servicer and the
Trustee may consider necessary or desirable. If the Master Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee
under this Agreement to advance funds on behalf of the Master
Servicer, shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such
separate trustee or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(iv) The Master Servicer, and not the Trustee, shall be liable
for the payment of reasonable compensation, reimbursement and
indemnification to any such separate trustee or co-trustee.
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
VIII-6
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC
election is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of any such REMIC and
that in such capacity it shall: (a) prepare and file, or cause to be prepared
and filed, in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file or cause to be prepared and filed with the
Internal Revenue Service and applicable state or local tax authorities income
tax or information returns for each taxable year with respect to any such REMIC,
containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby; (b)
within thirty days of the Closing Date, furnish or cause to be furnished to the
Internal Revenue Service, on Forms 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make or cause to be made elections that such assets be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and, if
necessary, state tax authorities, all information returns and reports as and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a Person
that is not a Permitted Transferee, or an agent (including a broker, 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 last paragraph of this Section 8.11,
the amount of any federal or state tax, including prohibited transaction taxes
as described below, imposed on any such REMIC prior to its termination when and
as the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); (i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to any such REMIC, including but not limited to
the income, expenses, assets and liabilities thereof and the fair market value
and adjusted basis of the assets determined at such intervals as may be required
by the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and (k) as and when necessary and appropriate,
represent any such REMIC in any administrative or judicial proceedings relating
to an examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of any such REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute of
limitations relating to
VIII-7
any tax item of any such REMIC, and otherwise act on behalf of any such REMIC in
relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, reasonably request
in order to enable the Trustee to perform its duties as set forth herein. The
Depositor hereby indemnifies the Trustee for any losses, liabilities, damages,
claims or expenses of the Trustee arising from any errors or miscalculations of
the Trustee that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of
any REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c) of
the Code, on any contribution to any REMIC hereunder after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including,
without limitation, any minimum tax imposed upon any REMIC hereunder pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by the
Trustee of any of its obligations under this Agreement, (ii) the Master
Servicer, in the case of any such minimum tax, or if such tax arises 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).
VIII-8
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all
Mortgage Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Sellers, the Master Servicer and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of (a) the purchase
by the Master Servicer of all Mortgage Loans (and REO Properties) remaining in
the Trust Fund at the price equal to the sum of (i) 100% of the Stated Principal
Balance of each Mortgage Loan plus one month's accrued interest thereon at the
applicable Adjusted Mortgage Rate (ii) the lesser of (x) the appraised value of
any REO Property as determined by the higher of two appraisals completed by two
independent appraisers selected by the Master Servicer at the expense of the
Master Servicer and (y) the Stated Principal Balance of each Mortgage Loan
related to any REO Property and (iii) any remaining unpaid costs and damages
incurred by the Trust Fund that arises out of an actual violation of any
predatory or abusive lending law or regulation, in all cases plus accrued and
unpaid interest thereon at the applicable Adjusted Mortgage Rate and (b) the
later of (i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to this Agreement. In
no event shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof and (ii) the Latest Possible Maturity Date.
The Master Servicer shall have the right to purchase all Mortgage
Loans and REO Properties in the Trust Fund pursuant to clause (a) in the
preceding paragraph of this Section 9.01 only on or after the date on which the
Pool Stated Principal Balance, at the time of any such repurchase, is less than
or equal to ten percent (10%) of the Cut-off Date Pool Principal Balance.
SECTION 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Certificate Account, the Master Servicer
shall direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 9.01, at least 20 days prior to the date
notice is to be mailed to the affected Certificateholders, the Master Servicer
shall notify the Depositor and the Trustee of the date the Master Servicer
intends to terminate the Trust Fund and of the applicable repurchase price of
the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and no later than the 15th day of the month next preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Master Servicer will give such notice to each Rating Agency at
the time such notice is given to Certificateholders.
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In the event such notice is given, the Master Servicer shall cause
all funds in the Certificate Account to be remitted to the Trustee for deposit
in the Distribution Account on or before the Business Day prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit with respect to the Trust
Fund and the receipt by the Trustee of a Request for Release therefor, the
Trustee shall promptly release to the Master Servicer the Mortgage Files for the
Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class, in each
case on the final Distribution Date and in the order set forth in Section 4.02,
and in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class of
Regular Certificates, the Certificate Balance thereof plus (a) accrued interest
thereon (or on their Notional Amount, if applicable) in the case of an interest
bearing Certificate and (b) any Class PO Deferred Amounts in the case of Class
PO Certificates, and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
Notwithstanding the reduction of the Class Certificate Balance of any Class of
Certificates to zero, such Class will be outstanding hereunder (solely for the
purpose of receiving distributions and not for any other purpose) until the
termination of the respective obligations and responsibilities of the Depositor,
each Seller, the Master Servicer and the Trustee hereunder in accordance with
Article IX.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class A-R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
SECTION 9.03. Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option
as provided in Section 9.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee has been supplied
with an Opinion of Counsel, at the expense of the Master Servicer, to the effect
that the failure to comply with the requirements of this Section 9.03 will not
(i) result in the imposition of taxes on "prohibited transactions" on any REMIC
as defined in section 860F of the Code, or (ii) cause any REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date set forth
in the notice given by the Master Servicer under Section 9.02, the
Master Servicer shall prepare and the Trustee, at the expense of the
"tax matters person," shall adopt a plan of complete liquidation
within the meaning of section 860F(a)(4) of the Code which, as
evidenced by an Opinion of Counsel (which opinion shall not be an
expense of the Trustee or the Tax Matters Person), meets the
requirements of a qualified liquidation; and
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(ii) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of the
Trust Fund to the Master Servicer for cash in accordance with Section
9.01.
(b) The Trustee, as agent for any REMIC created hereunder, hereby
agrees to adopt and sign such a plan of complete liquidation upon the written
request of the Master Servicer, and the receipt of the Opinion of Counsel
referred to in Section 9.03(a)(1) and to take such other action in connection
therewith as may be reasonably requested by the Master Servicer.
(c) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Master Servicer to prepare and the Trustee to adopt and
sign a plan of complete liquidation.
IX-3
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor,
each Seller, the Master Servicer and the Trustee without the consent of any of
the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to conform this Agreement to
the Prospectus and Prospectus Supplement provided to investors in connection
with the initial offering of the Certificates, (iv) to add to the duties of the
Depositor, any Seller or the Master Servicer, (v) to modify, alter, amend, add
to or rescind any of the terms or provisions contained in this Agreement to
comply with any rules or regulations promulgated by the Securities and Exchange
Commission from time to time, (vi) to add any other provisions with respect to
matters or questions arising hereunder or (vii) to modify, alter, amend, add to
or rescind any of the terms or provisions contained in this Agreement; provided
that any action pursuant to clauses (v), (vi) or (vii) above shall not, as
evidenced by an Opinion of Counsel (which Opinion of Counsel shall not be an
expense of the Trustee or the Trust Fund), adversely affect in any material
respect the interests of any Certificateholder; provided, however, that the
amendment shall be deemed not to adversely affect in any material respect the
interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates; it being understood and agreed that any such letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Notwithstanding the foregoing, no amendment that
significantly changes the permitted activities of the trust created by this
Agreement may be made without the consent of a Majority in Interest of each
Class of Certificates affected by such amendment. Each party to this Agreement
hereby agrees that it will cooperate with each other party in amending this
Agreement pursuant to clause (v) above. The Trustee, each Seller, the Depositor
and the Master Servicer also may at any time and from time to time amend this
Agreement without the consent of the Certificateholders to modify, eliminate or
add to any of its provisions to such extent as shall be necessary or helpful to
(i) maintain the qualification of any REMIC as a REMIC under the Code, (ii)
avoid or minimize the risk of the imposition of any tax on any REMIC pursuant to
the Code that would be a claim at any time prior to the final redemption of the
Certificates or (iii) comply with any other requirements of the Code, provided
that the Trustee has been provided an Opinion of Counsel, which opinion shall be
an expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that such action is
necessary or helpful to, as applicable, (i) maintain such qualification, (ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply with
any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, each Seller, the Master Servicer and the Trustee with the consent of
the Holders of a Majority in Interest of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in (i), without the consent of the Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating 66-2/3%, or
(iii) reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all such Certificates then outstanding.
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Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any REMIC or the Certificateholders or cause
any REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
SECTION 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer at its expense, but only
upon direction by the Trustee accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Intention of Parties.
(a) It is the express intent of the parties hereto that the
conveyance of the (i) 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
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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.
(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.
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It is understood and agreed that the representations and warranties
set forth in subsection (b) above shall survive delivery of the Mortgage Files
to the Trustee. Upon discovery by the Depositor or the Trustee of a breach of
any of the foregoing representations and warranties set forth in subsection (b)
above, which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the
Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03;
5. The final payment to Certificateholders; and
6. Any rating action involving the long-term credit rating of
Countrywide, which notice shall be made by first-class mail within two
Business Days after the Trustee gains actual knowledge thereof.
In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section
3.16;
3. Each annual independent public accountants' servicing report
described in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered by first
class mail, by courier or by facsimile transmission to (1) in the case of the
Depositor, CWALT, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx, (2) in the case
of Countrywide, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx
or such other address as may be hereafter furnished to the Depositor and the
Trustee by Countrywide in writing, (3) in the case of Park Granada LLC, c/o
Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx or such
other address as may be hereafter furnished to the Depositor and the Trustee by
Park Granada in writing, (4) in the case of Park Monaco Inc., c/o Countrywide
Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile
number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx or such other address as may
be hereafter furnished to the
X-4
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: Xxxxx X. Xxxxxxx
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: (212)
815-3986, Attention: Mortgage-Backed Securities Group, CWALT, Inc. Series
2006-2CB, 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 thereof.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of
X-5
any provisions of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of the Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right
under this Agreement, except in the manner herein provided and for the common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Subservicer to permit any representative of the
Depositor or the Trustee during the Master Servicer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Master Servicer relating to the Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by the Depositor or the Trustee and to discuss its affairs,
finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Master
Servicer hereby authorizes said accountants to discuss with such representative
such affairs, finances and accounts), all at such reasonable times and as often
as may be reasonably requested. Any out-of-pocket expense incident to the
exercise by the Depositor or the Trustee of any right under this Section 10.09
shall be borne by the party requesting such inspection; all other such expenses
shall be borne by the Master Servicer or the related Subservicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 10.11. [Reserved]
SECTION 10.12. Protection of Assets.
(a) Except for transactions and activities entered into in
connection with the securitization that is the subject of this Agreement, the
Trust Fund created by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
X-6
ARTICLE XI
EXCHANGE ACT REPORTING
SECTION 11.01. Filing Obligations.
The Master Servicer, the Trustee and each Seller shall reasonably
cooperate with the Depositor in connection with the satisfaction of the
Depositor's reporting requirements under the Exchange Act with respect to the
Trust Fund. In addition to the information specified below, if so requested by
the Depositor for the purpose of satisfying its reporting obligation under the
Exchange Act, the Master Servicer, the Trustee and each Seller shall (and the
Master Servicer shall cause each Subservicer to) provide the Depositor with (a)
such information which is available to such Person without unreasonable effort
or expense and within such timeframe as may be reasonably requested by the
Depositor to comply with the Depositor's reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor is
not a party) to any agreement or amendment required to be filed, copies of such
agreement or amendment in XXXXX-compatible form.
SECTION 11.02. Form 10-D Filings.
(a) In accordance with the Exchange Act, the Trustee shall prepare
for filing and file within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act) with the Commission with respect to
the Trust Fund, a Form 10-D with copies of the Monthly Report and, to the extent
delivered to the Trustee, no later than 10 days following the Distribution Date,
such other information identified by the Depositor or the Master Servicer, in
writing, to be filed with the Commission (such other information, the
"Additional Designated Information"). If the Depositor or Master Servicer
directs that any Additional Designated Information is to be filed with any Form
10-D, the Depositor or Master Servicer, as the case may be, shall specify the
Item on Form 10-D to which such information is responsive and, with respect to
any Exhibit to be filed on Form 10-D, the Exhibit number. Any information to be
filed on Form 10-D shall be delivered to the Trustee in XXXXX-compatible form or
as otherwise agreed upon by the Trustee and the Depositor or the Master
Servicer, as the case may be, at the Depositor's expense, and any necessary
conversion to XXXXX-compatible format will be at the Depositor's expense. At the
reasonable request of, and in accordance with the reasonable directions of, the
Depositor or the Master Servicer, subject to the two preceding sentences, the
Trustee shall prepare for filing and file an amendment to any Form 10-D
previously filed with the Commission with respect to the Trust Fund. The Master
Servicer shall sign the Form 10-D filed on behalf of the Trust Fund.
(b) No later than each Distribution Date, each of the Master
Servicer and the Trustee shall notify (and the Master Servicer shall cause any
Subservicer to notify) the Depositor and the Master Servicer of any Form 10-D
Disclosure Item, together with a description of any such Form 10-D Disclosure
Item in form and substance reasonably acceptable to the Depositor. In addition
to such information as the Master Servicer and the Trustee are obligated to
provide pursuant to other provisions of this Agreement, if so requested by the
Depositor, each of the Master Servicer and the Trustee shall provide such
information which is available to the Master Servicer and the Trustee, as
applicable, without unreasonable effort or expense regarding the performance or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Master Servicer) as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121 of
Regulation AB. Such information shall be provided concurrently with the delivery
of reports specified in Section 4.06(c) in the case of the Master Servicer and
the Monthly Statement in the case of the Trustee, commencing with the first such
report due not less than five Business Days following such request.
(c) The Trustee shall not have any responsibility to file any items
(other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic filing
via the XXXXX system and shall not have any responsibility to convert any
XI-7
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 or the Master Servicer, the Depositor with
respect to any failure to properly prepare or file any of Form 10-D to the
extent that such failure is not the result of any negligence, bad faith or
willful misconduct on its part.
SECTION 11.03. Form 8-K Filings.
The Master Servicer shall prepare and file on behalf of the Trust
Fund any Form 8-K required by the Exchange Act. Each Form 8-K must be signed by
the Master Servicer. Each of the Master Servicer (and the Master Servicer shall
cause any Subservicer to promptly notify) and the Trustee shall promptly notify
the Depositor and the Master Servicer (if the notifying party is not the Master
Servicer), but in no event later than one (1) Business Day after its occurrence,
of any Reportable Event of which it has actual knowledge. Each Person shall be
deemed to have actual knowledge of any such event to the extent that it relates
to such Person or any action or failure to act by such Person. Concurrently with
any transfer of Supplemental Mortgage Loans, if any, Countrywide shall notify
the Depositor and the Master Servicer, if any material pool characteristic of
the actual asset pool at the time of issuance of the Certificates differs by 5%
or more (other than as a result of the pool assets converting into cash in
accordance with their terms) from the description of the asset pool in the
Prospectus Supplement.
SECTION 11.04. Form 10-K Filings.
Prior to March 30th of each year, commencing in 2007 (or such
earlier date as may be required by the Exchange Act), the Depositor shall
prepare and file on behalf of the Trust Fund a Form 10-K, in form and substance
as required by the Exchange Act. A senior officer in charge of the servicing
function of the Master Servicer shall sign each Form 10-K filed on behalf of the
Trust Fund. Such Form 10-K shall include as exhibits each (i) annual compliance
statement described under Section 3.16, (ii) annual report on assessments of
compliance with servicing criteria described under Section 11.07 and (iii)
accountant's report described under Section 11.07. Each Form 10-K shall also
include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as
described in Section 11.05.
If the Item 1119 Parties listed on Exhibit W 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 W setting forth the Item
1119 Parties. No later than March 15 of each year, commencing in 2007, 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.
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
XI-8
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission's staff)). No later than March 15 of each year, beginning in 2007,
the Master Servicer and the Trustee shall (unless such person is the Certifying
Person), and the Master Servicer shall cause each Subservicer and each Reporting
Subcontractor and the Trustee shall cause each Reporting Subcontractor to,
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form attached hereto as Exhibit U-1 (in the case of a Subservicer) and
Exhibit R-2 (in the case 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.
(a) On or before March 15 of each calendar year, commencing in 2007:
(1) Each of the Master Servicer and the Trustee shall deliver to the
Depositor and the Master Servicer a report (in form and substance reasonably
satisfactory to the Depositor) regarding the Master Servicer's or the Trustee's,
as applicable, assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB. Such report shall be signed
by an authorized officer of such Person and shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit V
hereto delivered to the Depositor concurrently with the execution of this
Agreement. To the extent any of the Servicing Criteria are not applicable to
such Person, with respect to asset-backed securities transactions taken as a
whole involving such Person and that are backed by the same asset type backing
the Certificates, such report shall include such a statement to that effect. The
Depositor and the Master Servicer, and each of their respective officers and
directors shall be entitled to rely on upon each such servicing criteria
assessment.
(2) Each of the Master Servicer and the Trustee shall deliver to the
Depositor and the Master Servicer a report of a registered public accounting
firm reasonably acceptable to the Depositor that attests to, and reports on, the
assessment of compliance made by Master Servicer or the Trustee, as applicable,
and delivered pursuant to the preceding paragraphs. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act, including, without limitation that in the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Such report must be available for general use and not contain
restricted use language. To the extent any of the
XI-9
Servicing Criteria are not applicable to such Person, with respect to
asset-backed securities transactions taken as a whole involving such Person and
that are backed by the same asset type backing the Certificates, such report
shall include such a statement that that effect.
(3) The Master Servicer shall cause each Subservicer and each
Reporting Subcontractor to deliver to the Depositor an assessment of compliance
and accountant's attestation as and when provided in paragraphs (a) and (b) of
this Section 11.07.
(4) The Trustee shall cause each Reporting Subcontractor to deliver
to the Depositor and the Master Servicer an assessment of compliance and
accountant's attestation as and when provided in paragraphs (a) and (b) of this
Section.
(5) The Master Servicer and the Trustee shall execute (and the
Master Servicer shall cause each Subservicer to execute, and the Master Servicer
and the Trustee shall cause each Reporting Subcontractor to execute) a reliance
certificate to enable the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 3.16, (ii) annual report on
assessments of compliance with servicing criteria provided pursuant to this
Section 11.07 and (iii) accountant's report provided pursuant to this Section
11.07 and shall include a certification that each such annual compliance
statement or report discloses any deficiencies or defaults described to the
registered public accountants of such Person to enable such accountants to
render the certificates provided for in this Section 11.07. In the event the
Master Servicer, any Subservicer, the Trustee or Reporting Subcontractor is
terminated or resigns during the term of this Agreement, such Person shall
provide a certification to the Certifying Person pursuant to this Section 11.07
with respect to the period of time it was subject to this Agreement or provided
services with respect to the Trust Fund, the Certificates or the Mortgage Loans.
(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 V 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
XI-10
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, any Subservicer), specifying (i) the identity of each
such Subcontractor, (ii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to
be a Reporting Subcontractor, the Master Servicer or the Trustee, as applicable,
shall cause any such Subcontractor used by such Person (or in the case of the
Master Servicer, any Subservicer) for the benefit of the Depositor to comply
with the provisions of Sections 11.07 and 11.09 of this Agreement to the same
extent as if such Subcontractor were the Master Servicer (except with respect to
the Master Servicer's duties with respect to preparing and filing any Exchange
Act Reports or as the Certifying Person) or the Trustee, as applicable. The
Master Servicer or the Trustee, as applicable, shall be responsible for
obtaining from each Subcontractor and delivering to the Depositor and the Master
Servicer, any assessment of compliance and attestation required to be delivered
by such Subcontractor under Section 11.05 and Section 11.07, in each case as and
when required to be delivered.
SECTION 11.09. Amendments.
In the event the parties to this Agreement desire to further clarify
or amend any provision of this Article XI, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
XI pursuant to Section 10.01, which amendment shall not require any Opinion of
Counsel or Rating Agency confirmations or the consent of any Certificateholder.
If, during the period that the Depositor is required to file Exchange Act
Reports with respect to the Trust Fund, the Master Servicer is no longer an
Affiliate of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Master Servicer in this Article XI with respect to the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Master Servicer satisfactory to the Depositor, and such Master Servicer has
agreed to provide a Xxxxxxxx-Xxxxx Certification to the Depositor substantially
in the form of Exhibit X, and the certifications referred to in Section 11.07..
* * * * * *
XI-11
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 Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS, INC.,
as a Seller
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
PARK GRANADA LLC,
as a Seller
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PARK MONACO INC.,
as a Seller
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PARK SIENNA LLC,
as a Seller
By: COUNTRYWIDE FINANCIAL CORPORATION
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
Acknowledged solely with respect to the
Trustee's obligations under Section 4.01(b)
THE BANK OF NEW YORK, in its individual
capacity
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-2CB
Representations and Warranties of Countrywide
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II-A to the Depositor,
the Master Servicer and the Trustee, as of the Closing Date, or if so specified
herein, as of the Cut-off Date. Capitalized terms used but not otherwise defined
in this Schedule II-A shall have the meanings ascribed thereto in the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide, as a seller, Park Granada LLC, as a
seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The
Bank of New York, as trustee.
(1) Countrywide is duly organized as a New York corporation and is validly
existing and in good standing under the laws of the State of New York and
is duly authorized and qualified to transact any and all business
contemplated by the Pooling and Servicing Agreement to be conducted by
Countrywide in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to perform any of its obligations under
the Pooling and Servicing Agreement in accordance with the terms thereof.
(2) Countrywide has the full corporate power and authority to sell each
Countrywide Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and has duly authorized by all necessary corporate
action on the part of Countrywide the execution, delivery and performance
of the Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding
obligation of Countrywide, enforceable against Countrywide in accordance
with its terms, except that (a) the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Countrywide, the sale of the Countrywide Mortgage Loans by Countrywide
under the Pooling and Servicing Agreement, the consummation of any other of
the transactions contemplated by the Pooling and Servicing Agreement, and
the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of Countrywide and will not (A) result in a material
breach of any term or provision of the charter or by-laws of Countrywide or
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Countrywide is a party or
by which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to Countrywide of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Countrywide; and Countrywide is not in breach or
violation of any material
S-II-A-1
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Countrywide's ability to perform or meet
any of its obligations under the Pooling and Servicing Agreement.
(4) Countrywide is an approved servicer of conventional mortgage loans for
FNMA or FHLMC and is a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No litigation is pending or, to the best of Countrywide's knowledge,
threatened, against Countrywide that would materially and adversely affect
the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Countrywide to sell the 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 2006-2CB
Representations and Warranties of Park Granada
Park Granada LLC ("Park Granada") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-B to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date, or if so specified herein, as of the Cut-off Date,.
Capitalized terms used but not otherwise defined in this Schedule II-B shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Granada, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC,
as a seller, Countrywide, as a seller, Countrywide Home Loans Servicing LP, as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park Granada is a limited liability company duly formed and validly
existing and in good standing under the laws of the State of Delaware.
(2) Park Granada has the full corporate power and authority to sell each
Park Granada Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and has duly authorized by all necessary corporate
action on the part of Park Granada the execution, delivery and performance
of the Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding
obligation of Park Granada, enforceable against Park Granada in accordance
with its terms, except that (a) the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Park Granada, the sale of the Park Granada Mortgage Loans by Park Granada
under the Pooling and Servicing Agreement, the consummation of any other of
the transactions contemplated by the Pooling and Servicing Agreement, and
the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of Park Granada and will not (A) result in a material
breach of any term or provision of the certificate of formation or the
limited liability company agreement of Park Granada or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or result in a material default under, the terms of any other material
agreement or instrument to which Park Granada is a party or by which it may
be bound, or (C) constitute a material violation of any statute, order or
regulation applicable to Park Granada of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park
Granada; and Park Granada is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Granada's ability to perform or meet
any of its obligations under the Pooling and Servicing Agreement.
S-II-B-1
(4) No litigation is pending or, to the best of Park Granada's knowledge,
threatened, against Park Granada that would materially and adversely affect
the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Park Granada to sell the Park Granada Mortgage
Loans or to perform any of its other obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Granada of, or compliance by Park Granada with, the
Pooling and Servicing Agreement or the consummation of the transactions
contemplated thereby, or if any such consent, approval, authorization or
order is required, Park Granada has obtained the same.
(6) Park Granada intends to treat the transfer of the Park Granada Mortgage
Loans to the Depositor as a sale of the Park Granada Mortgage Loans for all
tax, accounting and regulatory purposes.
S-II-B-2
SCHEDULE II-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-2CB
Representations and Warranties of Park Monaco
Park Monaco Inc. ("Park Monaco") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-C to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-C shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Monaco, as a seller, Countrywide, as a seller, Park Granada LLC, as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park Monaco is a corporation duly formed and validly existing and in
good standing under the laws of the State of Delaware.
(2) Park Monaco has the full corporate power and authority to sell each
Park Monaco Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and has duly authorized by all necessary corporate
action on the part of Park Monaco the execution, delivery and performance
of the Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding
obligation of Park Monaco, enforceable against Park Monaco in accordance
with its terms, except that (a) the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Park Monaco, the sale of the Park Monaco Mortgage Loans by Park Monaco
under the Pooling and Servicing Agreement, the consummation of any other of
the transactions contemplated by the Pooling and Servicing Agreement, and
the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of Park Monaco and will not (A) result in a material
breach of any term or provision of the certificate of incorporation or
by-laws of Park Monaco or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material
default under, the terms of any other material agreement or instrument to
which Park Monaco is a party or by which it may be bound, or (C) constitute
a material violation of any statute, order or regulation applicable to Park
Monaco of any court, regulatory body, administrative agency or governmental
body having jurisdiction over Park Monaco; and Park Monaco is not in breach
or violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair Park
Monaco's ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
S-II-C-1
(4) No litigation is pending or, to the best of Park Monaco's knowledge,
threatened, against Park Monaco that would materially and adversely affect
the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Park Monaco to sell the Park Monaco Mortgage
Loans or to perform any of its other obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Monaco of, or compliance by Park Monaco with, the
Pooling and Servicing Agreement or the consummation of the transactions
contemplated thereby, or if any such consent, approval, authorization or
order is required, Park Monaco has obtained the same.
(6) Park Monaco intends to treat the transfer of the Park Monaco Mortgage
Loans to the Depositor as a sale of the Park Monaco Mortgage Loans for all
tax, accounting and regulatory purposes.
S-II-C-2
SCHEDULE II-D
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-2CB
Representations and Warranties of Park Sienna
Park Sienna LLC ("Park Sienna") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-D to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-D shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Sienna, as a seller, Countrywide, as a seller, Park Granada LLC, as a
seller, Park Monaco Inc., as a seller, Countrywide Home Loans Servicing LP, as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park Sienna is a limited liability company duly formed and validly
existing and in good standing under the laws of the State of Delaware.
(2) Park Sienna has the full corporate power and authority to sell each
Park Sienna Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and has duly authorized by all necessary corporate
action on the part of Park Sienna the execution, delivery and performance
of the Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding
obligation of Park Sienna, enforceable against Park Sienna in accordance
with its terms, except that (a) the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Park Sienna, the sale of the Park Sienna Mortgage Loans by Park Sienna
under the Pooling and Servicing Agreement, the consummation of any other of
the transactions contemplated by the Pooling and Servicing Agreement, and
the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of Park Sienna and will not (A) result in a material
breach of any term or provision of the certificate of formation or the
limited liability company agreement of Park Sienna or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or result in a material default under, the terms of any other material
agreement or instrument to which Park Sienna is a party or by which it may
be bound, or (C) constitute a material violation of any statute, order or
regulation applicable to Park Sienna of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park
Sienna; and Park Sienna is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Sienna's ability to perform or meet
any of its obligations under the Pooling and Servicing Agreement.
S-II-D-1
(4) No litigation is pending or, to the best of Park Sienna's knowledge,
threatened, against Park Sienna that would materially and adversely affect
the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Park Sienna to sell the Park Sienna Mortgage
Loans or to perform any of its other obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Sienna of, or compliance by Park Sienna with, the
Pooling and Servicing Agreement or the consummation of the transactions
contemplated thereby, or if any such consent, approval, authorization or
order is required, Park Sienna has obtained the same.
(6) Park Sienna intends to treat the transfer of the Park Sienna Mortgage
Loans to the Depositor as a sale of the Park Sienna Mortgage Loans for all
tax, accounting and regulatory purposes.
S-II-D-2
SCHEDULE III-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-2CB
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; and as of the Cut-off
Date, no Mortgage Loan has been contractually delinquent for 30 or more days
more than once during the twelve months prior to the Cut-off Date.
3) No Mortgage Loan had a Loan-to-Value Ratio at origination in
excess of 95.00%.
4) Each Mortgage is a valid and enforceable first lien on the
Mortgaged Property subject only to (a) the lien of non delinquent current real
property taxes and assessments, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record being acceptable
to mortgage lending institutions generally or specifically reflected in the
appraisal made in connection with the origination of the related Mortgage Loan,
and (c) other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
5) [Reserved].
6) There is no delinquent tax or assessment lien against any
Mortgaged Property.
7) There is no valid offset, defense or counterclaim to any Mortgage
Note or Mortgage, including the obligation of the Mortgagor to pay the unpaid
principal of or interest on such Mortgage Note.
8) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien prior to,
or equal with, the lien of such Mortgage, except those which are insured against
by the title insurance policy referred to in item (12) below.
S-III-A-1
9) As of the Closing Date with respect to the Mortgage Loans, to the
best of Countrywide's knowledge, each Mortgaged Property is free of material
damage and in good repair.
10) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws, including, without
limitation, usury, equal credit opportunity, predatory and abusive lending laws,
real estate settlement procedures, truth-in-lending and disclosure laws, and
consummation of the transactions contemplated hereby will not involve the
violation of any such laws.
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; to the best of Countrywide's
knowledge, no claims have been made under such mortgage title insurance policy
and no prior holder of the related Mortgage, including Countrywide, has done, by
act or omission, anything which would impair the coverage of such mortgage title
insurance policy.
13) Each Mortgage Loan was originated (within the meaning of Section
3(a)(41) of the Securities Exchange Act of 1934, as amended) by an entity that
satisfied at the time of origination the requirements of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended.
14) To the best of Countrywide's knowledge, all of the improvements
which were included for the purpose of determining the Appraised Value of the
Mortgaged Property lie wholly within the boundaries and building restriction
lines of such property, and no improvements on adjoining properties encroach
upon the Mortgaged Property.
15) To the best of Countrywide's knowledge, no improvement located
on or being part of the Mortgaged Property is in violation of any applicable
zoning law or regulation. To the best of Countrywide's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities, unless the lack thereof would not have a material
adverse effect on the value of such Mortgaged Property, and the Mortgaged
Property is lawfully occupied under applicable law.
16) Each Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law. To the best
of Countrywide's knowledge, all parties to the Mortgage Note and the
S-III-A-2
Mortgage had legal capacity to execute the Mortgage Note and the Mortgage and
each Mortgage Note and Mortgage have been duly and properly executed by such
parties.
17) The proceeds of the Mortgage Loans have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making, or closing or recording the Mortgage Loans
were paid.
18) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including, (i) in the case of a Mortgage designated as a deed of
trust, by trustee's sale, and (ii) otherwise by judicial foreclosure.
19) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in such Mortgage, and no fees or
expenses are or will become payable by the Certificateholders to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor.
20) Each Mortgage Note and each Mortgage is in substantially one of
the forms acceptable to FNMA or FHLMC, with such riders as have been acceptable
to FNMA or FHLMC, as the case may be.
21) There exist no deficiencies with respect to escrow deposits and
payments, if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other charges
or payments due Countrywide have been capitalized under the Mortgage or the
related Mortgage Note.
22) The origination, underwriting and collection practices used by
Countrywide with respect to each Mortgage Loan have been in all respects legal,
prudent and customary in the mortgage lending and servicing business.
23) There is no pledged account or other security other than real
estate securing the Mortgagor's obligations.
24) No Mortgage Loan has a shared appreciation feature, or other
contingent interest feature.
25) Each Mortgage Loan contains a customary "due on sale" clause.
26) As of the Closing Date, 101 of the Mortgage Loans provide for a
prepayment charge.
27) Each Mortgage Loan which had a Loan-to-Value Ratio at
origination in excess of 80.00% is the subject of a Primary Insurance Policy
that insures that portion of the principal balance equal to a specified
percentage times the sum of the remaining principal balance of the related
Mortgage Loan, the accrued interest thereon and the related foreclosure
expenses. The specified coverage percentage for mortgage loans with terms to
maturity between 25 and 30 years is 12% for Loan-to-Value Ratios between 80.01%
and 85.00%, 25% for Loan-to-Value Ratios between 85.01% and 90.00%, 30% for
Loan-to-Value Ratios between 90.01% and 95.00% and 35% for Loan-to-Value Ratios
between 95.01% and 100%. The specified coverage percentage for mortgage loans
with terms to maturity of up to 20 years
S-III-A-3
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% and 95.00%. Each such Primary Insurance
Policy is issued by a Qualified Insurer. All provisions of any such Primary
Insurance Policy have been and are being complied with, any such policy is in
full force and effect, and all premiums due thereunder have been paid. Any
Mortgage subject to any such Primary Insurance Policy obligates either the
Mortgagor or the mortgagee thereunder to maintain such insurance and to pay all
premiums and charges in connection therewith, subject, in each case, to the
provisions of Section 3.09(b) of the Pooling and Servicing Agreement. The
Mortgage Rate for each Mortgage Loan is net of any such insurance premium.
28) As of the Closing Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with a
generally acceptable carrier that provides for fire and extended coverage and
coverage for such other hazards as are customary in the area where the Mortgaged
Property is located in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements securing such Mortgage Loan or
(ii) the greater of (a) the outstanding principal balance of the Mortgage Loan
and (b) an amount such that the proceeds of such policy shall be sufficient to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer. If the
Mortgaged Property is a condominium unit, it is included under the coverage
afforded by a blanket policy for the condominium unit. All such individual
insurance policies and all flood policies referred to in item (29) below contain
a standard mortgagee clause naming Countrywide or the original mortgagee, and
its successors in interest, as mortgagee, and Countrywide has received no notice
that any premiums due and payable thereon have not been paid; the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance including
flood insurance at the Mortgagor's cost and expense, and upon the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
29) If the Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy in a form meeting the requirements of
the current guidelines of the Flood Insurance Administration is in effect with
respect to such Mortgaged Property with a generally acceptable carrier in an
amount representing coverage not less than the least of (A) the original
outstanding principal balance of the Mortgage Loan, (B) the minimum amount
required to compensate for damage or loss on a replacement cost basis, or (C)
the maximum amount of insurance that is available under the Flood Disaster
Protection Act of 1973, as amended.
30) To the best of Countrywide's knowledge, there is no proceeding
occurring, pending or threatened for the total or partial condemnation of the
Mortgaged Property.
31) There is no material monetary default existing under any
Mortgage or the related Mortgage Note and, to the best of Countrywide's
knowledge, there is no material event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration under the Mortgage or the
related Mortgage Note; and Countrywide has not waived any default, breach,
violation or event of acceleration.
32) Each Mortgaged Property is improved by a one- to four-family
residential dwelling including condominium units and dwelling units in PUDs,
which, to the best of Countrywide's knowledge, does not include cooperatives or
mobile homes and does not constitute other than real property under state law.
33) Each Mortgage Loan is being master serviced by the Master
Servicer.
S-III-A-4
34) Any future advances made prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage, and
the secured principal amount, as consolidated, bears a single interest rate and
single repayment term reflected on the Mortgage Loan Schedule. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan. The Mortgage Note does not permit or obligate the Master Servicer to make
future advances to the Mortgagor at the option of the Mortgagor.
35) All taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, or an escrow of funds has been established
in an amount sufficient to pay for every such item which remains unpaid and
which has been assessed, but is not yet due and payable. Except for (A) payments
in the nature of escrow payments, and (B) interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is
later, to the day which precedes by one month the Due Date of the first
installment of principal and interest, including without limitation, taxes and
insurance payments, the Master Servicer has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required by the
Mortgage.
36) Each Mortgage Loan was underwritten in all material respects in
accordance with Countrywide's underwriting guidelines as set forth in the
Prospectus Supplement.
37) Other than with respect to any Streamlined Documentation
Mortgage Loan as to which the loan-to-value ratio of the related Original
Mortgage Loan was less than 90% at the time of the origination of such Original
Mortgage Loan, prior to the approval of the Mortgage Loan application, an
appraisal of the related Mortgaged Property was obtained from a qualified
appraiser, duly appointed by the originator, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of the
Mortgage Loan; such appraisal is in a form acceptable to FNMA and FHLMC.
38) None of the Mortgage Loans are graduated payment mortgage loans
or a growing equity mortgage loans, and none of the Mortgage Loans are subject
to a buydown or similar arrangement.
39) Any leasehold estate securing a Mortgage Loan has a term of not
less than five years in excess of the term of the related Mortgage Loan.
40) The Mortgage Loans were selected from among the outstanding
fixed-rate one- to four-family mortgage loans in the portfolios of the Sellers
at the Closing Date as to which the representations and warranties made as to
the Mortgage Loans set forth in this Schedule III-A can be made. Such selection
was not made in a manner intended to adversely affect the interests of
Certificateholders.
41) Except for 329 Mortgage Loans, each Mortgage Loan has a payment
date on or before the Due Date in the month of the first Distribution Date.
42) With respect to any Mortgage Loan as to which an affidavit has
been delivered to the Trustee certifying that the original Mortgage Note is a
Lost Mortgage Note, if such Mortgage Loan is subsequently in default, the
enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of
the Trustee will not be materially adversely affected by the absence of the
original Mortgage Note. A "Lost Mortgage Note" is a Mortgage Note the original
of which was permanently lost or destroyed and has not been replaced.
S-III-A-5
43) The Mortgage Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
44) The aggregate principal balance of the Discount Mortgage Loans
will not exceed $224,604,759.09.
45) None of the Mortgage Loans are subject to the Georgia Fair
Lending Act, as amended.
46) None of the Mortgage Loans are "high cost" loans as defined by
applicable predatory and abusive lending laws.
47) None of the Mortgage Loans are covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA").
48) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Jersey
Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.).
49) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Mexico Home Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx.
xx.xx. 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) No Mortgage Loan originated on or after January 1, 2005 is a
"High Cost Home Loan" as defined in the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9).
52) All of the Mortgage Loans were originated in compliance with all
applicable laws, including, but not limited to, all applicable anti-predatory
and abusive lending laws.
53) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and with respect to the foregoing, the terms "High Cost Loan" and
"Covered Loan" have the meaning assigned to them in the then current Standard &
Poor's LEVELS(R) Version 5.6c Glossary Revised, Appendix E which is attached
hereto as Exhibit Q (the "Glossary") where (x) a "High Cost Loan" is each loan
identified in the column "Category under applicable anti-predatory lending law"
of the table entitled "Standard & Poor's High Cost Loan Categorization" in the
Glossary as each such loan is defined in the applicable anti-predatory lending
law of the State or jurisdiction specified in such table and (y) a "Covered
Loan" is each loan identified in the column "Category under applicable
anti-predatory lending law" of the table entitled "Standard & Poor's Covered
Loan Categorization" in the Glossary as each such loan is defined in the
applicable anti-predatory lending law of the State or jurisdiction specified in
such table.
54) No Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act.
55) No proceeds from any Mortgage Loan underlying the Certificates
were used to finance single-premium credit insurance policies.
S-III-A-6
56) The Master Servicer for each Mortgage Loan in any Loan Group has
fully furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit repositories) on a monthly
basis.
57) Each Mortgage Loan had an original principal balance that
conforms to Xxxxxxx Mac and Xxxxxx Mae guidelines concerning original principal
balance limits at the time of the origination of such Mortgage Loan.
58) No Mortgage Loan in any Loan Group originated between October 1,
2002 and March 7, 2003 is subject to the Georgia Fair Lending Act, as amended.
No Mortgage Loan in any Loan Group originated between October 1, 2002 and March
7, 2003 is secured by a Mortgaged Property located in the state of Georgia, and
there is no Mortgage Loan originated on or after March 7, 2003 that is a "high
cost home loan" as defined under the Georgia Fair Lending Act.
59) No Mortgagor related to a Mortgage Loan in any Loan Group was
required to purchase any single premium credit insurance policy (e.g., life,
disability, accident, unemployment, or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of credit; no
Mortgagor related to a Mortgage Loan in any Loan Group obtained a prepaid
single-premium credit insurance policy (e.g., life, disability, accident,
unemployment, mortgage or health insurance) in connection with the origination
of such Mortgage Loan; no proceeds from any Mortgage Loan in any Loan Group were
used to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination or, or as a condition to closing, such
Mortgage Loan.
60) No Mortgage Loan in any Loan Group originated prior to October
1, 2002 will impose prepayment penalties for a term in excess of five years
after origination.
61) With respect to all of the Mortgage Loans originated from August
1, 2004 through April 30, 2005, if the related Mortgage Loan or the related
Mortgage Note, or any document relating to the loan transaction, contains a
mandatory arbitration clause (that is, a clause that requires the borrower to
submit to arbitration to resolve any dispute arising out of or relating in any
way to the mortgage loan transaction), Countrywide will (i) notify the related
borrower in writing within 60 days after the Closing Date that none of the
related seller, the related servicer or any subsequent party that acquires an
interest in the Mortgage Loan or services the Mortgage Loan will enforce the
arbitration clause against the borrower, but that the borrower will continue to
have the right to submit a dispute to arbitration, and (ii) place a copy of that
notice in the Mortgage File. With respect to all of the Mortgage Loans
originated on or after May 1, 2005, neither the related mortgage nor 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.
62) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
S-III-A-7
SCHEDULE III-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-2CB
Representations and Warranties of Countrywide as to the Countrywide Mortgage
Loans
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule III-B to the
Depositor, the Master Servicer and the Trustee, with respect to the Countrywide
Mortgage Loans that are Mortgage Loans as of the Closing Date, or if so
specified herein, as of the Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule III-B shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Countrywide, as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWALT, Inc., as depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Countrywide Mortgage Loan
to the Depositor, Countrywide had good title to, and was the sole owner of,
such Countrywide Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject
to no interest or participation of, or agreement with, any other party, to
sell and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE III-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-2CB
Representations and Warranties of Park Granada as to the Park Granada Mortgage
Loans
Park Granada LLC ("Park Granada") hereby makes the representations
and warranties set forth in this Schedule III-C to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Granada Mortgage Loans that
are Mortgage Loans as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
III-C shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller, Park
Granada, as a seller, 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 2006-2CB
Representations and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
Park Monaco Inc. ("Park Monaco") hereby makes the representations
and warranties set forth in this Schedule III-D to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Monaco Mortgage Loans that
are Mortgage Loans as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
III-D shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller, Park
Monaco, as a seller, Park Granada LLC, as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Park Monaco Mortgage Loan
to the Depositor, Park Monaco had good title to, and was the sole owner of,
such Park Monaco Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject
to no interest or participation of, or agreement with, any other party, to
sell and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE III-E
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-2CB
Representations and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
Park Sienna LLC ("Park Sienna") hereby makes the representations and
warranties set forth in this Schedule III-E to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Sienna Mortgage Loans that
are Mortgage Loans as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
III-E shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller, Park
Sienna, as a seller, Park Monaco Inc., as a seller, Park 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 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 2006-2CB
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
S-IV-1
applicable to Countrywide Servicing of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Countrywide Servicing; and Countrywide Servicing is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation
of any court, regulatory body, administrative agency or governmental body
having jurisdiction over it which breach or violation may materially impair
the ability of Countrywide Servicing to perform or meet any of its
obligations under the Pooling and Servicing Agreement.
(4) Countrywide Servicing is an approved servicer of conventional mortgage
loans for FNMA or FHLMC and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to sections 203 and 211 of the
National Housing Act.
(5) No litigation is pending or, to the best of Countrywide Servicing's
knowledge, threatened, against Countrywide Servicing that would materially
and adversely affect the execution, delivery or enforceability of the
Pooling and Servicing Agreement or the ability of Countrywide Servicing to
service the Mortgage Loans or to perform any of its other obligations under
the Pooling and Servicing Agreement in accordance with the terms thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide Servicing of, or compliance by Countrywide
Servicing with, the Pooling and Servicing Agreement or the consummation of
the transactions contemplated thereby, or if any such consent, approval,
authorization or order is required, Countrywide Servicing has obtained the
same.
(7) Countrywide Servicing is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as
such Mortgage Loans are registered with MERS.
S-IV-2
SCHEDULE V
Principal Balance Schedules
[Attached to Prospectus Supplement, if applicable]
S-V-1
SCHEDULE VI
Form of Monthly Master Servicer Report
=============================================================================
LOAN LEVEL REPORTING SYSTEM
-----------------------------------------------------------------------------
DATABASE STRUCTURE
-----------------------------------------------------------------------------
[MONTH, YEAR]
-----------------------------------------------------------------------------
Field Number Field Name Field Type Field Width Dec
-----------------------------------------------------------------------------
1 INVNUM Numeric 4
-----------------------------------------------------------------------------
2 INVBLK Numeric 4
-----------------------------------------------------------------------------
3 INACNU Character 8
-----------------------------------------------------------------------------
4 BEGSCH Numeric 15 2
-----------------------------------------------------------------------------
5 SCHPRN Numeric 13 2
-----------------------------------------------------------------------------
6 TADPRN Numeric 11 2
-----------------------------------------------------------------------------
7 LIQEPB Numeric 11 2
-----------------------------------------------------------------------------
8 ACTCOD Numeric 11
-----------------------------------------------------------------------------
9 ACTDAT Numeric 4
-----------------------------------------------------------------------------
10 INTPMT Numeric 8
-----------------------------------------------------------------------------
11 PRNPMT Numeric 13 2
-----------------------------------------------------------------------------
12 ENDSCH Numeric 13 2
-----------------------------------------------------------------------------
13 SCHNOT Numeric 13 2
-----------------------------------------------------------------------------
14 SCHPAS Numeric 7 3
-----------------------------------------------------------------------------
15 PRINPT Numeric 7 3
-----------------------------------------------------------------------------
16 PRIBAL Numeric 11 2
-----------------------------------------------------------------------------
17 LPIDTE Numeric 13 2
-----------------------------------------------------------------------------
18 DELPRN Numeric 7
-----------------------------------------------------------------------------
19 PPDPRN Numeric 11 2
-----------------------------------------------------------------------------
20 DELPRN Numeric 11 2
-----------------------------------------------------------------------------
21 NXTCHG Numeric 8
-----------------------------------------------------------------------------
22 ARMNOT Numeric 7 3
-----------------------------------------------------------------------------
23 ARMPAS Numeric 7 3
-----------------------------------------------------------------------------
24 ARMPMT Numeric 11 2
-----------------------------------------------------------------------------
25 ZZTYPE Character 2
-----------------------------------------------------------------------------
26 ISSUID Character 1
-----------------------------------------------------------------------------
27 KEYNAME Character 8
-----------------------------------------------------------------------------
TOTAL 240
-----------------------------------------------------------------------------
Suggested Format: DBASE file
Modem
transmission
=============================================================================
S-VI-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").]
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR ARRANGEMENT
SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF COUNSEL IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION
SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE
OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL OWNER'S ACCEPTANCE OF ITS
INTEREST IN A CERTIFICATE OF THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR
TO A PERSON INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of this
Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that _________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
A-2
Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park Granada"), 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.
[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
B-1
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.
This certifies that _____________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate
B-3
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by CWALT, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Countrywide Home Loans, Inc., as a seller ("CHL"), Park Granada
LLC, as a seller ("Park Granada"), 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.]
[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
B-4
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.
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
C-1-2
"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.
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
C-1-3
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
[RESERVED]
C-2-1
EXHIBIT C-3
[RESERVED]
C-3-1
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 Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
of all Certificates
of this Class : $
CUSIP :
Interest Rate : Interest Only
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
CWALT, Inc., as Depositor
The Notional Amount of this certificate at any time, may be less than the
Notional Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that _________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination of
this Certificate by the aggregate Initial Notional Amount of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting primarily of the Mortgage Loans
deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was created
D-2
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.
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
E-1
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Sellers and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the Pool Stated Principal Balance is less
than or equal to 10% of the Cut-off Date Pool Principal Balance, the Master
Servicer will have the option, subject to the limitations set forth in the
Agreement, to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon the later of the maturity or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund or the disposition of all property in respect thereof and the
distribution to Certificateholders of all amounts required to be distributed
pursuant to the Agreement. In no event, however, will the trust created by the
Agreement continue beyond the
E-2
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
________________________________________________________
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to, ____________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________,
for the account of_____________________________________________________________,
account number ________________________, or, if mailed by check, to____________.
Applicable statements should be mailed to______________________________________,
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by__________________________________________,
the assignee named above, or___________________________________________________,
as its agent.
E-4
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary public in
and for said State, personally appeared _____________________________________,
known to me who, being by me duly sworn, did depose and say that he executed the
foregoing instrument.
_________________________________________
Notary Public
[Notarial Seal]
E-5
EXHIBIT F-1
[FORM OF] INITIAL CERTIFICATION OF TRUSTEE
[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-1-1
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-1-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Name:
Title:
F-1-3
EXHIBIT F-2
[RESERVED]
F-2-1
EXHIBIT G-1
[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;
(ii) in the case of each Initial Mortgage Loan that is not a MERS Mortgage
Loan, the original recorded Mortgage, [and in the case of each Initial
Mortgage Loan that is a MERS Mortgage Loan, the original Mortgage,
noting thereon the presence of the MIN of the Initial Mortgage Loan
and language indicating that the Initial Mortgage Loan is a MOM Loan
if the Initial Mortgage Loan is a MOM Loan, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded];
G-1-1
(iii) in the case of each Initial Mortgage Loan that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage to "The Bank of New
York, as trustee under the Pooling and Servicing Agreement dated as of
[month] 1, 2004, without recourse", or, in the case of each Initial
Mortgage Loan with respect to property located in the State of
California that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage in blank (each such assignment, when duly
and validly completed, to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee thereof, under
the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a printout
of the electronic equivalent and all riders thereto or, in the event
such original title policy has not been received from the insurer, any
one of an original title binder, an original preliminary title report
or an original title commitment, or a copy thereof certified by the
title company, with the original policy of title insurance to be
delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan Countrywide cannot deliver the original recorded Mortgage or all
interim recorded assignments of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment or
assignments of the Mortgage, as applicable, each certified by Countrywide, the
applicable title company, escrow agent or attorney, or the originator of such
Initial Mortgage Loan, as the case may be, to be a true and complete copy of the
original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing documents,
(i) such documents appear regular on their face and related to such Initial
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (v), (vi),
(viii), (xi) and (xiv) of the definition of the "Mortgage Loan Schedule" in
Article I of the Pooling and Servicing Agreement accurately reflects information
set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage
G-1-2
File of any of the Initial Mortgage Loans identified on the [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule] or
(ii) the collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
G-1-3
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-1-4
EXHIBIT G-2
[RESERVED]
G-2-1
EXHIBIT H-1
[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
H-1-1
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.
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
H-1-2
"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-1-3
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:
X-0-0
XXXXXXX X-0
[RESERVED]
H-2-1
EXHIBIT I
[FORM OF] TRANSFER AFFIDAVIT
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement, dated as of _________ __, 2___
(the "Agreement"), by and among CWALT, Inc., as depositor (the "Depositor"),
Countrywide Home Loans, Inc. (the "Company"), as a Seller, Park Granada LLC, as
a Seller, Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller (and
together with the Company, Park Granada and Park Monaco, the "Sellers"),
Countrywide Home Loans Servicing LP, as Master Servicer and The Bank of New
York, as Trustee. Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee is not an employee benefit plan that is subject to
Title I of ERISA or to section 4975 of the Internal Revenue Code of 1986, nor is
it acting on behalf of or with plan assets of any such plan. The Transferee is,
as of the date hereof, and will be, as of the date of the Transfer, a Permitted
Transferee. The Transferee will endeavor to remain a Permitted Transferee for so
long as it retains its Ownership Interest in the Certificate. The Transferee is
acquiring its Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an
I-1
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.
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
I-2
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 ss. 1.860E-1(c)(5) or the
"Formula Test" imposed by Treasury Regulation ss. 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 ss. 1.860E-1(c)(5) or the "Formula Test" imposed
by Treasury Regulation ss. 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
I-6
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.
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause any REMIC formed under the Agreement to
fail to qualify as a REMIC at any time that any Certificates are Outstanding.
The terms "United States," "State" and "International Organization" shall have
the meanings set forth in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-7
EXHIBIT 2 to
EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in a
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(1) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(2) Except in connection with (i) the registration of the Tax
Matters Person Certificate in the name of the Trustee or (ii) any
registration in the name of, or transfer of a Class A-R Certificate to,
an affiliate of the Depositor (either directly or through a nominee) in
connection with the initial issuance of the Certificates, no Ownership
Interest in a Class A-R Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the
Transfer of any Class A-R Certificate unless, the Trustee shall have
been furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
I.
(3) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its
Ownership Interest in a Class A-R Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Class A-R
Certificate and (C) not to Transfer its Ownership Interest in a Class
A-R Certificate, or to cause the Transfer of an Ownership Interest in a
Class A-R Certificate to any other Person, if it has actual knowledge
that such Person is not a Permitted Transferee.
(4) Any attempted or purported Transfer of any Ownership Interest
in a Class A-R Certificate in violation of the provisions of this
Section 5.02(c) shall be absolutely null and void and shall vest no
rights in the purported Transferee. If any purported transferee shall
become a Holder of a Class A-R Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof retroactive
to the date of registration of Transfer of such Class A-R Certificate.
The Trustee shall be under no liability to any Person for any
registration of Transfer of a Class A-R Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any
payments due on such Certificate to the Holder thereof or taking any
other action with respect to such Holder under the provisions of this
Agreement so long as the Transfer was registered after receipt of the
related Transfer Affidavit and Transferor Certificate. The Trustee shall
be entitled but not obligated to recover from any Holder of a Class A-R
Certificate that was in fact not a Permitted
I-8
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,
K-1
(e) we are acquiring the Certificates for investment for our own account and not
with a view to any distribution of such Certificates (but without prejudice to
our right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
__________________________________
Print Name of Transferee
By:_________________________
Authorized Officer
K-2
EXHIBIT L
[FORM OF] RULE 144A LETTER
____________________
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended ("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
L-1
otherwise disposed of the Certificates, any interest in the Certificates or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
Very truly yours,
__________________________________
Print Name of Transferee
By:_________________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis either at least $100,000 in securities
or, if Buyer is a dealer, Buyer must own and/or invest on a discretionary basis
at least $10,000,000 in securities (except for the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the
State or territorial banking commission or similar official
or is a foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which
is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative
bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority
having supervision over any such institutions or is a
foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
L-3
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency
of a State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned,
L-4
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
____________________________________
Print Name of Buyer
By:____________________________________
Name:
Title:
Date:__________________________________
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if
the Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because
(i) the Buyer is an investment company registered under the
Investment Company Act of 1940, as amended and (ii) as marked below,
the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment
Companies, the cost of such securities was used, except (i) where
the Buyer or the Buyer's Family of Investment Companies reports its
securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to
the cost of those securities has been published. If clause (ii) in
the preceding sentence applies, the securities may be valued at
market.
___ The Buyer owned $_____________ in securities
(other than the excluded securities referred
to below) as of the end of the Buyer's most
recent fiscal year (such amount being
calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment
Companies which owned in the aggregate
$____________ in securities (other than the
excluded securities referred to below) as of
the end of the Buyer's most recent fiscal
year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used
herein means two or more registered investment companies (or series
thereof) that have the same investment adviser or investment
advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is
a majority owned subsidiary of the other).
L-6
4. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer or are
part of the Buyer's Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof,
(iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands
that the parties listed in the Rule 144A Transferee Certificate to
which this certification relates are relying and will continue to
rely on the statements made herein because one or more sales to the
Buyer will be in reliance on Rule 144A. In addition, the Buyer will
only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A
Transferee Certificate to which this certification relates of any
changes in the information and conclusions herein. Until such notice
is given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the
date of such purchase.
___________________________________
Print Name of Buyer or Adviser
By: ________________________________
Name:
Title:
IF AN ADVISER:
___________________________________
Print Name of Buyer
Date: ______________________________
L-7
EXHIBIT M
[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
STANDARD & POOR'S LEVELS(R) VERSION 5.6c 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
--------------------------- --------------------------------------- ----------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------- --------------------------------------- ----------------------
Arkansas Arkansas Home Loan Protection Act, High Cost Home Loan
Ark. Code Xxx. xx.xx. 00-00-000 et seq.
Effective July 16, 2003
--------------------------- --------------------------------------- ----------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code xx.xx. 757.01 et seq.
Effective June 2, 2003
--------------------------- --------------------------------------- ----------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx. xx.xx. 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
--------------------------- --------------------------------------- ----------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen. Stat
xx.xx. 36a-746 et seq.
Effective October 1, 2001
--------------------------- --------------------------------------- ----------------------
District of Columbia Home Loan Protection Act, D.C. Code Covered Loan
xx.xx. 26-1151.01 et seq.
Effective for loans closed on or
after January 28, 2003
--------------------------- --------------------------------------- ----------------------
Q-1
Standard & Poor's High Cost Loan Categorization
--------------------------- --------------------------------------- ----------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------- --------------------------------------- ----------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
--------------------------- --------------------------------------- ----------------------
Georgia (Oct. 1, 0000 - Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code High Cost Home Loan
Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
--------------------------- --------------------------------------- ----------------------
Georgia as amended (Mar. Georgia Fair Lending Act, Ga. Code High Cost Home Loan
7, 2003 - current) Xxx. xx.xx. 7-6A-1 et seq.
Effective for loans closed on or
after March 7, 2003
--------------------------- --------------------------------------- ----------------------
HOEPA Section 32 Home Ownership and Equity Protection High Cost Loan
Act of 1994, 15 U.S.C. ss. 1639, 12
C.F.R. xx.xx. 226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
--------------------------- --------------------------------------- ----------------------
Illinois High Risk Home Loan Act, Ill. Comp. High Risk Home Loan
Stat. tit. 815, xx.xx. 137/5 et seq.
Effective January 1, 2004 (prior to
this date, regulations under
Residential Mortgage License Act
effective from May 14, 2001)
--------------------------- --------------------------------------- ----------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value
xx.xx. 16a-1-101 et seq. Consumer Loan (id. ss.
16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 ----------------------
became effective April 14, 1999; High APR Consumer
Section 16a-3-308a became effective Loan (id. ss.
July 1, 1999 16a-3-308a)
--------------------------- --------------------------------------- ----------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. xx.xx. 360.100
et seq.
Effective June 24, 2003
--------------------------- --------------------------------------- ----------------------
Q-2
Standard & Poor's High Cost Loan Categorization
--------------------------- --------------------------------------- ----------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------- --------------------------------------- ----------------------
Maine Truth in Lending, Me. Rev. Stat. tit. High Rate High Fee
9 A, xx.xx. 8-101 et seq. Mortgage
Effective September 29, 1995 and as
amended from time to time
--------------------------- --------------------------------------- ----------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. xx.xx. High Cost Home Loan
32.00 et seq. and 209 C.M.R. xx.xx.
40.01 et seq.
Effective March 22, 2001 and amended
from time to time
--------------------------- --------------------------------------- ----------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Home Loan
Stat.
xx.xx. 598D.010 et seq.
Effective October 1, 2003
--------------------------- --------------------------------------- ----------------------
New Jersey New Jersey Home Ownership Security High Cost Home Loan
Act of 2002, N.J. Rev. Stat. xx.xx.
46:10B 22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------- --------------------------------------- ----------------------
New Mexico Home Loan Protection Act, N.M. Rev. High Cost Home Loan
Stat. xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------- --------------------------------------- ----------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or
after April 1, 2003
--------------------------- --------------------------------------- ----------------------
North Carolina Restrictions and Limitations on High High Cost Home Loan
Cost Home Loans, N.C. Gen. Stat. xx.xx.
24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
--------------------------- --------------------------------------- ----------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio Rev.
Code Xxx.
--------------------------- --------------------------------------- ----------------------
Q-3
Standard & Poor's High Cost Loan Categorization
--------------------------- --------------------------------------- ----------------------
Category under
Applicable
Name of Anti-Predatory Lending Anti-Predatory
State/Jurisdiction Law/Effective Date Lending Law
--------------------------- --------------------------------------- ----------------------
xx.xx. 1349.25 et seq.
Effective May 24, 2002
--------------------------- --------------------------------------- ----------------------
Oklahoma Consumer Credit Code (codified in Subsection 10
various sections of Title 14A) Mortgage
Effective July 1, 2000; amended
effective January 1, 2004
--------------------------- --------------------------------------- ----------------------
South Carolina South Carolina High Cost and Consumer High Cost Home Loan
Home Loans Act, S.C. Code
Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
--------------------------- --------------------------------------- ----------------------
West Virginia West Virginia Residential Mortgage West Virginia
Lender, Broker and Servicer Act, W. Mortgage Loan Act
Va. Code Xxx. xx.xx. 31-17-1 et seq. Loan
Effective June 5, 2002
--------------------------- --------------------------------------- ----------------------
Standard & Poor's Covered Loan Categorization
--------------------------- -------------------------------------------- ----------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Law/Effective Date Applicable
Anti-Predatory
Lending Law
--------------------------- -------------------------------------------- ----------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Covered Loan
Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------- ------------------------------------------- -------------------------
New Jersey New Jersey Home Ownership Security Act of Covered Home Loan
2002, N.J. Rev. Stat. xx.xx. 46:10B
22 et seq.
Effective November 27, 2003 - July 5, 2004
---------------------------- ------------------------------------------- -------------------------
Q-4
Standard & Poor's Home Loan Categorization
--------------------------- --------------------------------------------- ----------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Law/Effective Date Applicable
Anti-Predatory
Lending Law
--------------------------- --------------------------------------------- ----------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Xxx. Home Loan
Mar. 6, 2003) xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------- -------------------------------------------- ------------------------
New Jersey New Jersey Home Ownership Security Home Loan
Act of 2002, N.J. Rev. Stat. xx.xx.
46:10B 22 et seq.
Effective for loans closed on or after
November 27, 2003
---------------------------- -------------------------------------------- ------------------------
New Mexico Home Loan Protection Act, N.M. Rev.Stat. Home Loan
xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004; Revised
as of February 26, 2004
---------------------------- -------------------------------------------- ------------------------
North Carolina Restrictions and Limitations on High Cost Consumer Home Loan
Home Loans, N.C. Gen. Stat. xx.xx. 24-1.1E
et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
---------------------------- -------------------------------------------- ------------------------
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code
Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
---------------------------- -------------------------------------------- ------------------------
Q-5
EXHIBIT R
[FORM OF] CORRIDOR 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 [CWALT, Inc.],
as Depositor, [Countrywide Home Loans, Inc.], as a Seller, [Park Granada LLC],
as a Seller, [Park Monaco Inc.], as a Seller, [Park Sienna LLC], as a Seller,
[Countrywide Home Loans Servicing LP], as Master Servicer and
__________________, as Trustee. Capitalized terms used herein shall have the
meanings ascribed to such terms in the Pooling and Servicing Agreement.
__________________ hereby certifies that he/she is a Servicing
Officer, holding the office set forth beneath his/her name and hereby further
certifies as follows:
With respect to the Distribution Date in _________ 200_ and each
Mortgage Loan set forth in the attached schedule:
1. A Principal Prepayment in full or in part was received during the
related Prepayment Period;
2. Any Prepayment Charge due under the terms of the Mortgage Note
with respect to such Principal Prepayment was or was not, as indicated on the
attached schedule using "Yes" or "No", received from the Mortgagor and deposited
in the Certificate Account;
3. As to each Mortgage Loan set forth on the attached schedule for
which all or part of the Prepayment Charge required in connection with the
Principal Prepayment was waived by the Master Servicer, such waiver was, as
indicated on the attached schedule, based upon:
(i) the Master Servicer's determination that such waiver
would maximize recovery of Liquidation Proceeds for such Mortgage Loan,
taking into account the value of such Prepayment Charge, or
(ii)(A) the enforceability thereof is limited (1) by
bankruptcy, insolvency, moratorium, receivership, or other similar law
relating to creditors' rights generally or (2) due to
T-1
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)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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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":
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
--------------------- -------------------------------------------------------------------- ----------------------
General Servicing Considerations
--------------------- -------------------------------------------------------------------- ----------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
--------------------- ----------------------
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
1122(d)(1)(ii) activities.
--------------------- ----------------------
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained.
--------------------- ----------------------
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.
1122(d)(1)(iv)
--------------------- ----------------------
Cash Collection and Administration
--------------------- ----------------------
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
1122(d)(2)(i) transaction agreements.
--------------------- ----------------------
Disbursements made via wire transfer on behalf of an obligor or to
1122(d)(2)(ii) an investor are made only by authorized personnel.
--------------------- ----------------------
W-1
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
--------------------- -------------------------------------------------------------------- ----------------------
General Servicing Considerations
--------------------- -------------------------------------------------------------------- ----------------------
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
1122(d)(2)(iii) approved as specified in the transaction agreements.
--------------------- ----------------------
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
1122(d)(2)(iv) transaction agreements.
--------------------- ----------------------
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
1122(d)(2)(v) Rule 13k-1(b)(1) of the Securities Exchange Act.
--------------------- ----------------------
Unissued checks are safeguarded so as to prevent unauthorized
1122(d)(2)(vi) access.
--------------------- ----------------------
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
1122(d)(2)(vii) agreements.
--------------------- ----------------------
Investor Remittances and Reporting
--------------------- ----------------------
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
1122(d)(3)(i) serviced by the Servicer.
--------------------- ----------------------
W-2
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
--------------------- -------------------------------------------------------------------- ----------------------
General Servicing Considerations
--------------------- -------------------------------------------------------------------- ----------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
1122(d)(3)(ii) other terms set forth in the transaction agreements.
--------------------- ----------------------
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
1122(d)(3)(iii) agreements.
--------------------- ----------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
--------------------- ----------------------
Pool Asset Administration
--------------------- ----------------------
Collateral or security on mortgage loans is maintained as required
1122(d)(4)(i) by the transaction agreements or related mortgage loan documents.
--------------------- ----------------------
Mortgage loan and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements.
--------------------- ----------------------
Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
1122(d)(4)(iii) conditions or requirements in the transaction agreements.
--------------------- ----------------------
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
1122(d)(4)(iv) documents.
--------------------- ----------------------
W-3
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
--------------------- -------------------------------------------------------------------- ----------------------
General Servicing Considerations
--------------------- -------------------------------------------------------------------- ----------------------
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance.
--------------------- ----------------------
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
1122(d)(4)(vi) and related pool asset documents.
--------------------- ----------------------
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
1122(d)(4)(vii) transaction agreements.
--------------------- ----------------------
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
1122(d)(4)(viii) unemployment).
--------------------- ----------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) the related mortgage loan documents.
--------------------- ----------------------
W-4
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
--------------------- -------------------------------------------------------------------- ----------------------
General Servicing Considerations
--------------------- -------------------------------------------------------------------- ----------------------
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
1122(d)(4)(x) agreements.
--------------------- ----------------------
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
1122(d)(4)(xi) other number of days specified in the transaction agreements.
--------------------- ----------------------
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
1122(d)(4)(xii) omission.
--------------------- ----------------------
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
1122(d)(4)(xiii) specified in the transaction agreements.
--------------------- ----------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements.
--------------------- ----------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
1122(d)(4)(xv) is maintained as set forth in the transaction agreements.
--------------------- ----------------------
--------------------------------------------------------------------
--------------------- -------------------------------------------------------------------- ----------------------
W-5
[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
--------------------------------------------------------------------------------
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S-1
