The Pooling and Servicing Agreement
EXHIBIT
99.1
CWALT,
INC.,
Depositor
COUNTRYWIDE
HOME LOANS, INC.,
Seller
PARK
GRANADA LLC,
Seller
PARK
MONACO INC.,
Seller
PARK
SIENNA LLC,
Seller
COUNTRYWIDE
HOME LOANS SERVICING LP,
Master
Servicer
and
THE
BANK
OF NEW YORK,
Trustee
___________________________________
Dated
as
of July 1, 2007
__________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-OA9
Table
of
Contents
Page
|
ARTICLE
I DEFINITIONS
|
9
|
|
|
SECTION
1.01.
|
Defined
Terms.
|
9
|
|
SECTION
1.02.
|
Certain
Interpretive Principles.
|
42
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES
|
43
|
|
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans
|
43
|
|
SECTION
2.02.
|
Acceptance
by Trustee of the Mortgage Loans.
|
50
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Sellers and Master
Servicer.
|
53
|
|
SECTION
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
56
|
|
SECTION
2.05.
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
57
|
|
SECTION
2.06.
|
Execution
and Delivery of Certificates.
|
57
|
|
SECTION
2.07.
|
REMIC
Matters.
|
57
|
|
SECTION
2.08.
|
Covenants
of the Master Servicer.
|
58
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
59
|
|
|
SECTION
3.01.
|
Master
Servicer to Service Mortgage Loans.
|
59
|
|
SECTION
3.02.
|
Subservicing;
Enforcement of the Obligations of Subservicers.
|
60
|
|
SECTION
3.03.
|
Rights
of the Depositor and the Trustee in Respect of the Master
Servicer.
|
60
|
|
SECTION
3.04.
|
Trustee
to Act as Master Servicer.
|
61
|
|
SECTION
3.05.
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Pre-Funding Account; Capitalized Interest Account; Carryover Shortfall
Reserve Fund.
|
61
|
|
SECTION
3.06.
|
Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
|
65
|
|
SECTION
3.07.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
66
|
|
SECTION
3.08.
|
Permitted
Withdrawals from the Certificate Account; the Distribution Account
and the
Carryover Shortfall Reserve Fund.
|
66
|
|
SECTION
3.09.
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
68
|
|
SECTION
3.10.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
|
69
|
|
SECTION
3.11.
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
70
|
|
SECTION
3.12.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
74
|
|
SECTION
3.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
the
Trustee.
|
75
|
|
SECTION
3.14.
|
Servicing
Compensation.
|
75
|
|
SECTION
3.15.
|
Access
to Certain Documentation.
|
76
|
|
SECTION
3.16.
|
Annual
Statement as to Compliance.
|
76
|
|
SECTION
3.17.
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
77
|
|
SECTION
3.18.
|
Notification
of Adjustments.
|
77
|
|
SECTION
3.19.
|
[Reserved].
|
77
|
|
SECTION
3.20.
|
Prepayment
Charges.
|
77
|
|
SECTION
3.21.
|
[Reserved]
|
78
|
|
ARTICLE
IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
|
79
|
|
|
SECTION
4.01.
|
Advances.
|
79
|
|
SECTION
4.02.
|
Priorities
of Distribution.
|
80
|
|
SECTION
4.03.
|
Allocation
of Net Deferred Interest.
|
84
|
|
SECTION
4.04.
|
Allocation
of Realized Losses.
|
85
|
|
SECTION
4.05.
|
[Reserved].
|
86
|
|
SECTION
4.06.
|
Monthly
Statements to Certificateholders.
|
86
|
i
|
SECTION
4.07.
|
[Reserved].
|
86
|
|
SECTION
4.08.
|
Determination
of Pass-Through Rates for LIBOR Certificates.
|
86
|
|
SECTION
4.09.
|
[Reserved]
|
88
|
|
ARTICLE
V THE CERTIFICATES
|
89
|
|
|
SECTION
5.01.
|
The
Certificates.
|
89
|
|
SECTION
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
89
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
94
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
94
|
|
SECTION
5.05.
|
Access
to List of Certificateholders’ Names and Addresses.
|
94
|
|
SECTION
5.06.
|
Maintenance
of Office or Agency.
|
95
|
|
ARTICLE
VI THE DEPOSITOR AND THE MASTER SERVICER
|
96
|
|
|
SECTION
6.01.
|
Respective
Liabilities of the Depositor and the Master Servicer.
|
96
|
|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor or the Master Servicer.
|
96
|
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Sellers, the Master Servicer
and
Others.
|
96
|
|
SECTION
6.04.
|
Limitation
on Resignation of Master Servicer.
|
97
|
|
ARTICLE
VII DEFAULT
|
98
|
|
|
SECTION
7.01.
|
Events
of Default.
|
98
|
|
SECTION
7.02.
|
Trustee
to Act; Appointment of Successor.
|
100
|
|
SECTION
7.03.
|
Notification
to Certificateholders.
|
101
|
|
ARTICLE
VIII CONCERNING THE TRUSTEE
|
102
|
|
|
SECTION
8.01.
|
Duties
of Trustee.
|
102
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
103
|
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
104
|
|
SECTION
8.04.
|
Trustee
May Own Certificates.
|
104
|
|
SECTION
8.05.
|
Trustee’s
Fees and Expenses.
|
104
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
105
|
|
SECTION
8.07.
|
Resignation
and Removal of Trustee.
|
105
|
|
SECTION
8.08.
|
Successor
Trustee.
|
106
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
107
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
107
|
|
SECTION
8.11.
|
Tax
Matters.
|
109
|
|
SECTION
8.12.
|
Monitoring
of Significance Percentage.
|
111
|
|
ARTICLE
IX TERMINATION
|
111
|
|
|
SECTION
9.01.
|
Termination
upon Liquidation or Purchase of all Mortgage Loans.
|
111
|
|
SECTION
9.02.
|
Final
Distribution on the Certificates.
|
111
|
|
SECTION
9.03.
|
Additional
Termination Requirements.
|
113
|
|
ARTICLE
X MISCELLANEOUS PROVISIONS
|
113
|
|
|
SECTION
10.01.
|
Amendment.
|
113
|
|
SECTION
10.02.
|
Recordation
of Agreement; Counterparts.
|
115
|
|
SECTION
10.03.
|
Governing
Law.
|
115
|
|
SECTION
10.04.
|
Intention
of Parties.
|
115
|
|
SECTION
10.05.
|
Notices.
|
117
|
|
SECTION
10.06.
|
Severability
of Provisions.
|
118
|
|
SECTION
10.07.
|
Assignment.
|
118
|
|
SECTION
10.08.
|
Limitation
on Rights of Certificateholders.
|
118
|
|
SECTION
10.09.
|
Inspection
and Audit Rights.
|
119
|
|
SECTION
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
119
|
|
SECTION
10.11.
|
[Reserved].
|
120
|
|
SECTION
10.12.
|
Protection
of Assets.
|
120
|
ii
|
ARTICLE
XI EXCHANGE ACT REPORTING
|
120
|
|
|
SECTION
11.01.
|
Filing
Obligations.
|
120
|
|
SECTION
11.02.
|
Form
10-D Filings.
|
120
|
|
SECTION
11.03.
|
Form
8-K Filings.
|
121
|
|
SECTION
11.04.
|
Form
10-K Filings.
|
122
|
|
SECTION
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
122
|
|
SECTION
11.06.
|
Form
15 Filing.
|
123
|
|
SECTION
11.07.
|
Report
on Assessment of Compliance and Attestation.
|
123
|
|
SECTION
11.08.
|
Use
of Subservicers and Subcontractors.
|
124
|
|
SECTION
11.09.
|
Amendments.
|
125
|
|
SECTION
11.10.
|
Reconciliation
of Accounts.
|
126
|
SCHEDULES
|
Schedule
I:
|
Mortgage
Loan Schedule
|
S-I-1
|
|
Schedule
II-A:
|
Representations
and Warranties of Countrywide
|
S-II-A-1
|
|
Schedule
II-B:
|
Representations
and Warranties of Park Granada
|
S-II-B-1
|
|
Schedule
II-C:
|
Representations
and Warranties of Park Monaco
|
S-II-C-1
|
|
Schedule
II-D
|
Representations
and Warranties of Park Sienna.
|
S-II-D-1
|
|
Schedule
III-A:
|
Representations
and Warranties of Countrywide as to all of the Mortgage
Loans
|
S-III-A-1
|
|
Schedule
III-B:
|
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
|
S-III-B-1
|
|
Schedule
III-C:
|
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
|
S-III-C-1
|
|
Schedule
III-D:
|
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
|
S-III-D-1
|
|
Schedule
III-E:
|
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
|
S-III-E-1
|
|
Schedule
IV:
|
Representations
and Warranties of the Master Servicer
|
S-IV-1
|
|
Schedule
V:
|
Principal
Balance Schedules [if applicable]
|
S-V-1
|
|
Schedule
VI:
|
Form
of Monthly Master Servicer Report
|
S-VI-1
|
|
EXHIBITS
|
||
|
Exhibit
A:
|
Form
of Senior Certificate (other than Notional Amount
Certificates)
|
A-1
|
|
Exhibit
B:
|
Form
of Subordinated Certificate
|
B-1
|
|
Exhibit
C-1:
|
Form
of Residual Certificate
|
C-1-1
|
|
Exhibit
C-2:
|
[Reserved]
|
C-2-1
|
|
Exhibit
D:
|
Form
of Notional Amount Certificate
|
D-1
|
|
Exhibit
E:
|
Form
of Reverse of Certificates
|
E-1
|
|
Exhibit
F-1:
|
Form
of Initial Certification of Trustee (Initial Mortgage
Loans)
|
F-1-1
|
|
Exhibit
F-2:
|
Form
of Initial Certification of Trustee (Supplemental Mortgage
Loans)
|
F-2-1
|
|
Exhibit
G-1:
|
Form
of Delay Delivery Certification (Initial Mortgage Loans)
|
G-1-1
|
|
Exhibit
G-2:
|
Form
of Delay Delivery Certification (Supplemental Mortgage
Loans)
|
G-2-1
|
iii
|
Exhibit
H-1:
|
Form
of Final Certification of Trustee (Initial Mortgage Loans)
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Final Certification of Trustee (Supplemental Mortgage
Loans)
|
H-2-1
|
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
I-1
|
|
Exhibit
J-1:
|
Form
of Transferor Certificate (Residual)
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Transferor Certificate (Private)
|
J-2-1
|
|
Exhibit
K:
|
Form
of Investment Letter [Non-Rule 144A]
|
K-1
|
|
Exhibit
L-1:
|
Form
of Rule 000X Xxxxxx
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of ERISA Letter (Covered Certificates)
|
L-2-1
|
|
Exhibit
M:
|
Form
of Request for Release (for Trustee)
|
M-1
|
|
Exhibit
N:
|
Form
of Request for Release of Documents (Mortgage Loan Paid in Full,
Repurchased and Replaced)
|
N-1
|
|
Exhibit
O:
|
Standard
& Poor’s LEVELS® Appendix E Version 6.0 Glossary
Revised,
|
O-1
|
|
Exhibit
P:
|
Form
of Supplemental Transfer Agreement
|
P-1
|
|
Exhibit
Q:
|
Monthly
Report
|
Q-1
|
|
Exhibit
R-1:
|
Form
of Performance Certification (Subservicer)
|
X-0-0
|
|
Xxxxxxx
X-0:
|
Form
of Performance Certification (Trustee)
|
R-2-1
|
|
Exhibit
S:
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
S-1
|
|
Exhibit
T:
|
List
of Item 1119 Parties
|
T-1
|
|
Exhibit
U:
|
Form
of Xxxxxxxx-Xxxxx Certification (Replacement Master
Servicer)
|
U-1
|
iv
THIS
POOLING AND SERVICING AGREEMENT, dated as of July 1, 2007, among CWALT, INC.,
a
Delaware corporation, as depositor (the “Depositor”),
COUNTRYWIDE HOME LOANS, INC. (“Countrywide”), a New
York corporation, as a seller (a “Seller”), PARK
GRANADA LLC (“Park Granada”), a Delaware limited
liability company, as a seller (a “Seller”), PARK
MONACO INC. (“Park Monaco”), a Delaware corporation,
as a seller (a “Seller”), PARK SIENNA LLC
(“Park Sienna”), a Delaware limited liability company,
as a seller (a “Seller”), COUNTRYWIDE HOME LOANS
SERVICING LP, a Texas limited partnership, as master servicer (the
“Master Servicer”), and THE BANK OF NEW YORK, a
banking corporation organized under the laws of the State of New York, as
trustee (the “Trustee”).
WITNESSETH
THAT
In
consideration of the mutual agreements contained in this Agreement, the parties
to this Agreement agree as follows:
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. As provided herein, the Trustee will elect
that
the Trust Fund (excluding the Carryover Shortfall Reserve Fund) be treated
for
federal income tax purposes as two real estate mortgage investment conduits
(each a “REMIC,” or in the alternative, the “Master REMIC” and the “Expanding
Strip (“ES”) REMIC” respectively). The Master REMIC will hold as
assets the several classes of uncertificated ES REMIC Interests (other than
the
Class ES-A-R Interest). Each Certificate, other than the Class A-R
Certificate, will represent ownership of one or more REMIC regular interests
in
the Master REMIC. The Class A-R Certificate will represent ownership of the
sole
class of REMIC residual interest in each of the ES REMIC and the Master
REMIC. The ES REMIC will hold as assets all the assets of the Trust
Fund (excluding the Carryover Shortfall Reserve Fund). The
uncertificated ES REMIC Interests (other than the Class ES-A-R Interest)
are
designated as REMIC regular interests in the ES REMIC. The ES-A-R
Interest is designated as the sole Class of REMIC residual interest in the
ES
REMIC. The “latest possible maturity date,” for federal income tax
purposes, of all REMIC regular interests created hereby will be the Latest
Possible Maturity Date.
The
following table specifies the Class designation, interest rate, and principal
amount for each Class of ES REMIC Interests:
The
following table specifies the Class designation, interest rate, and principal
amount for each Class of ES REMIC Interests:
|
Expanding
Strip REMIC Interest
|
Initial
Principal Balance
|
Interest
Rate
|
Corresponding
Master REMIC Certificate
|
|
ES-SR-A-1
|
(1)
|
(3)
|
Class X-0
|
|
XX-XX-X-0
|
(1)
|
(3)
|
Class X-0
|
|
XX-XX-X-0
|
(1)
|
(3)
|
Class A-3
|
|
ES-X-1-Accrual
|
(1)
|
(3)
|
N/A
|
|
ES-$100
|
$100
|
(3)
|
Class A-R
|
|
ES-SB-M-1
|
(2)
|
(3)
|
Class M-1
|
|
ES-SB-M-2
|
(2)
|
(3)
|
Class M-2
|
|
ES-SB-M-3
|
(2)
|
(3)
|
Class M-3
|
|
ES-SB-M-4
|
(2)
|
(3)
|
Class M-4
|
|
ES-SB-M-5
|
(2)
|
(3)
|
Class M-5
|
|
ES-SB-M-6
|
(2)
|
(3)
|
Class M-6
|
|
ES-SB-M-7
|
(2)
|
(3)
|
Class M-7
|
|
ES-SB-M-8
|
(2)
|
(3)
|
Class M-8
|
|
ES-SB-M-9
|
(2)
|
(3)
|
Class M-9
|
|
ES-SB-B-1
|
(2)
|
(3)
|
Class B-1
|
|
ES-SB-B-2
|
(2)
|
(3)
|
Class B-2
|
|
ES-SB-B-3
|
(2)
|
(3)
|
Class B-3
|
|
ES-X-2-Accrual
|
(2)
|
(3)
|
N/A
|
|
ES-A-R
|
(4)
|
(4)
|
N/A
|
|
ES-P
|
N/A
|
(5)
|
Class
X-P
|
|
(1)
|
Each
Class ES-SR Interest has a principal balance that is initially
equal to
50% of its Corresponding Certificate Class issued by the Master
REMIC. The Class ES-X-1-Accrual Interest has a principal
balance that is initially equal to the aggregate of the initial
principal
balances of the Class ES-SR
Interests.
|
|
(2)
|
Each
Class ES-SB Interest has a principal balance that is initially
equal to
50% of its Corresponding Certificate Class issued by the Master
REMIC. The Class ES-X-2- Accrual Interest has a principal
balance that is initially equal to the aggregate of the initial
principal
balances of the Class ES-SB
Interests.
|
|
(3)
|
The
interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this ES REMIC Interest is a per annum
rate
equal to the Net Rate Cap.
|
|
(4)
|
The
Class ES-A-R Interest is the sole Class of residual interest in
the ES
REMIC. It pays no interest or
principal.
|
|
(5)
|
The
Class ES-P Interest is entitled all Prepayment Charges paid on
the
Mortgage Loans and all Master Servicer Prepayment Charge
Amounts.
|
2
On
each
Distribution Date, the Available Funds payable with respect to the Mortgage
Loans and all prepayment charges and any Master Servicer Prepayment Charge
Amounts for such Distribution Date shall be distributed with respect to the
ES
REMIC Interests in the following manner:
(1) Interest.
Interest is to be distributed with respect to each ES REMIC Interest at the
rate, or according to the formulas, described above; and
(2) Principal.
Principal payments, both scheduled and prepaid, Realized Losses, Subsequent
Recoveries and interest accruing on the Mortgage Loans will be allocated
(a) to
each Class ES-SR and ES-SB Interest so as to maintain its size relative to
its
Corresponding Certificate Class (that is, 50%) with any excess payments of
principal, Realized Losses, Subsequent Recoveries and interest accruing on
the
Mortgage Loans being allocated (b) to (i) the Class ES-X-1-Accrual Interest
so
as to cause the principal balance of the Class ES-X-1-Accrual Interest to
have a
principal balance equal to the sum of (A) the aggregate principal balance
of the
Class ES-SR Interests and (B) 100% of the Net Deferred Interest allocated
to the
Class X-P PO-1 Component of the Class X-P Certificates and (ii) the Class
ES-X-2-Accrual Interest so as to cause the principal balance of the Class
ES-X-2-Accrual Interest to have a principal balance equal to the sum of (A)
the
principal balance of the Class ES-SB Interests and (B) 100% of the Net Deferred
Interest allocated to the Class X-P PO-2 Component of the Class X-P
Certificates.
(3)
Prepayment Charges. Any Prepayment Charges paid on the
Mortgage Loans and any Master Servicer Prepayment Charge Amounts will be
allocated to the Class ES-P Interest.
3
The
following table sets forth characteristics of the Certificates, together
with
minimum denominations and integral multiples in excess thereof in which such
Classes shall be issued (except that one Residual Certificate representing
the
Tax Matters Person Certificate may be issued in a different amount for each
Class of REMIC Interest):
|
Class
Designation
|
Initial
Class
Certificate
Balance/Notional
Amount
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples
in
Excess of
Minimum
|
|
Class
A-1
|
$212,195,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
A-2
|
$88,414,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
A-3
|
$53,048,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class A-R
|
$ 100
|
(2)
|
(3)
|
(3)
|
|
Class
X-P
|
$ 405,337,894
(4)
|
(5)(6)(7)
|
$100,000.00(8)
|
$1.00(8)
|
|
Class
M-1
|
$11,147,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
M-2
|
$8,107,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
M-3
|
$3,040,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
M-4
|
$4,053,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
M-5
|
$2,027,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
M-6
|
$2,027,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
M-7
|
$3,040,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
M-8
|
$1,013,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
M-9
|
$3,040,000
|
(1)
|
$ 25,000.00
|
$1.00
|
|
Class
B-1
|
$7,499,000
|
(1)
|
$100,000.00
|
$1.00
|
|
Class
B-2
|
$2,229,000
|
(1)
|
$100,000.00
|
$1.00
|
|
Class
B-3
|
$4,458,894
|
(1)
|
$100,000.00
|
$1.00
|
|
(1)
|
The
Pass-Through Rate for this Class for each Interest Accrual Period
related
to each Distribution Date will be a per annum rate equal to the
lesser of
(a) LIBOR plus the applicable Pass-Through Margin for such Class
and (b)
the Net Rate Cap. The Pass-Through Rates for the LIBOR
Certificates for the Interest Accrual Period related to the first
Distribution Date, without giving effect to the Net Rate Cap, will
be as
set forth in the following table:
|
4
|
Class
of Certificates
|
Initial
Pass-Through Rate (%) (1)
|
|
|
Class
A-1
|
0.290%
|
|
|
Class
A-2
|
0.350%
|
|
|
Class
A-3
|
0.500%
|
|
|
Class
M-1
|
1.250%
|
|
|
Class
M-2
|
1.500%
|
|
|
Class
M-3
|
1.750%
|
|
|
Class
M-4
|
1.750%
|
|
|
Class
M-5
|
1.750%
|
|
|
Class
M-6
|
1.750%
|
|
|
Class
M-7
|
1.750%
|
|
|
Class
M-8
|
1.750%
|
|
|
Class
M-9
|
1.750%
|
|
|
Class
B-1
|
1.750%
|
|
|
Class
B-2
|
1.750%
|
|
|
Class
B-3
|
1.750%
|
__________
|
|
(1)
|
Without
giving effect to the Net Rate Cap.
|
|
(2)
|
The
Pass-Through Rate for the Class A-R Certificates for the Interest
Accrual
Period for any Distribution Date will be the Net Rate Cap. The
Pass-Through Rate for the Class A-R Certificates for the Interest
Accrual
Period for the first Distribution Date will be 8.137854% per
annum.
|
|
(3)
|
The
Class A-R Certificate will 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.
|
|
(4)
|
The
Class X-P Certificates initially will have no Class Certificate
Balance
and will have a notional amount equal to the aggregate Component
Notional
Amount of the Class X-P IO-1 and Class X-P IO-2
Components.
|
|
(5)
|
Interest
will accrue with respect to the Class X-P Certificates for the
Interest
Accrual Period related to each Distribution Date in an amount equal
to the
sum of the interest accrued on the Class X-P IO-1 and Class X-P
IO-2
Components at their respective Pass-Through Rates for that Interest
Accrual Period.
|
|
(6)
|
For
federal income tax purposes, for the Interest Accrual Period for
any
Distribution Date, the Class X-P Certificates are entitled to the
sum
of:
|
|
|
A.
|
The
interest on the Class ES-SR and Class ES-X-1-Accrual Interests
equal to
the excess of (a) the Net Rate Cap over (b) the product of two
and the
weighted average interest rate of the Class ES-SR and Class ES-X-1-Accrual
Interests with each Interest (other than the Class ES-X-1-Accrual
Interest) subject to a cap equal to the Pass-Through Rate of the
corresponding Certificate Class and the Class ES-X-1-Accrual Interest
subject to a cap of 0.00%. The amounts so calculated shall be a
rate sufficient to entitle the Class X-P Certificates to all interest
accrued on the Class ES-SR and Class ES-X-1 Accrual Interests less
the
interest accrued on the Class A
Certificates.
|
5
|
|
B.
|
The
interest on the Class ES-SB and Class ES-X-2-Accrual Interests
equal to
the excess of (a) the Net Rate Cap over (b) the product of two
and the
weighted average interest rate of the Class ES-SB and Class ES-X-2-Accrual
Interests with each Interest (other than the Class ES-X-2-Accrual
Interest) subject to a cap equal to the Pass-Through Rate of the
corresponding Certificate Class and the ES-X-2-Accrual Interest
subject to
a cap of 0.00%. The amounts so calculated shall be a rate
sufficient to entitle the Class X-P Certificates to all interest accrued
on the Class ES-SB and Class ES-X-2 Accrual Interests less the
interest
accrued on the Class M and Class B
Certificates.
|
|
(7)
|
The
Class X-P Certificates will also be entitled to receive on each
Distribution Date the amounts payable with respect to the Class
ES-P ES
REMIC regular interest.
|
|
(8)
|
Based
on the Notional Amount.
|
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Master REMIC as cash flow on a REMIC regular
interest, without creating any shortfall—actual or potential (other than for
credit losses) to any REMIC regular interest. It is not intended that
the Class A-R Certificates be entitled to any cash flow pursuant to this
Agreement except as provided in Section 4.02(a)(1) hereunder.
For
any
purpose for which the Pass-Through Rates is calculated, the interest rate
on the
Mortgage Loans shall be appropriately adjusted to account for the difference
between the monthly day count convention of the Mortgage Loans and the monthly
day count convention of the regular interests issued by each of the
REMICs. For purposes of calculating the Pass-Through Rates for each
of the interests issued by REMIC, such rates shall be adjusted to equal a
monthly day count convention based on a 30 day month for each Due Period
and a
360-day year so that the Mortgage Loans and all regular interests will be
using
the same monthly day count convention.
No
monies
will be remitted by Countrywide to the Trustee for deposit in the Pre-Funding
Account. Consequently, all references to or provisions herein regarding the
Funding Period, Funding Period Distribution Date, Pre-Funded Amount, Pre-Funding
Account, Capitalized Interest Account, Capitalized Interest Requirement,
Supplemental Cut-off Date, Supplemental Mortgage Loan, Supplemental Transfer
Agreement, Supplemental Transfer Date, Aggregate Supplemental Purchase Amount
and Aggregate Supplemental Transfer Amount are inapplicable.
6
Set
forth
below are designations of Classes or Components of Certificates to the
categories used in this Agreement:
|
Accretion
Directed
|
|
|
Certificates
|
None.
|
|
Accretion
Directed
Components
|
None.
|
|
Accrual
Certificates
|
None.
|
|
Accrual
Components
|
None.
|
|
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
Class
A Certificates
|
The
Class A-1, Class A-2 and Class A-3 Certificates.
|
|
Class
B Certificates
|
The
Class B-1, Class B-2 and Class B-3 Certificates.
|
|
Class
M Certificates
|
The
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class
M-7, Class M-8 and Class M-9 Certificates.
|
|
COFI
Certificates
|
None.
|
|
Combined
Certificates
|
None.
|
|
Component
Certificate
|
The
Class X-P Certificates.
|
|
For
purposes of calculating distributions of principal and/or interest,
each
Class of Component Certificates will be comprised of multiple payment
components having the Designations, Initial Component Principal
Balances
and Component Notional Amounts, as applicable, and Pass-Through
Rates set
forth below:
|
|
Designation
|
Initial
Component
Principal
Balance
|
Closing
Date Component
Notional
Amount
|
Pass-Through
Rate
|
|||
|
Class
X-P IO-1
|
N/A
|
$ 353,657,000
|
(1)
|
|||
|
Class
X-P IO-2
|
N/A
|
$ 51,680,894
|
(2)
|
|||
|
Class
X-P PO-1
|
$0
|
N/A
|
0%
|
|||
|
Class
X-P PO-2
|
$0
|
N/A
|
0%
|
|||
|
(1)
For the Interest Accrual Period for each Distribution Date, a per
annum
rate equal to the excess, if any, of (i) the Net Rate Cap (adjusted
to a
rate calculated on the basis of a 360-day year comprised of twelve
30-day
months) over (ii) the weighted average of the Pass-Through Rates
of the
Class A Certificates and the Class X-P PO-1 Component for that
Distribution Date (weighted on the basis of the respective
Class Certificate Balances of the Class A Certificates and the
Component
Principal Balance of the Class X-P PO-1 Component and adjusted
to a rate
calculated on the basis of a 360-day year comprised of twelve 30-day
months).
|
7
|
(2)
For the Interest Accrual Period related to each Distribution Date,
a per
annum rate equal to the excess, if any, of (i) the Net Rate Cap
(adjusted
to a rate calculated on the basis of a 360-day year comprised of
twelve
30-day months) over (ii) the weighted average of the Pass-Through
Rates of
the Subordinated Certificates and the Class X-P PO-2 Component
for that
Distribution Date (weighted on the basis of the respective Class
Certificate Balances of the Subordinated Certificates and the Component
Principal Balance of the Class X-P PO-2 Component and adjusted
to a rate
calculated on the basis of a 360-day year comprised of twelve 30-day
months).
|
|
|
Components
|
The
Notional Amount Components and Principal Only Components. The
Components are not separately transferable from the related Class
of
Certificates.
|
|
Delay
Certificates
|
All
interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
|
|
ERISA-Restricted
|
|
|
Certificates
|
The
Residual Certificates, the Private Certificates and any Certificate
of a
Class that does not have or no longer has a rating of at least
BBB- or its
equivalent from at least one Rating Agency.
|
|
Floating
Rate Certificates
|
The
LIBOR Certificates.
|
|
LIBOR
Certificates
|
Class
A, Class M and Class B Certificates.
|
|
Non-Delay
Certificates
|
The
LIBOR Certificates.
|
|
Notional
Amount
|
|
|
Certificates
|
None.
|
|
Notional
Amount
|
|
|
Components
|
Class
X-P IO-1 and Class X-P IO-2 Components.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
|
Physical
Certificates
|
The
Private Certificates and the Residual Certificates.
|
|
Planned
Principal Classes
|
None.
|
|
Planned
Principal
|
|
|
Components
|
None.
|
8
|
Principal
Only Components
|
Class
X-P PO-1 and Class X-P PO-2 Components.
|
|
Private
Certificates
|
Class B-1,
Class B-2 and Class B-3 Certificates.
|
|
Rating
Agencies
|
Xxxxx’x
and S&P.
|
|
Regular
Certificates
|
All
Classes of Certificates, other than the Residual
Certificates.
|
|
Residual
Certificates
|
The
Class A-R Certificates.
|
|
Senior
Certificates
|
Class
A, Class X-P and Class A-R Certificates.
|
|
Subordinated
Certificates
|
Class
M and Class B Certificates.
|
|
Targeted
Principal Classes
|
None.
|
|
Underwriter
|
Countrywide
Securities Corporation.
|
With
respect to any of the foregoing designations as to which the corresponding
reference is “None,” all defined terms and provisions in this Agreement relating
solely to such designations shall be of no force or effect, and any calculations
in this Agreement incorporating references to such designations shall be
interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to
statistical rating agencies not designated above as Rating Agencies shall
be of
no force or effect.
ARTICLE
I
DEFINITIONS
SECTION
1.01. Defined Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Account: Any
Escrow Account, the Certificate Account, the Distribution Account, the Carryover
Shortfall Reserve Fund, the Pre-Funding Account, the Capitalized Interest
Account or any other account related to the Trust Fund or the Mortgage
Loans.
Accretion
Directed Certificates: As specified in the Preliminary
Statement.
Accretion
Direction Rule: Not applicable.
Accrual
Amount: Not applicable.
Accrual
Certificates: As specified in the Preliminary
Statement.
Accrual
Components: As specified in the Preliminary
Statement.
Accrual
Termination Date: Not applicable.
9
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 (as of the first day of the related
Due Period) less the Expense Fee Rate.
Adjusted
Rate Cap: With respect to the LIBOR Certificates for any
Distribution Date, the excess, if any, of the Net Rate Cap for such Distribution
Date, over a fraction expressed as a percentage, the numerator of which is
the
product of (i) a fraction, the numerator of which is 360 and the denominator
of
which is the actual number of days in the related Interest Accrual Period
and
(ii) the Net Deferred Interest for that Distribution Date, and the denominator
of which is the aggregate Stated Principal Balance of the Mortgage Loans
as of
the first day of the related Due Period (after giving effect to Principal
Prepayments received in the Prepayment Period ending during that Due
Period).
With
respect to the Class X-P IO-1 and Class X-P IO-2 Components for any Distribution
Date, the Pass-Through Rate for such Component computed for this purpose
by (A)
subtracting from the numerator of the Net Rate Cap calculation for such
Distribution Date the product of (a) the Net Deferred Interest for such
Distribution Date and (b) 12 and (B) computing the Pass-Through Rates of
the
Senior Certificates (other than the Class A-R and Class X-P Certificates),
in
the case of the Class X-P IO-1 Component, and the Subordinated Certificates,
in
the case of the Class X-P IO-2 Component, by substituting “Adjusted Rate Cap”
for “Net Rate Cap” in the calculation thereof.
Adjustment
Date: A date specified in each Mortgage Note as a date on which
the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: 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 in the related Due Period
and
not received by the Master Servicer as of the close of business on the related
Determination Date, together with an amount equivalent to interest on each
Mortgage Loan as to which the related Mortgaged Property is an REO Property
(net
of any net income 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
Supplemental Purchase Amount: With respect to any Supplemental
Transfer Date, the “Aggregate Supplemental Purchase Amount” identified in the
related Supplemental Transfer Agreement, which shall be an estimate of the
aggregate Stated Principal Balances of the Supplemental Mortgage Loans
identified in such Supplemental Transfer Agreement.
Aggregate
Supplemental Transfer Amount: With respect to any Supplemental
Transfer Date, the aggregate Stated Principal Balance as of the related
Supplemental Cut-off Date of the Supplemental Mortgage Loans conveyed on
such
Supplemental Transfer Date, as listed on the
10
revised
Mortgage Loan Schedule delivered pursuant to the Supplemental Transfer
Agreement; provided, however, that such amount shall not exceed the amount
on
deposit in the Pre-Funding Account.
Agreement: This
Pooling and Servicing Agreement and all amendments or supplements to this
Pooling and Servicing Agreement.
Allocable
Share: As to any Distribution Date, any Class of Certificates or
any interest-bearing Component thereof, the ratio that the amount calculated
with respect to such Distribution Date pursuant to clause (i) of the definition
of Class Optimal Interest Distribution Amount (without giving effect to any
reduction of such amount pursuant to Section 4.02(d)) bears to the aggregate
amount calculated with respect to such Distribution Date for each such Class
of
Certificates pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount (without giving effect to any reduction of such amounts
pursuant to Section 4.02(d)).
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 in the related Due Period.
Applicable
Credit Support Percentage: As defined in
Section 4.02(e).
Appraised
Value: With respect to a Mortgage Loan other than a Refinancing
Mortgage Loan, the lesser of (a) the value of the Mortgaged Property based
upon
the appraisal made at the time of the origination of such Mortgage Loan and
(b)
the sales price of the Mortgaged Property at the time of the origination
of such
Mortgage Loan. 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. With respect to a Streamlined Documentation Mortgage
Loan, (a) if the loan-to-value ratio with respect to the Original Mortgage
Loan
at the time of the origination thereof was 80% or less and the loan amount
of
the new mortgage loan is $650,000 or less, the value of the Mortgaged Property
based upon the appraisal made at the time of the origination of the Original
Mortgage Loan and (b) if the loan-to-value ratio with respect to the Original
Mortgage Loan at the time of the origination thereof was greater than 80%
or the
loan amount of the new mortgage loan being originated is greater than $650,000,
the value of the Mortgaged Property based upon the appraisal (which may be
a
drive-by appraisal) made at the time of the origination of such Streamlined
Documentation Mortgage Loan.
Available
Funds: As to any Distribution Date, the sum of (a) the aggregate
amount held in the Certificate Account at the close of business on the related
Determination Date in respect of the Mortgage Loans pursuant to Section 3.05(b)
net of the Amount Held for Future Distribution, net of any Prepayment Charges
and net of amounts permitted to be withdrawn from the Certificate Account
pursuant to clauses (i) – (viii), inclusive, of Section 3.08(a) and amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses
(i)
- (v), inclusive, of Section 3.08(b), (b) the amount of the related Advance
and
(c) in connection with Defective Mortgage Loans, as applicable, the aggregate
of
the Purchase Prices and Substitution Adjustment Amounts deposited on the
related
Distribution Account Deposit Date, (d) on each Funding
11
Period
Distribution Date, the amount, if any, transferred from the Capitalized Interest
Account in respect of the applicable Capitalized Interest Requirement and
(e)
with respect to the first Distribution Date after the end of the Funding
Period,
amounts remaining on deposit in the Pre-Funding Account as of the end of
the
Funding Period. The Holders of the Class X-P Certificates will be entitled
to
all Prepayment Charges received on the Mortgage Loans, and such amounts will
not
be available for distribution to the Holders of any other Class of
Certificates.
Bankruptcy
Code: Title 11 of the United States Code, as
amended.
Benefit
Plan Opinion: As defined in Section 5.02(b).
Book-Entry
Certificates: As specified in the Preliminary
Statement.
Business
Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the City of New York, New York,
or the States of California or Texas or the city in which the Corporate Trust
Office of the Trustee is located are authorized or obligated by law or executive
order to be closed.
Capitalized
Interest Account: The separate Eligible Account designated as such and
created and maintained by the Trustee pursuant to Section 3.05(h)
hereof. The Capitalized Interest Account shall be treated as an
“outside reserve fund” under applicable Treasury regulations and shall not be
part of any REMIC. Except as provided in Section 3.05(h) hereof, any
investment earnings on the amounts on deposit in the Capitalized Interest
Account shall be treated as owned by the Depositor and will be taxable to
the
Depositor.
Capitalized
Interest Requirement: With respect to each Funding Period Distribution Date,
the excess, if any, of (a) the sum of (1) the amount calculated pursuant
to
clause (i) of the definition of Class Optimal Interest Distribution Amount
for
each Class of Certificates for such Distribution Date (without giving effect
to
the Net Rate Cap in the calculation of the Pass-Through Rate for each Class
of
Certificates), plus (2) the Trustee Fee, over (b) with respect to each Mortgage
Loan, (1) 1/12 of the product of the related Adjusted Mortgage Rate and the
related Stated Principal Balance as of the related Due Date (prior to giving
effect to any Scheduled Payment due on such Mortgage Loan on such Due Date)
minus (2) any related reductions required by Section 4.02(d)
hereof.
Carryover
Shortfall Amount: For any Class of LIBOR Certificates and any Distribution
Date, the sum of (a) the excess, if any, of (i) the amount of interest such
Class of Certificates would have been entitled to receive on such Distribution
Date pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount (prior to any reductions pursuant to Section 4.02(d)
and any
reduction due to the allocation of Net Deferred Interest) had the applicable
Pass-Through Rate not been limited to the Net Rate Cap, over (ii) the amount
of
interest such Class of Certificates is entitled to receive on such Distribution
Date pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount (prior to any reductions pursuant to Section 4.02(d)
and any
reduction due to the allocation of Net Deferred Interest) and (b) with respect
to each Class of LIBOR Certificates (other than the Class B Certificates),
the
unpaid portion of any such excess from prior Distribution Dates (and interest
accrued thereon at the then applicable Pass-Through Rate on such Class of
Certificates, without giving effect to the Net Rate Cap).
12
Carryover
Shortfall Reserve Fund: The separate fund created and initially maintained
by the Trustee pursuant to Section 3.05(g) in the name of the Trustee for
the
benefit of the Holders of the LIBOR Certificates and the Class X-P Certificates
and designated “The Bank of New York in trust for registered holders of CWALT,
Inc., Alternative Loan Trust 2007-OA9, Mortgage Pass-Through Certificates,
Series 2007-OA9.” Funds in the Carryover Shortfall Reserve Fund shall
be held in trust for the Holders of the LIBOR Certificates and the Class
X-P
Certificates for the uses and purposes set forth in this Agreement.
Certificate: Any
one of the Certificates executed by the Trustee in substantially the forms
attached to this Agreement as exhibits.
Certificate
Account: The separate Eligible Account or Accounts created and
maintained by the Master Servicer pursuant to Section 3.05 with a
depository institution, initially Countrywide Bank, N.A., in the name of
the
Master Servicer for the benefit of the Trustee on behalf of Certificateholders
and designated “Countrywide Home Loans Servicing LP in trust for the registered
holders of Alternative Loan Trust 2007-OA9, Mortgage Pass-Through Certificates
Series 2007-OA9.”
Certificate
Balance: With respect to any Certificate (other than the Notional
Amount Certificates) at any date, the maximum dollar amount of principal
to
which the Holder thereof is then entitled under this Agreement, such amount
being equal to the Denomination of that Certificate (A) plus 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 to that Certificate
and
(ii) all Realized Losses allocated to that Certificate and, in the case of
any Subordinated Certificates, all other reductions in Certificate Balance
previously allocated to that Certificate pursuant to Section 4.04 without
duplication, and (C) increased by the amount of Net Deferred Interest
allocated to the applicable Class or Component pursuant to Section 4.03.
With
respect to the Component Certificates at any date, the maximum dollar amount
of
principal to which the Holder thereof is entitled under this Agreement, such
amount being equal to the Component Principal Balances of the related Principal
Only Components as of such date.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate. For the
purposes of this Agreement, in order for a Certificate Owner to enforce any
of
its rights under this Agreement, it shall first have to provide evidence
of its
beneficial ownership interest in a Certificate that is reasonably satisfactory
to the Trustee, the Depositor, and/or the Master Servicer, as
applicable.
Certificate
Register: The register maintained pursuant to
Section 5.02.
Certificateholder
or Holder: The person in whose name a Certificate is registered
in the Certificate Register, except that, solely for the purpose of giving
any
consent pursuant to this Agreement, any Certificate registered in the name
of
the Depositor or any affiliate of the Depositor shall be deemed not to be
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that
if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to
be
Outstanding for purposes of any provision of
13
this
Agreement (other than the second sentence of Section 10.01) that requires
the
consent of the Holders of Certificates of a particular Class as a condition
to
the taking of any action under this Agreement. The Trustee is
entitled to rely conclusively on a certification of the Depositor or any
affiliate of the Depositor in determining which Certificates are registered
in
the name of an affiliate of the Depositor.
Certification
Party: As defined in Section 11.05.
Certifying
Person: As defined in Section 11.05.
Class: All
Certificates bearing the same class designation as set forth in the Preliminary
Statement.
Class
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 or
Component, the amount by which the amount described in clause (i) of the
definition of Class Optimal Interest Distribution Amount for such Class or
Component exceeds the amount of interest actually distributed on such Class
or
Component on such Distribution Date pursuant to such
clause (i).
Class
LT-A-R Interest: The sole class of “residual interest” in the
Lower Tier REMIC.
Class
Optimal Interest Distribution Amount: With respect to any
Distribution Date and any interest-bearing Class or Component, the sum of
(i) interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class or Component on the related Class Certificate
Balance, Component Principal Balance, Notional Amount or Component Notional
Amount, as applicable, as of the last day of such Interest Accrual Period,
subject to reduction as provided in Section 4.02(d) and reduced by any Net
Deferred Interest for such Distribution Date allocated to their respective
Class
Certificate Balances or Component Principal Balances, as applicable, as
described in Section 4.03 and (ii) any Class Unpaid Interest Amounts for
such Class or Component.
Class
Subordination Percentage: With respect to any Distribution Date
and each Class of Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Certificate Balance of such Class of
Subordinated Certificates immediately prior to such Distribution Date, divided
by (b) the aggregate of the Class Certificate Balances of all Classes of
Certificates (other than the Notional Amount Certificates) immediately prior
to
such Distribution Date.
Class
Unpaid Interest Amounts: As to any Distribution Date and Class of
interest-bearing Certificates or any interest-bearing Component, the amount
by
which the aggregate Class Interest Shortfalls for such Class or Component
on
prior Distribution Dates exceeds the amount distributed on such Class or
Component on prior Distribution Dates pursuant to clause (ii) of the
definition of Class Optimal Interest Distribution Amount.
Class
X-P Principal Distribution Date: The first Distribution Date that
occurs after the end of the last Prepayment Charge Period for all Mortgage
Loans.
Closing
Date: July 30, 2007.
14
Code: The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
COFI: The
Monthly Weighted Average Cost of Funds Index for the Eleventh District Savings
Institutions published by the Federal Home Loan Bank of San
Francisco.
COFI
Certificates: As specified in the Preliminary
Statement.
Commission: The
U.S. Securities and Exchange Commission.
Compensating
Interest: As to any Distribution Date, an amount equal to
one-half of the Master Servicing Fee for the related Due Period.
Component: As
specified in the Preliminary Statement.
Component
Certificates: As specified in the Preliminary
Statement.
Component
Notional Amount: With respect to the Interest Accrual Period for
any Distribution Date and the Class X-P IO-1 Component, the sum of (x) the
aggregate Class Certificate Balance of the Class A Certificates immediately
prior to such Distribution Date and (y) the Component Principal Balance of
the
Class X-P PO-1 Component immediately prior to such Distribution
Date.
With
respect to the Interest Accrual Period for any Distribution Date and the
Class
X-P IO-2 Component, the sum of (x) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the related
Due
Period (after giving effect to Principal Prepayments received in the Prepayment
Period related to the prior Distribution Date) and amounts on deposit in
the
Pre-Funding Account over the aggregate Class Certificate Balance of the Senior
Certificates immediately prior to such Distribution Date and (y) the Component
Principal Balance of the Class X-P PO-2 Component immediately prior to such
Distribution Date.
Component
Principal Balance: With respect to any date and any Principal
Only Component, an amount equal to (i) the aggregate Net Deferred Interest
allocated to the related Notional Amount Component pursuant to Section 4.03
on
all prior Distribution Dates minus (ii) all amounts actually distributed
as
principal of such Principal Only Component and all Realized Losses applied
in
reduction of principal of such Principal Only Component on all prior
Distribution Dates plus (iii) any increase in the Component Principal Balance
of
such Principal Only Component pursuant to Section 4.02 on all prior Distribution
Dates due to the receipt of Subsequent Recoveries.
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.
15
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, 0 Xxxx, Xxx
Xxxx,
Xxx Xxxx 00000, Attn: Mortgage-Backed Securities Group, CWALT, Inc.
Series 2007-OA9, facsimile no. (000) 000-0000, and which is the address to
which
notices to and correspondence with the Trustee should be directed.
Countrywide: Countrywide
Home Loans, Inc., a New York corporation and its successors and assigns,
in its
capacity as the seller of the Countrywide Mortgage Loans to the
Depositor.
Countrywide
Mortgage Loans: The Mortgage Loans identified as such on the Mortgage Loan
Schedule for which Countrywide is the applicable Seller.
Countrywide
Servicing: Countrywide Home Loans Servicing LP, a Texas limited partnership
and its successors and assigns.
Covered
Certificates: Not applicable.
Cut-off
Date: In the case of any Initial Mortgage Loan, the Initial
Cut-off Date, and in the case of any Supplemental Mortgage Loan, the related
Supplemental Cut-off Date.
Cut-off
Date Pool Principal Balance: An amount equal to the
sum of (x) the Initial Cut-off Date Pool Principal Balance plus (y) the amount,
if any, deposited in the Pre-Funding Account on the Closing Date.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the applicable Cut-off
Date.
Debt
Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy
Code
in the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or
any reduction that results in a permanent forgiveness of principal.
Defective
Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deferred
Interest: With respect to each Mortgage Loan and Due Period, the
amount of interest accrued on such Mortgage Loan at the applicable Mortgage
Rate
from the Due Date in the preceding Due Period to the Due Date in such Due
Period
that is greater than the Scheduled Payment due on such Mortgage Loan for
such
Due Period and that is added to the principal balance of such Mortgage Loan
in
accordance with the terms of the related Mortgage Note.
16
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).
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 or Supplemental Transfer Date, as applicable. The number
of Delay Delivery Mortgage Loans shall not exceed 50% of the aggregate number
of
Initial Mortgage Loans as of the Closing Date and 90% of the Supplemental
Mortgage Loans conveyed on a Supplemental Transfer Date. To the
extent that Countrywide Servicing shall be in possession of any Mortgage
Files
with respect to any Delay Delivery Mortgage Loan, until delivery of such
Mortgage File to the Trustee as provided in Section 2.01, Countrywide
Servicing shall hold such files as Master Servicer hereunder, as agent and
in
trust for the Trustee.
Deleted
Mortgage Loan: As defined in Section 2.03(c).
Denomination: With
respect to each Certificate, the amount set forth on the face of that
Certificate as the “Initial Certificate Balance of this Certificate” or the
“Initial Notional Amount of this Certificate” or, if neither of the foregoing,
the Percentage Interest appearing on the face of that Certificate.
Depositor: CWALT,
Inc., a Delaware corporation, or its successor in interest.
Depository: The
initial Depository shall be The Depository Trust Company, the nominee of
which
is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(a)(5) of the Uniform Commercial
Code of the State of New York.
Depository
Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination
Date: As to any Distribution Date, the 22nd day
of each month
or, if such 22nd day is
not a
Business Day, the preceding Business Day; provided, however, that if such
22nd day or
such Business Day, whichever is applicable, is less than two Business Days
prior
to the related Distribution Date, the Determination Date shall be the first
Business Day that is two Business Days preceding such Distribution
Date.
17
Distribution
Account: The separate Eligible Account created and maintained by
the Trustee pursuant to Section 3.05(d) in the name of the Trustee for the
benefit of the Certificateholders and designated “The Bank of New York in trust
for registered holders of Alternative Loan Trust 2007-OA9 Mortgage Pass-Through
Certificates, Series 2007-OA9.” 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 August
2007.
Due
Date: With respect to a Mortgage Loan, the date on which the
Scheduled Payments are due on that Mortgage Loan. With respect to any
Distribution Date, the first day of the month in which that Distribution
Date
occurs.
Due
Period: With respect to any Distribution Date, the period beginning on the
second day of the calendar month preceding the month in which such Distribution
Date occurs and ending on the first day of the calendar month in which such
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 does not have the requisite ratings and
is the
principal subsidiary of a holding company, the debt obligations of such holding
company) have (a) the highest short-term ratings of Xxxxx’x or Fitch and (b) (1)
if such Eligible Account is not the Pre-Funding Account or the Capitalized
Interest Account, one of the two highest short-term ratings of S&P (or, if
such entity does not have a short-term rating from S&P, the long-term
unsecured and unsubordinated debt obligations of such entity have a rating
from
S&P of at least “BBB+”) and (2) if such Eligible Account is the Pre-Funding
Account or the Capitalized Interest Account, the highest short-term ratings
of
S&P (or, if such entity does not have a short-term rating from S&P, the
long-term unsecured and unsubordinated debt obligations of such entity have
a
rating from S&P of at least “A+”) (ii) a segregated trust account or
accounts maintained with the corporate trust department of a federal or state
chartered depository institution subject to regulations regarding fiduciary
funds on deposit similar to Title 12 of the Code of Federal Regulations,
Chapter
I, Part 9, Section 9.10(b), which has corporate trust powers, acting in its
fiduciary capacity or (iii) 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. In the event that the federal or state chartered depository
institution or trust company maintaining an Eligible Account described in
18
clause
(i) above no longer satisfies the credit rating of S&P set forth in clause
(i)(b)(1) above then the Person responsible for establishing such Eligible
Account shall cause any amounts on deposit therein to be moved to another
federal or state chartered depository institution or trust company satisfying
such credit rating of S&P within 30 calendar days. In the event
that the federal or state chartered depository institution or trust company
maintaining an Eligible Account described in clause (i) above no longer
satisfies the credit rating of S&P set forth in clause (i)(b)(2) above then
the Person responsible for establishing such Eligible Account shall cause
any
amounts on deposit therein to be moved to another federal or state chartered
depository institution or trust company satisfying such credit rating of
S&P
within 60 calendar days.
Eligible
EPD Protected Mortgage Loan: A Mortgage Loan that (i) was
originated not more than one year prior to the Closing Date or the related
Supplemental Transfer Date, as applicable, (ii) was purchased by a Seller
or one
of its affiliates pursuant to a purchase agreement containing provisions
under
which the seller thereunder has become obligated to repurchase such Mortgage
Loan from Countrywide due to a Scheduled Payment due on or prior to the first
Scheduled Payment owing to the Trust Fund becoming delinquent and (iii) was
not
purchased through Countrywide Home Loan Inc.’s Correspondent Lending
Division.
Eligible
Repurchase Month: As defined in Section 3.11.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting: A best efforts or firm commitment underwriting or
private placement that meets the requirements of an Underwriter’s
Exemption.
ERISA-Restricted
Certificate: As specified in the Preliminary
Statement.
Escrow
Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a).
Event
of Default: As defined in Section 7.01.
Excess
Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds received with
respect to such Mortgage Loan during the calendar month in which such Mortgage
Loan became a Liquidated Mortgage Loan plus any Subsequent Recoveries received
with respect to such Mortgage Loan, net of any amounts previously reimbursed
to
the Master Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3.08(a)(iii), exceeds (i) the unpaid
principal balance of such Liquidated Mortgage Loan as of the Due Date in
the
month in which such Mortgage Loan became a Liquidated Mortgage Loan plus
(ii) accrued interest at the Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders
up
to the Due Date applicable to the Distribution Date immediately following
the
calendar month during which such liquidation occurred.
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange
Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under
the
Exchange Act.
Expense
Fee: As to each Mortgage Loan and any Distribution Date, the
product of the Expense Fee Rate and its Stated Principal Balance as of that
Distribution Date.
19
Expense
Fee Rate: As to each Mortgage Loan and any date of determination,
the sum of (a) the related Master Servicing Fee Rate, (b) the Trustee Fee
Rate
and (c) the per annum rate of the related lender paid mortgage insurance
premium, if any.
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home
Finance
Act of 1970, as amended, or any successor to the Federal Home Loan Mortgage
Corporation.
Final
Certification: As defined in Section 2.02(a).
FIRREA: The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
Fitch:
Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group, or such other address as Fitch may hereafter
furnish to the Depositor and the Master Servicer.
FNMA: The
Federal National Mortgage Association, a federally chartered and privately
owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor to the Federal National Mortgage
Association.
Form
10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending (a) against such Person, or
(b)
against any of the Trust Fund, the Depositor, the Trustee, any co-trustee,
the
Master Servicer or any Subservicer, if such Person has actual knowledge
thereof.
Form
10-K Disclosure Item: With respect to any Person, (a) any Form
10-D Disclosure Item, and (b) any affiliations or relationships between such
Person and any Item 1119 Party.
Funding
Period: Not applicable.
Funding
Period Distribution Date: Each Distribution Date during the
Funding Period and, if the Funding Period ends after the Distribution Date
in a
month, the immediately succeeding Distribution Date.
Gross
Margin: With respect to each Mortgage Loan, the fixed percentage
set forth in the related Mortgage Note that is added to the Mortgage Index
on
each Adjustment Date in accordance with the terms of the related Mortgage
Note
used to determine the Mortgage Rate for such Mortgage Loan.
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).
20
Initial
Cut-off Date: With respect to any Initial Mortgage Loan, the
later of (i) the date of origination of such Mortgage Loan and (ii) July
1,
2007.
Initial
Cut-off Date Pool Principal Balance: $405,337,994.
Initial
Mortgage Loan: A Mortgage Loan conveyed to the Trust Fund on the
Closing Date pursuant to this Agreement as identified on the Mortgage Loan
Schedule delivered to the Trustee on the Closing Date.
Insurance
Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including all riders and endorsements thereto
in
effect, including any replacement policy or policies for any Insurance
Policies.
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 any Delay Certificates and any
Distribution Date, the calendar month prior to the month of such Distribution
Date. With respect to any Non-Delay Certificates and any Distribution
Date, the period commencing on the Distribution Date in the month preceding
the
month in which such Distribution Date occurs (other than the first Distribution
Date, for which it is the Closing Date) and ending on the day immediately
preceding that Distribution Date. Interest on any Delay Certificates
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months. Interest on any Non-Delay Certificates shall be calculated on
the basis of a 360-day year and the actual number of days elapsed in the
applicable Interest Accrual Period.
Interest
Determination Date: With respect to the LIBOR Certificates, the
second Business Day preceding the commencement of each Interest Accrual
Period.
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 T hereto,
as
updated pursuant to Section 11.04.
Last
Scheduled Distribution Date: With respect to each Class of
Certificates, the Distribution Date occurring in June 2047, which is the
Distribution Date in month following the scheduled maturity date for the
latest
maturing Initial Mortgage Loan.
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 Mortgagor) acquires the Primary Insurance Policy and charges
the related Mortgagor an interest premium.
21
LIBOR: The
London interbank offered rate for one-month United States dollar deposits
calculated in the manner described in Section 4.08.
LIBOR
Certificates: As specified in the Preliminary
Statement.
Limited
Exchange Act Reporting Obligations: The obligations of the Master
Servicer under Section 3.16(b), Section 6.02 and Section 6.04 with respect
to
notice and information to be provided to the Depositor and Article XI (except
Section 11.07(a)(1) and (2)).
Liquidated
Mortgage Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) that was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the Master
Servicer has determined (in accordance with this Agreement) that it has received
all amounts it expects to receive in connection with the liquidation of such
Mortgage Loan, including the final disposition of an REO Property.
Liquidation
Proceeds: Amounts, including Insurance Proceeds, received in connection with
the partial or complete liquidation of defaulted Mortgage Loans, whether
through
trustee’s sale, foreclosure sale or otherwise or amounts received in connection
with any condemnation or partial release of a Mortgaged Property and any
other
proceeds received in connection with an REO Property, less the sum of related
unreimbursed Master Servicing Fees, Servicing Advances and
Advances.
Loan-to-Value
Ratio: With respect to any Mortgage Loan and as to any date of
determination, the fraction (expressed as a percentage) the numerator of
which
is the principal balance of the related Mortgage Loan at that date of
determination and the denominator of which is the Appraised Value of the
related
Mortgaged Property.
Lost
Mortgage Note: Any Mortgage Note the original of which was permanently lost
or destroyed and has not been replaced.
Lower
Tier REMIC: As described in the Preliminary Statement.
Lower
Tier REMIC Regular Interest: As described in the Preliminary
Statement.
Maintenance:
With respect to any Cooperative Unit, the rent paid by the Mortgagor to the
Cooperative Corporation pursuant to the Proprietary Lease.
Majority
in Interest: As to any Class of Regular Certificates, the Holders
of Certificates of such Class evidencing, in the aggregate, at least 51%
of the
Percentage Interests evidenced by all Certificates of such Class.
Master
REMIC: As described in the Preliminary Statement.
Master
Servicer: Countrywide Servicing, a Texas limited partnership, and
its successors and assigns, in its capacity as master servicer hereunder
and, if
a successor master servicer is appointed under this Agreement, such
successor.
22
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
Servicer Prepayment Charge Amount: The amounts (i) payable by the
Master Servicer in respect of any Prepayment Charges waived other than in
accordance with the standard set forth in the first sentence of Section 3.20(a),
or (ii) collected from Countrywide in respect of a remedy for the breach
of the
representation made by Countrywide set forth in Section 3.20(c).
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 related Master Servicing Fee
Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the
Due
Date in the month of such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loan on such Due Date), subject to
reduction as provided in Section 3.14.
Master
Servicing Fee Rate: With respect to the any Mortgage Loan, the
per annum rate set forth in the Mortgage Loan Schedule.
Maximum
Mortgage Rate: With respect to each Mortgage Loan, the percentage
set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
Maximum
Negative Amortization: With respect to each Mortgage Loan, the
percentage set forth in the related Mortgage Note as the percentage of the
original principal balance of Mortgage Note, that if exceeded due to Deferred
Interest, will result in a recalculation of the Scheduled Payment so that
the
then unpaid principal balance of the Mortgage Note will be fully amortized
over
the Mortgage Loan’s remaining term to maturity.
MERS: Mortgage
Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor to Mortgage Electronic
Registration Systems, Inc.
MERS
Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS® System.
MERS®
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
Mortgage Identification Number for any MERS Mortgage Loan.
Minimum
Mortgage Rate: With respect to each Mortgage Loan, the greater of
(a) the Gross Margin set forth in the related Mortgage Note and (b) the
percentage set forth in the related Mortgage Note as the minimum Mortgage
Rate
thereunder.
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.
23
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
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Index: As to each Mortgage Loan, the index from time to time in
effect for adjustment of the Mortgage Rate as set forth as such on the related
Mortgage Note.
Mortgage
Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the addition of Substitute Mortgage
Loans, the addition of any Supplemental Mortgage Loans pursuant to the
provisions of this Agreement and any Supplemental Transfer Agreement and
the
deletion of Deleted Mortgage Loans pursuant to the provisions of this Agreement)
transferred to the Trustee as part of the Trust Fund and from time to time
subject to this Agreement, attached to this Agreement as Schedule I, setting
forth the following information with respect to each Mortgage Loan:
(i) the
loan number;
(ii) the
Mortgagor’s name and the street address of the Mortgaged Property, including the
ZIP code;
(iii) the
maturity date;
(iv) the
original principal balance;
(v) the
Cut-off Date Principal Balance;
(vi) the
first payment date of the Mortgage Loan;
(vii) the
Scheduled Payment in effect as of the Cut-off Date;
(viii) the
Loan-to-Value Ratio at origination;
(ix) a
code indicating whether the residential dwelling at the time of origination
was
represented to be owner-occupied;
(x) a
code indicating whether the residential dwelling is either (a) a
detached or attached single family dwelling, (b) a dwelling in a
de minimis PUD, (c) a condominium unit or PUD (other than a de minimis
PUD), (d) a two- to four-unit residential property or (e) a Cooperative
Unit;
24
(xi) the
Mortgage Rate in effect as of the Cut-off Date;
(xii) the
Master Servicer Fee Rate for the Mortgage Loan;
(xiii) a
code indicating whether the Mortgage Loan is a Lender PMI Mortgage Loan and,
in
the case of any Lender PMI Mortgage Loan, a percentage representing the amount
of the related interest premium charged to the borrower;
(xiv) the
purpose for the Mortgage Loan;
(xv) the
type of documentation program pursuant to which the Mortgage Loan was
originated;
(xvi) 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;
(xvii) a
code indicating whether the Mortgage Loan is a MERS Mortgage Loan;
(xviii) with
respect to each Mortgage Loan, the Gross Margin, the Mortgage Index, the
Maximum
Mortgage Rate, the Minimum Mortgage Rate, the Payment Adjustment Date, the
Maximum Negative Amortization and the first Adjustment Date, as applicable;
and
(xix) a
code indicating the type of Prepayment Charge;
(xx) the
state of origination of the related Mortgage Loan; and
(xxi) the
term of the related Prepayment Charge.
Such
schedule shall also set forth the total of the amounts described under (iv)
and
(v) above for all of the Mortgage Loans. Countrywide shall update the
Mortgage Loan Schedule in connection with each Supplemental Transfer Agreement
within a reasonable period of time after delivery to it of the Schedule of
Supplemental Mortgage Loans attached to the related Supplemental Transfer
Agreement as Schedule A thereto. The Mortgage Loan Schedule shall be
amended from time to time by the Master Servicer in accordance with the
provisions of this Agreement and a copy of each amendment to the Mortgage
Loan
Schedule related to clauses (xix), (xx) and (xxi) thereof shall be furnished
by
the Master Servicer to the Class X-P Certificateholders.
Mortgage
Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to the provisions of this Agreement as from time to time
are
held as a part of the Trust Fund (including any REO Property), the mortgage
loans so held being identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged
Property.
Mortgage
Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
25
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.
MTA: The
twelve-month average monthly yield on U.S. Treasury Securities adjusted to
a
constant maturity of one-year, as published by the Federal Reserve Board
in the
Federal Reserve Statistical Release “Selected Interest Rates
(H.15)”.
MTA
Certificates: None.
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
Deferred Interest: With respect to each Distribution Date, an
amount equal to the excess, if any, of the aggregate Deferred Interest that
accrued on the Mortgage Loans during the related Due Period over the Principal
Prepayment Amount for that Distribution Date.
Net
Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the Compensating Interest for such Distribution
Date.
Net
Prepayments: As to any Distribution Date, the excess, if any, of
(i) the Principal Prepayment Amount for that Distribution Date over (ii)
the
aggregate amount of Deferred Interest accrued on the Mortgage Loans during
the
related Due Period.
Net
Rate Cap: As to any Distribution Date, the per annum rate
(subject to adjustment based on the actual number of days elapsed in the
related
Interest Accrual Period) equal to a fraction, expressed as a percentage,
(1) the
numerator of which is equal to the product of (A) 12 and (B) the sum of (i)
the
amount of interest which accrued on the Mortgage Loans in the prior calendar
month (after giving effect to Principal Prepayments) at their Adjusted Net
Mortgage Rates and (ii) any amounts withdrawn from the Capitalized Interest
Account for such Distribution Date and (2) the denominator of which is equal
to
the aggregate Stated Principal Balance of the Mortgage Loans as of the first
day
of the related Due Period (after giving effect to Principal Prepayments received
during the Prepayment Period related to the prior Distribution
Date).
Non-Delay
Certificates: As specified in the Preliminary
Statement.
Nonrecoverable
Advance: Any portion of an Advance previously made or proposed to
be made by the Master Servicer that, in the good faith judgment of the Master
Servicer, will not be ultimately recoverable by the Master Servicer from
the
related Mortgagor, related Liquidation Proceeds or otherwise.
26
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 the Class X-P Certificates, an amount
equal to the aggregate Component Notional Amount of its IO
Components.
Notional
Amount Certificates: Not applicable.
Offered
Certificates: As specified in the Preliminary
Statement.
Officer’s
Certificate: A certificate (i) in the case of the Depositor,
signed by the Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President (however denominated), an
Assistant Vice President, the Treasurer, the Secretary, or one of the Assistant
Treasurers or Assistant Secretaries of the Depositor, (ii) in the case of
the
Master Servicer, signed by the President, an Executive Vice President, a
Vice
President, an Assistant Vice President, the Treasurer, or one of the Assistant
Treasurers or Assistant Secretaries of Countrywide GP, Inc. (its general
partner), (iii) if provided for in this Agreement, signed by a Servicing
Officer, as the case may be, and delivered to the Depositor and the Trustee,
as
the case may be, as required by this Agreement or (iv) in the case of any
other
Person, signed by an authorized officer of such Person.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, any Seller or the Master Servicer, including in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with
respect to the interpretation or application of the REMIC Provisions, such
counsel must (i) in fact be independent of the Depositor, any Seller and
the Master Servicer, (ii) not have any direct financial interest in the
Depositor, any Seller or the Master Servicer or in any affiliate thereof,
and
(iii) not be connected with the Depositor, any Seller 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 under this
Agreement in connection with the purchase of the Mortgage Loans pursuant
to
Section 9.01.
Optional
Termination Date: The Distribution Date on which the Pool Stated Principal
Balance is less than or equal to 5% of the Cut-off Date Pool Principal Balance
of the Mortgage Loans.
Original
Applicable Credit Support Percentage: With respect to each of the
following Classes of Subordinated Certificates, the corresponding percentage
described below:
|
Subordinated
Certificates
|
||||
|
Class
M-1
|
12.75 | % | ||
|
Class
M-2
|
10.00 | % | ||
|
Class
M-3
|
8.00 | % | ||
|
Class
M-4
|
7.25 | % | ||
|
Class
M-5
|
6.25 | % | ||
|
Class
M-6
|
5.75 | % | ||
|
Class
M-7
|
5.25 | % | ||
|
Class
M-8
|
4.50 | % | ||
|
Class
M-9
|
4.25 | % | ||
|
Class
B-1
|
3.50 | % | ||
|
Class
B-2
|
1.65 | % | ||
|
Class
B-3
|
1.10 | % | ||
27
Original
Mortgage Loan: The mortgage loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
Original
Subordinate Principal Balance: The aggregate Class Certificate
Balance of the Subordinated Certificates as of the Closing Date.
OTS: The
Office of Thrift Supervision.
Outstanding: With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Trustee pursuant to this Agreement.
Outstanding
Mortgage Loan: As of any Due Date, a Mortgage Loan with a Stated
Principal Balance greater than zero, which was not the subject of a Principal
Prepayment in Full prior to such Due Date or during the Prepayment Period
related to such Due Date and which did not become a Liquidated Mortgage Loan
prior to such Due Date.
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.
28
Park
Sienna Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Sienna is the applicable
Seller.
Pass-Through
Margin: With respect to the Interest Accrual Period for any
Distribution Date and each Class of LIBOR Certificates, the per annum rate
indicated in the following table:
|
Class
|
Pass-Through
Margin (1)
|
Pass-Through
Margin (2)
|
||
|
Class
A-1
|
0.290%
|
0.580%
|
||
|
Class
A-2
|
0.350%
|
0.700%
|
||
|
Class
A-3
|
0.500%
|
1.000%
|
||
|
Class
M-1
|
1.250%
|
1.875%
|
||
|
Class
M-2
|
1.500%
|
2.250%
|
||
|
Class
M-3
|
1.750%
|
2.625%
|
||
|
Class
M-4
|
1.750%
|
2.625%
|
||
|
Class
M-5
|
1.750%
|
2.625%
|
||
|
Class
M-6
|
1.750%
|
2.625%
|
||
|
Class
M-7
|
1.750%
|
2.625%
|
||
|
Class
M-8
|
1.750%
|
2.625%
|
||
|
Class
M-9
|
1.750%
|
2.625%
|
||
|
Class
B-1
|
1.750%
|
1.750%
|
||
|
Class
B-2
|
1.750%
|
1.750%
|
||
|
Class
B-3
|
1.750%
|
1.750%
|
||
|
|
(1)
|
For
the Interest Accrual Period related to any Distribution Date occurring
on
or prior to the first possible Optional Termination
Date.
|
|
|
(2)
|
For
each other Interest Accrual Period.
|
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.
Payment
Adjustment Date: For each Mortgage Loan, the date specified in
the related Mortgage Note as the annual date on which the related Scheduled
Payment will be adjusted.
Percentage
Interest: In the case of 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, each of which shall mature no later than 90 days
after acquisition:
(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;
29
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency, or such lower rating
as will
not result in the downgrading or withdrawal of the ratings then assigned
to the
Certificates by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial
paper
and/or long term unsecured debt obligations of such depository institution
or
trust company (or in the case of the principal depository institution in
a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx’x is not a Rating Agency)
are then rated one of the two highest long-term and the highest short-term
ratings of each Rating Agency for such securities, or such lower ratings
as will
not result in the downgrading or withdrawal of the rating then assigned to
the
Certificates by either Rating Agency;
(v) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(vi) units
of a taxable money-market portfolio having the highest rating assigned by
each
Rating Agency (except if Fitch is a Rating Agency and has not rated the
portfolio, the highest rating assigned by Moody’s) and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States
of
America and repurchase agreements collateralized by such obligations;
and
(vii) such
other relatively risk free investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either Rating
Agency, as evidenced by a signed writing delivered by each Rating
Agency
provided,
that no such instrument shall be a Permitted Investment if such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument.
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
30
imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to
any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the
conduct
of a trade or business within the United States or a trust if a court within
the
United States is able to exercise primary supervision over the administration
of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service
Form
W-8ECI or any applicable successor form, and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Residual Certificate to such Person may cause
any
REMIC created under this Agreement to fail to qualify as a REMIC at any time
that the Certificates are outstanding. The terms “United States,”
“State” and “International Organization” shall have the meanings set forth in
section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State
or
political subdivision thereof for these purposes if all of its activities
are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
Person: Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificate: As specified in the Preliminary
Statement.
Planned
Balance: With respect to any Planned Principal Class or Component
and any Distribution Date appearing in Schedule V, the amount appearing opposite
such Distribution Date for such Class or Component.
Planned
Principal Classes: As specified in the Preliminary
Statement.
Planned
Principal Components: As specified in the Preliminary
Statement.
Pool
Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans that were
Outstanding Mortgage Loans on the Due Date in the month preceding the month
of
such Distribution Date and, as to any other date of determination, the aggregate
of the Stated Principal Balances of the Outstanding Mortgage Loans as of
such
date plus the amount on deposit in the Pre-Funding Account, exclusive of
any
investment income included therein.
Pre-Funded
Amount: Not applicable.
Pre-Funding
Account: Not applicable.
31
Prepayment
Charge: With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of
such
Mortgage Loan within the related Prepayment Charge Period in accordance with
the
terms thereof (other than any Master Servicer Prepayment Charge
Amount).
Prepayment
Charge Period: With respect to any Mortgage Loan, the period of
time during which a Prepayment Charge may be imposed.
Prepayment
Interest Shortfall: As to any Distribution Date, any Mortgage
Loan and any Principal Prepayment received during the portion of the related
Prepayment Period occurring in the calendar month preceding the month of
such
Distribution Date, the amount, if any, by which one month’s interest at the
related Adjusted Mortgage Rate on such Principal Prepayment exceeds the amount
of interest paid in connection with such Principal Prepayment.
Prepayment
Period: As to any Distribution Date and the related Due Date, the period
from the 16th
day of the calendar month immediately preceding the month in which the
Distribution Date occurs (or, in the case of the first Distribution Date,
from
July 1, 2007) through the 15th day of the calendar month in which the
Distribution Date occurs.
Primary
Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Prime
Rate: The prime commercial lending rate of The Bank of New York,
as publicly announced to be in effect from time to time. The Prime
Rate shall be adjusted automatically, without notice, on the effective date
of
any change in such prime commercial lending rate. The Prime Rate is
not necessarily The Bank of New York’s lowest rate of interest.
Principal
Amount: As to any Distribution Date, the sum 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 (other than a Liquidated Mortgage Loan) during the related
Due Period, (b) the principal portion of the Purchase Price 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 Net 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) the Net
Prepayments for such Distribution Date.
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.
32
Principal
Prepayment Amount: As to any Distribution Date, an amount equal
to the sum of all voluntary Principal Prepayments received during the related
Prepayment Period and the amount of any Subsequent Recoveries received in
the
prior calendar month.
Principal
Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Private
Certificate: As specified in the Preliminary
Statement.
Pro
Rata Share: As to any Distribution Date, the Subordinated
Principal Distribution Amount and any Class of Subordinated Certificates,
the
portion of the Subordinated Principal Distribution Amount allocable to such
Class, equal to the product of the Subordinated Principal Distribution Amount
on
such Distribution Date and a fraction, the numerator of which is the related
Class Certificate Balance thereof and the denominator of which is the aggregate
of the Class Certificate Balances of the Subordinated Certificates.
Proprietary
Lease: With respect to any Cooperative Unit, a lease or occupancy agreement
between a Cooperative Corporation and a holder of related Coop
Shares.
Prospectus: The
prospectus dated July 27, 2007 generally relating to mortgage-pass through
certificates to be sold by the Depositor.
Prospectus
Supplement: The prospectus supplement dated July 27, 2007
relating to the Offered Certificates.
PUD: Planned
Unit Development.
Purchase
Price: With respect to any Mortgage Loan required to be purchased
by a Seller pursuant to Section 2.02 or 2.03 of this Agreement 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 of this Agreement 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.
33
Rating
Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in
existence, “Rating Agency” shall be such nationally recognized statistical
rating organization, or other comparable Person identified as a “Rating Agency”
under the Underwriter’s Exemption, as is designated by the Depositor, notice of
which designation shall be given to the Trustee. References in this
Agreement to a given rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Adjusted Net Mortgage
Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan that 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.
To
the
extent the Master Servicer receives Subsequent Recoveries with respect to
any
Mortgage Loan, the amount of Realized Losses with respect to that Mortgage
Loan
will be reduced by the amount of those Subsequent Recoveries.
Recognition
Agreement: With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative
Property.
Record
Date: With respect to any Distribution Date, (i) in the case of
the LIBOR Certificates represented by Book-Entry Certificates, the Business
Day
immediately preceding such Distribution Date and (ii) in the case of LIBOR
Certificates represented by Definitive Certificates and in the case of all
other
Certificates, the close of business on the last Business Day of the month
preceding the month in which such Distribution Date occurs.
Reference
Bank: As defined in Section 4.08(b).
Refinancing
Mortgage Loan: Any Mortgage Loan originated in connection with
the refinancing of an existing mortgage loan.
Regular
Certificates: As specified in the Preliminary
Statement.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by
the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7,
34
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 law, 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);
(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;
35
(e) the
resignation, removal, replacement, substitution of the Master Servicer, any
Subservicer or the Trustee;
(f) with
respect to the Master Servicer only, if the Master Servicer becomes aware
that
(i) any material enhancement or support specified in Item 1114(a)(1) through
(3)
of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more Classes of the Certificates has terminated other than
by
expiration of the contract on its stated termination date or as a result
of all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or
Item
1115 of Regulation AB has been added with respect to one or more Classes
of the
Certificates; or (iii) any existing material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(g) with
respect to the Trustee, the Master Servicer and the Depositor only, a required
distribution to Holders of the Certificates is not made as of the required
Distribution Date under this Agreement.
Reporting
Subcontractor: With respect to the Master Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to Section
11.08(b) to be “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB. References to a Reporting Subcontractor
shall refer only to the Subcontractor of such Person and shall not refer
to
Subcontractors generally.
Request
for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N to
this
Agreement, as appropriate.
Required
Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this
Agreement.
Residual
Certificates: As specified in the Preliminary
Statement.
Responsible
Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and
also to whom, with respect to a particular matter, such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
Restricted
Classes: As defined in Section 4.02(e).
Xxxxxxxx-Xxxxx
Certification: As defined in Section 11.05.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due in
the related Due Period allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified in this Agreement, shall give effect
to
any related Debt Service Reduction and any Deficient Valuation that affects
the
amount of the monthly payment due on such Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended.
36
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 aggregate
Class Certificate Balance of the Subordinated Certificates has been reduced
to
zero.
Senior
Percentage: As to any Distribution Date, the percentage equivalent of a
fraction, the numerator of which is the aggregate Class Certificate Balance
of
the Senior 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 immediately prior to such Distribution
Date. In no event will the Senior Percentage be greater than
100%.
Senior
Prepayment Percentage: As to any Distribution Date during the ten years
beginning on the first Distribution Date, 100%. The Senior Prepayment Percentage
for any Distribution Date occurring on or after the tenth anniversary of
the
first Distribution Date will, except as provided in this Agreement, be as
follows: for any Distribution Date in the first year thereafter, the Senior
Percentage plus 70% of the Subordinated Percentage for such Distribution
Date;
for any Distribution Date in the second year thereafter, the Senior Percentage
plus 60% of the Subordinated Percentage for such Distribution Date; for any
Distribution Date in the third year thereafter, the Senior Percentage plus
40%
of the Subordinated Percentage for such Distribution Date; for any Distribution
Date in the fourth year thereafter, the Senior Percentage plus 20% of the
Subordinated Percentage for such Distribution Date; and for any Distribution
Date thereafter, the Senior Percentage for such Distribution Date; provided,
however, that if on any Distribution Date the Senior Percentage exceeds the
Senior Percentage as of the Closing Date, then the Senior Prepayment Percentage
for such Distribution Date will equal 100%). Notwithstanding the
foregoing, (x) no decrease in the Senior Prepayment Percentage will occur
unless
both of the Senior Step Down Conditions are satisfied and (y) if the Two
Times
Test is satisfied on a Distribution Date, the Senior Prepayment Percentage
will
equal (x) if such Distribution Date is prior to the Distribution Date in
August
2010, the Senior Percentage plus 50% of the Subordinated Percentage for the
Distribution Date and (y) if such Distribution Date is on or after the
Distribution Date in August 2010, the Senior Percentage.
Senior
Principal Distribution Amount: As to any Distribution Date, the
sum of (i) the Senior Percentage of all amounts described in
clauses (a) through (d) of the definition of “Principal Amount” for such
Distribution Date, (ii) with respect to any 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 Stated
Principal Balance of such Mortgage Loan as of the first day of the related
Due
Period (after giving effect to Principal Prepayments received in the Prepayment
Period related to the prior Distribution Date) and (y) the Senior
Prepayment Percentage of the amount of the Net Liquidation Proceeds allocable
to
principal received on the Mortgage Loan and (iii) the Senior Prepayment
Percentage of the Net Prepayments for that Distribution Date.
Senior
Step Down Conditions: With respect to all of the Mortgage Loans: (i) the
outstanding principal balance of 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), does not exceed 50% of the
37
aggregate
Class Certificate Balance of the Subordinated Certificates for such Distribution
Date, and (ii) cumulative Realized Losses on the Mortgage Loans do not exceed:
(a) commencing with the Distribution Date on the tenth anniversary of the
first
Distribution Date, 30% of the Original Subordinate Principal Balance, (b)
commencing with the Distribution Date on the eleventh anniversary of the
first
Distribution Date, 35% of the Original Subordinate Principal Balance, (c)
commencing with the Distribution Date on the twelfth anniversary of the first
Distribution Date, 40% of the Original Subordinate Principal Balance, (d)
commencing with the Distribution Date on the thirteenth anniversary of the
first
Distribution Date, 45% of the Original Subordinate Principal Balance and
(e)
commencing with the Distribution Date on the fourteenth 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.
S&P: Standard
& Poor’s Ratings Services, 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 Ratings Services, 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.
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), plus any Deferred Interest added to the principal balance
of that
Mortgage Loan pursuant to the terms of the related Mortgage Note on or prior
to
that Due Date, minus the sum of: (i) any previous partial Principal Prepayments
and the payment of principal due on such Due Date, irrespective of any
delinquency in payment by the related Mortgagor, (ii) Liquidation Proceeds
allocable to principal (other than with respect to any Liquidated Mortgage
Loan)
received in the prior calendar month with respect to that Mortgage Loan;
(iii)
Principal Prepayments received through the last day of the related Prepayment
Period with respect to that Mortgage Loan, and (iv) any Realized Loss previously
incurred in connection with a Deficient Valuation. The Stated Principal Balance
of any Mortgage Loan that becomes a Liquidated Mortgage Loan will be zero
on
each date following the Due Period in which such Mortgage Loan becomes a
Liquidated Mortgage Loan.
38
Streamlined
Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to Countrywide’s Streamlined Loan Documentation Program then in
effect. For the purposes of this Agreement, a Mortgagor is eligible
for a mortgage pursuant to Countrywide’s Streamlined Loan Documentation Program
if that Mortgagor is refinancing an existing mortgage loan that was originated
or acquired by Countrywide where, among other things, the mortgage loan has
not
been more than 30 days delinquent in payment during the previous twelve month
period.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
the Mortgage Loans under the direction or authority of the Master Servicer
or a
Subservicer or the Trustee, as the case may be.
Subordinated
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 and the Subordinated Certificates, an amount equal to the sum, not less
than zero, of (i) the Subordinated Percentage of all amounts described in
clauses (a) through (d) of the definition of “Principal Amount” for that
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 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 Stated Principal Balance of
that Mortgage Loan as of the first day of the related Due Period, and
(iii) the Subordinated Prepayment Percentage of the Net Prepayments for
such 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.
Substitute
Mortgage Loan: A Mortgage Loan substituted by the applicable
Seller for a Deleted Mortgage Loan which must, on the date of such substitution,
as confirmed in a Request for Release, substantially in the form of
Exhibit M, (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution,
not
in excess of, and not more than 10% less than the Stated Principal Balance
of
the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower
than and not more than 1% per annum higher than, that of the Deleted Mortgage
Loan; (iii) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan; (iv) have a remaining term to maturity no greater than (and
39
not
more
than one year less than that of) the Deleted Mortgage Loan; (v) have a Maximum
Mortgage Rate not more than 1% per annum higher or lower than, that of the
Deleted Mortgage Loan; (vi) have a Minimum Mortgage Rate specified in its
related mortgage note not more than 1% per annum higher or lower than the
Minimum Mortgage Rate of the Deleted Mortgage Loan; (vii) have the same Mortgage
Index and Mortgage Index reset period as the Deleted Mortgage Loan and a
Gross
Margin not more than 1% per annum higher or lower than that of the Deleted
Mortgage Loan; (viii) not be a Cooperative Loan unless the Deleted Mortgage
Loan was a Cooperative Loan; (ix) have the same Maximum Negative Amortization,
payment cap and recast provisions as the Deleted Mortgage Loan; (x) comply
with each representation and warranty set forth in Section 2.03; and (xi)
provide for a Prepayment Charge on terms substantially similar to those of
the
Prepayment Charge, if any, of the Deleted Mortgage Loan.
Substitution
Adjustment Amount: The meaning ascribed to such term pursuant to
Section 2.03.
Supplemental
Cut-off Date: With respect to any Supplemental Mortgage Loan, the
later of (i) the date of origination of such Mortgage Loan and (ii) the first
day of the month in which the related Supplemental Transfer Date
occurs.
Supplemental
Mortgage Loan: Any Mortgage Loan other than an Initial Mortgage
Loan conveyed to the Trust Fund pursuant to Section 2.01 hereof and to a
Supplemental Transfer Agreement, which Mortgage Loan shall be listed on the
revised Mortgage Loan Schedule delivered pursuant to this Agreement and on
Schedule A to such Supplemental Transfer Agreement. When used with
respect to a single Supplemental Transfer Date, Supplemental Mortgage Loan
shall
mean a Supplemental Mortgage Loan conveyed to the Trust Fund on that
Supplemental Transfer Date.
Supplemental
Transfer Agreement: A Supplemental Transfer Agreement
substantially in the form of Exhibit P hereto, executed and delivered by
the
related Seller or Sellers, the Master Servicer, the Depositor and the Trustee
as
provided in Section 2.01 hereof.
Supplemental
Transfer Date: For any Supplemental Transfer Agreement, the date
the related Supplemental Mortgage Loans are transferred to the Trust Fund
pursuant to the related Supplemental Transfer Agreement.
Tax
Matters Person: The person designated as “tax matters person” in
the manner provided under Treasury regulation § 1.860F-4(d) and Treasury
regulation § 301.6231(a)(7)-1. Initially, the Tax Matters Person
shall be the Trustee.
Tax
Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Transaction
Documents: This Agreement and any other document or agreement
entered into in connection with the Trust Fund, the Certificates or the Mortgage
Loans.
Transfer: Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
40
Trust
Fund: The corpus of the trust created under this Agreement
consisting of (i) the Mortgage Loans and all interest and principal
received on or with respect thereto after the Cut-off Date to the extent
not
applied in computing the Cut-off Date Principal Balance of the Mortgage Loans;
(ii) the Certificate Account, the Carryover Shortfall Reserve Fund, the
Pre-Funding Account, the Capitalized Interest 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
under this Agreement, such successor.
Trustee
Advance Rate: With respect to any Advance made by the Trustee pursuant to
Section 4.01(b), a per annum rate of interest determined as of the date of
such
Advance equal to the Prime Rate in effect on such date plus 5.00%.
Trustee
Fee: As to any Distribution Date, an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the sum of (i) the Pool Stated Principal Balance
and (ii) any amounts remaining in the Pre-Funding Account (excluding any
investment earnings thereon) with respect to such Distribution
Date.
Trustee
Fee Rate: With respect to each Mortgage Loan, 0.009% per
annum.
Two
Times Test: As to any Distribution Date and the Subordinated Certificates,
if (i) the Subordinated Percentage is at least 200% of the Subordinated
Percentage as of the Closing Date, (ii) clause (i) of the Senior Step Down
Conditions is satisfied and (iii) the cumulative Realized Losses on all the
Mortgage Loans do not exceed (x) with respect to any Distribution Date prior
to
August 2010, 20% of the aggregate Class Certificate Balance of the Subordinated
Certificates as of the Closing Date or (y) with respect to any Distribution
Date
on or after August 2010, 30% of the aggregate Class Certificate Balance of
the
Subordinated Certificates as of the Closing Date.
Underwriter: As
specified in the Preliminary Statement.
Underwriter’s
Exemption: Prohibited Transaction Exemption 2002-41, 67 Fed. Reg.
54487 (2002), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of
Labor.
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 Component Certificates (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 shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
Weighted
Average Adjusted Net Mortgage Rate: As to any Distribution Date,
the average of the Adjusted Net Mortgage Rate of each Mortgage Loan, weighted
on
the basis of its
41
Stated
Principal Balance as of the first day of the related Due Period (after giving
effect to Principal Prepayments received in the Prepayment Period related
to the
prior Distribution Date).
SECTION
1.02. Certain Interpretive
Principles.
All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate, agreement or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all
such certificates and other documents, unless the context otherwise requires:
(a) accounting terms not otherwise defined in this Agreement, and accounting
terms partly defined in this Agreement to the extent not defined, shall have
the
respective meanings given to them under generally accepted accounting
principles; (b) the words “hereof,” “herein” and “hereunder” and words of
similar import refer to this Agreement (or the certificate, agreement or
other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate, agreement or document); (c) references
to any Section, Schedule or Exhibit are references to Sections, Schedules
and
Exhibits in or to this Agreement, and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term “including” means “including without limitation”; (e)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (f) references
to
any agreement refer to that agreement as amended from time to time; (g)
references to any Person include that Person’s permitted successors and assigns;
and (h) a Mortgage Loan is “30 days delinquent” if any Scheduled Payment has not
been received by the close of business on the day immediately preceding the
Due
Date on which the next Scheduled Payment is due. Similarly for “60
days delinquent,” “90 days delinquent” and so on. Unless otherwise
provided in this Agreement, the determination as to whether a Mortgage Loan
falls into a delinquency category shall be made as of the close of business
on
the last day of each month prior to the date of determining the
delinquency.
42
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
SECTION
2.01. Conveyance of Mortgage Loans
(a) Each
Seller, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Depositor, without
recourse, all its respective right, title and interest in and to the related
Initial Mortgage Loans, including all interest and principal received or
receivable by such Seller, on or with respect to the applicable Initial Mortgage
Loans after the Initial Cut-off Date and all interest and principal payments
on
the related Initial Mortgage Loans received prior to the Initial Cut-off
Date in
respect of installments of interest and principal due thereafter, but not
including payments of principal and interest due and payable on such Initial
Mortgage Loans, on or before the Initial Cut-off Date. On or prior to
the Closing Date, Countrywide shall deliver to the Depositor or, at the
Depositor’s direction, to the Trustee or other designee of the Depositor, the
Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule
(except that, in the case of the Delay Delivery Mortgage Loans (which may
include 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 or twenty (20) days following
the applicable Supplemental Transfer Date, as applicable). Such
delivery of the Mortgage Files shall be made against payment by the Depositor
of
the purchase price, previously agreed to by the Sellers and Depositor, for
the
Mortgage Loans. With respect to any Initial Mortgage Loan that does
not have a first payment date on or before the Due Date in the month of the
first Distribution Date or any Supplemental Mortgage Loan that does not have
a
first payment date on or before the Due Date in the month after the related
Supplemental Transfer Date, Countrywide shall deposit into the Distribution
Account on or before the Distribution Account Deposit Date relating to the
first
applicable Distribution Date, an amount equal to one month’s interest at the
related Adjusted Mortgage Rate on the Cut-off Date Principal Balance of such
Mortgage Loan.
(b) Immediately
upon the conveyance of the Initial Mortgage Loans referred to in clause (a),
the
Depositor sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the benefit of the Certificateholders, without recourse, all
the
right, title and interest of the Depositor in and to the Trust Fund together
with the Depositor’s right to require each Seller to cure any breach of a
representation or warranty made herein by such Seller, or to repurchase or
substitute for any affected Mortgage Loan in accordance herewith.
(c) In
connection with the transfer and assignment set forth in clause (b) above,
the
Depositor has delivered or caused to be delivered to the Trustee (or, in
the
case of the Delay Delivery Mortgage Loans that are Initial Mortgage Loans,
will
deliver or cause to be delivered to the Trustee within thirty (30) days
following the Closing Date and in the case of the Delay Delivery Mortgage
Loans
that are Supplemental Mortgage Loans, will deliver or cause to be delivered
to
the Trustee within twenty (20) days following the applicable Supplemental
Transfer Date) for the benefit of the Certificateholders the following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) (A) the
original Mortgage Note endorsed by manual or facsimile signature in blank
in the
following form: “Pay to the order of ____________
43
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, with recording
information, (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of each
MERS Mortgage Loan, the original Mortgage or a copy of such mortgage, with
recording information, noting the presence of the MIN of the Mortgage Loans
and
either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded;
(iii) in
the case of each Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage or a copy of such assignment, with recording
information, (which may be included in a blanket assignment or assignments),
together with, except as provided below, all interim recorded assignments
of
such mortgage or a copy of such assignment, with recording information, (each
such assignment, when duly and validly completed, to be in recordable form
and
sufficient to effect the assignment of and transfer to the assignee thereof,
under the Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public recording
office, such assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such assignment
of
Mortgage need not be delivered in the case of a Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico;
(iv) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any;
(v) except
as provided below, the original or a copy of lender’s title policy or a printout
of the electronic equivalent and all riders thereto; and
(vi) in
the case of a Cooperative Loan, the originals of the following documents
or
instruments:
(A) The
Coop Shares, together with a stock power in blank;
44
(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 applicable Seller’s interest in
the Coop Shares and the Proprietary Lease; and
(F) The
executed UCC-3 financing statements or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line
from
the mortgagee to the Trustee with evidence of recording thereon (or in a
form
suitable for recordation).
In
addition, in connection with the assignment of any MERS Mortgage Loan, each
Seller agrees that it will cause, at the Trustee’s expense, the MERS® System to
indicate that the Mortgage Loans sold by such Seller to the Depositor have
been
assigned by that Seller to the Trustee in accordance with this Agreement
(and
any Supplemental Transfer Agreement, as applicable) for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer
files
the information required by the MERS® System to identify the series of the
Certificates issued in connection with such Mortgage Loans. Each
Seller further agrees that it will not, and will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by such
Seller to the Depositor during the term of this Agreement unless and until
such
Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage or a copy
of
such mortgage, with recording information, or (b) all interim recorded
assignments or a copy of such assignments, with recording information, or
(c)
the lender’s title policy or a copy of lender’s title policy (together with all
riders thereto) satisfying the requirements of clause (ii), (iii) or (v)
above,
respectively, concurrently with the execution and delivery of this Agreement
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer or
the
Depositor by the applicable title insurer in the case of clause (v) above,
the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or
(iii) above, such original Mortgage or a copy of such mortgage, with recording
information, or such interim assignment or a copy of such assignments, with
recording information, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but
in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date,
or, in
the case of clause (v) above, no later than 120 days following the Closing
Date;
provided, however, in the event the Depositor is unable to deliver by such
date
each Mortgage and each such interim assignment by reason of the fact that
any
such documents have
45
not
been
returned by the appropriate recording office, or, in the case of each such
interim assignment, because the related Mortgage has not been returned by
the
appropriate recording office, the Depositor shall deliver such documents
to the
Trustee as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. The Depositor shall forward or
cause to be forwarded to the Trustee (a) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and
(b)
any other documents required to be delivered by the Depositor or the Master
Servicer to the Trustee. In the event that the original Mortgage is
not delivered and in connection with the payment in full of the related Mortgage
Loan and the public recording office requires the presentation of a “lost
instruments affidavit and indemnity” or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction
or
reconveyance, the Master Servicer shall execute and deliver or cause to be
executed and delivered such a document to the public recording
office. In the case where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, Countrywide shall deliver to the
Trustee a copy of such Mortgage certified by such public recording office
to be
a true and complete copy of the original recorded Mortgage.
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event, within one hundred twenty (120) days thereafter, the Trustee shall
(A) as
the assignee thereof, affix the following language to each assignment of
Mortgage: “CWALT Series 2007-OA9, The Bank of New York, as trustee”,
(B) cause such assignment to be in proper form for recording in the appropriate
public office for real property records and (C) cause to be delivered for
recording in the appropriate public office for real property records the
assignments of the Mortgages to the Trustee, except that (i) with respect
to any
assignments of Mortgage as to which the Trustee has not received the information
required to prepare such assignment in recordable form, the Trustee’s obligation
to do so and to deliver the same for such recording shall be as soon as
practicable after receipt of such information and in any event within thirty
(30) days after receipt thereof and (ii) the Trustee need not cause to be
recorded any assignment which relates to a Mortgage Loan the Mortgaged Property
and Mortgage File relating to which are located in any jurisdiction (including
Puerto Rico) under the laws of which the recordation of such assignment is
not
necessary to protect the Trustee’s and the Certificateholders’ interest in the
related Mortgage Loan as evidenced by an opinion of counsel delivered by
Countrywide to the Trustee within 90 days of the Closing Date (which opinion
may
be in the form of a “survey” opinion and is not required to be delivered by
counsel admitted to practice law in the jurisdiction as to which such legal
opinion applies).
In
the
case of Mortgage Loans that have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee,
will
deposit in the Certificate Account the portion of such payment that is required
to be deposited in the Certificate Account pursuant to
Section 3.05.
Notwithstanding
anything to the contrary in this Agreement, within thirty (30) days after
the
Closing Date with respect to the Initial Mortgage Loans, Countrywide (on
its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) shall
either
(i) deliver to the Depositor, or at the Depositor’s direction, to the Trustee or
other designee of the Depositor the Mortgage File as required pursuant to
this
Section 2.01 for each Delay Delivery Mortgage Loan or (ii) either (A) substitute
a Substitute Mortgage Loan for the Delay Delivery Mortgage Loan or (B)
repurchase the Delay Delivery Mortgage Loan, which substitution or repurchase
shall be
46
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.
Notwithstanding
anything to the contrary in this Agreement, within twenty (20) days after
a
Supplemental Transfer Date with respect to all of the Supplemental Mortgage
Loans sold to the Depositor on such Supplemental Transfer Date, Countrywide
(on
its own behalf and on behalf of Park Granada, 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)
(A)
substitute a Substitute Mortgage Loan for the Delay Delivery Mortgage Loan
or
(B) repurchase the Delay Delivery Mortgage Loan, which substitution or
repurchase shall be accomplished in the manner and subject to the conditions
set
forth in Section 2.03 (treating each Delay Delivery Mortgage Loan as a Deleted
Mortgage Loan for purposes of such Section 2.03); provided, however, that
if Countrywide fails to deliver a Mortgage File for any Delay Delivery Mortgage
Loan within the twenty (20) day period provided in the prior sentence,
Countrywide (on its own behalf and on behalf of Park Granada, 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 twenty (20) day period
the Trustee shall send a Delay Delivery Certification for the Delay Delivery
Mortgage Loans delivered during such twenty (20) day period in accordance
with
the provisions of Section 2.02.
(d) Subject
to the execution and delivery of the related Supplemental Transfer Agreement
as
provided in Section 2.01(e) hereof and the terms and conditions of this
Agreement, each Seller sells, transfers, assigns, sets over and otherwise
conveys to the Depositor, without recourse, on each Supplemental Transfer
Date,
with respect to each Supplemental Mortgage Loan sold by such Seller to the
Depositor, all the right, title and interest of that Seller in and to the
Supplemental Mortgage Loans sold by it identified in such Supplemental Transfer
Agreement, including all interest and principal received and receivable by
such
Seller on or with respect to the related Supplemental Mortgage Loans on and
after the related Supplemental Cut-off Date (to the extent not applied in
computing the Cut-off Date Principal Balance thereof) or deposited into the
Certificate Account by the related Seller, other than principal and interest
due
on such Supplemental Mortgage Loans prior to the related Supplemental Cut-off
Date.
47
Immediately
upon the conveyance of the Supplemental Mortgage Loans referred to in the
preceding paragraph, the Depositor sells, transfers, assigns, sets over and
otherwise conveys to the Trustee for benefit of the Certificateholders, without
recourse, all right title and interest in all of the Supplemental Mortgage
Loans.
Each
Seller has entered into this Agreement in consideration for the purchase
of the
Mortgage Loans sold by such Seller to the Depositor and has agreed to take
the
actions specified herein. The Depositor, concurrently with the
execution and delivery of this Agreement, hereby sells, transfers, assigns
and
otherwise conveys to the Trustee for the use and benefit of the
Certificateholders, without recourse, all right title and interest in the
portion of the Trust Fund not otherwise conveyed to the Trust Fund pursuant
to
Sections 2.01(a) or (b).
(e) Upon
five (5) Business Days written notice to the Trustee, the Depositor, the
Master
Servicer (if the Master Servicer is not a Seller) and the Rating Agencies,
on
any other Business Day during the Funding Period designated by Countrywide,
Park
Granada, Park Monaco and Park Sienna, if applicable, the Depositor and the
Trustee shall complete, execute and deliver a Supplemental Transfer Agreement
so
long as no Rating Agency has provided notice that the execution and delivery
of
such Supplemental Transfer Agreement will result in a reduction or withdrawal
of
the any ratings assigned to the Certificates. After the execution and
delivery of such Supplemental Transfer Agreement, on the Supplemental Transfer
Date, the Trustee shall set aside in the Pre-Funding Account an amount equal
to
the Aggregate Supplemental Purchase Amount.
The
transfer of Supplemental Mortgage Loans and the other property and rights
relating to them on a Supplemental Transfer Date is subject to the satisfaction
of each of the following conditions:
(i) each
Supplemental Mortgage Loan conveyed on such Supplemental Transfer Date satisfies
the representations and warranties applicable to it under this Agreement;
provided, however, that with respect to a breach of a representation and
warranty with respect to a Supplemental Mortgage Loan, the obligation under
Section 2.03(c) of this Agreement of Countrywide, Park Granada, Park Monaco
and
Park Sienna, if applicable, to cure, repurchase or replace such Supplemental
Mortgage Loan shall constitute the sole remedy against such Seller respecting
such breach available to Certificateholders, the Depositor or the
Trustee;
(ii) the
Trustee, the Underwriter and the Rating Agencies are provided with an Opinion
of
Counsel or Opinions of Counsel with respect to the tax treatment of the Trust
Fund, to be delivered as provided pursuant to Section 2.01(f);
(iii) the
Rating Agencies and the Underwriter are provided with an Opinion of Counsel
or
Opinions of Counsel with respect to the validity of the conveyance of the
Supplemental Mortgage Loans conveyed on such Supplemental Transfer Date,
to be
delivered as provided pursuant to Section 2.01(f);
(iv) the
execution and delivery of such Supplemental Transfer Agreement or conveyance
of
the related Supplemental Mortgage Loans does not result in a reduction or
withdrawal of any ratings assigned to the Certificates by the Rating
Agencies;
48
(v) the
Supplemental Mortgage Loans conveyed on such Supplemental Transfer Date were
selected in a manner reasonably believed not to be adverse to the interests
of
the Certificateholders;
(vi) as
of such Supplemental Transfer Date, all payments with respect to each
Supplemental Mortgage Loan conveyed on such Supplemental Transfer Date due
prior
to the related Supplemental Cut-off Date have been made;
(vii) following
the conveyance of the Supplemental Mortgage Loans on such Supplemental Transfer
Date to the Trust Fund, the characteristics of the Mortgage Loans will comply
with the Pool Characteristics (including the permitted variances listed
therein); provided, that for the purpose of making these calculations,
the characteristics for any Initial Mortgage Loan made will be taken as of
the
Initial Cut-off Date and the characteristics for any Supplemental Mortgage
Loan
will be taken as of the related Supplemental Cut-off Date;
(viii) none
of the Sellers or the Depositor shall be insolvent or shall be rendered
insolvent as a result of such transfer; and
(ix) the
Depositor shall have delivered to the Trustee an Officer’s Certificate
confirming the satisfaction of each of these conditions precedent.
(f) The
Trustee shall not be required to investigate or otherwise verify compliance
with
these conditions, except for its own receipt of documents specified above,
and
shall be entitled to rely on the required Officer’s Certificate.
(g) Within
seven Business Days after each Supplemental Transfer Date, upon (1) delivery
to
the Trustee by the Depositor or Countrywide of the Opinions of Counsel referred
to in Sections 2.01(e)(ii) and (iii), (2) delivery to the Trustee by Countrywide
of a revised Mortgage Loan Schedule reflecting the Supplemental Mortgage
Loans
conveyed on such Supplemental Transfer Date and (3) delivery to the Trustee
by
the Depositor of an Officer’s Certificate confirming the satisfaction of each of
the conditions precedent set forth in this Section 2.01(f), the Trustee shall
pay to each Seller the portion of the Aggregate Supplemental Transfer Amount
used to purchase Supplemental Mortgage Loans from such Seller from those
funds
that were set aside in the Pre-Funding Account pursuant to Section
2.01(e). The positive difference, if any, between the Aggregate
Supplemental Transfer Amount and the Aggregate Supplemental Purchase Amount
shall be reinvested by the Trustee in the Pre-Funding Account.
(h) The
Trustee shall not be required to investigate or otherwise verify compliance
with
the conditions set forth in the preceding paragraph, except for its own receipt
of documents specified above, and shall be entitled to rely on the required
Officer’s Certificate.
Within
thirty days after the final Supplemental Transfer Date, the Depositor shall
deliver to the Trustee a letter of a nationally recognized firm of independent
public accountants stating whether or not the Supplemental Mortgage Loans
conveyed on such Supplemental Transfer Date conform to the characteristics in
Section 2.01(e)(vi) and (vii).
49
(i) 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 (an
“Initial Certification”) and declares that it holds
and will hold such documents and the other documents delivered to it
constituting the Mortgage Files, and that it holds or will hold such other
assets as are included in the Trust Fund, in trust for the exclusive use
and
benefit of all present and future Certificateholders. The Trustee
acknowledges that it will maintain possession of the Mortgage Notes in the
State
of California, unless otherwise permitted by the Rating Agencies.
The
Trustee agrees to execute and deliver on the Closing Date to the Depositor,
the
Master Servicer and Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) an Initial Certification in the form
annexed hereto as Exhibit F-1. Based on its review and examination,
and only as to the documents identified in such Initial Certification, the
Trustee acknowledges that such documents appear regular on their face and
relate
to such Initial Mortgage Loan. The Trustee shall be under no duty or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine, enforceable
or appropriate for the represented purpose or that they have actually been
recorded in the real estate records or that they are other than what they
purport to be on their face.
On
or
about the thirtieth (30th) day after the Closing Date, the Trustee shall
deliver
to the Depositor, the Master Servicer and Countrywide (on its own behalf
and on
behalf of Park Granada, Park Monaco and Park Sienna) a Delay Delivery
Certification with respect to the Initial Mortgage Loans in the form annexed
hereto as Exhibit G-1 (a “Delay Delivery
Certification”), with any applicable exceptions noted
thereon.
Not
later
than 90 days after the Closing Date, the Trustee shall deliver to the Depositor,
the Master Servicer and Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) a Final Certification with respect
to the
Initial Mortgage Loans in the form annexed hereto as Exhibit H-1 (a
“Final Certification”), 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 that does not meet the requirements of Section 2.01, the
Trustee
shall list such as an exception in the Final Certification; provided, however
that the Trustee shall not make any determination as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party
so endorsing, as noteholder or assignee thereof, in and to that Mortgage
Note or
(ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to
which
the assignment relates. Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) shall promptly correct or cure
such defect within 90 days from the date it was so notified of such defect
and,
if Countrywide does not correct or cure such defect within such period,
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) shall either (a) substitute
50
for
the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall
be
accomplished in the manner and subject to the conditions set forth in Section
2.03, or (b) purchase such Mortgage Loan from the Trustee within 90 days
from
the date Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) was notified of such defect in writing at the Purchase
Price of such Mortgage Loan; provided, however, that in no event shall such
substitution or purchase occur more than 540 days from the Closing Date,
except
that if the substitution or purchase of a Mortgage Loan pursuant to this
provision is required by reason of a delay in delivery of any documents by
the
appropriate recording office, and there is a dispute between either the Master
Servicer or Countrywide (on its own behalf and on behalf of Park Granada,
Park
Monaco and Park Sienna) and the Trustee over the location or status of the
recorded document, then such substitution or purchase shall occur within
720
days from the Closing Date. The Trustee shall deliver written notice
to each Rating Agency within 270 days from the Closing Date indicating each
Mortgage Loan (a) that has not been returned by the appropriate recording
office
or (b) as to which there is a dispute as to location or status of such Mortgage
Loan. Such notice shall be delivered every 90 days thereafter until
the related Mortgage Loan is returned to the Trustee. Any such
substitution pursuant to (a) above or purchase pursuant to (b) above shall
not
be effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05, if any, and any substitution pursuant to (a) above
shall not be effected prior to the additional delivery to the Trustee of
a
Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such
Mortgage Loan shall be deposited by Countrywide (on its own behalf and on
behalf
of Park Granada, Park Monaco and Park Sienna) in the Certificate Account
on or
prior to the Distribution Account Deposit Date for the Distribution Date
in the
month following the month of repurchase and, upon receipt of such deposit
and
certification with respect thereto in the form of Exhibit N hereto, the Trustee
shall release the related Mortgage File to Countrywide (on its own behalf
and on
behalf of Park Granada, Park Monaco and Park Sienna) and shall execute and
deliver at Countrywide’s (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) request such instruments of transfer or assignment
prepared by Countrywide, in each case without recourse, as shall be necessary
to
vest in Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna), or its designee, the Trustee’s interest in any Mortgage
Loan released pursuant hereto. If pursuant to the foregoing provisions
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) repurchases a Mortgage Loan that is a MERS Mortgage Loan, the
Master Servicer shall either (i) cause MERS to execute and deliver an assignment
of the Mortgage in recordable form to transfer the Mortgage from MERS to
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) or its designee and shall cause such Mortgage to be removed
from
registration on the MERS® System in accordance with MERS’ rules and regulations
or (ii) cause MERS to designate on the MERS® System Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) or its
designee as the beneficial holder of such Mortgage Loan.
(b) Upon
delivery of the Supplemental Mortgage Loans pursuant to a Supplemental Transfer
Agreement, the Trustee shall acknowledge receipt of the documents identified
in
any Supplemental Certification in the form annexed hereto as Exhibit F-2
and
declare that it will hold such documents and the other documents delivered
to it
constituting the Mortgage Files, and that it will hold such other assets
as are
included in the Trust Fund, in trust for the exclusive use and benefit of
all
present and future Certificateholders. The Trustee acknowledges that
it will
51
maintain
possession of the Mortgage Notes in the State of California, unless otherwise
permitted by the Rating Agencies.
The
Trustee agrees to execute and deliver on the Supplemental Transfer Date to
the
Depositor, the Master Servicer and Countrywide (on its own behalf and on
behalf
of Park Granada, Park Monaco and Park Sienna) a Supplemental Certification
in
the form annexed hereto as Exhibit F-2. Based on its review and
examination, and only as to the documents identified in such Supplemental
Certification, the Trustee shall acknowledge that such documents appear regular
on their face and relate to such Supplemental Mortgage Loan. The
Trustee shall be under no duty or obligation to inspect, review or examine
said
documents, instruments, certificates or other papers to determine that the
same
are genuine, enforceable or appropriate for the represented purpose or that
they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On
or
about the twentieth (20th) day after the Supplemental Transfer Date, the
Trustee
shall deliver to the Depositor, the Master Servicer and Countrywide (on its
own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a Delay
Delivery Certification with respect to the Supplemental Mortgage Loans in
the
form annexed hereto as Exhibit G-2, with any applicable exceptions noted
thereon.
Not
later
than 90 days after the final Supplemental Transfer Date, the Trustee shall
deliver to the Depositor, the Master Servicer and Countrywide (on its own
behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) a Final
Certification with respect to the Supplemental Mortgage Loans in the form
annexed hereto as Exhibit H-2, with any applicable exceptions noted
thereon.
(c) If,
in the course of such review of the Mortgage Files relating to the Supplemental
Mortgage Loans, the Trustee finds any document constituting a part of a Mortgage
File which does not meet the requirements of Section 2.01, the Trustee shall
list such as an exception in the Final Certification; provided, however that
the
Trustee shall not make any determination as to whether (i) any endorsement
is
sufficient to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment
of
and transfer to the assignee thereof under the mortgage to which the assignment
relates. Countrywide (on its own behalf and on behalf of Park
Granada, 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
52
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 a designee, the Trustee’s interest in any Mortgage
Loan released pursuant hereto. If pursuant to the foregoing provisions
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) repurchases a Supplemental Mortgage Loan that is a MERS Mortgage
Loan, the Master Servicer shall either (i) cause MERS to execute and deliver
an
assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS
to Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) and shall cause such Mortgage to be removed from registration
on
the MERS® System in accordance with MERS’ rules and regulations or (ii) cause
MERS to designate on the MERS® System Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) or its designee as the
beneficial holder of such Mortgage Loan.
(d) The
Trustee shall retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions set forth in this
Agreement. The Master Servicer shall promptly deliver to the Trustee,
upon the execution or receipt thereof, the originals of such other documents
or
instruments constituting the Mortgage File as come into the possession of
the
Master Servicer from time to time.
(e) It
is understood and agreed that the respective obligations of each Seller to
substitute for or to purchase any Mortgage Loan sold to the Depositor by
it that
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
53
Date,
(ii) Schedule III-A hereto, and by this reference incorporated
herein, to the Depositor, the Master Servicer and the Trustee, as of the
Closing
Date, or if so specified therein, as of the Initial Cut-off Date with respect
to
all of the Initial Mortgage Loans and as of the related Supplemental Cut-off
Date with respect to all of the Supplemental Mortgage Loans, and
(iii) Schedule III-B hereto, and by this reference incorporated
herein, to the Depositor, the Master Servicer and the Trustee, as of the
Closing
Date, or if so specified therein, as of the Initial Cut-off Date with respect
to
the Initial Mortgage Loans that are Countrywide Mortgage Loans and as of
the
related Supplemental Cut-off Date with respect to the Supplemental Mortgage
Loans that are Countrywide Mortgage Loans. Park Granada hereby makes
the representations and warranties set forth in (i) Schedule II-B
hereto, and by this reference incorporated herein, to the Depositor, the
Master
Servicer and the Trustee, as of the Closing Date and (ii) Schedule
III-C hereto, and by this reference incorporated herein, to the Depositor,
the
Master Servicer and the Trustee, as of the Closing Date, or if so specified
therein, as of the Initial Cut-off Date with respect to the Initial Mortgage
Loans that are Park Granada Mortgage Loans and as of the related Supplemental
Cut-off Date with respect to the Supplemental Mortgage Loans that are Park
Granada Mortgage Loans. 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 Initial Cut-off
Date
with respect to the Initial Mortgage Loans that are Park Monaco Mortgage
Loans
and as of the related Supplemental Cut-off Date with respect to the Supplemental
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
Initial Cut-off Date with respect to the Initial Mortgage Loans that are
Park
Sienna Mortgage Loans and as of the related Supplemental Cut-off Date with
respect to the Supplemental 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.
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty with respect to a Mortgage Loan made pursuant to Section 2.03(a)
or a
breach of a representation or warranty with respect to a Supplemental Mortgage
Loan under Section 2.01(e)(i) that materially and adversely affects the
interests of the Certificateholders in that Mortgage Loan, the party discovering
such breach shall give prompt notice thereof to the other
parties. Each Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party
of a
breach of any representation or warranty with respect to a Mortgage Loan
sold by
it pursuant to Section 2.03(a) and with respect to a breach of a representation
and warranty with respect to a Supplemental Mortgage Loan sold by it under
Section 2.01(e)(i) which materially and adversely affects the interests of
the
Certificateholders in that Mortgage Loan, it shall cure such breach in all
material respects, and if such breach is not so cured, shall, (i) if such
90-day
period expires prior to the second anniversary of the Closing Date, remove
such
Mortgage Loan (a “Deleted Mortgage Loan”) from the Trust Fund and substitute in
54
its
place
a Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage
Loans from the Trustee at the Purchase Price in the manner set forth below;
provided, however, that any such substitution pursuant to (i) above shall
not be
effected prior to the delivery to the Trustee of the Opinion of Counsel required
by Section 2.05 hereof, if any, and any such substitution pursuant to (i)
above
shall not be effected prior to the additional delivery to the Trustee of
a
Request for Release substantially in the form of Exhibit N and the Mortgage
File
for any such Substitute Mortgage Loan. The Seller repurchasing a
Mortgage Loan pursuant to this Section 2.03(c) shall promptly
reimburse the Master Servicer and the Trustee for any expenses reasonably
incurred by the Master Servicer or the Trustee in respect of enforcing the
remedies for such breach. With respect to the representations and
warranties described in this Section which are made to the best of a Seller’s
knowledge, if it is discovered by either the Depositor, a Seller or the Trustee
that the substance of such representation and warranty is inaccurate and
such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein, notwithstanding
that
Seller’s lack of knowledge with respect to the substance of such representation
or warranty, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
With
respect to any Substitute Mortgage Loan or Loans sold to the Depositor by
a
Seller, Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment
of
the Mortgage, and such other documents and agreements as are required by
Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required
by
Section 2.01. No substitution is permitted to be made in any calendar
month after the Determination Date for such month. Scheduled Payments
due with respect to Substitute Mortgage Loans in the month of substitution
shall
not be part of the Trust Fund and will be retained by the related Seller
on the
next succeeding Distribution Date. For the month of substitution,
distributions to Certificateholders will include the monthly payment due
on any
Deleted Mortgage Loan for such month and thereafter that Seller shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend the Mortgage Loan Schedule for
the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loan or Loans
and
the Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon such substitution, the Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects, and
the
related Seller shall be deemed to have made with respect to such Substitute
Mortgage Loan or Loans, as of the date of substitution, the representations
and
warranties made pursuant to Section 2.03(a) with respect to such Mortgage
Loan. Upon any such substitution and the deposit to the Certificate
Account of the amount required to be deposited therein in connection with
such
substitution as described in the following paragraph, the Trustee shall release
the Mortgage File held for the benefit of the Certificateholders relating
to
such Deleted Mortgage Loan to the related Seller and shall execute and deliver
at such Seller’s direction such instruments of transfer or assignment prepared
by Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna), in each case without recourse, as shall be necessary to vest
title
in that Seller, or its designee, the Trustee’s interest in any Deleted Mortgage
Loan substituted for pursuant to this Section 2.03.
55
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 Stated 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 of this Agreement or such other date set forth
in
this Agreement that as of the Closing Date, and following the transfer of
the
Mortgage Loans to it by each Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses
or
counterclaims.
The
Depositor hereby assigns, transfers and conveys to the Trustee all of its
rights
with respect to the Mortgage Loans including, without limitation, the
representations and warranties of each Seller made pursuant to
Section 2.03(a) hereof, together with all rights of the Depositor to
require a Seller to cure any breach thereof or to repurchase or substitute
for
any affected Mortgage Loan in accordance with this Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the
56
Depositor
or the Trustee of a breach of any of the foregoing representations and
warranties set forth in this Section 2.04 (referred to herein as a
“breach”), which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
SECTION
2.05. Delivery of Opinion of Counsel in Connection
with Substitutions.
(a) Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to
Section 2.02 or Section 2.03 shall be made more than 90 days after the
Closing Date unless Countrywide delivers to the Trustee an Opinion of Counsel,
which Opinion of Counsel shall not be at the expense of either the Trustee
or
the Trust Fund, addressed to the Trustee, to the effect that such substitution
will not (i) result in the imposition of the tax on “prohibited
transactions” on the Trust Fund or contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively, or
(ii) cause any REMIC created under this Agreement to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
(b) Upon
discovery by the Depositor, a Seller, the Master Servicer, or the Trustee
that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of section 860G(a)(3) of the Code, the party discovering such fact shall
promptly (and in any event within five (5) Business Days of discovery) give
written notice thereof to the other parties. In connection therewith,
the Trustee shall require Countrywide (on its own behalf and on behalf of
Park
Granada, Park Monaco and Park Sienna) at its option, to either
(i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days
of such discovery in the same manner as it would a Mortgage Loan for a breach
of
representation or warranty made pursuant to Section 2.03. The
Trustee shall reconvey to Countrywide the Mortgage Loan to be released pursuant
to this Section in the same manner, and on the same terms and conditions,
as it
would a Mortgage Loan repurchased for breach of a representation or warranty
contained in Section 2.03.
SECTION
2.06. Execution and Delivery of
Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund
and,
concurrently with such transfer and assignment, has executed and delivered
to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust
Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders
of
the Certificates and to perform the duties set forth in this
Agreement.
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.
57
SECTION
2.08. Covenants of the Master
Servicer.
The
Master Servicer 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.
58
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
SECTION
3.01. Master Servicer to Service Mortgage
Loans.
For
and
on behalf of the Certificateholders, the Master Servicer shall service and
administer the Mortgage Loans in accordance with the terms of this Agreement
and
customary and usual standards of practice of prudent mortgage loan
servicers. In connection with such servicing and administration, the
Master Servicer shall have full power and authority, acting alone and/or
through
Subservicers as provided in Section 3.02, subject to the terms of this
Agreement (i) to execute and deliver, on behalf of the Certificateholders
and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the
manner
provided in this Agreement), (iii) to collect any Insurance Proceeds and
other Liquidation Proceeds (which for the purpose of this Section 3.01 includes
any Subsequent Recoveries), and (iv) to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage
Loan; provided that the Master Servicer shall not take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee and the Certificateholders under this
Agreement. The Master Servicer shall represent and protect the
interests of the Trust Fund in the same manner as it protects its own interests
in mortgage loans in its own portfolio in any claim, proceeding or litigation
regarding a Mortgage Loan, and shall not make or permit any modification,
waiver
or amendment of any Mortgage Loan which would cause any REMIC created under
this
Agreement to fail to qualify as a REMIC or result in the imposition of any
tax
under section 860F(a) or section 860G(d) of the
Code. Without limiting the generality of the foregoing, the Master
Servicer, in its own name or in the name of the Depositor and the Trustee,
is
hereby authorized and empowered by the Depositor and the Trustee, when the
Master Servicer believes it appropriate in its reasonable judgment, to execute
and deliver, on behalf of the Trustee, the Depositor, the Certificateholders
or
any of them, any and all instruments of satisfaction or cancellation, or
of
partial or full release or discharge and all other comparable instruments,
with
respect to the Mortgage Loans, and with respect to the Mortgaged Properties
held
for the benefit of the Certificateholders. The Master Servicer shall
prepare and deliver to the Depositor and/or the Trustee such documents requiring
execution and delivery by either or both of them as are necessary or appropriate
to enable the Master Servicer to service and administer the Mortgage Loans
to
the extent that the Master Servicer is not permitted to execute and deliver
such
documents pursuant to the preceding sentence. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents
and
deliver them to the Master Servicer. The Master Servicer further is
authorized and empowered by the Trustee, on behalf of the Certificateholders
and
the Trustee, in its own name or in the name of the Subservicer, when the
Master
Servicer or the Subservicer, as the case may be, believes it appropriate
in its
best judgment to register any Mortgage Loan on the MERS® System, or cause the
removal from the registration of any Mortgage Loan on the MERS® System, to
execute and deliver, on behalf of the Trustee and the Certificateholders
or any
of them, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name
of
MERS, solely as nominee for the Trustee and its successors and
assigns.
59
In
accordance with the standards of the preceding paragraph, the Master Servicer
shall advance or cause to be advanced funds as necessary for the purpose
of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. The costs incurred by the Master
Servicer, if any, in effecting the timely payments of taxes and assessments
on
the Mortgaged Properties and related insurance premiums shall not, for the
purpose of calculating monthly distributions to the Certificateholders, be
added
to the Stated Principal Balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit.
SECTION
3.02. Subservicing; Enforcement of the Obligations of
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 under this
Agreement. 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 under this Agreement and may, but is not obligated to, perform,
or
cause a designee to perform, any defaulted obligation of the Master Servicer
under this Agreement and in connection with any such defaulted obligation
to
exercise the related rights of the Master Servicer under this Agreement;
provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. 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 under this Agreement or
otherwise.
60
SECTION
3.04. Trustee to Act as Master
Servicer.
In
the
event that the Master Servicer shall for any reason no longer be the Master
Servicer under this Agreement (including by reason of an Event of Default
or
termination by the Depositor), the Trustee or its successor shall then assume
all of the rights and obligations of the Master Servicer under this Agreement
arising thereafter (except that the Trustee shall not be (i) liable for
losses of the Master Servicer pursuant to Section 3.09 or any acts or
omissions of the predecessor Master Servicer under this Agreement),
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions
of Mortgage Loans under this Agreement including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03, (iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03 or (v) deemed to have made any representations and
warranties of the Master Servicer under this Agreement). Any such
assumption shall be subject to Section 7.02. If the Master
Servicer shall for any reason no longer be the Master Servicer (including
by
reason of any Event of Default or termination by the Depositor), the Trustee
or
its successor shall succeed to any rights and obligations of the Master Servicer
under each subservicing agreement.
The
Master Servicer shall, upon request of the Trustee, but at the expense of
the
Master Servicer, deliver to the assuming party all documents and records
relating to each subservicing agreement or substitute subservicing agreement
and
the Mortgage Loans then being serviced thereunder and an accounting of amounts
collected or held by it and otherwise use its best efforts to effect the
orderly
and efficient transfer of the substitute subservicing agreement to the assuming
party.
SECTION
3.05. Collection of Mortgage Loan Payments;
Certificate Account; Distribution Account; Pre-Funding Account; Capitalized
Interest Account; Carryover Shortfall Reserve Fund.
(a) The
Master Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect
all
payments called for under the terms and provisions of the Mortgage Loans
to the
extent such procedures shall be consistent with this Agreement and the terms
and
provisions of any related Required Insurance Policy. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or, subject to Section 3.20, any Prepayment Charge or penalty
interest in connection with the prepayment of a Mortgage Loan and (ii) extend
the due dates for payments due on a Mortgage Note for a period not greater
than
180 days; provided, however, that the Master Servicer cannot
extend the maturity of any such Mortgage Loan past the date on which the
final
payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date. In the event of any such arrangement, the Master Servicer shall
make Advances on the related Mortgage Loan in accordance with the provisions
of
Section 4.01 during the scheduled period in accordance with the
amortization schedule of such Mortgage Loan without modification thereof
by
reason of such arrangements. 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.
61
(b) The
Master Servicer shall establish and maintain a Certificate Account into which
the Master Servicer shall deposit or cause to be deposited no later than
two
Business Days after receipt (or, if the current long-term credit rating of
Countrywide is reduced below “A-” by S&P or Fitch or
“A3” by Xxxxx’x, the Master Servicer shall deposit or cause to be deposited
on a
daily basis within one Business Day of receipt), except as otherwise
specifically provided in this Agreement, the following payments and collections
remitted by Subservicers or received by it in respect of Mortgage Loans
subsequent to the Cut-off Date (other than in respect of principal and interest
due on the Mortgage Loans on or before the Cut-off Date) and the following
amounts required to be deposited under this Agreement:
(i) all
payments on account of principal on the Mortgage Loans, including Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans, net of the related
Master
Servicing Fee and any lender paid mortgage insurance premiums;
(iii) all
Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds, other
than
proceeds to be applied to the restoration or repair of a Mortgaged Property
or
released to the Mortgagor in accordance with the Master Servicer’s normal
servicing procedures;
(iv) any
amount required to be deposited by the Master Servicer pursuant to
Section 3.05(e) in connection with any losses on Permitted
Investments;
(v) any
amounts required to be deposited by the Master Servicer pursuant to
Section 3.09(c) and in respect of net monthly income from REO Property
pursuant to Section 3.11;
(vi) all
Substitution Adjustment Amounts;
(vii) all
Advances made by the Master Servicer pursuant to Section 4.01;
(viii) all
Prepayment Charges and Master Servicer Prepayment Charge Amounts;
and
(ix) any
other amounts required to be deposited under this Agreement.
In
addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for such Mortgage Loan, in addition to the monthly
payment remitted by the Mortgagor, the Master Servicer shall cause funds
to be
deposited into the Certificate Account in an amount required to cause an
amount
of interest to be paid with respect to such Mortgage Loan equal to the amount
of
interest that has accrued on such Mortgage Loan from the preceding Due Date
at
the Mortgage Rate net of the related Master Servicing Fee.
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 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
62
Account
to withdraw such amount from the Certificate Account, any provision in this
Agreement to the contrary notwithstanding. Such withdrawal or
direction may be accomplished by delivering written notice thereof to the
Trustee or such other institution maintaining the Certificate Account which
describes the amounts deposited in error in the Certificate
Account. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds
deposited in the Certificate Account shall be held in trust for the
Certificateholders until withdrawn in accordance with
Section 3.08.
(c) [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 in the Distribution Account
the
following:
(i) the
aggregate amount remitted by the Master Servicer to the Trustee pursuant
to
Section 3.08(a)(ix);
(ii) any
amount deposited by the Master Servicer pursuant to Section 3.05(e) in
connection with any losses on Permitted Investments; and
(iii) any
other amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that the Master Servicer shall remit any amount not required to be
remitted, it may at any time direct the Trustee to withdraw such amount from
the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. Such direction may be accomplished by delivering an
Officer’s Certificate to the Trustee which describes the amounts deposited in
error in the Distribution Account. All funds deposited in the
Distribution Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.08. In no event shall the
Trustee incur liability for withdrawals from the Distribution Account at
the
direction of the Master Servicer.
(e) Each
institution at which the Certificate Account, the Pre-Funding Account, the
Capitalized Interest Account or the Distribution Account is maintained shall
invest the funds therein as directed in writing by the Master Servicer in
Permitted Investments, which shall mature not later than (i) in the case
of the
Certificate Account, the Pre-Funding Account or the Capitalized Interest
Account
the second Business Day next preceding the related Distribution Account Deposit
Date (except that if such Permitted Investment is an obligation of the
institution that maintains such account, then such Permitted Investment shall
mature not later than the Business Day next preceding such Distribution Account
Deposit Date) and (ii) in the case of the Distribution Account, the Business
Day
next preceding the Distribution Date (except that if such Permitted Investment
is an obligation of the institution that maintains such fund or account,
then
such Permitted Investment shall mature not later than such Distribution Date)
and, in each case, shall not be sold or disposed of prior to its
maturity. 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 and the Distribution Account shall be for the
benefit
of the Master Servicer as servicing
63
compensation
and shall be remitted to it monthly as provided in this
Agreement. The amount of any realized losses in the Certificate
Account or the Distribution Account incurred in any such account in respect
of
any such investments shall promptly be deposited by the Master Servicer in
the
Certificate Account or paid to the Trustee for deposit into the Distribution
Account, as applicable. The amount of any losses in the Pre-Funding
Account or the Capitalized Interest Account incurred in respect of any such
investments shall promptly be deposited by the Depositor in the Pre-Funding
Account or the Capitalized Interest Account, as applicable. All
income or gain (net of any losses) realized from any such investment of funds
on
deposit in the Capitalized Interest Account shall be credited to the Capitalized
Interest Account. The Trustee in its fiduciary capacity shall not be
liable for the amount of any loss incurred in respect of any investment or
lack
of investment of funds held in the Certificate Account, the Pre-Funding Account,
the Capitalized Interest Account or the Distribution Account and made in
accordance with this Section 3.05.
(f) The
Master Servicer shall give notice to the Trustee, each Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof. The Trustee shall
give notice to the Master Servicer, each Seller, each Rating Agency and the
Depositor of any proposed change of the location of the Distribution Account,
the Capitalized Interest Account or the Pre-Funding Account prior to any
change
thereof.
(g) If
applicable, the Trustee shall establish and maintain, on behalf of the
Certificateholders, the Pre-Funding Account. On the Closing Date
Countrywide shall remit the Pre-Funded Amount to the Trustee for deposit
in the
Pre-Funding Account. On each Supplemental Transfer Date, upon
satisfaction of the conditions for such Supplemental Transfer Date set forth
in
Section 2.01(e), with respect to the related Supplemental Transfer Agreement,
the Trustee shall pay to each Seller selling Supplemental Mortgage Loans
to the
Depositor on such Supplemental Transfer Date the portion of the Aggregate
Supplemental Transfer Amount held in escrow pursuant to Section 2.01(e) as
payment of the purchase price for the Supplemental Mortgage Loans sold by
such
Seller. If at any time the Depositor becomes aware that the Cut-off
Date Stated Principal Balance of Supplemental Mortgage Loans reflected on
any
Supplemental Transfer Agreement exceeds the actual Cut-off Date Stated Principal
Balance of the relevant Supplemental Mortgage Loans, the Depositor may so
notify
the Trustee and the Trustee shall redeposit into the Pre-Funding Account
the
excess reported to it by the Depositor.
If
any
funds remain in the Pre-Funding Account at the end of the Funding Period,
to the
extent that they represent earnings on the amounts originally deposited into
the
Pre-Funding Account, the Trustee shall distribute them to the order of the
Depositor.
(h) If
applicable, the Trustee shall establish and maintain, on behalf of the
Certificateholders, the Capitalized Interest Account. On the Closing
Date, Countrywide shall remit the aggregate Capitalized Interest Requirement
to
the Trustee for deposit in the Capitalized Interest Account. On each
Distribution Account Deposit Date related to a Funding Period Distribution
Date,
upon satisfaction of the conditions for such Supplemental Transfer Date set
forth in Section 2.01(e), with respect to the related Supplemental Transfer
Agreement, the Trustee shall transfer from the Capitalized Interest Account
to
the Distribution Account an amount equal to the Capitalized Interest Requirement
(which, to the extent required, may include investment earnings on amounts
on
deposit therein) with respect to the amount remaining in the
64
Pre-Funding
Account for the related Distribution Date as identified by Countrywide in
the
Supplemental Transfer Agreement.
(i) If
any funds remain in the Capitalized Interest Account at the end of the Funding
Period, the Trustee shall make the transfer described in the preceding paragraph
if necessary for the remaining Funding Period Distribution Date and the Trustee
shall distribute any remaining funds in the Capitalized Interest Account
to the
order of the Depositor.
On
each
Distribution Date, the Trustee shall deposit into the Carryover Shortfall
Reserve Fund all amounts otherwise distributable to the Class X-P IO-1 and
Class
X-P IO-2 Components on such Distribution Date.
The
Trustee shall make withdrawals from the Carryover Shortfall Reserve Fund
to make
distributions pursuant to Section 4.02(a)(4). Upon the earlier of (i)
the retirement of the LIBOR Certificates and (ii) the termination of the
Trust
Fund in accordance with Section 9.01, the Trustee shall distribute to the
Depositor all monies remaining on deposit in the Carryover Shortfall Reserve
Fund after making the distributions specified in Section
4.02(a)(4).
SECTION
3.06. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To
the extent required by the related Mortgage Note and not violative of current
law, the Master Servicer shall establish and maintain one or more accounts
(each, an “Escrow Account”) and deposit and retain
therein all collections from the Mortgagors (or advances by the Master Servicer)
for the payment of taxes, assessments, hazard insurance premiums or comparable
items for the account of the Mortgagors. Nothing in this Agreement
shall require the Master Servicer to compel a Mortgagor to establish an Escrow
Account in violation of applicable law.
(b) Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse the Master Servicer
out
of related collections for any payments made pursuant to Sections 3.01
(with respect to taxes and assessments and insurance premiums) and 3.09 (with
respect to hazard insurance), to refund to any Mortgagors any sums determined
to
be overages, to pay interest, if required by law or the terms of the related
Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account
or to
clear and terminate the Escrow Account at the termination of this Agreement
in
accordance with Section 9.01. The Escrow Accounts shall not be a
part of the Trust Fund.
(c) The
Master Servicer shall advance any payments referred to in Section 3.06(a)
that are not timely paid by the Mortgagors on the date when the tax, premium
or
other cost for which such payment is intended is due, but the Master Servicer
shall be required so to advance only to the extent that such advances, in
the
good faith judgment of the Master Servicer, will be recoverable by the Master
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
65
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 that is a savings and loan
association, bank or insurance company certain reports and reasonable access
to
information and documentation regarding the Mortgage Loans sufficient to
permit
such Certificateholder and/or Certificate Owner to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder and/or Certificate
Owner for actual expenses incurred by the Master Servicer in providing such
reports and access.
SECTION
3.08. Permitted Withdrawals from the Certificate Account; the
Distribution Account and the Carryover Shortfall Reserve Fund.
(a) The
Master Servicer may from time to time make withdrawals from the Certificate
Account for the following purposes:
(i) to
pay to the Master Servicer (to the extent not previously retained by the
Master
Servicer) the servicing compensation to which it is entitled pursuant to
Section 3.14 and to pay to the Master Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds in or
credited to the Certificate Account;
(ii) to
reimburse each of the Master Servicer and the Trustee for unreimbursed Advances
made by it, such right of reimbursement pursuant to this subclause (ii)
being limited to amounts received on the Mortgage Loan(s) in respect of which
any such Advance was made;
(iii) to
reimburse each of the Master Servicer and the Trustee for any Nonrecoverable
Advance previously made by it;
(iv) to
reimburse the Master Servicer for Insured Expenses from the related Insurance
Proceeds;
(v) to
reimburse the Master Servicer for (a) unreimbursed Servicing Advances, the
Master Servicer’s right to reimbursement pursuant to this clause (a) with
respect to any Mortgage Loan being limited to amounts received on such Mortgage
Loan(s) that represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01 or Section 3.06 and (b) for
unpaid Master Servicing Fees as provided in Section 3.11;
66
(vi) to
pay to the purchaser, with respect to each Mortgage Loan or property acquired
in
respect thereof that has been purchased pursuant to Section 2.02, 2.03 or
3.11, all amounts received on such Mortgage Loan after the date of such
purchase;
(vii) to
reimburse the Sellers, the Master Servicer or the Depositor for expenses
incurred by any of them and reimbursable pursuant to
Section 6.03;
(viii) to
withdraw any amount deposited in the Certificate Account and not required
to be
deposited in the Certificate Account;
(ix) on
or prior to the Distribution Account Deposit Date, to withdraw an amount
equal
to the related Available Funds, the Prepayment Charges, the Master Servicer
Prepayment Charge Amount, 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.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the
Certificate Account pursuant to such subclauses (i), (ii), (iv), (v) and
(vi). Prior to making any withdrawal from the Certificate Account
pursuant to subclause (iii), the Master Servicer shall deliver to the
Trustee an Officer’s Certificate of a Servicing Officer indicating the amount of
any previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The
Trustee shall withdraw funds from the Distribution Account for distributions
to
Certificateholders in the manner specified in this Agreement (and to withhold
from the amounts so withdrawn, the amount of any taxes that it is authorized
to
withhold pursuant to the third paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to
pay to itself the Trustee Fee for the related Distribution Date;
(ii) to
pay to the Master Servicer as additional servicing compensation, earnings
on or
the investment income with respect to funds in the Distribution
Account;
(iii) to
withdraw and return to the Master Servicer any amount deposited in the
Distribution Account and not required to be deposited therein;
(iv) to
reimburse the Trustee for any unreimbursed Advances made by it pursuant to
Section 4.01(b) hereof, such right of reimbursement pursuant to this subclause
(iv) being limited to (x) amounts received on the related Mortgage Loan(s)
in
respect of which any such Advance was made and (y) amounts not otherwise
reimbursed to the Trustee pursuant to Section 3.08(a)(ii) hereof;
(v) to
reimburse the Trustee for any Nonrecoverable Advance previously made by the
Trustee pursuant to Section 4.01(b) hereof, such right of reimbursement
67
pursuant
to this subclause (v) being limited to amounts not otherwise reimbursed to
the
Trustee pursuant to Section 3.08(a)(iii) hereof; and
(vi) to
clear and terminate the Distribution Account upon termination of this Agreement
pursuant to Section 9.01.
(c) The
Trustee shall withdraw funds from the Carryover Shortfall Reserve Fund for
distribution to the LIBOR Certificates and the Class X-P Certificates in
the
manner specified in Section 4.02(a)(4) (and to withhold from the amounts
so
withdrawn the amount of any taxes that it is authorized to retain pursuant
to
the third paragraph of Section 8.11). In addition, the Trustee may
from time to time make withdrawals from the Carryover Shortfall Reserve Fund
for
the following purposes:
(i) to
withdraw any amount deposited in the Carryover Shortfall Reserve Fund and
not
required to be deposited therein; and
(ii) to
clear and terminate the Carryover Shortfall Reserve Fund upon the retirement
of
the LIBOR Certificates and the Class X-P Certificates pursuant to Section
9.01.
(d) [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, including any Deferred Interest, 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. 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
68
Mortgage
Loan. Such flood insurance shall be in an amount equal to the least
of (i) the outstanding principal balance of the related Mortgage Loan,
(ii) the replacement value of the improvements which are part of such
Mortgaged Property, and (iii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program.
(b) The
Master Servicer shall not take any action which would result in non-coverage
under any applicable Primary Insurance Policy of any loss which, but for
the
actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall not cancel or refuse to renew
any such Primary Insurance Policy that is in effect at the date of the initial
issuance of the Certificates and is required to be kept in force hereunder
unless the replacement Primary Insurance Policy for such canceled or non-renewed
policy is maintained with a Qualified Insurer.
Except
with respect to any Lender PMI Mortgage Loans, the Master Servicer shall
not be
required to maintain any Primary Insurance Policy (i) with respect to any
Mortgage Loan with a Loan-to-Value Ratio less than or equal to 80% as of
any
date of determination or, based on a new appraisal, the principal balance
of
such Mortgage Loan represents 80% or less of the new appraised value or
(ii) if maintaining such Primary Insurance Policy is prohibited by
applicable law. With respect to the Lender PMI Mortgage Loans, the
Master Servicer shall maintain the Primary Insurance Policy for the life
of such
Mortgage Loans, unless otherwise provided for in the related Mortgage Note
or
prohibited by law.
The
Master Servicer agrees to effect the timely payment of the premiums on each
Primary Insurance Policy, and such costs not otherwise recoverable shall
be
recoverable by the Master Servicer from the related proceeds of liquidation
and
Subsequent Recoveries.
(c) In
connection with its activities as Master Servicer of the Mortgage Loans,
the
Master Servicer agrees to present on behalf of itself, the Trustee and
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary
to
permit recovery under any Primary Insurance Policies respecting defaulted
Mortgage Loans. Any amounts collected by the Master Servicer under
any Primary Insurance Policies shall be deposited in the Certificate
Account.
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
69
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), in any case in which a Mortgaged Property has
been conveyed to a Person by a Mortgagor, and such Person is to enter into
an
assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Master Servicer shall prepare and deliver
or
cause to be prepared and delivered to the Trustee for signature and shall
direct, in writing, the Trustee to execute the assumption agreement with
the
Person to whom the Mortgaged Property is to be conveyed and such modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
as
are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. In
connection with any such assumption, no material term of the Mortgage Note
may
be changed. In addition, the substitute Mortgagor and the Mortgaged
Property must be acceptable to the Master Servicer in accordance with its
underwriting standards as then in effect. Together with each such
substitution, assumption or other agreement or instrument delivered to the
Trustee for execution by it, the Master Servicer shall deliver an Officer’s
Certificate signed by a Servicing Officer stating that the requirements of
this
subsection have been met in connection therewith. The Master Servicer
shall notify the Trustee that any such substitution or assumption agreement
has
been completed by forwarding to the Trustee the original of such substitution
or
assumption agreement, which in the case of the original shall be added to
the
related Mortgage File and shall, for all purposes, be considered a part of
such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Master Servicer
for entering into an assumption or substitution of liability agreement will
be
retained by the Master Servicer as additional servicing
compensation.
SECTION
3.11. Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.
(a) The
Master Servicer shall use reasonable efforts to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, the
70
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 of such costs
and
expenses 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
one-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. The Master
Servicer shall allow any REO Property that was subject to a lease at the
time of
acquisition through foreclosure or deed-in-lieu of foreclosure to continue
to be
rented pursuant to such lease, but upon the expiration of such lease, the
Master
Servicer shall not take any action to rent the related REO
Property. 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. The Master Servicer shall prepare for and deliver to the
Trustee a statement with respect to each REO Property that has been rented
showing the aggregate rental income received and all expenses incurred in
connection with the maintenance of such REO Property at such times as is
necessary to enable the Trustee to comply with the reporting requirements
of the
REMIC Provisions. Any net monthly income 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.
71
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 the event that 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, then 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 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 rental of any REO Properties,
net of reimbursement to the Master Servicer for expenses incurred (including
any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall
be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were
still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate
Account. To the extent the net income received during any calendar
month is in excess of the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan
for
such calendar month, such excess shall be considered to be a partial prepayment
of principal of the related Mortgage Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as any income from
an
REO Property, will be applied in the following order of priority: first,
to
reimburse the Master Servicer for any related unreimbursed Servicing Advances
and Master Servicing Fees; second, to reimburse the Master Servicer or the
Trustee for any unreimbursed Advances; third, to reimburse
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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 end of the Due Period
concluding 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 that 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 that becomes current but
thereafter becomes delinquent may be purchased by the Master Servicer pursuant
to this Section in any ensuing Eligible Repurchase Month. The Master
Servicer, in its sole discretion, shall also have the right to purchase for
its
own account from the Trust Fund at a price equal to the Purchase Price any
Eligible EPD Protected Mortgage Loan. The Master Servicer’s right to
purchase any such Eligible EPD Protected Mortgage Loan shall expire on the
270th
day following the date on which the related Mortgage Loan became an Eligible
EPD
Protected Mortgage Loan. The Purchase Price for any Mortgage Loan purchased
under this Section 3.11 shall be deposited in the Certificate Account and
the
Trustee, upon receipt of a certificate from the Master Servicer in the form
of
Exhibit N to this Agreement, shall release or cause to be released to the
purchaser of such Mortgage Loan the related Mortgage File and shall execute
and
deliver such instruments of transfer or assignment prepared by the purchaser
of
such Mortgage Loan, in each case without recourse, as shall be necessary
to vest
in the purchaser of such Mortgage Loan any Mortgage Loan released pursuant
hereto and the purchaser of such Mortgage Loan shall succeed to all the
Trustee’s right, title and interest in and to such Mortgage Loan and all
security and documents related thereto. Such assignment shall be an
assignment outright and not for security. The purchaser of such
Mortgage Loan shall thereupon own such Mortgage Loan, and all security and
documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
(b) Countrywide
is permitted to solicit Mortgagors for reductions to the Mortgage Rates of
their
respective Mortgage Loans so long as the Mortgagors are not selected for
solicitation based on the inclusion of the related Mortgage Loans in the
Trust
Fund. If a Mortgagor requests a reduction to the Mortgage Rate for
the related Mortgage Loan, the Master Servicer shall agree to a reduction
in the
Mortgage Rate of that Mortgage Loan (the “Modified Mortgage
Loan”) if (i) no monetary default exists with respect to such
Mortgage Loan and (ii) Countrywide, in its corporate capacity, agrees to
purchase the Modified Mortgage Loan from the Trust Fund immediately following
the modification as described below. Effective immediately after the
modification, and, in any event, on the same Business Day on which the
modification occurs, all interest of the Trustee in the Modified Mortgage
Loan
shall automatically be deemed transferred and assigned to Countrywide and
all
benefits and burdens of ownership thereof, including the right to accrued
interest thereon from the date of modification and the risk of default thereon,
shall pass to Countrywide. The Master Servicer shall promptly deliver
to the Trustee a
73
certification
of a Servicing Officer to the effect that all requirements of this paragraph
have been satisfied with respect to the Modified Mortgage Loan. For
federal income tax purposes, the Trustee shall account for such purchase
as a
prepayment in full of the Modified Mortgage Loan.
Countrywide
shall remit the Purchase Price for any Modified Mortgage Loan to the Master
Servicer for deposit into the Certificate Account pursuant to Section 3.05
within one Business Day after the purchase of the Modified Mortgage
Loan. Upon receipt by the Trustee of written notification of any such
deposit signed by a Servicing Officer, the Trustee shall release to Countrywide
the related Mortgage File and shall execute and deliver such instruments
of
transfer or assignment, in each case without recourse, as shall be necessary
to
vest in Countrywide any Modified Mortgage Loan previously transferred and
assigned pursuant hereto. Countrywide covenants and agrees to
indemnify the Trust Fund against any liability for any “prohibited transaction”
taxes and any related interest, additions, and penalties imposed on the Trust
Fund established hereunder as a result of any modification of a Mortgage
Loan
effected pursuant to this subsection (b), any holding of a Modified Mortgage
Loan by the Trust Fund or any purchase of a Modified Mortgage Loan by
Countrywide (but such obligation shall not prevent Countrywide or any other
appropriate Person from in good faith contesting any such tax in appropriate
proceedings and shall not prevent Countrywide from withholding payment of
such
tax, if permitted by law, pending the outcome of such
proceedings). Countrywide shall have no right of reimbursement for
any amount paid pursuant to the foregoing indemnification, except to the
extent
that the amount of any tax, interest, and penalties, together with interest
thereon, is refunded to the Trust Fund or Countrywide. Nothing in
this Section 3.11(b) restricts the ability of the Master Servicer to modify
a
Mortgage Loan in a manner that is consistent with the servicing standard
set
forth in Section 3.01; provided, however, that Countrywide shall have no
obligation to purchase any such modified Mortgage Loan.
SECTION
3.12. Trustee to Cooperate; Release of Mortgage
Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer
of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Master Servicer will immediately notify the Trustee by
delivering, or causing to be delivered a “Request for Release” substantially in
the form of Exhibit N of this Agreement. Upon receipt of such
request, the Trustee shall promptly release the related Mortgage File to
the
Master Servicer, and the Trustee shall at the Master Servicer’s direction
execute and deliver to the Master Servicer the request for reconveyance,
deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Mortgage in each case provided by the Master Servicer, together
with the Mortgage Note with written evidence of cancellation on the Mortgage
Note. The Master Servicer is authorized to cause the removal from the
registration on the MERS® System of such Mortgage and to execute and deliver, on
behalf of the Trustee and the Certificateholders or any of them, any and
all
instruments of satisfaction or cancellation or of partial or full
release. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any fidelity bond or errors
or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee shall, upon delivery to the Trustee
of a Request for Release in the form of Exhibit M signed by a Servicing
Officer, release
74
the
Mortgage File to the Master Servicer. Subject to the further
limitations set forth below, the Master Servicer shall cause the Mortgage
File
or documents so released to be returned to the Trustee when the need therefor
by
the Master Servicer no longer exists, unless the Mortgage Loan is liquidated
and
the proceeds thereof are deposited in the Certificate Account, in which case
the
Master Servicer shall deliver to the Trustee a Request for Release in the
form
of Exhibit N, signed by a Servicing Officer.
If
the
Master Servicer at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, the Master
Servicer shall deliver or cause to be delivered to the Trustee, for signature,
as appropriate, any court pleadings, requests for trustee’s sale or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or
to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law
or
in equity.
SECTION
3.13. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee.
Notwithstanding
any other provisions of this Agreement, the Master Servicer shall transmit
to
the Trustee as required by this Agreement all documents and instruments in
respect of a Mortgage Loan coming into the possession of the Master Servicer
from time to time and shall account fully to the Trustee for any funds received
by the Master Servicer or which otherwise are collected by the Master Servicer
as Liquidation Proceeds, Insurance Proceeds or Subsequent Recoveries in respect
of any Mortgage Loan. All Mortgage Files and funds collected or held
by, or under the control of, the Master Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or
from
Liquidation Proceeds and any Subsequent Recoveries, including but not limited
to, any funds on deposit in the Certificate Account, shall be held by the
Master
Servicer for and on behalf of the Trustee and shall be and remain the sole
and
exclusive property of the Trustee, subject to the applicable provisions of
this
Agreement. The Master Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, Distribution Account or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders, to any claim, lien, security interest, judgment,
levy, writ of attachment or other encumbrance, or assert by legal action
or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that
the
Master Servicer shall be entitled to set off against and deduct from any
such
funds any amounts that are properly due and payable to the Master Servicer
under
this Agreement.
SECTION
3.14. Servicing Compensation.
As
compensation for its activities hereunder, the Master Servicer shall be entitled
to retain or withdraw from the Certificate Account an amount equal to the
Master
Servicing Fee; provided, that the aggregate Master Servicing Fee with respect
to
any Distribution Date shall be reduced (i) by an amount equal to the aggregate
of the Prepayment Interest Shortfalls, if any, with respect to such Distribution
Date, but not to exceed the Compensating Interest for that Distribution Date,
and (ii) with respect to the first Distribution Date, an amount equal to
any
75
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, 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. 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 Certificateholders and/or Certificate
Owners
and the examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall
be afforded without charge, but only upon reasonable and prior written request
and during normal business hours at the offices designated by the Master
Servicer. Nothing in this Section shall limit the obligation of the
Master Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of the Master Servicer
to
provide access as provided in this Section as a result of such obligation
shall
not constitute a breach of this Section.
SECTION
3.16. Annual Statement as to Compliance.
(a) The
Master Servicer shall deliver to the Depositor and the Trustee on or before
March 15 of each year, commencing with its 2008 fiscal year, an Officer’s
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer
under
this Agreement has been made under such officer’s supervision and (ii) to
the best of such officer’s knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there has been
a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status
thereof.
(b) The
Master Servicer shall cause each Subservicer to deliver to the Depositor
and the
Trustee on or before March 15 of each year, commencing with its 2008 fiscal
year, an Officer’s Certificate stating, as to the signer thereof, that (i) a
review of the activities of such Subservicer during the preceding calendar
year
(or applicable portion thereof) and of the performance of the Subservicer
under
the applicable Subservicing Agreement or primary servicing agreement, has
been
made under such officer’s supervision and (ii) to the best of such officer’s
knowledge, based on such review, such Subservicer has fulfilled all its
obligations under the applicable Subservicing Agreement or primary servicing
agreement, in all material respects throughout such year (or applicable portion
thereof), or, if there has been a failure to fulfill any such obligation
in any
material respect, specifying each such failure known to such officer and
the
nature and status thereof.
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(c) The
Trustee shall forward a copy of each such statement to each Rating
Agency.
SECTION
3.17. Errors and Omissions Insurance; Fidelity
Bonds.
The
Master Servicer shall for so long as it acts as master servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as
Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond
shall, together, comply with the requirements from time to time of FNMA or
FHLMC
for persons performing servicing for mortgage loans purchased by FNMA or
FHLMC. In the event that any such policy or bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy
or bond
from an insurer or issuer, meeting the requirements set forth above as of
the
date of such replacement.
SECTION
3.18. Notification of Adjustments.
On
each
Adjustment Date, the Master Servicer shall make interest rate and/or monthly
payment adjustments for each Mortgage Loan in compliance with the requirements
of the related Mortgage and Mortgage Note and applicable
regulations. The Master Servicer shall execute and deliver the
notices required by each Mortgage and Mortgage Note and applicable regulations
regarding interest rate and/or monthly payment adjustments. The
Master Servicer also shall provide timely notification to the Trustee of
all
applicable data and information regarding such interest rate or monthly payment
adjustments and the Master Servicer’s methods of implementing such
adjustments. Upon the discovery by the Master Servicer or the Trustee
that the Master Servicer has failed to adjust or has incorrectly adjusted
a
Mortgage Rate or a monthly payment pursuant to the terms of the related Mortgage
Note and Mortgage, the Master Servicer shall immediately deposit in the
Certificate Account from its own funds the amount of any interest and/or
principal loss caused thereby without reimbursement therefor; provided, however,
the Master Servicer shall be held harmless with respect to any interest rate
and/or monthly payment adjustments made by any servicer prior to the Master
Servicer.
SECTION
3.19. [Reserved].
SECTION
3.20.Prepayment
Charges.
(a) Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Master Servicer may
not
waive any Prepayment Charge or portion thereof required by the terms of the
related Mortgage Note unless (i) such Mortgage Loan is in default or the
Master
Servicer believes that such a default is imminent and the Master Servicer
determines that such waiver would maximize recovery of Liquidation Proceeds
for
such Mortgage Loan, taking into account the value of such Prepayment Charge,
or
(ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors’ rights
generally or (2) due to acceleration in connection with a foreclosure or
other
involuntary payment, or (B) the enforceability is otherwise limited or
prohibited by applicable law. In the event of a Principal Prepayment
in full or in part with respect to any Mortgage Loan, the Master Servicer
shall
deliver to the Trustee an Officer’s Certificate no later than the third Business
Day following the immediately succeeding Determination Date with a copy to
the
Class X-P Certificateholders. If
77
the
Master Servicer has waived or does not collect all or a portion of a Prepayment
Charge relating to a Principal Prepayment in full or in part due to any action
or omission of the Master Servicer, other than as provided above, the Master
Servicer shall deliver to the Trustee, together with the Principal Prepayment
in
full or in part, the amount of such Prepayment Charge (or such portion thereof
as had been waived) for deposit into the Certificate Account (not later than
1:00 p.m. Pacific time on the immediately succeeding Master Servicer Advance
Date, in the case of such Prepayment Charge) for distribution in accordance
with
the terms of this Agreement.
(b) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee
of a
breach of the foregoing subsection (a), the party discovering the breach
shall
give prompt written notice to the other parties.
(c) Countrywide
represents and warrants to the Depositor and the Trustee, as of the Closing
Date, that the information contained in clauses (xix), (xx) and (xxi) of
the
Mortgage Loan Schedule is complete and accurate in all material respects
at the
dates as of which the information is furnished and each Prepayment Charge
is
permissible and enforceable in accordance with its terms under applicable
state
law, except as the enforceability thereof is limited due to acceleration
in
connection with a foreclosure or other involuntary payment.
(d) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee
of a
breach of the foregoing clause (c) that materially and adversely affects
the
right of the Holders of the Class X-P Certificates to any Prepayment Charge,
the
party discovering the breach shall give prompt written notice to the other
parties. Within 60 days of the earlier of discovery by Countrywide or
receipt of notice by Countrywide of breach, Countrywide shall cure the breach
in
all material respects or shall pay to the Master Servicer which shall deposit
such amount into the Certificate Account the amount of the Prepayment Charge
that would otherwise be due from the Mortgagor, less any amount representing
such Prepayment Charge previously collected and paid by the Master Servicer
into
the Certificate Account.
SECTION
3.21.[Reserved]
78
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), the Master Servicer 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 will not be deposited
by the Master Servicer (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.
79
(c) The
Master Servicer shall, not later than the close of business on the second
Business Day immediately preceding each Distribution Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the Trustee)
that indicates (i) the Mortgage Loans with respect to which the Master Servicer
has determined that the related Scheduled Payments should be advanced and
(ii)
the amount of the related Scheduled Payments. The Master Servicer
shall deliver to the Trustee on the related Master Servicer Advance Date
an
Officer’s Certificate of a Servicing Officer indicating the amount of any
proposed Advance determined by the Master Servicer to be a Nonrecoverable
Advance.
SECTION
4.02. Priorities of Distribution.
(a) (1)
On each Distribution Date, the Trustee shall withdraw the Available Funds
from
the Distribution Account and apply such funds to distributions on the specified
Classes and Components of Certificates in the following order, in each case,
to
the extent of such funds remaining:
(i) [Reserved];
(ii) concurrently,
to each interest-bearing Class and Component of Senior Certificates (including
the Class X-P IO-1 and Class X-P IO-2 Components), an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for such
Distribution Date, any shortfall being allocated among such Classes and
Components in proportion to the amount of the Class Optimal Interest
Distribution Amount that would have been distributed in the absence of such
shortfall; provided, however, that the amount of interest otherwise
distributable to the Class X-P IO-1 and Class X-P IO-2 Components shall be
deposited into the Carryover Shortfall Reserve Fund and shall be distributed
in
accordance with Section 4.02(a)(4);
(iii) [Reserved];
(iv) to
each Class of Senior Certificates and the Class X-P PO-1 and Class X-P PO-2
Components, concurrently as follows:
(x) [Reserved];
and
(y)
the
Principal Amount, up to the amount of the Senior Principal Distribution Amount
for such Distribution Date will be distributed, sequentially as
follows:
(A) to
the Class A-R Certificates, until its Class Certificate Balance is reduced
to
zero, and
(B) concurrently,
to the Class A-1, Class A-2 and Class A-3 Certificates and each PO Component,
pro rata, until their respective Class Certificate Balances or Component
Principal Balances, as applicable, are reduced to zero.
(2) [Reserved].
80
(3) On
each Distribution Date, Available Funds remaining after making the distributions
described in Section 4.02(a)(1) above, shall be distributed to the Subordinated
Certificates and the Class A-R Certificates in the following order, in each
case, to the extent of such funds remaining:
(A) to
the Class M-1 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-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;
(C) to
the Class M-2 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 M-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;
(E) to
the Class M-3 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 M-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;
(G) to
the Class M-4 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(H) to
the Class M-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;
(I) to
the Class M-5 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(J) to
the Class M-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;
(K) to
the Class M-6 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(L) to
the Class M-6 Certificates, an amount allocable to principal equal to its
Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(M) to
the Class M-7 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(N) to
the Class M-7 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;
(O) to
the Class M-8 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(P) to
the Class M-8 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;
(Q) to
the Class M-9 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(R) to
the Class M-9 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;
(S) 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;
(T)
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;
(U) 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;
(V) 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;
(W) to
the Class B-3 Certificates, an amount allocable to interest equal to the
Class Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(X) 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; and
(Y) to
the Class A-R Certificates, any remaining funds in the Trust Fund.
(4) On
each Distribution Date, any amounts deposited in the Carryover Shortfall
Reserve
Fund shall be distributed by the Trustee as follows:
(i)
[Reserved].
(ii)
from
amounts otherwise distributable to the Class X-P IO-1 Component on such
Distribution Date, sequentially, as follows:
(A) concurrently,
to the Classes of LIBOR Certificates that are Senior Certificates, pro rata,
based on their respective Class Certificate Balances, in an amount up to
such
Class’ Carryover Shortfall Amounts remaining unpaid for such Distribution
Date;
(B) concurrently,
to the Classes of LIBOR Certificates that are Senior Certificates, pro rata,
based on their respective Carryover Shortfall Amounts for such Distribution
Date
not paid pursuant to clause (A) above, in an amount up to such Class’ Carryover
Shortfall Amounts remaining unpaid for such Distribution Date; and
(C) to
the Class X-P Certificates;
(iii)
from amounts otherwise distributable to the Class X-P IO-2 Component on such
Distribution Date, sequentially, as follows:
(A) concurrently,
to the Classes of Subordinated Certificates, pro rata, based on their respective
Class Certificate Balances, in an amount up to such Class’ Carryover Shortfall
Amounts remaining unpaid for such Distribution Date;
(B) concurrently,
to the Classes of Subordinated Certificates, pro rata, based on their respective
Carryover Shortfall Amounts for such Distribution Date not paid pursuant
to
clause (A) above, in an amount up to such Class’ Carryover Shortfall Amounts
remaining unpaid for such Distribution Date; and
(C) to
the Class X-P Certificates.
(5) On
each Distribution Date, all amounts representing Prepayment Charges received
during the related Prepayment Period with respect to the Mortgage Loans
(including all related Master Servicer Prepayment Charge Amounts deposited
pursuant to Section 3.20) will be distributed to the Holders of the Class
X-P
Certificates.
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(b) [Reserved]
(c) [Reserved]
(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
or
Component thereof for such Distribution Date shall be reduced for each Class
of
Certificates or Component thereof by the Class’ Allocable Share of (A) the Net
Prepayment Interest Shortfalls, (B) with respect to each Mortgage Loan that
became subject to a Debt Service Reduction during the calendar month preceding
the month of such Distribution Date, the interest portion of the related
Debt
Service Reduction and (C) each Relief Act Reduction for the Mortgage Loans
incurred during the calendar month preceding the month of such Distribution
Date.
(e) Notwithstanding
the priority and allocation contained in Section 4.02(a)(3), 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 lower distribution priority than such Class (the “Applicable
Credit Support Percentage”) is less than the Original Applicable
Credit Support Percentage for such Class, no distribution of Net Prepayments
will be made to any such Classes (the “Restricted
Classes”) and the amount of such Net Prepayments otherwise
distributable to the Restricted Classes shall be distributed to any Classes
of
Subordinated Certificates having higher distribution priorities 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)(3). Notwithstanding anything in this
Agreement to the contrary, the Class of Subordinated Certificates then
outstanding with the highest distribution priority shall not be a Restricted
Class.
(f) If
Subsequent Recoveries have been received with respect to a Liquidated Mortgage
Loan, the amount of such Subsequent Recoveries will be applied sequentially,
in
the order of payment priority, to increase the Class Certificate Balance
or
Component Principal Balance of each Class of Certificates or Component thereof
to which Realized Losses have been allocated, but in each case by not more
than
the amount of Realized Losses previously allocated to that Class of Certificates
or Component 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 or Component
Principal Balance of each Certificate of such Class or Component
thereof.
SECTION
4.03. Allocation of Net Deferred Interest.
(a) For
any Distribution Date, the Senior Percentage of the Net Deferred Interest
will
be allocated among the Senior Certificates and the Subordinated Percentage
of
the Net Deferred Interest will be allocated to the Subordinated
Certificates. Among the Senior Certificates or the Subordinated
Certificates, as applicable, the Net Deferred Interest allocated to a Class
of
Certificates shall be an amount equal to the excess, if any, of (i) the amount
of interest that accrued on such Class of Certificates or its related Notional
Amount Components at its
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respective
Pass-Through Rate during the Interest Accrual Period related to that
Distribution Date over (ii) the amount of interest that accrued on such Class
of
Certificates or its related Notional Amount Components at the related Adjusted
Rate Cap during the Interest Accrual Period related to that Distribution
Date.
(b) Any
Net Deferred Interest allocated to a Class of Certificates will be added
to the
Class Certificate Balance of such Class of Certificates, except that the
amount
of Net Deferred Interest allocated to a Notional Amount Component shall be
added
to the Component Principal Balance of the related PO Component.
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.
Realized
Losses with respect to any Distribution Date shall be allocated as
follows:
(i) [Reserved];
(ii) Any
Realized Loss on the Mortgage Loans shall be allocated first,
sequentially, to the Class B-3, Class B-2, Class B-1, Class M-9, Class M-8,
Class M-7, Class M-6, Class M-5, Class M-4, Class M-3, Class M-2 and Class
M-1
Certificates, in that order, until the respective Class Certificate Balance
of
each such Class is reduced to zero, second, to the Classes of Senior
Certificates or the PO Components thereof in the case of a Class of Component
Certificates, pro rata, on the basis of their respective Class Certificate
Balances or Component Principal Balances, as applicable, immediately prior
to
the related Distribution Date until the respective Class Certificate Balance
or
Component Principal Balance, as applicable, of each such Class is reduced
to
zero; provided, however, that any Realized Losses otherwise allocable to
the Class A-1, Class A-2 and A-3 Certificates shall be allocated sequentially,
first, to the Class A-3 Certificates until its Class Certificate Balance
is
reduced to zero, second, to the Class A-2 Certificates, until its Class
Certificate Balance is reduced to zero and third, to the Class A-1 Certificates,
until its Class Certificate Balance is reduced to zero.
(b) The
Class Certificate Balance of the Class of Subordinated Certificates then
outstanding with the lowest distribution priority shall be reduced on each
Distribution Date by the amount, if any, by which the aggregate Class
Certificate Balance of all outstanding Classes of Certificates (after giving
effect to the distribution of principal and the allocation of Net Deferred
Interest and Realized Losses on such Distribution Date) exceeds the Pool
Stated
Principal Balance as of the last day of the Due Period related to such
Distribution Date.
(c) Any
Realized Loss allocated to a Class of Certificates or any reduction in the
Class
Certificate Balance of a Class of Certificates pursuant to Section 4.04(b)
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(b) above shall be accomplished by reducing the Certificate
Balance or Component Principal Balance, as
85
applicable,
immediately following the distributions made on the related Distribution
Date in
accordance with the definition of “Certificate Balance” or “Component Principal
Balance,” as the case may be.
SECTION
4.05. [Reserved].
SECTION
4.06. Monthly Statements to
Certificateholders.
(a) Concurrently
with each distribution on a Distribution Date, the Trustee will forward by
mail
to each Rating Agency and make available to Certificateholders on the Trustee’s
website (xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting
forth the information contained in Exhibit Q 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 to this Agreement.
(d) Within
a reasonable period of time after the end of each calendar year, the Trustee
shall cause to be furnished to each Person who at any time during the calendar
year was a Certificateholder, a statement containing the aggregate principal
distributions, aggregate interest distributions and aggregate Master Servicing
Fees paid to or retained by the Master Servicer 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. [Reserved].
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 rate for
one-month deposits in U.S. dollars quoted on the Bloomberg Terminal for such
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 determine LIBOR on
the
basis of the British Bankers’ Association (“BBA”) “Interest Settlement Rate” for
one-month deposits in U.S. dollars as found on Telerate page 3750 as of 11:00
a.m. London time on each LIBOR Determination Date. “Telerate Page
3750” means the display page currently so designated on the Bloomberg Terminal
(or such other page as may replace that page on that service for the purpose
of
displaying comparable rates or prices).
(c) If
on any Interest Determination Date, LIBOR cannot be determined as provided
in
paragraph (a) or (b) of this Section 4.08, the Trustee shall either (i) request
each Reference Bank
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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 Telerate Page 3750. LIBOR for the next
Interest Accrual Period will be established by the Trustee on each Interest
Determination Date as follows:
(i) If
on any Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the next applicable Interest Accrual Period
shall
be the arithmetic mean of such offered quotations (rounding such arithmetic
mean
upwards if necessary to the nearest whole multiple of 1/32%).
(ii) If
on any Interest Determination Date only one or none of the Reference Banks
provides such offered quotations, LIBOR for the next Interest Accrual Period
shall be whichever is the higher of (i) LIBOR as determined on the previous
Interest Determination Date or (ii) the Reserve Interest Rate. The
“Reserve Interest Rate” shall be the rate per annum which the Trustee determines
to be either (i) the arithmetic mean (rounded upwards if necessary to the
nearest whole multiple of 1/32%) of the one-month United States dollar lending
rates that New York City banks selected by the Trustee are quoting, on the
relevant Interest Determination Date, to the principal London offices of
at
least two of the Reference Banks to which such quotations are, in the opinion
of
the Trustee, being so made, or (ii) in the event that the Trustee can determine
no such arithmetic mean, the lowest one-month United States dollar lending
rate
which New York City banks selected by the Trustee are quoting on such
Interest Determination Date to leading European banks.
(iii) If
on any Interest Determination Date the Trustee is required but is unable
to
determine the Reserve Interest Rate in the manner provided in paragraph (b)
above, LIBOR for the related Classes of Certificates shall be LIBOR as
determined on the preceding applicable Interest Determination Date or, in
the
case of the first Interest Determination Date, 5.320%.
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.
(d) 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
87
appearing
in footnotes corresponding to the LIBOR Certificates in the table relating
to
the Certificates in the Preliminary Statement.
In
determining LIBOR, any Pass-Through Rate for the LIBOR Certificates, any
Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered quotations
(whether written, oral or on the Dow Xxxxx Markets) from the BBA designated
banks, the Reference Banks or the New York City banks as to LIBOR, the Interest
Settlement Rate or the Reserve Interest Rate, as appropriate, in effect from
time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee’s selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City
banks
or to determine such arithmetic mean, all as provided for in this Section
4.08.
The
establishment of LIBOR and each Pass-Through Rate for the LIBOR Certificates
by
the Trustee shall (in the absence of manifest error) be final, conclusive
and
binding upon each Holder of a Certificate and the Trustee.
SECTION
4.09. [Reserved]
88
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 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 Class of Component
Certificates, (B) 100% of the Class Certificate Balance of any Class of
Certificates, (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000, or (D) a Class X-P Certificate,
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 of the Depositor.
The
Depositor shall provide, or cause to be provided, to the Trustee on a continuous
basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION
5.02. Certificate Register; Registration of Transfer
and Exchange of Certificates.
(a) The
Trustee shall maintain, or cause to be maintained in accordance with the
provisions of Section 5.06, a Certificate Register for the Trust Fund in
which, subject to the provisions of subsections (b) and (c) below and to
such reasonable regulations as it may prescribe, the Trustee shall provide
for
the registration of Certificates and of transfers and exchanges of Certificates
as provided in this Agreement. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the
name
of the designated
89
transferee
or transferees, one or more new Certificates of the same Class and aggregate
Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest upon surrender of the Certificates to
be
exchanged at the office or agency of the Trustee. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a
written instrument of transfer in form satisfactory to the Trustee duly executed
by the holder thereof or his attorney duly authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to
cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act
and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities
Act and
such laws, in order to assure compliance with the Securities Act and such
laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder’s prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer in substantially the form set
forth
in the applicable Exhibit J (the “Transferor
Certificate”) and (i) deliver a letter in substantially the
form of either Exhibit K (the “Investment
Letter”) or Exhibit L-1 (the “Rule 144A
Letter”) or (ii) there shall be delivered to the Trustee at
the expense of the transferor an Opinion of Counsel that such transfer may
be
made pursuant to an exemption from the Securities Act. The Depositor
shall provide to any Holder of a Private Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in
Rule 144A(d)(4) for transfer of any such Certificate without registration
thereof under the Securities Act pursuant to the registration exemption provided
by Rule 144A. The Trustee and the Master Servicer shall
cooperate with the Depositor in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Depositor
such
information regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet
its
obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trustee and the Depositor, the Sellers and the Master Servicer
against any liability that may result if the transfer is not so exempt or
is not
made in accordance with such federal and state laws.
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(in the event such Certificate is a Private
90
Certificate,
such requirement is satisfied only by the Trustee’s receipt of a representation
letter from the transferee substantially in the form of Exhibit K or Exhibit
L-1, or in the event such Certificate is a Residual Certificate, such
requirement is satisfied only by the Trustee’s receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that (x) such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, nor a person acting on behalf of any such plan or arrangement,
or
using the assets of any such plan or arrangement to effect such transfer
or (y)
in the case of a Certificate that is an ERISA-Restricted Certificate and
that
has been the subject of an ERISA-Qualifying Underwriting, a representation
that
the purchaser is an insurance company which is purchasing such Certificate
with
funds contained in an “insurance company general account” (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
(“PTCE 95-60”)) and that the purchase and holding of
such Certificate satisfy the requirements for exemptive relief under Sections
I
and III of PTCE 95-60 or (ii) in the case of any ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan or
arrangement subject to ERISA, or a plan or arrangement subject to Section
4975
of the Code (or comparable provisions of any subsequent enactments), or a
trustee or any other person acting on behalf of any such plan or arrangement
or
using such plan’s or arrangement’s assets, an Opinion of Counsel satisfactory to
the Trustee, which Opinion of Counsel shall not be an expense of the Trustee,
the Master Servicer or the Trust Fund, addressed to the Trustee and the Master
Servicer, to the effect that the purchase and holding of such ERISA-Restricted
Certificate will not result in a non-exempt prohibited transaction under
Section
406 of ERISA or Section 4975 of the Code, and will not subject the Trustee
or
the Master Servicer to any obligation in addition to those expressly undertaken
in this Agreement or to any liability (such Opinion of Counsel, a
“Benefit Plan Opinion”). For purposes of
the preceding sentence, with respect to an ERISA-Restricted Certificate that
is
not a Residual Certificate, in the event the representation letter or Benefit
Plan Opinion referred to in the preceding sentence is not so furnished, one
of
the representations in clause (i), as appropriate, shall be deemed to have
been
made to the Trustee by the transferee’s (including an initial acquirer’s)
acceptance of the ERISA-Restricted Certificates. Notwithstanding
anything else to the contrary in this Agreement, any purported transfer of
an
ERISA-Restricted Certificate to or on behalf of an employee benefit plan
or
arrangement subject to ERISA or to Section 4975 of the Code without the delivery
to the Trustee of a Benefit Plan Opinion 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:
91
(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 to this Agreement as
Exhibit I.
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this
Section 5.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under
no liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the
provisions of this Agreement so long as the Transfer was registered after
receipt of the related Transfer Affidavit and Transferor
Certificate. 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
92
deleted)
with respect to Transfers occurring after delivery to the Trustee of an Opinion
of Counsel, which Opinion of Counsel shall not be an expense of the Trust
Fund,
the Trustee, the Master Servicer or any Seller, to the effect that the
elimination of such restrictions will not cause any REMIC hereunder to fail
to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Trustee, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in,
a Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the Transfer of a Residual Certificate which is held by a Person that is
not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as provided below, the Book-Entry Certificates shall at all times remain
registered in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership and
transfers of such Book-Entry Certificates; (iii) ownership and transfers of
registration of the Book-Entry Certificates on the books of the Depository
shall
be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses
from
its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates
for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed
to be
inconsistent if they are made with respect to different Certificate Owners;
and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
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
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Certificate
Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Master Servicer, the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and
each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Master Servicer shall provide the Trustee with an
adequate inventory of certificates to facilitate the issuance and transfer
of
Definitive Certificates. Upon the issuance of Definitive Certificates
all references in this Agreement to obligations imposed upon or to be performed
by the Depository shall be deemed to be imposed upon and performed by the
Trustee, to the extent applicable with respect to such Definitive Certificates
and the Trustee shall recognize the Holders of the Definitive Certificates
as
Certificateholders hereunder; provided that the Trustee shall not by virtue
of
its assumption of such obligations become liable to any party for any act
or
failure to act of the Depository.
SECTION
5.03. Mutilated, Destroyed, Lost or Stolen
Certificates.
If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Certificate and (b) there is delivered to the Master Servicer and the
Trustee such security or indemnity as may be required by them to save each
of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance
of any new Certificate under this Section 5.03, the Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge
that
may be imposed in relation thereto and any other expenses (including the
fees
and expenses of the Trustee) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete
and indefeasible evidence of ownership, as if originally issued, whether
or not
the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION
5.04. Persons Deemed Owners.
The
Master Servicer, the Trustee and any agent of the Master Servicer or the
Trustee
may treat the Person in whose name any Certificate is registered as the owner
of
such Certificate for the purpose of receiving distributions as provided in
this
Agreement and for all other purposes whatsoever, and neither the Master
Servicer, the Trustee nor any agent of the Master Servicer or the Trustee
shall
be affected by any notice to the contrary.
SECTION
5.05. Access to List of Certificateholders’ Names and
Addresses.
If
three
or more Certificateholders 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
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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 with
this
Agreement only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them in this Agreement.
SECTION
6.02. Merger or Consolidation of the Depositor or the
Master Servicer.
The
Depositor will keep in full effect its existence, rights and franchises as
a
corporation under the laws of the United States or under the laws of one
of the
states thereof and will obtain and preserve its qualification to do business
as
a foreign corporation in each jurisdiction in which such qualification is
or
shall be necessary to protect the validity and enforceability of this Agreement,
or any of the Mortgage Loans and to perform its duties under this
Agreement. The Master Servicer will keep in effect its existence,
rights and franchises as a limited partnership under the laws of the United
States or under the laws of one of the states thereof and will obtain and
preserve its qualification or registration to do business as a foreign
partnership in each jurisdiction in which such qualification or registration
is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to
which
the Depositor or the Master Servicer shall be a party, or any person succeeding
to the business of the Depositor or the Master Servicer, shall be the successor
of the Depositor or the Master Servicer, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any
of
the parties hereto, anything in this Agreement to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the
Master Servicer shall be qualified to service mortgage loans on behalf of,
FNMA
or FHLMC.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation
of the
Master Servicer, the Master Servicer shall provide (x) written notice to
the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Master
Servicer.
SECTION
6.03. Limitation on Liability of the Depositor, the
Sellers, the Master Servicer 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
in this Agreement or
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protect
the Depositor, the Master Servicer, any Seller or any such Person from any
liability which would otherwise be imposed by reasons of willful misfeasance,
bad faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The
Depositor, the Master Servicer, each Seller and any director, officer, employee
or agent of the Depositor, the Master Servicer or each Seller may rely in
good
faith on any document of any kind prima facie properly executed and submitted
by
any Person respecting any matters arising under this Agreement. 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 under this Agreement
and
the Depositor shall have received the information described in the following
sentence. As a condition to the effectiveness of any such
resignation, at least 15 calendar days prior to the effective date of any
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 in this Agreement, means any one of the
following events:
(i) any
failure by the Master Servicer to deposit in the Certificate Account or remit
to
the Trustee any payment required to be made under the terms of this Agreement,
which failure shall continue unremedied for five days after the date upon
which
written notice of such failure shall have been given to the Master Servicer
by
the Trustee 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 or 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.
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If
(a) 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 (b) an Event of Default
described in clauses (i) to (v) of this Section shall occur, then, and in
each and every such case, so long as such Event of Default shall not have
been
remedied, at the direction of the Holders of Certificates evidencing not
less
than 66 2/3% of the Voting Rights evidenced by such 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 related
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 whether or not the
obligations of the Master Servicer have been terminated pursuant to this
Section. The Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all
other
acts or things necessary or appropriate to effect the purposes of such notice
of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. Unless
expressly provided in such written notice, no such termination shall affect
any
obligation of the Master Servicer to pay amounts owed pursuant to Article
VIII. The Master Servicer agrees to cooperate with the Trustee in
effecting the termination of the Master Servicer’s responsibilities and rights
hereunder, including, without limitation, the transfer to the Trustee of
all
cash amounts which shall at the time be credited to the Certificate Account,
or
thereafter be received with respect to the Mortgage Loans.
Notwithstanding
any termination of the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to receive, out of any late collection of a Scheduled
Payment on a Mortgage Loan which was due prior to the notice terminating
such
Master Servicer’s rights and obligations as Master Servicer hereunder and
received after such notice, that portion thereof to which such Master Servicer
would have been entitled pursuant to Sections 3.08(a)(i) through (viii),
and any
other amounts payable to such Master Servicer hereunder the entitlement to
which
arose prior to the termination of its activities under this
Agreement.
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If
the
Master Servicer is terminated, the Trustee shall provide the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of
the
Master Servicer as set forth herein.
SECTION
7.02. Trustee to Act; Appointment of
Successor.
On
and
after the time the Master Servicer receives a notice of termination pursuant
to
Section 7.01, the Trustee shall, subject to and to the extent provided in
Section 3.04, be the successor to the Master Servicer in its capacity as
master
servicer under this Agreement and the transactions set forth or provided
for in
this Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer by the terms and
provisions of this Agreement and applicable law including the obligation
to make
Advances pursuant to Section 4.01. As compensation therefor, the
Trustee shall be entitled to all funds relating to the Mortgage Loans that
the
Master Servicer would have been entitled to charge to the Certificate Account
or
Distribution Account if the Master Servicer had continued to act
hereunder. Notwithstanding the foregoing, if the Trustee has become
the successor to the Master Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.01 or if it
is
otherwise unable to so act, 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 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,
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 the 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
100
other
successor master servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder
or
any portion thereof or any failure to perform, or any delay in performing,
any
duties or responsibilities hereunder, in either case caused by the failure
of
the Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any
successor to the Master Servicer as master servicer shall give notice to
the
Mortgagors of such change of servicer and shall, during the term of its service
as master servicer maintain in force the policy or policies that the Master
Servicer is required to maintain pursuant to Section 3.09.
In
connection with the termination or resignation of the Master Servicer hereunder,
either (i) the successor Master Servicer, including the Trustee if the Trustee
is acting as successor Master Servicer, shall represent and warrant that
it is a
member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, or (ii) the predecessor
Master Servicer shall cooperate with the successor Master Servicer either
(x) in
causing MERS to execute and deliver an assignment of Mortgage in recordable
form
to transfer the Mortgage from MERS to the Trustee and to execute and deliver
such other notices, documents and other instruments as may be necessary or
desirable to effect a transfer of such Mortgage Loan or servicing of such
Mortgage Loan on the MERS® System to the successor Master Servicer or (y) in
causing MERS to designate on the MERS® System the successor Master Servicer as
the servicer of such Mortgage Loan. The predecessor Master Servicer
shall file or cause to be filed any such assignment in the appropriate recording
office. The successor Master Servicer shall cause such assignment to
be delivered to the Trustee promptly upon receipt of the original with evidence
of recording thereon or a copy certified by the public recording office in
which
such assignment was recorded.
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 the Certificateholders
and
to each Rating Agency.
(b) Within
60 days after the occurrence of any Event of Default, the Trustee shall transmit
by mail to all Certificateholders notice of each such Event of Default hereunder
known to the Trustee, unless such Event of Default shall have been cured
or
waived.
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ARTICLE
VIII
CONCERNING
THE TRUSTEE
SECTION
8.01. Duties of Trustee.
The
Trustee, prior to the occurrence of an Event of Default and after the curing
of
all Events of Default that may have occurred, shall undertake to perform
such
duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested
in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct
of such person’s own affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee
that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they are in the form required
by this Agreement; provided, however, that the Trustee shall not
be responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act
or its
own willful misconduct; provided, however, that:
(i) unless
an Event of Default known to the Trustee shall have occurred and be continuing,
the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable except
for
the performance of such duties and obligations as are specifically set forth
in
this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming
to the
requirements of this Agreement which it believed in good faith to be genuine
and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be
finally proven that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction
of
Holders of Certificates evidencing not less than 25% of the Voting Rights
of
Certificates relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Agreement; and
(iv) without
in any way limiting the provisions of this Section 8.01 or Section 8.02,
the
Trustee shall be entitled to rely conclusively on the information delivered
to
it
102
by
the
Master Servicer in a Trustee Advance Notice in determining whether it is
required to make an Advance under Section 4.01(b), shall have no responsibility
to ascertain or confirm any information contained in any Trustee Advance
Notice,
and shall have no obligation to make any Advance under Section 4.01(b) in
the
absence of a Trustee Advance Notice or actual knowledge of a Responsible
Officer
of the Trustee that (A) such Advance was not made by the Master Servicer
and (B)
such Advance is not a Nonrecoverable Advance.
The
Trustee hereby represents, warrants, covenants and agrees that, except as
permitted by Article IX hereof, it shall not cause the Trust Fund to consolidate
or amalgamate with, or merge with or into, or transfer all or substantially
all
of the Trust Fund to, another Person.
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 of its
selection 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
103
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.
SECTION
8.03. Trustee Not Liable for Certificates or
Mortgage Loans.
The
recitals contained in this Agreement and in the Certificates shall be taken
as
the statements of the Depositor or a Seller, as the case may be, and the
Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of
the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS®
System other than with respect to the Trustee’s execution and counter-signature
of the Certificates. The Trustee shall not be accountable for the use
or application by the Depositor or the Master Servicer of any funds paid
to the
Depositor or the Master Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Certificate Account by the Depositor or the Master
Servicer.
SECTION
8.04. Trustee May Own
Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
SECTION
8.05. Trustee’s Fees and
Expenses.
The
Trustee, as compensation for its activities hereunder, shall be entitled
to
withdraw from the Distribution Account on each Distribution Date an amount
equal
to the Trustee Fee for such Distribution Date. The Trustee and any director,
officer, employee or agent of the Trustee shall be indemnified by the Master
Servicer and held harmless against any loss, liability or expense (including
reasonable attorney’s fees and expenses) (i) incurred in connection with
any claim or legal action relating to (a) this Agreement, (b) the
Certificates or (c) in connection with the performance of any of the
Trustee’s duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance
of
any of the Trustee’s duties hereunder or incurred by reason of any action of the
Trustee taken at the direction of the Certificateholders or (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
104
foregoing,
the Master Servicer covenants and agrees, except as otherwise agreed upon
in
writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee’s negligence, bad faith or
willful misconduct, to pay or reimburse the Trustee, for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Agreement with respect
to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance
of
the Certificates, (B) the reasonable compensation, expenses and
disbursements of any accountant, engineer or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage such
persons
to perform acts or services hereunder and (C) printing and engraving
expenses in connection with preparing any Definitive
Certificates. Except as otherwise provided in this Agreement, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties
as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses.
SECTION
8.06. Eligibility Requirements for
Trustee.
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which
would
not cause either of the Rating Agencies to reduce or withdraw their respective
then current ratings of the Certificates (or having provided such security
from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes
of
this Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth
in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
this Section 8.06, the Trustee shall resign immediately in the manner and
with the effect specified in Section 8.07. The entity serving as
Trustee may have normal banking and trust relationships with the Depositor
and
its affiliates or the Master Servicer and its affiliates; provided,
however, that such entity cannot be an affiliate of the Master Servicer
other than the Trustee in its role as successor to the Master
Servicer.
SECTION
8.07. Resignation and Removal of
Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer
and each Rating Agency not less than 60 days before the date specified in
such
notice when, subject to Section 8.08, such resignation is to take effect,
and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no
successor trustee meeting such qualifications shall have been so appointed
and
have accepted appointment within 30 days after the giving of such notice
or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Trustee shall provide
(x) written notice to the
105
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 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 for such
removal. Notice of any removal of the Trustee shall be given to each
Rating Agency by the successor trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in
Section 8.08.
SECTION
8.08. Successor Trustee.
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and
the
Master Servicer an instrument accepting such appointment hereunder and thereupon
the resignation or removal of the predecessor trustee shall become effective
and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with the like effect as if originally named as trustee
in
this Agreement. The Depositor, the Master Servicer and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming
in
the successor trustee all such rights, powers, duties, and
obligations.
106
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 and its appointment shall not
adversely affect the then current rating of the Certificates and has provided
to
the Depositor in writing and in form and substance reasonably satisfactory
to
the Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
a replacement Trustee.
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 without the execution or filing of any paper or further act
on the part of any of the parties hereto, anything in this Agreement to the
contrary notwithstanding.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation
of the
Trustee, the Trustee shall provide (x) written notice to the Depositor of
any
successor pursuant to this Section and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement Trustee.
SECTION
8.10. Appointment of Co-Trustee or Separate
Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust
Fund
or property securing any Mortgage Note may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund,
and
to vest in such Person or Persons, in such capacity and for the benefit of
the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.10,
such powers, duties, obligations, rights and trusts as the Master Servicer
and
the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make
such appointment. No co-trustee or separate trustee hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 8.06 and no notice to
107
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 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.
108
SECTION
8.11. Tax Matters.
It
is
intended that the assets with respect to which any REMIC election is to be
made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a “real estate mortgage investment conduit” as defined in and in
accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent (and
the
Trustee is hereby appointed to act as agent) on behalf of any such REMIC
and
that in such capacity it shall: (a) prepare and file, or cause to be
prepared and filed, in a timely manner, a U.S. Real Estate Mortgage Investment
Conduit Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and
filed
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to any
such
REMIC, containing such information and at the times and in the manner as
may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby;
(b)
within thirty days of the Closing Date, furnish or cause to be furnished
to the
Internal Revenue Service, on Forms 8811 or as otherwise may be required by
the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form,
and
update such information at the time or times in the manner required by the
Code;
(c) make or cause to be made elections that such assets be treated as a REMIC
on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service
and, if
necessary, state tax authorities, all information returns and reports as
and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a
Person
that is not a Permitted Transferee, or an agent (including a broker, nominee
or
other middleman) of a Non-Permitted Transferee, or a pass-through entity
in
which a Non-Permitted Transferee is the record holder of an interest (the
reasonable cost of computing and furnishing such information may be charged
to
the Person liable for such tax); (f) to the extent that they are under its
control conduct matters relating to such assets at all times that any
Certificates are outstanding so as to maintain the status as a REMIC under
the
REMIC Provisions; (g) not knowingly or intentionally take any action or omit
to
take any action that would cause the termination of the tax status of any
REMIC;
(h) pay, from the sources specified in the third paragraph of this Section
8.11,
the amount of any federal or state tax, including prohibited transaction
taxes
as described below, imposed on any such REMIC prior to its termination when
and
as the same shall be due and payable (but such obligation shall not prevent
the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); (i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to any such REMIC, including but not limited
to
the income, expenses, assets and liabilities thereof and the fair market
value
and adjusted basis of the assets determined at such intervals as may be required
by the Code, as may be necessary to prepare the
109
foregoing
returns, schedules, statements or information; and (k) as and when necessary
and
appropriate, represent any such REMIC in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of
any
such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any
such
REMIC, and otherwise act on behalf of any such REMIC in relation to any tax
matter or controversy involving it.
In
order
to enable the Trustee to perform its duties as set forth in this Agreement,
the
Depositor shall provide, or cause to be provided, to the Trustee within ten
(10)
days after the Closing Date all information or data that the Trustee requests
in
writing and determines to be relevant for tax purposes to the valuations
and
offering prices of the Certificates, including, without limitation, the price,
yield, prepayment assumption and projected cash flows of the Certificates
and
the Mortgage Loans. Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor, any such additional information
or data that the Trustee may, from time to time, reasonably request in order
to
enable the Trustee to perform its duties as set forth in this
Agreement. The Depositor hereby indemnifies the Trustee for any
losses, liabilities, damages, claims or expenses of the Trustee arising from
any
errors or miscalculations of the Trustee that result from any failure of
the
Depositor to provide, or to cause to be provided, accurate information or
data
to the Trustee on a timely basis.
In
the
event that any tax is imposed on “prohibited transactions” of any REMIC
hereunder as defined in section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of such REMIC as defined in section 860G(c) of the Code,
on any contribution to any REMIC hereunder after the Startup Day pursuant
to
section 860G(d) of the Code, or any other tax is imposed, including, without
limitation, any minimum tax imposed upon any REMIC hereunder pursuant to
sections 23153 and 24874 of the California Revenue and Taxation Code, if
not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by
the
Trustee of any of its obligations under this Agreement, (ii) the Master
Servicer, in the case of any such minimum tax, or if such tax arises out
of or
results from a breach by the Master Servicer or a Seller of any of their
obligations under this Agreement, (iii) any Seller, if any such tax arises
out
of or results from that Seller’s obligation to repurchase a Mortgage Loan
pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or in the event
that the Trustee, the Master Servicer or any Seller fails to honor its
obligations under the preceding clauses (i), (ii) or (iii), any such tax
will be
paid with amounts otherwise to be distributed to the Certificateholders,
as
provided in Section 3.08(b).
For
federal income tax purposes, the Trustee shall treat the following items
as
specified. The Trustee shall treat the Carryover Shortfall Reserve
Fund as an outside reserve fund within the meaning of Treasury Regulation
1.860G-2(h), which is not an asset of any REMIC created
hereunder. The Carryover Shortfall Reserve Fund shall be treated as
owned by the Holders of the Component Certificates. The Trustee shall
treat the rights and deemed obligations of the Holders of the LIBOR Certificates
and the Component Certificates with respect to the Carryover Shortfall Reserve
Fund as rights and obligations with respect to a notional principal contract
written by the Holders of the Component Certificates in respect of any Carryover
Shortfall Amounts distributed pursuant to Section 4.02(a)(4)
herein. Thus, the LIBOR Certificates and the Component Certificates
shall be treated as representing ownership of Master REMIC regular interests
coupled with contractual rights and obligations within the meaning of
110
Treasury
Regulation 1.860G-2(i). For purposes of determining the issue price
of the LIBOR Certificates, the Trustee shall assume that the position of
the
Component Certificates in such notional principal contract has a value of
$1,000.
SECTION
8.12. Monitoring of Significance
Percentage.
[Reserved].
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 arise out of an actual violation of any
predatory or abusive lending law that also constitutes an actual breach of
clause (46) on Schedule III-A, in all cases plus accrued and unpaid interest
thereon at the applicable Adjusted Mortgage Rate; and (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 in and (ii) the distribution to the 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 Optional Termination
Date.
SECTION
9.02. Final Distribution on the
Certificates.
If
on any
Determination Date, the Master Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than
the
funds in the Certificate Account, the Master Servicer shall direct the Trustee
promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the
Trust Fund pursuant to Section 9.01, at least 20 days prior to the date
notice is to be mailed to the Certificateholders, the Master Servicer shall
notify the Depositor and the Trustee of the date the Master Servicer intends
to
cause a termination pursuant to Section 9.01 and of the applicable repurchase
price of the Mortgage Loans and REO Properties.
111
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
the Certificateholders.
In
the
event such notice is given, the Master Servicer shall cause all related 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 Mortgage
Loans and REO Properties and the receipt by the Trustee of a Request for
Release
therefor, the Trustee shall promptly release to the Master Servicer the Mortgage
Files for the Mortgage Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class, in each case on the
final
Distribution Date and in the order set forth in Section 4.02, in proportion
to
their respective Percentage Interests, with respect to Certificateholders
of the
same Class, an amount equal to (i) as to each Class of Regular Certificates,
the
Certificate Balance thereof plus accrued interest thereon (or on their Notional
Amount, if applicable) in the case of an interest -bearing Certificate and
(ii)
as to the Residual Certificates, the amount, if any, which remains on deposit
in
the Distribution Account (other than the amounts retained to meet claims)
after
application pursuant to clause (i) above. Notwithstanding the
reduction of the Class Certificate Balance of any Class of Certificates to
zero,
such Class will be outstanding hereunder (solely for the purpose of receiving
distributions and not for any other purpose) until the termination of the
respective obligations and responsibilities of the Depositor, each Seller,
the
Master Servicer and the Trustee hereunder in accordance with Article
IX.
In
the
event that any 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 to this Agreement.
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SECTION
9.03. Additional Termination
Requirements.
(a) In
the event the Master Servicer exercises its purchase option or options as
provided in Section 9.01, the Mortgage Loans and REO Properties then
remaining in the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee has been supplied with an Opinion
of
Counsel, at the expense of the Master Servicer to the effect that the failure
to
comply with the requirements of this Section 9.03 will not (i) result
in the imposition of taxes on “prohibited transactions” on any REMIC as defined
in section 860F of the Code, or (ii) cause any REMIC to fail to
qualify as a REMIC at any time that any Certificates are
outstanding:
(1) Within
90 days prior to the final Distribution Date set forth in the notice given
by
the Master Servicer under Section 9.02, the Master Servicer shall prepare
and the Trustee, at the expense of the “tax matters person,” shall adopt a plan
of complete liquidation within the meaning of section 860F(a)(4) of the
Code which, as evidenced by an Opinion of Counsel (which opinion shall not
be an
expense of the Trustee or the Tax Matters Person), meets the requirements
of a
qualified liquidation; and
(2) Within
90 days after the time of adoption of such a plan of complete liquidation,
the
Trustee shall sell all of the assets of the Trust Fund to the Master Servicer
for cash in accordance with Section 9.01.
(b) The
Trustee as agent for any REMIC created under this Agreement hereby agrees
to
adopt and sign such a plan of complete liquidation upon the written request
of
the Master Servicer and the receipt of the Opinion of Counsel referred to
in
Section 9.03(a)(1) and to take such other action in connection therewith as
may be reasonably requested by the Master Servicer.
(c) By
their acceptance of the Certificates, the Holders thereof hereby authorize
the
Master Servicer to prepare and the Trustee to adopt and sign a plan of complete
liquidation.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
SECTION
10.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, each Seller,
the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to
correct any defective provision in this Agreement or to supplement any provision
in this Agreement which may be inconsistent with any other provision in this
Agreement, (iii) to conform this Agreement to the Prospectus and Prospectus
Supplement provided to investors in connection with the initial offering
of the
Certificates, (iv) to add to the duties of the Depositor, any Seller or the
Master Servicer, (v) to modify, alter, amend, add to or rescind any of the
terms
or provisions contained in this Agreement to comply with any rules or
regulations promulgated by the Securities and Exchange Commission from time
to
time, (vi) to add any other provisions with respect to matters or questions
arising hereunder or (vii) to modify, alter, amend, add to or rescind any
of the terms or provisions contained in this Agreement; provided that any
action
pursuant to clauses (vi) or (vii) above shall not, as evidenced by an
113
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 such Certificates; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in (i), without the consent of the Holders of
Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating 66-2/3%, or (iii) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Certificates then
outstanding.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel, which opinion shall not be an expense of the Trustee or the Trust
Fund,
to the effect that such amendment will 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.
114
It
shall
not be necessary for the consent of Certificateholders under this Section
to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of
the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment without
receiving an Opinion of Counsel (which Opinion shall not be an expense of
the
Trustee or the Trust Fund), satisfactory to the Trustee that (i) such
amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any
material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
SECTION
10.02. Recordation of Agreement;
Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for
real
property records in all the counties or other comparable jurisdictions in
which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, such recordation
to be
effected by the Master Servicer at its expense, but only upon direction by
the
Trustee accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the
Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as in this Agreement
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed
to be
an original, and such counterparts shall constitute but one and the same
instrument.
SECTION
10.03. Governing Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH
LAWS.
SECTION
10.04. Intention of Parties.
(a) It
is the express intent of the parties hereto that the conveyance of the (i)
Mortgage Loans by the Sellers to the Depositor and (ii) Trust Fund by the
Depositor to the Trustee each be, and be construed as, an absolute
sale thereof to the Trustee. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in
the event that, notwithstanding the intent of the parties, such assets are
held
to be the property of any Seller or the Depositor, as the case may be, or
if for
any other reason this Agreement or any Supplemental Transfer Agreement is
held
or deemed to create a security interest in either such assets, then
(i) this Agreement or any Supplemental Transfer Agreement shall be
deemed to be a security agreement (within the meaning of the Uniform Commercial
Code of the State of New York) with
115
respect
to all such assets and security interests and (ii) the conveyances
provided for in this Agreement or any Supplemental Transfer Agreement shall
be
deemed to be an assignment and a grant pursuant to the terms of this Agreement
(a) by each Seller to the Depositor or (b) 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.
The
parties to this Agreement shall not
waive any of the representations set forth in this Section 10.04(b) without
obtaining a confirmation of the then-current ratings of the
Certificates.
116
(c) The
Master Servicer shall take such action as is reasonably necessary to maintain
the perfection and priority of the security interest of the Trustee in the
Mortgage Loans; provided, however, that the obligation to deliver the Mortgage
File to the Trustee pursuant to Section 2.01 shall be solely the Depositor’s
obligation and the Master Servicer shall not be responsible for the safekeeping
of the Mortgage Files by the Trustee.
(d) It
is understood and agreed that the representations and warranties set forth
in
subsection (b) above shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach
of any of the foregoing representations and warranties set forth in subsection
(b) above, which breach materially and adversely affects the interest of
the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
SECTION
10.05. Notices.
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual
knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Master Servicer or the Trustee and the
appointment of any successor;
4. The
repurchase or substitution of Mortgage Loans pursuant to
Section 2.03;
5. The
final payment to Certificateholders; and
6. Any
rating action involving the long-term credit rating of Countrywide, which
notice
shall be made by first class mail within two Business Days after the
Trustee gains actual knowledge of such a rating action.
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.
All
directions, demands and notices under this Agreement shall be in writing
and
shall be deemed to have been duly given when delivered by first class mail,
by
courier or by facsimile transmission to (1) in the case of the Depositor,
CWALT,
Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile
number: (000) 000-0000, Attention: Xxxx Xxxxx, (2) in the
case of
117
Countrywide,
Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number: (000) 000-0000, Attention: Xxxx Xxxxx or
such other address as may be hereafter furnished to the Depositor and the
Trustee by Countrywide in writing, (3) in the case of Park Granada, Park
Granada
LLC, c/o Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxx Xxxxx or such other address as may be hereafter
furnished to the Depositor and the Trustee by Park Granada in writing, (4)
in
the case of Park Monaco Inc., c/o Countrywide Financial Corporation, 0000
Xxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx or such other address as may be
hereafter furnished to the Depositor and the Trustee by Park Monaco in writing,
(5) in the case of Park Sienna LLC, c/o Countrywide Financial Corporation,
0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000)
000-0000, Attention: Xxxx Xxxxx or such other address as may be
hereafter furnished to the Depositor and the Trustee by Park Sienna in writing,
(6) in the case of the Master Servicer, Countrywide Home Loans Servicing
LP, 000
Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, facsimile number (000) 000-0000,
Attention: Xxxx Xxxx, or such other address as may be hereafter
furnished to the Depositor and the Trustee by the Master Servicer in writing,
(7) in the case of the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx,
0
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile number: (000) 000-0000,
Attention: Mortgage-Backed Securities Group, CWALT, Inc. Series 2007-OA9,
or
such other address as the Trustee may hereafter furnish to the Depositor
or
Master Servicer, and (8) in the case of the Rating Agencies, the address
specified therefor in the definition corresponding to the name of such Rating
Agency. Notices to Certificateholders shall be deemed given when
mailed, first class postage prepaid, to their respective addresses appearing
in
the Certificate Register.
SECTION
10.06. Severability of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders of the
Certificates.
SECTION
10.07. Assignment.
Notwithstanding
anything to the contrary contained in this Agreement, except as provided
in
Section 6.02, this Agreement may not be assigned by the Master Servicer
without the prior written consent of the Trustee and the Depositor.
SECTION
10.08. Limitation on Rights of
Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the
trust
created by this Agreement, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No
Certificateholder shall have any right to vote (except as provided in this
Agreement) or in any manner otherwise control the operation and management
of
the Trust Fund, or the
118
obligations
of the parties hereto, nor shall anything set forth in this Agreement or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party
by
reason of any action taken by the parties to this Agreement pursuant to any
provision of this Agreement.
No
Certificateholder shall have any right by virtue or by availing itself of
any
provisions of this Agreement to institute any suit, action or proceeding
in
equity or at law upon or under or with respect to this Agreement, unless
such
Holder previously shall have given to the Trustee a written notice of an
Event
of Default and of the continuance thereof, as provided in this Agreement,
and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request
to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity
as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute
any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain
or seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner provided in this Agreement
and
for the common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section 10.08, each and every
Certificateholder and the Trustee shall be entitled to such relief as can
be
given either at law or in equity.
SECTION
10.09. Inspection and Audit Rights.
The
Master Servicer agrees that, on reasonable prior notice, it will permit and
will
cause each Subservicer to permit any representative of the Depositor or the
Trustee during the Master Servicer’s normal business hours, to examine all the
books of account, records, reports and other papers of the Master Servicer
relating to the Mortgage Loans, to make copies and extracts therefrom, to
cause
such books to be audited by independent certified public accountants selected
by
the Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Master Servicer hereby authorizes
said accountants to discuss with such representative such affairs, finances
and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the
Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall
be
borne by the Master Servicer or the related Subservicer.
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
119
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 the date that is one year and one day after the
Certificates have been paid.
EXCHANGE
ACT REPORTING
SECTION
11.01. Filing Obligations.
The
Master Servicer, the Trustee and each Seller shall reasonably cooperate with
the
Depositor in connection with the satisfaction of the Depositor’s reporting
requirements under the Exchange Act with respect to the Trust
Fund. In addition to the information specified below, if so requested
by the Depositor for the purpose of satisfying its reporting obligation under
the Exchange Act, the Master Servicer, the Trustee and each Seller shall
(and
the Master Servicer shall cause each Subservicer to) provide the Depositor
with
(a) such information which is available to such Person without unreasonable
effort or expense and within such timeframe as may be reasonably requested
by
the Depositor to comply with the Depositor’s reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor
is
not a party) to any agreement or amendment required to be filed, copies of
such
agreement or amendment in XXXXX-compatible form.
SECTION
11.02. Form 10-D Filings.
(a) In
accordance with the Exchange Act, the Trustee shall prepare for filing and
file
within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act) with the Commission with respect to the Trust Fund,
a
Form 10-D with copies of the Monthly Statement and, to the extent delivered
to
the Trustee, no later than 10 days following the Distribution Date, such
other
information identified by the Depositor or the Master Servicer, in writing,
to
be filed with the Commission (such other information, the “Additional Designated
Information”). If the Depositor or Master Servicer directs that any
Additional Designated
120
Information
is to be filed with any Form 10-D, the Depositor or Master Servicer, as the
case
may be, shall specify the Item on Form 10-D to which such information is
responsive and, with respect to any Exhibit to be filed on Form 10-D, the
Exhibit number. Any information to be filed on Form 10-D shall be
delivered to the Trustee in XXXXX-compatible form or as otherwise agreed
upon by
the Trustee and the Depositor or the Master Servicer, as the case may be,
at the
Depositor’s expense, and any necessary conversion to XXXXX-compatible format
will be at the Depositor’s expense. At the reasonable request of, and
in accordance with the reasonable directions of, the Depositor or the Master
Servicer, subject to the two preceding sentences, the Trustee shall prepare
for
filing and file an amendment to any Form 10-D previously filed with the
Commission with respect to the Trust Fund. The Master Servicer shall
sign the Form 10-D filed on behalf of the Trust Fund.
(b) No
later than each Distribution Date, each of the Master Servicer and the Trustee
shall notify (and the Master Servicer shall cause any Subservicer to notify)
the
Depositor and the Master Servicer of any Form 10-D Disclosure Item, together
with a description of any such Form 10-D Disclosure Item in form and substance
reasonably acceptable to the Depositor. In addition to such
information as the Master Servicer and the Trustee are obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Depositor, each of the Master Servicer and the Trustee shall provide such
information which is available to the Master Servicer and the Trustee, as
applicable, without unreasonable effort or expense regarding the performance
or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Master Servicer) as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB. Such information shall be provided concurrently with
the delivery of the reports specified in Section 4.06(c) in the case of the
Master Servicer and the Monthly Statement in the case of the Trustee, commencing
with the first such report due not less than five Business Days following
such
request.
(c) The
Trustee shall not have any responsibility to file any items (other than those
generated by it) that have not been received in a format suitable (or readily
convertible into a format suitable) for electronic filing via the XXXXX system
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it or that are readily convertible to
such
format). The Trustee shall have no liability to the
Certificateholders, the Trust Fund, the Master Servicer or the Depositor
with
respect to any failure to properly prepare or file any of Form 10-D to the
extent that such failure is not the result of any negligence, bad faith or
willful misconduct on its part.
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
121
differs
by 5% or more (other than as a result of the pool assets converting into
cash in
accordance with their terms) from the description of the asset pool in the
Prospectus Supplement.
SECTION
11.04. Form 10-K Filings.
Prior
to
March 30th of each year, commencing in 2008 (or such earlier date as may
be
required by the Exchange Act), the Depositor shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. A senior officer in charge of the servicing function of the
Master Servicer shall sign each Form 10-K filed on behalf of the Trust
Fund. Such Form 10-K shall include as exhibits each (i) annual
compliance statement described under Section 3.16, (ii) annual report on
assessments of compliance with servicing criteria described under Section
11.07
and (iii) accountant’s report described under Section 11.07. Each
Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to
be
included therewith, as described in Section 11.05.
If
the
Item 1119 Parties listed on Exhibit T 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 T setting forth the Item 1119
Parties. No later than March 15 of each year, commencing in 2008, the
Master Servicer and the Trustee shall notify (and the Master Servicer shall
cause any Subservicer to notify) the Depositor and the Master Servicer of
any
Form 10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the
Depositor. Additionally, each of the Master Servicer and the Trustee
shall provide, and shall cause each Reporting Subcontractor retained by the
Master Servicer or the Trustee, as applicable, and in the case of the Master
Servicer shall cause each Subservicer, to provide, the following information
no
later than March 15 of each year in which a Form 10-K is required to be filed
on
behalf of the Trust Fund: (i) if such Person’s report on assessment of
compliance with servicing criteria described under Section 11.07 or related
registered public accounting firm attestation report described under Section
11.07 identifies any material instance of noncompliance, notification of
such
instance of noncompliance and (ii) if any such Person’s report on assessment of
compliance with servicing criteria or related registered public accounting
firm
attestation report is not provided to be filed as an exhibit to such Form
10-K,
information detailing the explanation why such report is not
included.
SECTION
11.05. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
of the Commission promulgated thereunder (including any interpretations thereof
by the Commission’s staff)). No later than March 15 of each year,
beginning in 2008, the Master Servicer and the Trustee shall (unless such
person
is the Certifying Person), and the Master Servicer shall cause each Subservicer
and each Reporting Subcontractor and the Trustee shall cause each Reporting
Subcontractor to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying Person”) a certification (each, a
“Performance Certification”), in the form attached hereto as Exhibit R-1
(in the case of a Subservicer or any Reporting Subcontractor of the Master
Servicer or a Subservicer) and Exhibit R-2 (in the case of the Trustee or
any
Reporting Subcontractor of the Trustee), on which the Certifying Person,
the
entity for which the Certifying Person acts as an officer, and such entity’s
122
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 2008:
(i) Each
of the Master Servicer and the Trustee shall deliver to the Depositor and
the
Master Servicer a report (in form and substance reasonably satisfactory to
the
Depositor) regarding the Master Servicer’s or the Trustee’s, as applicable,
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be
signed by an authorized officer of such Person and shall address each of
the
Servicing Criteria specified on a certification substantially in the form
of
Exhibit S hereto delivered to the Depositor concurrently with the execution
of
this Agreement. To the extent any of the Servicing Criteria are not
applicable to such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a statement
to
that effect. The Depositor and the Master Servicer, and each of their
respective officers and directors shall be entitled to rely on upon each
such
servicing criteria assessment.
(ii) Each
of the Master Servicer and the Trustee shall deliver to the Depositor and
the
Master Servicer a report of a registered public accounting firm reasonably
acceptable to the Depositor that attests to, and reports on, the assessment
of
compliance made by Master Servicer or the Trustee, as applicable, and delivered
pursuant to the preceding paragraphs. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act, including, without limitation that in
the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such
an
opinion. Such report must be available for general use and not
contain restricted
123
use
language. To the extent any of the Servicing Criteria are not
applicable to such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a statement
to
that effect.
(iii) The
Master Servicer shall cause each Subservicer and each Reporting Subcontractor
to
deliver to the Depositor an assessment of compliance and accountant’s
attestation as and when provided in paragraphs (a) and (b) of this Section
11.07.
(iv) The
Trustee shall cause each Reporting Subcontractor to deliver to the Depositor
and
the Master Servicer an assessment of compliance and accountant’s attestation as
and when provided in paragraphs (a) and (b) of this Section.
(v) The
Master Servicer and the Trustee shall execute (and the Master Servicer shall
cause each Subservicer to execute, and the Master Servicer and the Trustee
shall
cause each Reporting Subcontractor to execute) a reliance certificate to
enable
the Certification Parties to rely upon each (i) annual compliance statement
provided pursuant to Section 3.16, (ii) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section 11.07
and
(iii) accountant’s report provided pursuant to this Section 11.07 and shall
include a certification that each such annual compliance statement or report
discloses any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the certificates
provided for in this Section 11.07. In the event the Master Servicer, any
Subservicer, the Trustee or Reporting Subcontractor is terminated or resigns
during the term of this Agreement, such Person shall provide a certification
to
the Certifying Person pursuant to this Section 11.07 with respect to the
period
of time it was subject to this Agreement or provided services with respect
to
the Trust Fund, the Certificates or the Mortgage Loans.
(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 S 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
124
with
respect to the Master Servicer’s duties with respect to preparing and filing any
Exchange Act Reports or as the Certifying Person). The Master
Servicer shall be responsible for obtaining from each Subservicer and delivering
to the Depositor any servicer compliance statement required to be delivered
by
such Subservicer under Section 3.16, any assessment of compliance and
attestation required to be delivered by such Subservicer under Section 11.07
and
any certification required to be delivered to the Certifying Person under
Section 11.05 as and when required to be delivered. As a condition to
the succession to any Subservicer as subservicer under this Agreement by
any
Person (i) into which such Subservicer may be merged or consolidated, or
(ii)
which may be appointed as a successor to any Subservicer, the Master Servicer
shall provide to the Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, (x) written notice to the Depositor
of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K.
(b) It
shall not be necessary for the Master Servicer, any Subservicer or the Trustee
to seek the consent of the Depositor or any other party hereto to the
utilization of any Subcontractor. The Master Servicer or the Trustee,
as applicable, shall promptly upon request provide to the Depositor (or any
designee of the Depositor, such as the Master Servicer or administrator)
a
written description (in form and substance satisfactory to the Depositor)
of the
role and function of each Subcontractor utilized by such Person (or in the
case
of the Master Servicer, 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
125
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 U, and
the
certifications referred to in Section 11.07.
SECTION
11.10. Reconciliation of
Accounts.
Any
reconciliation of Accounts performed by any party hereto, or any Subservicer
or
Subcontractor, shall be prepared no later than 45 calendar days after the
bank
statement cutoff date.
* * * * * *
126
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/ Xxxxxxx Xxxxxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxxxxx | |||
| Title: Managing Director | |||
|
THE
BANK OF NEW YORK,
as
Trustee
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | |||
| Title: Assistant Treasurer | |||
|
COUNTRYWIDE
HOME LOANS, INC.,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxxxxx | |||
| Title: Managing Director | |||
|
PARK
GRANADA LLC,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxxxxx | |||
| Title: Managing Director | |||
|
PARK
MONACO INC.,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxxxxx | |||
| Title: Managing Director | |||
|
PARK
SIENNA LLC,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxxxxx | |||
| Title: Managing Director | |||
|
COUNTRYWIDE
HOME LOANS SERVICING LP,
as
Master Servicer
|
|||
|
By:
|
COUNTRYWIDE GP, INC. | ||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxxxxx | |||
| Title: Managing Director | |||
Acknowledged
solely with respect to its obligations under Section 4.01(b):
| THE BANK OF NEW YORK, in its individual capacity | |||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
SCHEDULE
I
Mortgage
Loan Schedule
[Delivered
at Closing to Trustee]
S-I-1
SCHEDULE
II-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
Representations
and Warranties of Countrywide
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule II-A to the Depositor, the Master Servicer and
the
Trustee, as of the Closing Date. Capitalized terms used but not
otherwise defined in this Schedule II-A shall have the meanings ascribed
thereto
in the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”)
relating to the above-referenced Series, among Countrywide, 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 and each Supplemental
Transfer 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 each
Supplemental Transfer 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 each Supplemental
Transfer Agreement; and the Pooling and Servicing Agreement and each
Supplemental Transfer 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 and each
Supplemental Transfer Agreement by Countrywide, the sale of the Countrywide
Mortgage Loans by Countrywide under the Pooling and Servicing Agreement and
each
Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Countrywide and will not (A) result in a material breach of
any
term or provision of the charter or by-laws of Countrywide or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or
result in a material default under, the terms of any other material agreement
or
instrument to which Countrywide is a party or by which it may be bound, or
(C)
constitute a material violation of any statute, order or regulation applicable
to Countrywide of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Countrywide; and Countrywide is
not
in breach or violation of any material indenture or other material agreement
or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair Countrywide’s ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-A-1
(4) Countrywide
is an approved servicer of conventional mortgage loans for FNMA or FHLMC
and is
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to sections 203 and 211 of the National Housing Act.
(5) No
litigation is pending or, to the best of Countrywide’s knowledge, threatened,
against Countrywide that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Countrywide to sell the Countrywide Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
of,
or compliance by Countrywide with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Countrywide has obtained the
same.
(7) Countrywide
intends to treat the transfer of the Countrywide Mortgage Loans to the Depositor
as a sale of the Countrywide Mortgage Loans for all tax, accounting and
regulatory purposes.
(8) Countrywide
is a member of MERS in good standing, and will comply in all material respects
with the rules and procedures of MERS in connection with the servicing of
the
MERS Mortgage Loans in the Trust Fund for as long as such Mortgage Loans
are
registered with MERS.
S-II-A-2
SCHEDULE
II-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
Representations
and Warranties of Park Granada
Park
Granada LLC (“Park Granada”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-B to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule II-B shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Park Granada, as a seller, 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 each Supplemental Transfer 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 each Supplemental
Transfer Agreement; and the Pooling and Servicing Agreement and each
Supplemental Transfer 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 and each
Supplemental Transfer Agreement by Park Granada, the sale of the Park Granada
Mortgage Loans by Park Granada under the Pooling and Servicing Agreement
and
each Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Granada and will not (A) result in a material breach
of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Granada or (B) materially conflict with, result
in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Granada is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Granada
of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Park Granada; and Park Granada is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair Park Granada’s ability to perform or
meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-B-1
(4) No
litigation is pending or, to the best of Park Granada’s knowledge, threatened,
against Park Granada that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Granada to sell the Park Granada Mortgage Loans or to perform any
of its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Granada
of,
or compliance by Park Granada with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Granada has obtained the
same.
(6) Park
Granada intends to treat the transfer of the Park Granada Mortgage Loans
to the
Depositor as a sale of the Park Granada Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-B-2
SCHEDULE
II-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
Representations
and Warranties of Park Monaco
Park
Monaco Inc. (“Park Monaco”) and Countrywide Home Loans, Inc. (“Countrywide”),
each hereby makes the representations and warranties set forth in this Schedule
II-C to the Depositor, the Master Servicer and the Trustee, as of the Closing
Date. Capitalized terms used but not otherwise defined in this
Schedule II-C shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Park Monaco, as a seller, Countrywide, as
a
seller, Park Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and
The
Bank of New York, as trustee.
(1) Park
Monaco is a corporation duly formed and validly existing and in good standing
under the laws of the State of Delaware.
(2) Park
Monaco has the full corporate power and authority to sell each Park Monaco
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and each Supplemental Transfer 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 each Supplemental
Transfer Agreement; and the Pooling and Servicing Agreement and each
Supplemental Transfer 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 and each
Supplemental Transfer Agreement by Park Monaco, the sale of the Park Monaco
Mortgage Loans by Park Monaco under the Pooling and Servicing Agreement and
each
Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement, and the fulfillment of or compliance with
the
terms thereof are in the ordinary course of business of Park Monaco and will
not
(A) result in a material breach of any term or provision of the certificate
of
incorporation or by-laws of Park Monaco or (B) materially conflict with,
result
in a material breach, violation or acceleration of, or result in a material
default under, the terms of any other material agreement or instrument to
which
Park Monaco is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Monaco of
any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Park Monaco; and Park Monaco is not in breach or violation
of
any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair Park Monaco’s ability to perform or
meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-C-1
(4) No
litigation is pending or, to the best of Park Monaco’s knowledge, threatened,
against Park Monaco that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Monaco to sell the Park Monaco Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Monaco
of,
or compliance by Park Monaco with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Monaco has obtained the
same.
(6) Park
Monaco intends to treat the transfer of the Park Monaco Mortgage Loans to
the
Depositor as a sale of the Park Monaco Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-C-2
SCHEDULE
II-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
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. 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 each Supplemental Transfer 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 each Supplemental
Transfer Agreement; and the Pooling and Servicing Agreement and each
Supplemental Transfer 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 and each
Supplemental Transfer Agreement by Park Sienna, the sale of the Park Sienna
Mortgage Loans by Park Sienna under the Pooling and Servicing Agreement and
each
Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Sienna and will not (A) result in a material breach of
any
term or provision of the certificate of formation or the limited liability
company agreement of Park Sienna or (B) materially conflict with, result
in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Sienna is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Sienna of
any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Park Sienna; and Park Sienna is not in breach or violation
of
any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair Park Sienna’s ability to perform or
meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-D-1
(4) No
litigation is pending or, to the best of Park Sienna’s knowledge, threatened,
against Park Sienna that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the
ability
of Park Sienna to sell the Park Sienna Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance
with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Sienna
of,
or compliance by Park Sienna with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Sienna has obtained the
same.
(6) Park
Sienna intends to treat the transfer of the Park Sienna Mortgage Loans to
the
Depositor as a sale of the Park Sienna Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-D-2
SCHEDULE
III-A
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
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 Initial Mortgage Loans as of the Closing
Date, or if so specified herein, as of the Initial Cut-off Date, and with
respect to all of the Supplemental Mortgage Loans as of the related Supplemental
Transfer Date or if so specified herein, as of the related Supplemental Cut-off
Date. Capitalized terms used but not otherwise defined in this
Schedule III-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 Initial Mortgage Loan is true and correct in all material
respects as of the Closing Date and with respect to each Supplemental Mortgage
Loan is true and correct in all material respects as of the related Supplemental
Transfer Date (in each case, other than the information contained in clauses
(xix), (xx) and (xxi) of the Mortgage Loan Schedule).
(2) As
of the Closing Date, all payments with respect to each Initial Mortgage Loan
due
prior to the Initial Cut-off Date have been made. As of each Supplemental
Transfer Date, all payments with respect to each related Supplemental Mortgage
Loan due prior to the related Supplemental Cut-off Date have been
made.
(3) No
Initial Mortgage Loan had a Loan-to-Value Ratio at origination in excess
of
100.00%.
(4) Each
Mortgage is a valid and enforceable first lien on the Mortgaged Property
subject
only to (a) the lien of non delinquent current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
of such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal
made
in connection with the origination of the related Mortgage Loan, and (c)
other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage.
(5) [Reserved].
S-III-A-1
(6) There
is no delinquent tax or assessment lien against any Mortgaged
Property.
(7) There
is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal of
or
interest on such Mortgage Note.
(8) There
are no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with, the
lien
of such Mortgage, except those which are insured against by the title insurance
policy referred to in item (12) below.
(9) As
of the Closing Date, 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 with respect to the Initial Mortgage Loans and as of
the
related Supplemental Transfer Date with respect to the Supplemental Mortgage
Loans, neither the Sellers, 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,
adjustable rate rider, negative amortization endorsement and extended coverage
endorsement, if applicable, in an amount at least equal to the Cut-off Date
Stated Principal Balance of each such Mortgage Loan or a commitment (binder)
to
issue the same was effective on the date of the origination of each Mortgage
Loan, each such policy is valid and remains in full force and effect, and
each
such policy was issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located and acceptable to FNMA
or
FHLMC and is in a form acceptable to FNMA or FHLMC, which policy insures
Countrywide and successor owners of indebtedness secured by the insured
Mortgage, as to the first priority lien of the Mortgage subject to the
exceptions set forth in paragraph (4) above and against any loss by reason
of
the invalidity or the unenforceability of the lien resulting from the provisions
of the Mortgage providing for adjustment of the mortgage interest rate and/or
the monthly payment including any negative amortization
thereunder. 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.
S-III-A-2
(13) With
respect to each Mortgage Loan, all mortgage rate and payment adjustments,
if
any, made on or prior to the Cut-off Date have been made in accordance with
the
terms of the related Mortgage Note or subsequent modifications, if any, and
applicable law.
(14) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended) by an entity that satisfied
at the
time of origination the requirements of Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended.
(15) To
the best of Countrywide’s knowledge, all of the improvements which were included
for the purpose of determining the Appraised Value of the Mortgaged Property
lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property.
(16) To
the best of Countrywide’s knowledge, no improvement located on or being part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation. To the best of Countrywide’s knowledge, all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use
and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities, unless the lack thereof would not have a material
adverse effect on the value of such Mortgaged Property, and the Mortgaged
Property is lawfully occupied under applicable law.
(17) Each
Mortgage Note and the related Mortgage are genuine, and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms and under applicable law. To the best of Countrywide’s
knowledge, all parties to the Mortgage Note and the Mortgage had legal capacity
to execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(18) The
proceeds of the Mortgage Loans have been fully disbursed, there is no
requirement for future advances thereunder and any and all requirements as
to
completion of any on-site or off-site improvements and as to disbursements
of
any escrow funds therefor have been complied with. All costs, fees
and expenses incurred in making, or closing or recording the Mortgage Loans
were
paid.
(19) The
related Mortgage contains customary and enforceable provisions which render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including, (i) in
the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure.
(20) With
respect to each Mortgage constituting a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses
are
or will become payable by the Certificateholders to the trustee under the
deed
of trust, except in connection with a trustee’s sale after default by the
Mortgagor.
S-III-A-3
(21) Each
Mortgage Note and each Mortgage is in substantially one of the forms acceptable
to FNMA or FHLMC, with such riders as have been acceptable to FNMA or FHLMC,
as
the case may be.
(22) There
exist no deficiencies with respect to escrow deposits and payments, if such
are
required, for which customary arrangements for repayment thereof have not
been
made, and no escrow deposits or payments of other charges or payments due
Countrywide have been capitalized under the Mortgage or the related Mortgage
Note.
(23) The
origination, underwriting and collection practices used by Countrywide with
respect to each Mortgage Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(24) There
is no pledged account or other security other than real estate securing the
Mortgagor’s obligations.
(25) No
Mortgage Loan has a shared appreciation feature, or other contingent interest
feature.
(26) Each
Mortgage Loan contains a customary “due on sale” clause.
(27) As
of the Closing Date, 78.82% of the Initial Mortgage Loans by aggregate Stated
Principal Balance of the Initial Mortgage Loans as of the Cut-off Date, provide
for a Prepayment Charge.
(28) Generally,
each Mortgage Loan
that had a Loan-to-Value Ratio at origination in excess of 80% is the subject
of
a Primary Insurance Policy that insures that portion of the principal balance
equal to a specified percentage times the sum of the remaining principal
balance
of the related Mortgage Loan, the accrued interest thereon and the related
foreclosure expenses. The specified coverage percentage for mortgage
loans with terms to maturity between 25 and 30 years is 12% for Loan-to-Value
Ratios between 80.01% and 85.00%, 25% for Loan-to-Value Ratios between 85.01%
and 90.00%, 30% for Loan-to-Value Ratios between 90.01% and 95.00% and 35%
for
Loan-to-Value Ratios between 95.01% and 100%. The specified coverage
percentage for mortgage loans with terms to maturity of up to 20 years ranges
from 6% to 12% for Loan-to-Value Ratios between 80.01% and 85.00%, from 12%
to
20% for Loan-to-Value Ratios between 85.01% and 90.00% and 20% to 25% for
Loan-to-Value Ratios between 90.01% and 95.00%. Each such Primary
Insurance Policy is issued by a Qualified Insurer. All provisions of
any such Primary Insurance Policy have been and are being complied with,
any
such policy is in full force and effect, and all premiums due thereunder
have
been paid. Any Mortgage subject to any such Primary Insurance Policy
obligates either the Mortgagor or the mortgagee thereunder to maintain such
insurance and to pay all premiums and charges in connection therewith, subject,
in each case, to the provisions of Section 3.09(b) of the Pooling and Servicing
Agreement. The Mortgage Rate for each Mortgage Loan is net of any
such insurance premium.
(29) As
of the Closing Date or the related Supplemental Transfer Date, as applicable,
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 (30) below contain a
standard mortgagee clause naming Countrywide or the original mortgagee, and
its
successors in interest, as mortgagee, and Countrywide has received no notice
that any premiums due and payable thereon have not been paid; the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance including
flood insurance at the Mortgagor’s cost and expense, and upon the Mortgagor’s
failure to do so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at the Mortgagor’s cost and expense and to seek reimbursement
therefor from the Mortgagor.
S-III-A-4
(30) If
the Mortgaged Property is in an area identified in the Federal Register by
the
Federal Emergency Management Agency as having special flood hazards, a flood
insurance policy in a form meeting the requirements of the current guidelines
of
the Flood Insurance Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
not less than the least of (A) the original outstanding principal balance
of the
Mortgage Loan, (B) the minimum amount required to compensate for damage or
loss
on a replacement cost basis, or (C) the maximum amount of insurance that
is
available under the Flood Disaster Protection Act of 1973, as
amended.
(31) To
the best of Countrywide’s knowledge, there is no proceeding occurring, pending
or threatened for the total or partial condemnation of the Mortgaged
Property.
(32) There
is no material monetary default existing under any Mortgage or the related
Mortgage Note and, to the best of Countrywide’s knowledge, there is no material
event which, with the passage of time or with notice and the expiration of
any
grace or cure period, would constitute a default, breach, violation or event
of
acceleration under the Mortgage or the related Mortgage Note; and Countrywide
has not waived any default, breach, violation or event of
acceleration.
(33) Each
Mortgaged Property is improved by a one- to four-family residential dwelling
including condominium units and dwelling units in PUDs, which, to the best
of
Countrywide’s knowledge, does not include cooperatives or mobile homes and does
not constitute other than real property under state law.
(34) Each
Mortgage Loan is being master serviced by the Master Servicer.
(35) Any
future advances made prior to the Cut-off Date have been consolidated with
the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term
reflected on the Mortgage Loan Schedule. The consolidated principal
amount does not exceed the original principal amount of the Mortgage
Loan. The Mortgage Note does not permit or obligate the Master
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
S-III-A-5
(36) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has
been
assessed, but is not yet due and payable. Except for (A) payments in
the nature of escrow payments, and (B) interest accruing from the date of
the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever
is
later, to the day which precedes by one month the Due Period 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.
(37) Each
Mortgage Loan was underwritten in all material respects in accordance with
the
underwriting guidelines described in the Prospectus Supplement.
(38) Other
than with respect to any Streamlined Documentation Mortgage Loan as to which
the
loan-to-value ratio of the related Original Mortgage Loan was less than 90%
at
the time of the origination of such Original Mortgage Loan, prior to the
approval of the Mortgage Loan application, an appraisal of the related Mortgaged
Property was obtained from a qualified appraiser, duly appointed by the
originator, who had no interest, direct or indirect, in the Mortgaged Property
or in any loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; such appraisal
is
in a form acceptable to FNMA and FHLMC.
(39) None
of the Initial Mortgage Loans is a graduated payment mortgage loan or a growing
equity mortgage loan, and none of the Initial Mortgage Loans is subject to
a
buydown or similar arrangement.
(40) Any
leasehold estate securing a Mortgage Loan has a term of not less than five
years
in excess of the term of the related Mortgage Loan.
(41) The
Mortgage Loans were selected from among the outstanding adjustable-rate one-
to
four-family mortgage loans in the portfolios of the Sellers at the Closing
Date
as to which the representations and warranties made as to the Mortgage Loans
set
forth in this Schedule III-A can be made. Such selection was not made
in a manner intended to adversely affect the interests of
Certificateholders.
(42) Except
for 0.00% of the Initial Mortgage Loans, by aggregate Stated Principal Balance
of the Initial Mortgage Loans as of the Cut-off Date, each Mortgage Loan
transferred and assigned to the Trustee on the Closing Date has a payment
date
on or before July 1, 2007.
(43) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Trustee certifying that the original Mortgage Note is a Lost Mortgage Note,
if
such Mortgage Loan is subsequently in default, the enforcement of such Mortgage
Loan or of the related Mortgage by or on behalf of the Trustee will not be
materially adversely affected by the absence of the original Mortgage
Note. A “Lost Mortgage Note” is a Mortgage Note the original of which
was permanently lost or destroyed and has not been replaced.
S-III-A-6
(44) The
Mortgage Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governedby the Georgia Fair Lending Act.
(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. §§ 58-21A-1 et
seq.).
(50) 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.
(51) 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 Standard & Poor’s LEVELS® Version 6.0 Glossary
Revised, Appendix E which is attached hereto as Exhibit Q (the “Glossary”) where
(x) a “High Cost Loan” is each loan identified in the column “Category under
applicable anti-predatory lending law” of the table entitled “Standard &
Poor’s High Cost Loan Categorization” in the Glossary as each such loan is
defined in the applicable anti-predatory lending law of the State or
jurisdiction specified in such table and (y) a “Covered Loan” is each loan
identified in the column “Category under applicable anti-predatory lending law”
of the table entitled “Standard & Poor’s Covered Loan Categorization” in the
Glossary as each such loan is defined in the applicable anti-predatory lending
law of the State or jurisdiction specified in such table.
S-III-A-7
SCHEDULE
III-B
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-B to the Depositor, the Master Servicer and
the
Trustee, with respect to the Countrywide Mortgage Loans that are Initial
Mortgage Loans as of the Closing Date, and with respect to Countrywide Mortgage
Loans that are Supplemental Mortgage Loans, as of the related Supplemental
Transfer Date. Capitalized terms used but not otherwise defined in
this Schedule III-B shall have the meanings ascribed thereto in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide, as a seller, Park Granada LLC,
as a
seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and
The
Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Countrywide Mortgage Loan to the Depositor,
Countrywide had good title to, and was the sole owner of, such Countrywide
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE
III-C
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
Park
Granada LLC (“Park Granada”) hereby makes the representations and warranties set
forth in this Schedule III-C to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Granada Mortgage Loans that are Initial
Mortgage Loans as of the Closing Date, and with respect to Park Granada Mortgage
Loans that are Supplemental Mortgage Loans, as of the related Supplemental
Transfer Date. Capitalized terms used but not otherwise defined in
this Schedule III-C shall have the meanings ascribed thereto in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park
Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC,
as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as
depositor, and The Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Granada Mortgage Loan to the Depositor,
Park Granada had good title to, and was the sole owner of, such Park Granada
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
same pursuant to the Pooling and Servicing Agreement.
S-III-C-1
SCHEDULE
III-D
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
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 Initial
Mortgage Loans as of the Closing Date, and with respect to Park Monaco Mortgage
Loans that are Supplemental Mortgage Loans, as of the related Supplemental
Transfer Date. Capitalized terms used but not otherwise defined in
this Schedule III-D shall have the meanings ascribed thereto in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park
Monaco, as a seller, Park Granada LLC, as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as
depositor, and The Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Monaco Mortgage Loan to the Depositor,
Park
Monaco had good title to, and was the sole owner of, such Park Monaco Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest
and
had full right and authority, subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the same pursuant to
the
Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE
III-E
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
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 Initial
Mortgage Loans as of the Closing Date, and with respect to Park Sienna Mortgage
Loans that are Supplemental Mortgage Loans, as of the related Supplemental
Transfer Date. Capitalized terms used but not otherwise defined in
this Schedule III-E shall have the meanings ascribed thereto in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park
Sienna LLC, as a seller, Park Monaco Inc., as a seller, Park Granada LLC,
as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as
depositor, and The Bank of New York, as trustee.
(1) Immediately
prior to the assignment of each Park Sienna Mortgage Loan to the Depositor,
Park
Sienna had good title to, and was the sole owner of, such Park Sienna Mortgage
Loan free and clear of any pledge, lien, encumbrance or security interest
and
had full right and authority, subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the same pursuant to
the
Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE
IV
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-OA9
Representations
and Warranties of the Master Servicer
Countrywide
Home Loans Servicing LP (“Countrywide Servicing”) hereby makes the
representations and warranties set forth in this Schedule IV to the Depositor,
the Sellers and the Trustee, as of the Closing Date. Capitalized
terms used but not otherwise defined in this Schedule IV shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”) relating to the above-referenced Series, among Countrywide
Home Loans, Inc., as a seller, Park Granada LLC, as a seller, Park Monaco
Inc.,
as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing
LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York,
as
trustee.
(1) Countrywide
Servicing is duly organized as a limited partnership and is validly existing
and
in good standing under the laws of the State of Texas and is duly authorized
and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide Servicing in any state
in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary to
perform any of its obligations under the Pooling and Servicing Agreement
in
accordance with the terms thereof.
(2) Countrywide
Servicing has the full partnership power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has
duly
authorized by all necessary partnership action on the part of Countrywide
Servicing the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Countrywide Servicing,
enforceable against Countrywide Servicing in accordance with its terms, except
that (a) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors’ rights
generally and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide
Servicing, the servicing of the Mortgage Loans by Countrywide Servicing under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Countrywide Servicing and will not (A) result in a material
breach of any term or provision of the certificate of limited partnership,
partnership agreement or other organizational document of Countrywide Servicing
or (B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other
material agreement or instrument to which Countrywide Servicing is a party
or by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Countrywide Servicing of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
Countrywide Servicing; and Countrywide Servicing is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair the ability of Countrywide Servicing
to perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-IV-1
(4) Countrywide
Servicing is an approved servicer of conventional mortgage loans for FNMA
or
FHLMC and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No
litigation is pending or, to the best of Countrywide Servicing’s knowledge,
threatened, against Countrywide Servicing that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Countrywide Servicing to service the Mortgage
Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
Servicing of, or compliance by Countrywide Servicing with, the Pooling and
Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Countrywide Servicing has obtained the same.
(7) Countrywide
Servicing is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
S-IV-2
SCHEDULE
V
Principal
Balance Schedules
*[Attached
to Prospectus Supplement, if applicable.]
S-V-1
SCHEDULE
VI
Form
of
Monthly Master Servicer Report
|
LOAN
LEVEL REPORTING SYSTEM
|
||||
|
DATABASE
STRUCTURE
|
||||
|
[MONTH,
YEAR]
|
||||
|
Field
Number
|
Field
Name
|
Field
Type
|
Field
Width
|
Dec
|
|
1
|
INVNUM
|
Numeric
|
4
|
|
|
2
|
INVBLK
|
Numeric
|
4
|
|
|
3
|
INACNU
|
Character
|
8
|
|
|
4
|
BEGSCH
|
Numeric
|
15
|
2
|
|
5
|
SCHPRN
|
Numeric
|
13
|
2
|
|
6
|
TADPRN
|
Numeric
|
11
|
2
|
|
7
|
LIQEPB
|
Numeric
|
11
|
2
|
|
8
|
ACTCOD
|
Numeric
|
11
|
|
|
9
|
ACTDAT
|
Numeric
|
4
|
|
|
10
|
INTPMT
|
Numeric
|
8
|
|
|
11
|
PRNPMT
|
Numeric
|
13
|
2
|
|
12
|
ENDSCH
|
Numeric
|
13
|
2
|
|
13
|
SCHNOT
|
Numeric
|
13
|
2
|
|
14
|
SCHPAS
|
Numeric
|
7
|
3
|
|
15
|
PRINPT
|
Numeric
|
7
|
3
|
|
16
|
PRIBAL
|
Numeric
|
11
|
2
|
|
17
|
LPIDTE
|
Numeric
|
13
|
2
|
|
18
|
DELPRN
|
Numeric
|
7
|
|
|
19
|
PPDPRN
|
Numeric
|
11
|
2
|
|
20
|
DELPRN
|
Numeric
|
11
|
2
|
|
21
|
NXTCHG
|
Numeric
|
8
|
|
|
22
|
ARMNOT
|
Numeric
|
7
|
3
|
|
23
|
ARMPAS
|
Numeric
|
7
|
3
|
|
24
|
ARMPMT
|
Numeric
|
11
|
2
|
|
25
|
ZZTYPE
|
Character
|
2
|
|
|
26
|
ISSUID
|
Character
|
1
|
|
|
27
|
KEYNAME
|
Character
|
8
|
|
|
TOTAL
|
240
|
|||
|
Suggested
Format:
|
DBASE
file
Modem
transmission
|
|||
S-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 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.
A-2
[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 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-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
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.
B-2
[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 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.]
B-3
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
B-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By ______________________ |
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
B-5
EXHIBIT
C-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
Certificate
No.
:
Cut-off Date
:
First
Distribution
Date
:
Initial
Certificate Balance
of
this
Certificate
(“Denomination”)
: $
Initial
Certificate Balance
of
all
Certificates of
this
Class
: $
CUSIP :
Interest
Rate
:
Maturity
Date
:
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
A-R
evidencing
the distributions allocable to the Class A-R Certificates with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage loans (the
“Mortgage Loans”) secured by first liens on one- to four-family residential
properties
CWALT,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth
herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed
by
the Depositor, the Sellers, the Master Servicer or the Trustee referred to
below
or any of their respective affiliates. Neither this Certificate nor
the Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ______________ is the registered owner of the Percentage Interest
(obtained by dividing the Denomination of this Certificate by the aggregate
Initial Certificate Balance of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting of the Mortgage Loans deposited by CWALT, Inc. (the
“Depositor”). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated 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.
C-2
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 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.
C-3
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
* * *
C-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________,
20__
| THE BANK OF NEW YORK, | ||
| as Trustee | ||
| By ______________________ |
Countersigned:
By
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-5
EXHIBIT
C-2
[FORM
OF
CLASS C-P CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CLASS C-P CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS C-P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE
WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF
OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS
DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60, AND THE PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS
FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
C-2-1
Certificate
No. :
Cut-off
Date :
First
Distribution
Date :
Initial
Notional Amount
of
this
Certificate : $
Initial
Notional Amount
of
all
Certificates of
this
Class : $
Initial
Certificate Balance
of
this
Certificate
(“Denomination”) : $
Initial
Certificate Balance
of
all
Certificates of
this
Class : $
CUSIP :
ISIN :
Interest
Rate :
Maturity
Date :
CWALT,
INC.
Alternative
Loan Trust 200____-___
Mortgage
Pass-Through Certificates, Series 200____-____
Class
C-P
evidencing
a percentage interest in the distributions allocable to the Class C-P
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
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate
nor the Mortgage Loans are guaranteed or insured by any governmental agency
or
instrumentality.
This
certifies that __________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Initial
Notional Amount of this Certificate by the aggregate Initial Notional Amount
of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of
the
Mortgage Loans deposited by CWALT, Inc. (the “Depositor”). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of
the
Cut-off Date specified above (the “Agreement”) among the Depositor, Countrywide
Home Loans, Inc., as a seller (“CHL”), Park Granada LLC, as a seller (“Park
Granada”), Park Monaco Inc., as a seller (“Park Monaco”), and Park Sienna LLC,
as a seller (“Park Sienna” and, together with CHL, Park Granada and Park Monaco,
the “Sellers”), Countrywide Home Loans Servicing LP, as master servicer (the
“Master Servicer”), and The Bank of New York, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
C-2-2
No
transfer of a Class C-P Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Act and any applicable
state securities laws or is exempt from the registration requirements under
the
Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee in writing the facts surrounding the
transfer. In the event that such a transfer is to be made within two
years from the date of the initial issuance of Certificates, there shall also
be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Regulations promulgated pursuant to the Act) to the Trustee an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the Act
and
such state securities laws, which Opinion of Counsel shall not be obtained
at
the expense of the Trustee, the Master Servicer or the Depositor. The
Holder hereof desiring to effect such transfer shall, and does hereby agree
to,
indemnify the Trustee, the Certificate and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No
transfer of a Class C-P Certificate shall be made unless the Trustee shall
have
received either (i) a representation letter from the transferee of a Class
C-P
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
Class C-P Certificate has been the subject of an ERISA-Qualifying Underwriting
and the transferee is an insurance company, a representation that the transferee
is purchasing such Class C-P Certificate with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Class C-P Certificate satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60, or (iii) in the case of a Class
C-P Certificate presented for registration in the name of an employee benefit
plan subject to ERISA or a plan or arrangement subject to Section 4975 of the
Code (or comparable provisions of any subsequent enactments), a trustee of
any
such benefit plan or arrangement or any other person acting on behalf of any
such benefit plan or arrangement, an Opinion of Counsel satisfactory to the
Trustee to the effect that the purchase and holding of such Certificate will
not
result in a prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code, and will not subject the Trustee or the Master Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion
of
Counsel shall not be an expense of the Trustee, the Master Servicer or the
Trust
Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Class C-P Certificate to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
C-2-3
This
Class C-P Certificate may not be pledged or used as collateral for any other
obligation if it would cause any portion of the Trust Fund to be treated as
a
taxable mortgage pool under Section 7701(i) of the Code.
Each
Holder of this Class C-P Certificate will be deemed to have agreed to be bound
by the transfer restrictions set forth in the Agreement and all other terms
and
provisions of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless the certificate of authentication hereon has been
manually executed by an authorized officer of the Trustee.
* * *
C-2-4
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-2-5
EXHIBIT
D
[FORM
OF
NOTIONAL AMOUNT CERTIFICATE]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY DISTRIBUTION
IN
RESPECT OF PRINCIPAL.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
[UNTIL
THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE,
OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE TRUSTEE BY THE TRANSFEREE’S ACCEPTANCE OF A CERTIFICATE OF THIS
CLASS AND BY A BENEFICIAL OWNER’S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF
THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR A PERSON INVESTING ASSETS OF,
AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
D-1
Certificate
No.
:
Cut-off Date
:
First
Distribution
Date
:
Initial
Certificate Balance
of
this
Certificate
(“Denomination”)
: $
Initial
Certificate Balance
of
all
Certificates of
this
Class
: $
CUSIP :
Interest
Rate
: Interest
Only
Maturity
Date
:
CWALT,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class with respect to a Trust Fund consisting primarily of
a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWALT,
Inc., as Depositor
The
Notional Amount of this certificate at any time, may be less than the Notional
Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that ___________ is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the denomination of this
Certificate by the aggregate Initial Notional Amount of all Certificates of
the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting primarily of the Mortgage Loans deposited
by
CWALT, Inc. (the “Depositor”). The Trust Fund was created pursuant to
a Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the “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.
D-2
[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 Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
E-1
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the Corporate Trust Office or the office or agency maintained by the Trustee
in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust
Fund will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Master Servicer, the 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 expiration of 21 years from the
death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
E-2
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________________________
___________________________________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee
on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the
following
address:
_______________________________________________________________________
Dated:
________________________________
Signature
by or on behalf of
assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds to,
______________________________________________________________, for the
account of
______________________________________________________________, account
number _______________________, or, if mailed by check, to
___________. Applicable statements should be mailed to
______________________________________________________________________________________________,
___________________________________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________________________________
This
information is provided by _____________________________________________,
the assignee named above, or _______________________________________, as
its agent.
E-3
| STATE OF | ) |
| ) ss.: | |
| COUNTY OF | ) |
On
the
_____day of ___________________, 20__ before me, a notary public in and for
said
State, personally appeared _____________________________________, known to
me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
|
Notary
Public
|
[Notarial
Seal]
E-4
EXHIBIT
F-1
[FORM
OF]
INITIAL CERTIFICATION OF TRUSTEE
(INITIAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[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. 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-1-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: | ||
| Name: | ||
| Title: | ||
F-1-2
EXHIBIT
F-2
[FORM
OF]
INITIAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
___________________
___________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc.,
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 20__-__ and the Supplemental Transfer
Agreement
dated
as of [month] ____, 200_ 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,
and
The Bank of New York, as Trustee
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) and the Supplemental Transfer
Agreement, dated as of [month] ____, 200_, the undersigned, as Trustee, hereby
certifies that, as to each Supplemental Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Supplemental Mortgage Loan paid in full or listed
on the attached schedule) it has received:
(i) (a)
the original Mortgage Note endorsed in the following form: “Pay to
the order of __________, without recourse” or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed; and
(ii) a
duly executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments).
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
F-2-1
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Supplemental Mortgage Loans identified on the Mortgage Loan
Schedule, or (ii) the collectability, insurability, effectiveness or suitability
of any such Supplemental Mortgage Loan.
F-2-2
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
EXHIBIT
G-1
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: | ||
| Name: | ||
| Title: | ||
F-2-3
[FORM
OF]
DELAY DELIVERY CERTIFICATION
(INITIAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_____________________
_____________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc.
(“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 File of
any of
the Initial Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
G-1-2
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: _____________________ | ||
| Name: | ||
| Title: |
G-1-3
EXHIBIT
G-2
[FORM
OF]
DELAY DELIVERY CERTIFICATION
(SUPPLEMENTAL
MORTGAGE LOANS)
[date]
[Master
Servicer]
[Countrywide]
|
|
Re:
|
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 The
Bank of
New York, as
Trustee,
Mortgage Pass-Through Certificates, Series 20__-__ and the Supplemental
Transfer
Agreement
dated as of [month] ____, 200_ 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, and The Bank of New York, as Trustee
|
Gentlemen:
Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto (the “Schedule A”),
delivered by the undersigned, as Trustee, on [month] __, 200_ (such date being
the related “Supplemental Transfer Date” in accordance with Section 2.02 of the
above-captioned Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”). The undersigned hereby certifies that, as to each Delay
Delivery Supplemental Mortgage Loan listed on Schedule A attached hereto (other
than any Supplemental Mortgage Loan paid in full or listed on Schedule B
attached hereto) it has received:
|
|
(i)
|
the
original Mortgage Note, endorsed by the Seller or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
the
Seller, stating that the original Mortgage Note was lost or destroyed,
together with a copy of the related Mortgage
Note;
|
|
|
(ii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS Mortgage
Loan, the original recorded Mortgage, [and in the case of each
Supplemental Mortgage Loan that is a MERS Mortgage Loan, the original
Mortgage, noting thereon the presence of the MIN of the Supplemental
Mortgage Loan and language indicating that the Supplemental Mortgage
Loan
is a MOM Loan if the Supplemental Mortgage Loan is a MOM Loan, with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has
been
recorded];
|
G-2-1
|
|
(iii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage
Loan, a duly executed assignment of the Mortgage to “The Bank of New York,
as trustee under the Pooling and Servicing Agreement dated as of
[month]
1, 2004, without recourse”, or, in the case of each Supplemental Mortgage
Loan with respect to property located in the State of California
that is
not a MERS Mortgage Loan, a duly executed assignment of the Mortgage
in
blank (each such assignment, when duly and validly completed, to
be in
recordable form and sufficient to effect the assignment of and
transfer to
the assignee thereof, under the Mortgage to which such assignment
relates);
|
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the
presence of
a MIN in the case of each MERS Mortgage Loan)];
|
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing Date.
|
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Seller cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii)
or
(iv), as applicable, the Trustee has received, in lieu thereof, a true and
complete copy of such Mortgage and/or such assignment or assignments of the
Mortgage, as applicable, each certified by the Seller, the applicable title
company, escrow agent or attorney, or the originator of such Supplemental
Mortgage Loan, as the case may be, to be a true and complete copy of the
original Mortgage or assignment of Mortgage submitted for
recording.
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Supplemental Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi),
(viii), (xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in
Section 1.01 of the Pooling and Servicing Agreement accurately reflects
information set forth in the Mortgage File.
The
Trustee has made no independent examination of any documents contained in
each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations
as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of
any of
the Supplemental Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan edule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
G-2-2
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
| THE BANK OF NEW YORK, | ||
|
as
Trustee
|
||
| By: | ||
| Name: | ||
| Title: |
G-2-3
EXHIBIT
H-1
[FORM
OF]
FINAL CERTIFICATION OF TRUSTEE
(INITIAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
___________________
___________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans, Inc.
(“Countrywide”),
as a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as
a
Seller, Park Sienna
LLC,
as a Seller, Countrywide Home Loans Servicing LP, as Master Servicer,
and
The Bank of New
York,
as Trustee, Mortgage Pass-Through Certificates, Series 200_-_
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Initial Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Initial Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
|
|
(i)
|
the
original Mortgage Note, endorsed by Countrywide or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to Countrywide, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
Countrywide, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage
Note;
|
|
|
(ii)
|
in
the case of each Initial Mortgage Loan that is not a MERS Mortgage
Loan,
the original recorded Mortgage, [and in the case of each Initial
Mortgage
Loan that is a MERS Mortgage Loan, the original Mortgage, noting
thereon
the presence of the MIN of the Mortgage Loan and language indicating
that
the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan,
with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has
been
recorded];
|
H-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 Initial Mortgage Loan that is a MERS
Mortgage
Loan)];
|
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report
or an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing
Date.
|
In
the
event that in connection with any Initial Mortgage Loan that is not a MERS
Mortgage Loan Countrywide cannot deliver the original recorded Mortgage or
all
interim recorded assignments of the Mortgage satisfying the requirements
of
clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment
or
assignments of the Mortgage, as applicable, each certified by Countrywide,
the
applicable title company, escrow agent or attorney, or the originator of
such
Initial Mortgage Loan, as the case may be, to be a true and complete copy
of the
original Mortgage or assignment of Mortgage submitted for
recording.
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Initial Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi),
(viii), (xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in
Article I of the Pooling and Servicing Agreement accurately reflects information
set forth in the Mortgage File.
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-1-2
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: |
X-0-0
XXXXXXX
X-0
[FORM
OF]
FINAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
___________________
___________________
|
|
Re:
|
Pooling
and Servicing Agreement among CWALT, Inc., as Depositor, Countrywide
Home
Loans,
Inc.,
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 20__-__ and
the
Supplemental
Transfer
Agreement dated as of [month] ____, 200_ 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, and The Bank of New York,
as
Trustee
|
Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Supplemental Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Supplemental Mortgage Loan paid in full
or listed on the attached Document Exception Report) it has
received:
|
|
(i)
|
the
original Mortgage Note, endorsed by the Seller or the originator
of such
Mortgage Loan, without recourse in the following form: “Pay to
the order of _______________ without recourse”, with all intervening
endorsements that show a complete chain of endorsement from the originator
to the Seller, or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note affidavit from
the
Seller, stating that the original Mortgage Note was lost or destroyed,
together with a copy of the related Mortgage
Note;
|
|
|
(ii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS Mortgage
Loan, the original recorded Mortgage, [and in the case of each
Supplemental Mortgage Loan that is a MERS Mortgage Loan, the original
Mortgage, noting thereon the presence of the MIN of the Mortgage
Loan and
language indicating 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];
|
H-2-1
|
|
(ii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS Mortgage
Loan, the original recorded Mortgage, [and in the case of each
Supplemental Mortgage Loan that is a MERS Mortgage Loan, the original
Mortgage, noting thereon the presence of the MIN of the Mortgage
Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan, with evidence of recording indicated thereon,
or a
copy of the Mortgage certified by the public recording office in
which
such Mortgage has been recorded];
|
|
|
(iii)
|
in
the case of each Supplemental Mortgage Loan that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage to “The Bank of New York,
as trustee under the Pooling and Servicing Agreement dated as of
[month]
1, 2004, without recourse”, or, in the case of each Supplemental Mortgage
Loan with respect to property located in the State of California
that is
not a MERS Mortgage Loan, a duly executed assignment of the Mortgage
in
blank (each such assignment, when duly and validly completed, to
be in
recordable form and sufficient to effect the assignment of and transfer
to
the assignee thereof, under the Mortgage to which such assignment
relates);
|
|
|
(iv)
|
the
original recorded assignment or assignments of the Mortgage together
with
all interim recorded assignments of such Mortgage [(noting the presence
of
a MIN in the case of each Supplemental Mortgage Loan that is a MERS
Mortgage Loan)];
|
|
|
(v)
|
the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any, with evidence of recording thereon
if
recordation thereof is permissible under applicable law;
and
|
|
|
(vi)
|
the
original or duplicate original lender’s title policy or a printout of the
electronic equivalent and all riders thereto or, in the event such
original title policy has not been received from the insurer, any
one of
an original title binder, an original preliminary title report or
an
original title commitment, or a copy thereof certified by the title
company, with the original policy of title insurance to be delivered
within one year of the Closing Date.
|
In
the
event that in connection with any Supplemental Mortgage Loan that is not a
MERS
Mortgage Loan the Seller cannot deliver the original recorded Mortgage or all
interim recorded assignments of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment or
assignments of the Mortgage, as applicable, each certified by the Seller, the
applicable title company, escrow agent or attorney, or the originator of such
Supplemental Mortgage Loan, as the case may be, to be a true and complete copy
of the original Mortgage or assignment of Mortgage submitted for
recording.
H-2-2
Based
on
its review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and related to such Supplemental Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi),
(viii), (xi) and (xiv) of the definition of the “Mortgage Loan Schedule” in
Section 1.01 of the Pooling and Servicing Agreement accurately reflects
information set forth in the Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations
as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of
the Supplemental Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Supplemental Mortgage Loan.
H-2-3
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: |
H-2-4
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 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.)
I-1
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 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.
I-2
12. Unless
the Transferor (or any subsequent transferor) expressly waives such requirement,
the Transferee (and any subsequent transferee) certifies (or will certify),
respectively, that the transfer satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula
Test” imposed by Treasury Regulation § 1.860E-1(c)(7).
* * *
I-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf by its duly authorized officer, this_____ day of ___________,
2___.
| ______________________________ | ||
| PRINT NAME OF TRANSFEREE | ||
| By: | ||
| Name: | ||
| Title: |
[Corporate
Seal]
ATTEST:
[Assistant]
Secretary
Personally
appeared before me the above-named
, known or proved to me to be the same person who executed the foregoing
instrument and to be the
of the Transferee, and acknowledged that he executed the same as his free
act
and deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this day of
,
20 .
| NOTARY PUBLIC | ||
| My Commission expires the | ||
| ____ day of ___________,20__ |
I-4
WAIVER
OF
REQUIREMENT THAT TRANSFEREE CERTIFIES TRANSFER OF CERTIFICATE SATISFIES CERTAIN
REGULATORY “SAFE HARBORS”
The
Transferor hereby waives the requirement that the Transferee certify that
the
transfer of the Certificate satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula Test” imposed by
Treasury Regulation § 1.860E-1(c)(7).
| CWALT, INC. | ||
| By: ________________________________ | ||
| Name: | ||
| Title: | ||
I-5
EXHIBIT
1
to
EXHIBIT
I
Certain
Definitions
“Asset
Test”: A transfer satisfies the Asset Test if: (i) At the time of the transfer,
and at the close of each of the transferee's two fiscal years preceding the
transferee's fiscal year of transfer, the transferee's gross assets for
financial reporting purposes exceed $100 million and its net assets for
financial reporting purposes exceed $10 million. The gross assets and net assets
of a transferee do not include any obligation of any “related person” or any
other asset if a principal purpose for holding or acquiring the other asset
is
to permit the transferee to satisfy such monetary conditions; (ii) The
transferee must be an “eligible corporation” and must agree in writing that any
subsequent transfer of the interest will be to another eligible corporation
in a
transaction that satisfies paragraphs 9 through 11 of this Transfer Affidavit
and the Asset Test. A transfer fails to meet the Asset Test if the transferor
knows, or has reason to know, that the transferee will not honor the
restrictions on subsequent transfers of the Certificate; and (iii) A reasonable
person would not conclude, based on the facts and circumstances known to the
transferor on or before the date of the transfer, that the taxes associated
with
the Certificate will not be paid. The consideration given to the transferee
to
acquire the Certificate is only one factor to be considered, but the transferor
will be deemed to know that the transferee cannot or will not pay if the amount
of consideration is so low compared to the liabilities assumed that a reasonable
person would conclude that the taxes associated with holding the Certificate
will not be paid. For purposes of applying the Asset Test, (i) an
“eligible corporation” means any domestic C corporation (as defined in section
1361(a)(2) of the Code) other than (A) a corporation which is exempt from,
or is
not subject to, tax under section 11 of the Code, (B) an entity described in
section 851(a) or 856(a) of the Code, (C) A REMIC, or (D) an organization to
which part I of subchapter T of chapter 1 of subtitle A of the Code applies;
(ii) a “related person” is any person that (A) bears a relationship to the
transferee enumerated in section 267(b) or 707(b)(1) of the Code, using “20
percent” instead of “50 percent” where it appears under the provisions, or (B)
is under common control (within the meaning of section 52(a) and (b)) with
the
transferee.
“Formula
Test”: A transfer satisfies the formula test if the present value of the
anticipated tax liabilities associated with holding the Certificate does not
exceed the sum of (i) the present value of any consideration given to the
transferee to acquire the Certificate; (ii) the present value of the expected
future distributions on the Certificate; and (iii) the present value of the
anticipated tax savings associated with holding the Certificate as the issuing
REMIC generates losses. For purposes of applying the Formula Test:
(i) The transferee is assumed to pay tax at a rate equal to the highest rate
of
tax specified in section 11(b)(1) of the Code. If the transferee has been
subject to the alternative minimum tax under section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate, then the tax rate specified in
section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in section 11(b)(1) of the Code; (ii) The transfer must satisfy
paragraph 9 of the Transfer Affidavit; and (iii) Present values are computed
using a discount rate equal to the Federal short-term rate prescribed by section
1274(d) of the Code for the month of the transfer and the compounding period
used by the taxpayer.
I-6
“Ownership
Interest”: As to any Certificate, any ownership interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or
beneficial.
“Permitted
Transferee”: Any person other than (i) the United States, any State
or political subdivision thereof, or any agency or instrumentality of any of
the
foregoing, (ii) a foreign government, International Organization or any agency
or instrumentality of either of the foregoing, (iii) an organization (except
certain farmers’ cooperatives described in section 521 of the Code) that is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by
section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Class A R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of
a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration
of
the trust and one or more United States persons have authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon
an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A
R
Certificate to such Person may cause any REMIC formed under the Agreement to
fail to qualify as a REMIC at any time that any Certificates are
Outstanding. The terms “United States,” “State” and “International
Organization” shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with
the exception of the Federal Home Loan Mortgage Corporation, a majority of
its
board of directors is not selected by such government unit.
“Person”: Any
individual, corporation, limited liability company, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Transfer”: Any
direct or indirect transfer or sale of any Ownership Interest in a Certificate,
including the acquisition of a Certificate by the Depositor.
“Transferee”: Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
I-7
EXHIBIT
2
to
EXHIBIT
I
Section
5.02(c) of the Agreement
(c) Each
Person who has or who acquires any Ownership Interest in a Class A R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Class A R Certificate are expressly
subject to the following provisions:
(1) Each
Person holding or acquiring any Ownership Interest in a Class A R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(2) Except
in connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Class A-R Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the Certificates,
no Ownership Interest in a Class A R Certificate may be registered on the
Closing Date or thereafter transferred, and the Trustee shall not register
the
Transfer of any Class A R Certificate unless, the Trustee shall have been
furnished with an affidavit (a “Transfer Affidavit”) of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
(3) Each
Person holding or acquiring any Ownership Interest in a Class A R Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Class A R
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Class A R Certificate and (C) not to Transfer its Ownership Interest in a
Class A R Certificate, or to cause the Transfer of an Ownership Interest in
a
Class A R Certificate to any other Person, if it has actual knowledge that
such
Person is not a Permitted Transferee.
(4) Any
attempted or purported Transfer of any Ownership Interest in a Class A R
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Class A R Certificate in violation of the provisions of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all rights
as
Holder thereof retroactive to the date of registration of Transfer of such
Class
A R Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Class A R Certificate that is
in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the Transfer was registered after receipt of the related Transfer
Affidavit and Transferor Certificate. The Trustee shall be entitled
but not obligated to recover from any Holder of a Class A R Certificate that
was
in fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all payments
made on such Class A R Certificate at and after either such time. Any
such payments so recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Permitted Transferee of such
Certificate.
I-8
(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: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
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: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
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: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an “accredited investor,”
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(d)
either (i) we are not an employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or a plan or
arrangement that is subject to Section 4975 of the Internal Revenue Code of
1986, as amended, nor are we acting on behalf of or investing the assets of
any
such benefit plan or arrangement to effect such acquisition or (ii) if the
Certificates have been the subject of an ERISA-Qualifying Underwriting and
we
are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we are acquiring
the Certificates for investment for our own account and not with a view to
any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Pooling and Servicing Agreement.
| Very truly yours, | ||
| __________________________ | ||
| Print Name of Transferee | ||
| By: _____________________________ | ||
|
Authorized
Officer
|
K-1
EXHIBIT
L-1
[FORM
OF]
RULE 144A LETTER
_____________________
Date
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase the
Certificates, (d) either (i) we are not an employee benefit plan that is subject
to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of or investing the assets
of any such benefit plan or arrangement to effect such acquisition or (ii)
if
the Certificates have been the subject of an ERISA-Qualifying Underwriting
and
we are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or otherwise
disposed of the Certificates, any interest in the Certificates or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Certificates, any interest in the Certificates
or
any other similar security from, or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, (f) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to
us is being made in reliance on Rule 144A. We are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (ii) pursuant to another exemption
from registration under the Securities Act.
| Very truly yours, | ||
| __________________________ | ||
| Print Name of Transferee | ||
| By: _____________________________ | ||
|
Authorized
Officer
|
L-1-1
ANNEX
1 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis either at least $100,000 in securities or, if Buyer is
a
dealer, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities (except for the excluded securities referred to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
|
|
___
|
Corporation,
etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described
in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
|
|
|
___
|
Bank. The
Buyer (a) is a national bank or banking institution organized under
the
laws of any State, territory or the District of Columbia, the business
of
which is substantially confined to banking and is supervised by the
State
or territorial banking commission or similar official or is a foreign
bank
or equivalent institution, and (b) has an audited net worth of at
least
$25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached
hereto.
|
|
|
___
|
Savings
and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or
similar institution, which is supervised and examined by a State
or
Federal authority having supervision over any such institutions or
is a
foreign savings and loan association or equivalent institution and
(b) has
an audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a copy of which is attached
hereto.
|
|
|
___
|
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.
|
L-1-2
|
|
___
|
State
or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
|
|
|
___
|
ERISA
Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of
1974.
|
|
|
___
|
Investment
Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of
1940.
|
|
|
___
|
Small
Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act
of
1958.
|
|
|
___
|
Business
Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors
Act of
1940.
|
3. The
term “securities” as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part
of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the
securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer
in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer’s direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary of another
enterprise and the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The
Buyer acknowledges that it is familiar with Rule 144A and understands that
the
seller to it and other parties related to the Certificates are relying and
will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
L-1-3
6. Until
the date of purchase of the Rule 144A Securities, the Buyer will notify each
of
the parties to which this certification is made of any changes in the
information and conclusions herein. Until such notice is given, the
Buyer’s purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Buyer is a bank or savings and loan is provided above, the Buyer agrees that
it
will furnish to such parties updated annual financial statements promptly after
they become available.
|
Print
Name of Buyer
|
||
| By: ________________________ | ||
| Name: | ||
| Title: | ||
| Date: _______________________ | ||
L-1-4
ANNEX
2 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal
year. For purposes of determining the amount of securities owned by
the Buyer or the Buyer’s Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer’s Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with
respect
to the cost of those securities has been published. If clause (ii) in
the preceding sentence applies, the securities may be valued at
market.
|
|
___
|
The
Buyer owned
$
in securities (other than the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
|
|
___
|
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $ in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
3. The
term “Family of Investment Companies” as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue
of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
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.
L-1-5
5. The
Buyer is familiar with Rule 144A and understands that the parties listed
in the
Rule 144A Transferee Certificate to which this certification relates are
relying
and will continue to rely on the statements made herein because one or more
sales to the Buyer will be in reliance on Rule 144A. In addition, the
Buyer will only purchase for the Buyer’s own account.
6. Until
the date of purchase of the Certificates, the undersigned will notify the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
|
Print
Name of Buyer or Adviser
|
||
| By: ________________________ | ||
| Name: | ||
| Title: | ||
| IF AN ADVISER: | ||
|
Print
Name of Buyer
|
||
| Date: ______________________________ | ||
X-0-0
XXXXXXX
X-0
[FORM
OF]
ERISA LETTER (COVERED CERTIFICATES)
| ________________________ | ||
| Date |
CWALT,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx – 8W
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Mortgage-Backed
Securities Group
Series
200_-_
|
|
|
Re:
|
CWALT,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates, we certify that
we
are not, and are not acquiring the Certificates on behalf of or with plan assets
of an “employee benefit plan” as defined in section 3(3) of ERISA that is
subject to Title I of ERISA, a “plan” as defined in section 4975 of the Code
that is subject to section 4975 of the Code, or any person investing on behalf
of or with plan assets (as defined in 29 CFR §2510.3-101 or otherwise under
ERISA) of such an employee benefit plan or plan, or (ii) the purchase and
holding of the Certificates satisfy the requirements for exemptive relief under
XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or a similar
exemption. We understand that, in the event that such representation
is violated, such transfer or acquisition shall be void and of no
effect.
| Very truly yours, | ||
| __________________________ | ||
| Print Name of Transferee | ||
| By: _____________________________ | ||
|
Authorized
Officer
|
L-2-1
EXHIBIT
M
[FORM
OF]
REQUEST FOR RELEASE
(for
Trustee)
CWALT,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
Loan
Information
Name
of
Mortgagor:
___________________________________
Servicer
Loan
No.: ___________________________________
Trustee
Name: ___________________________________
Address: ___________________________________
___________________________________
___________________________________
Trustee
Mortgage
File
No.:
___________________________________
The
undersigned Master Servicer hereby acknowledges that it has received from
The
Bank of New York, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the “Documents”). All capitalized terms not otherwise defined in
this Request for Release shall have the meanings given them in the Pooling
and
Servicing Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series among the Trustee, Countrywide Home Loans, Inc.,
as a
Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master Servicer
and CWALT, Inc., as Depositor.
|
( )
|
Mortgage
Note dated _______________, 20__, in the original principal sum
of
$___________, made by ____________________________, payable to, or
endorsed to the order of, the
Trustee.
|
|
( )
|
Mortgage
recorded on __________________ as instrument no.
______________________ in the County Recorder’s Office of the County of
_________________________, State of _______________________
in book/reel/docket _________________________ of official records
at
page/image
_______________________________.
|
|
( )
|
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
____________________________.
|
M-1
|
( )
|
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.
|
Mortgage
Loan repurchased by the Master Servicer pursuant to Section 3.11(a)
(Countrywide Home Loans Servicing LP hereby certifies that the Purchase
Price for the Mortgage Loan has been deposited in the Certificate
Account).
|
|
|
5.
|
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, 4 or 5 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:
[COUNTRYWIDE
HOME LOANS SERVICING LP]
By: _________________________
Name:
Title:
Date:
TRUSTEE
CONSENT TO RELEASE AND
ACKNOWLEDGEMENT
OF RECEIPT
By: _________________________
Name:
Title:
Date:
N-2
[Reserved]
O-1
EXHIBIT
P
[FORM
OF]
SUPPLEMENTAL TRANSFER AGREEMENT
THIS
SUPPLEMENTAL TRANSFER AGREEMENT, dated as of ____________, 200_ (this
“Supplemental Transfer Agreement”), among CWALT, INC., a Delaware corporation,
as depositor (the “Depositor”), COUNTRYWIDE HOME LOANS, INC. (“CHL”), a New York
corporation, as a seller (a “Seller”), PARK GRANADA LLC (“Park Granada”), a
Delaware limited liability company, as a seller (a “Seller”), PARK MONACO INC.
(“Park Monaco”), a Delaware limited liability corporation, as a seller (a
“Seller”), PARK SIENNA LLC (“Park Sienna”), a Delaware limited liability
company, as a seller (a “Seller” and together with CHL, Park Granada and Park
Monaco, the “Sellers”) under the Pooling and Servicing Agreement referred to
below, and THE BANK OF NEW YORK, a New York banking corporation, as trustee
(the
“Trustee”);
WHEREAS,
the Depositor, the Sellers, the Trustee and Countrywide Home Loans Servicing
LP,
as Master Servicer, have entered in the Pooling and Servicing Agreement, dated
as of [month] 1, 2003 (the “Pooling and Servicing Agreement”), in relation to
the Alternative Loan Trust 200_-_, Mortgage Pass-Through Certificates, Series
200_-_;
WHEREAS,
Section 2.01(e) of the Pooling and Servicing Agreement provides for the parties
hereto to enter into this Supplemental Transfer Agreement in accordance with
the
terms and conditions of the Pooling and Servicing Agreement;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged the
parties hereto agree as follows:
(a) The
“Supplemental Transfer Date” with respect to this Supplemental Transfer
Agreement shall be ________, 200_.
(b) The
“Aggregate Supplemental Purchase Amount” with respect to this Supplemental
Transfer Agreement shall be $________; provided, however, that such amount
shall
not exceed the amount on deposit in the Supplemental Loan Account.
(c) The
“Capitalized Interest Requirement” with respect to this Supplemental Transfer
Agreement shall be $________; provided, however, that such amount shall not
exceed the amount on deposit in the Capitalized Interest Account.
(d) [Reserved]
(e) In
case any provision of this Supplemental Transfer Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions or obligations shall not in any way be affected or impaired
thereby.
(f) In
the event of any conflict between the provisions of this Supplemental Transfer
Agreement and the Pooling and Servicing Agreement, the provisions of the Pooling
and Servicing Agreement shall prevail.
P-1
(g) This
Supplemental Transfer Agreement shall be governed by, and shall be construed
and
enforced in accordance with the laws of the State of New York.
(h) The
Supplemental Transfer Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same
instrument.
P-2
IN
WITNESS WHEREOF, the parties to this Supplemental Transfer Agreement have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
|
CWALT,
INC.,
as
Depositor
|
|||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
|
COUNTRYWIDE
HOME LOANS, INC.,
as
Seller
|
|||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
|
PARK
GRANADA LLC,
as
a Seller
|
|||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
|
PARK
MONACO, INC.,
as
a Seller
|
|||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
P-3
|
PARK
SIENNA LLC,
as
a Seller
|
|||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
|
THE
BANK OF NEW YORK,
not
in its individual capacity,
but
solely as Trustee
|
|||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
Acknowledged
and Agreed:
COUNTRYWIDE
HOME LOANS SERVICING LP,
as
Master Servicer
By: COUNTRYWIDE
GP, INC.
By: _____________________________
Name:
Title:
P-4
EXHIBIT
Q
GLOSSARY
of TERMS for STANDARD & POOR’S LEVELS® VERSION 5.7 FILE FORMAT
APPENDIX E
– Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that
certain loans classified by the relevant statute as Covered are included
in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
Standard
&
Poor’s
High Cost Loan
Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January
1, 2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746 et
seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 – March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 – current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et
seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207)
and;
|
|
High
APR Consumer Loan (id. § 16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 287 – High Cost Home Loan Act, Ky. Rev. Stat. §§ 360.100 et
seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq. and 209 C.M.R. §§ 40.01 et
seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E et
seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines
of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code Xxx.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et seq.
Effective
June 5, 2002
|
West
Virginia Mortgage Loan Act
Loan
|
Q-1
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 – March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 – July 5, 2004
|
Covered
Home Loan
|
Standard & Poor’s Home Loan
Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 – Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 – March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E et
seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines
of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Q-2
EXHIBIT
R-1
[FORM
OF]
CLASS A-1-A SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS A-1-B SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS A-2-A SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
CLASS A-3 SWAP CONTRACT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
SWAP CONTRACT ASSIGNMENT AGREEMENT
Delivered
to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX
X-0
[FORM
OF]
SWAP CONTRACT ADMINISTRATION AGREEMENT
Delivered
to the Trustee at closing and on file with the Trustee.
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
T-1
(ii)(A)
the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium,
receivership, or other similar law relating to creditors’ rights generally or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law; and
4.
We
certify that all amounts due in connection with the waiver of a Prepayment
Charge inconsistent with clause 3 above which are required to be deposited
by
the Master Servicer pursuant to Section 3.19 of the Pooling and Servicing
Agreement, have been or will be so deposited.
| [COUNTRYWIDE HOME LOANS, INC.], | ||
|
as
Master Servicer
|
T-2
SCHEDULE
OF MORTGAGE LOANS FOR WHICH A PREPAYMENT WAS RECEIVED DURING THE RELATED
PREPAYMENT PERIOD
|
Loan
Number
|
Clause
2: Yes/No
|
Clause
3: (i) or (ii)
|
T-3
EXHIBIT
U
MONTHLY
STATEMENT
[On
file
with Trustee]
U-1
EXHIBIT
V-1
[FORM
OF]
PERFORMANCE CERTIFICATION
(Servicer)
[On
file
with Trustee]
V-1-1
EXHIBIT
V-2
[FORM
OF]
PERFORMANCE CERTIFICATION
(Trustee)
[On
file
with Trustee]
V-2-1
EXHIBIT
W
[FORM
OF]
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by [the Master Servicer] [Trustee]
[Name of Subservicer] shall address, at a minimum, the criteria identified
as
below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or
other triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third
party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect
on the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or
distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve
accounts or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who
prepared the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are
prepared in
accordance with timeframes and other terms set forth in the
transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to
the Servicer’s
investor records, or such other number of days specified in
the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by
the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are
made, reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such
other period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days
prior to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be
made on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business
days to the
obligor’s records maintained by the servicer, or such other number
of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as
set forth in
the transaction agreements.
|
|
W-1
| [NAME OF MASTER SERVICER] [NAME OF TRUSTEE] [NAME OF CO-TRUSTEE] [NAME OF SUBSERVICER] | ||
| Date: _________________________ | ||
| By: ________________________________ | ||
| Name: | ||
| Title: |
W-2
EXHIBIT
X
[FORM
OF]
LIST OF ITEM 1119 PARTIES
ALTERNATIVE
LOAN TRUST 200_-__
MORTGAGE
PASS-THROUGH CERTIFICATES,
Series
200_-__
[Date]
|
Party
|
Contact
Information
|
X-1
EXHIBIT
Y
FORM
OF
XXXXXXXX-XXXXX CERTIFICATION
(REPLACEMENT
OF MASTER SERVICER)
|
Re:
|
Alternative
Loan Trust 200[ ]-[ ], Mortgage Pass-Through Certificates,
Series 200[ ]-[ ]
|
The
undersigned Servicer hereby
certifies to the Depositor and its officers, directors and Affiliates
(collectively, the “Certification Parties”) as follows, with the knowledge and
intent that the Certification Parties will rely on this Certification in
connection with the certification concerning the Trust Fund to be signed
by an
officer of the Depositor and submitted to the Securities and Exchange Commission
pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I
have reviewed the servicer compliance statement of the Master Servicer provided
in accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Master Servicer during 200[ ] that
were
delivered by the Master Servicer to the Trustee pursuant to the Agreement
(collectively, the “Servicing Information”);
2. Based
on my knowledge, the Servicing Information, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicing Information;
3. Based
on my knowledge, all of the Servicing Information required to be provided
by the
Master Servicer under the Agreement has been provided to the Depositor or
the
Trustee, as applicable;
4. I
am responsible for reviewing the activities performed by the Master Servicer
as
servicer under the 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 Sienna LLC, as a seller, Park
Monaco Inc., as a seller,
[ ], as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee, and based on my knowledge and the compliance review conducted in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Pooling and Servicing Assessment or the Attestation Report,
the
Master Servicer has fulfilled its obligations under the Agreement in all
material respects; and
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5. The
Compliance Statement required to be delivered by the Master Servicer pursuant
to
the Pooling and Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Master Servicer and by any Subservicer or
Reporting Subcontractor pursuant to the Agreement, have been provided to
the
Depositor. Any material instances of noncompliance described in such
reports have been disclosed to the Depositor. Any material instance
of noncompliance with the Servicing Criteria has been disclosed in such
reports.
| [MASTER SERVICER] | ||
| By:________________________________ | ||
|
Name:
|
||
|
Title:
|
||
| Date: _________________________ | ||
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