The Pooling and Servicing Agreement
EXHIBIT
99.1
5
EXECUTION
COPY
CWMBS,
INC.,
Depositor
COUNTRYWIDE
HOME LOANS, INC.,
Seller
PARK
GRANADA LLC,
Seller
PARK
MONACO INC.,
Seller
PARK
SIENNA LLC,
Seller
COUNTRYWIDE
HOME LOANS SERVICING LP,
Master
Servicer
and
THE
BANK
OF NEW YORK,
Trustee
___________________________________
Dated
as
of February 1, 2007
__________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-HY1
|
Table
of Contents
|
||
|
Page
|
||
|
ARTICLE
I DEFINITIONS
|
||
|
SECTION
1.01.
|
Defined
Terms.
|
16
|
|
SECTION
1.02.
|
Certain
Interpretative Principles.
|
47
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES
|
||
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans
|
49
|
|
SECTION
2.02.
|
Acceptance
by Trustee of the Mortgage Loans.
|
53
|
|
SECTION
2.03.
|
Representations,
Warranties and Covenants of the Sellers and Master
Servicer.
|
55
|
|
SECTION
2.04.
|
Representations
and Warranties of the Depositor as to the Mortgage Loans.
|
58
|
|
SECTION
2.05.
|
Delivery
of Opinion of Counsel in Connection with Substitutions.
|
58
|
|
SECTION
2.06.
|
Execution
and Delivery of Certificates.
|
59
|
|
SECTION
2.07.
|
REMIC
Matters.
|
59
|
|
SECTION
2.08.
|
Covenants
of the Master Servicer.
|
59
|
|
ARTICLE
III ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
|
||
|
SECTION
3.01.
|
Master
Servicer to Service Mortgage Loans.
|
60
|
|
SECTION
3.02.
|
Subservicing;
Enforcement of the Obligations of Subservicers.
|
61
|
|
SECTION
3.03.
|
Rights
of the Depositor and the Trustee in Respect of the Master
Servicer.
|
61
|
|
SECTION
3.04.
|
Trustee
to Act as Master Servicer.
|
62
|
|
SECTION
3.05.
|
Collection
of Mortgage Loan Payments, the Certificate Account, the Distribution
Account and the Principal Reserve Fund.
|
62
|
|
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
Principal 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
|
i
|
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.
|
76
|
|
SECTION
3.18.
|
Notification
of Adjustments.
|
77
|
|
SECTION
3.19.
|
Prepayment
Charges.
|
77
|
|
ARTICLE
IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
|
||
|
SECTION
4.01.
|
Advances.
|
79
|
|
SECTION
4.02.
|
Priorities
of Distribution.
|
80
|
|
SECTION
4.03.
|
[Reserved].
|
83
|
|
SECTION
4.04.
|
Allocation
of Realized Losses.
|
83
|
|
SECTION
4.05.
|
Cross-Collateralization;
Adjustments to Available Funds
|
84
|
|
SECTION
4.06.
|
Monthly
Statements to Certificateholders.
|
85
|
|
ARTICLE
V THE CERTIFICATES
|
||
|
SECTION
5.01.
|
The
Certificates.
|
87
|
|
SECTION
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
87
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
92
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
92
|
|
SECTION
5.05.
|
Access
to List of Certificateholders’ Names and Addresses.
|
92
|
|
SECTION
5.06.
|
Maintenance
of Office or Agency.
|
93
|
|
SECTION
5.07.
|
Depositable
and Exchangeable Certificates.
|
93
|
|
ARTICLE
VI THE DEPOSITOR AND THE MASTER SERVICER
|
||
|
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
|
|
|
|
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
|
||
|
SECTION
8.01.
|
Duties
of Trustee.
|
102
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
103
|
ii
|
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.
|
110
|
|
ARTICLE
IX TERMINATION
|
||
|
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.
|
112
|
|
ARTICLE
X MISCELLANEOUS PROVISIONS
|
||
|
SECTION
10.01.
|
Amendment.
|
114
|
|
SECTION
10.02.
|
Recordation
of Agreement; Counterparts.
|
115
|
|
SECTION
10.03.
|
Governing
Law.
|
116
|
|
SECTION
10.04.
|
Intention
of Parties.
|
116
|
|
SECTION
10.05.
|
Notices.
|
117
|
|
SECTION
10.06.
|
Severability
of Provisions.
|
118
|
|
SECTION
10.07.
|
Assignment.
|
119
|
|
SECTION
10.08.
|
Limitation
on Rights of Certificateholders.
|
119
|
|
SECTION
10.09.
|
Inspection
and Audit Rights.
|
119
|
|
SECTION
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
120
|
|
SECTION
10.11.
|
[Reserved].
|
120
|
|
SECTION
10.12.
|
Protection
of Assets.
|
120
|
|
ARTICLE
XI EXCHANGE ACT REPORTING
|
||
|
SECTION
11.01.
|
Filing
Obligations.
|
120
|
|
SECTION
11.02.
|
Form
10-D Filings.
|
121
|
|
SECTION
11.03.
|
Form
8-K Filings.
|
122
|
|
SECTION
11.04.
|
Form
10-K Filings.
|
122
|
|
SECTION
11.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
123
|
|
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.
|
125
|
|
SECTION
11.09.
|
Amendments.
|
126
|
|
SECTION
11.10.
|
Reconciliation
of Accounts.
|
126
|
iii
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
Balances Schedule [if applicable]
|
S-V-1
|
|
Schedule
VI:
|
Form
of Monthly Master Servicer Report
|
S-VI-1
|
|
Schedule
VII:
|
Prepayment
Charge Schedule
|
S-VII-I
|
|
Schedule
VIII:
|
Schedule
of Available Exchanges of Depositable Certificates for Exchangeable
Certificates
|
S-VIII-I
|
EXHIBITS
|
Exhibit
A:
|
Form
of Senior Certificate (excluding Notional Amount
Certificates)
|
A-1
|
|
Exhibit
B:
|
Form
of Subordinated Certificate
|
B-1
|
|
Exhibit
C:
|
Form
of Class A-R Certificate
|
C-1
|
|
Exhibit
D:
|
Form
of Notional Amount Certificate
|
D-1
|
|
Exhibit
E:
|
Form
of Reverse of Certificates
|
E-1
|
|
Exhibit
F-1:
|
Form
of Initial Certification of Trustee
|
F-1
|
|
Exhibit
F-2:
|
[Reserved]
|
F-2
|
|
Exhibit
G-1:
|
Form
of Delay Delivery Certification of Trustee
|
G-1
|
|
Exhibit
G-2:
|
[Reserved]
|
G-2
|
|
Exhibit
H-1:
|
Form
of Final Certification of Trustee
|
H-1
|
|
Exhibit
H-2:
|
[Reserved]
|
H-2
|
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
I-1
|
|
Exhibit
J-1:
|
Form
of Transferor Certificate (Residual)
|
X-0
|
|
Xxxxxxx
X-0:
|
Form
of Transferor Certificate (Private)
|
J-2
|
|
Exhibit
K:
|
Form
of Investment Letter [Non-Rule 144A]
|
K-1
|
|
Exhibit
L:
|
Form
of Rule 000X Xxxxxx
|
X-0
|
|
Xxxxxxx
M:
|
Form
of Request for Release (for Trustee)
|
M-1
|
|
Exhibit
N:
|
Form
of Request for Release (Mortgage Loan) Paid in Full, Repurchased
and
Replaced)
|
N-1
|
iv
|
Exhibit
O:
|
[Reserved]
|
O-1
|
|
Exhibit
P:
|
[Reserved]
|
P-1
|
|
Exhibit
Q:
|
Standard
& Poor’s LEVELS® Version 5.6d Glossary Revised, Appendix
E
|
Q-1
|
|
Exhibit
R:
|
[Reserved]
|
R-1
|
|
Exhibit
S-1:
|
[Reserved]
|
S-1-1
|
|
Exhibit
S-2:
|
[Reserved]
|
S-2-1
|
|
Exhibit
T:
|
Form
of Officer’s Certificate with respect to Prepayments
|
T-1
|
|
Exhibit
U:
|
Monthly
Report
|
U-1
|
|
Exhibit
V-1:
|
Form
of Performance Certification (Subservicer)
|
V-1-1
|
|
Exhibit
V-2:
|
Form
of Performance Certification (Trustee)
|
V-2-1
|
|
Exhibit
W:
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
W-1
|
|
Exhibit
X:
|
List
of Item 1119 Parties
|
X-1
|
|
Exhibit
Y:
|
Form
of Xxxxxxxx-Xxxxx Certification (Replacement of Master
Servicer)
|
Y-1
|
v
THIS
POOLING AND SERVICING AGREEMENT, dated as of February 1, 2007, among CWMBS,
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:
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. For federal income tax purposes, the Trustee
shall treat the Trust Fund as consisting of, among other things, a trust (the
“ES Trust”) beneath which are three real estate mortgage investment conduits (or
in the alternative, the “Lower Tier REMIC,” the “Middle Tier REMIC” and the
“Master REMIC”) and shall make all elections as necessary for such treatment.
The Lower Tier REMIC will hold all the assets of the Trust Fund and will issue
several classes of uncertificated Lower Tier REMIC Interests. The Class LTR-A-R
Interest is hereby designated as the residual interest in the Lower Tier REMIC
and each other Lower Tier REMIC Interest is hereby designated as a regular
interest in the Lower Tier REMIC. The Middle Tier REMIC will hold all the
regular interests in the Lower Tier REMIC and will issue several classes of
uncertificated Middle Tier REMIC Interests. The Class MTR-A-R Interest is hereby
designated as the residual interest in the Middle Tier REMIC and each other
Middle Tier REMIC Interest is hereby designated as a regular interest in the
Middle Tier REMIC. The Master REMIC will hold all the regular interests in
the
Middle Tier REMIC and will issue several classes of uncertificated Master REMIC
Interests. The Class MR-A-R Interest is hereby designated as the residual
interest in the Master REMIC and each other Master REMIC Interest is hereby
designated as a regular interest in the Master REMIC. The “latest possible
maturity date,” for federal income tax purposes, of all REMIC regular interests
created hereby will be the Latest Possible Maturity Date.
The
ES
Trust shall hold the Class LTR-A-R Interest, the Class MTR-A-R Interest, the
Class MR-A-R Interest, all Master REMIC regular interests and shall issue the
Certificates. Each Certificate, other than the Class A-R Certificate, will
represent ownership of one or more of the Master REMIC regular interests held
by
the ES Trust. The Class A-R Certificate will represent ownership of the LTR-A-R
Interest, the MTR-A-R and the MR-A-R Interest, which are, respectively, the
sole
Classes of REMIC residual interest in each of the Lower Tier REMIC, the Middle
Tier REMIC and the Master REMIC.
For
federal income tax purposes the Trustee shall treat the ES Trust as a Grantor
Trust and shall treat each Holder of an ES Trust Certificate as the owner of
the
individual, underlying assets represented by such ES Trust Certificate. In
addition, to the fullest extent possible, ownership of an ES Trust Certificate
shall be treated as direct ownership of the individual, underlying assets
represented by such ES Trust Certificate for federal income tax reporting
purposes.
The
following table sets forth characteristics of the ES Trust Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount and, in addition,
one
Residual Certificate representing the Tax Matters Person Certificate may be
issued in a different amount):
|
Class
Designation
|
Initial
Maximum Class Certificate Balance
|
Pass-Through
Rate
(per
annum)
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Classes
of Master REMIC Interests Represented
(14)
|
|
Class
1-A-1
|
$247,884,000
|
(1)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, MR-1-A-1-G,
MR-1-A-1-H, MR-1-A-1-I, MR-1-A-1-J, MR-1-A-1-K, XX-0-X-0-X, XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X
|
|
Class
1-A-2
|
$10,329,000
|
(1)
|
$25,000
|
$1
|
MR-1-A-2
|
|
Class
1-A-3
|
$247,884,000
|
(2)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X. XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X
XX-0-X-0-X.
|
|
Class
1-A-3X
|
$ 247,884,000
|
(3)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, MR-1-A-1-J, XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X.
|
0
|
Class
1-A-4
|
$ 247,884,000
|
(2)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X XX-0-X-0-X, XX-0-X-0-X, MR-1-A-1-H, MR-1-A-1-J,
MR-1-A-1-K, MR-1-A-1-M, MR-1-A-1-N MR-1-A-1-P,
MR-1-A-1-Q.
|
|
Class
1-A-4X
|
$ 247,884,000
|
(3)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X,
|
|
Class
1-A-5
|
$ 96,278,145
|
(4)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X MR-1-A-1-F, MR-1-A-1-G,
MR-1-A-1-H, MR-1-A-1-I, MR-1-A-1-J, MR-1-A-1-K, XX-0-X-0-X, XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X.
|
|
Class
1-A-6
|
$ 151,605,854
|
(5)
|
$25,000
|
$1
|
MR-1-A-1-N
|
|
Class
1-A-7
|
$ 58,376,682
|
(4)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X XX-0-X-0-X, MR-1-A-1-G, MR-1-A-1-I,
MR-1-A-1-J, MR-1-A-1-K, MR-1-A-1-L, MR-1-A-1-M, MR-1-A-1-O,
MR-1-A-1-P,.
|
3
|
Class
1-A-8
|
$ 189,507,318
|
(6)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X.
|
|
Class
1-A-9
|
$ 80,231,788
|
(7)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X XX-0-X-0-X, XX-0-X-0-X, MR-1-A-1-G, MR-1-A-1-F,
MR-1-A-1-H, MR-1-A-1-I, MR-1-A-1-J, MR-1-A-1-K, XX-0-X-0-X, XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X.
|
|
Class
1-A-10
|
$ 167,652,212
|
(5)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X.
|
|
Class
1-A-11
|
$ 46,701,345
|
(7)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X, MR-1-A-1-J, MR-1-A-1-K,
MR-1-A-1-L, MR-1-A-1-M, MR-1-A-1-O, MR-1-A-1-P,
|
|
Class
1-A-12
|
$ 201,182,654
|
(6)
|
$25,000
|
$1
|
XX-0-X-0-X,
XX-0-X-0-X XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X,
MR-1-A-1-Q.
|
4
|
Class
2-A-1
|
$ 117,410,000
|
(8)
|
$25,000
|
$1
|
MR-2-A-1
|
|
Class
2-A-2
|
$ 4,892,000
|
(8)
|
$25,000
|
$1
|
MR-2-A-2
|
|
Class A-R(9)
|
$100
|
(1)
|
(9)
|
(9)
|
LTR-A-R,
MTR-A-R
MR-A-R
|
|
Class
M
|
$ 9,711,000
|
(10)
|
$25,000
|
$1
|
MR-M
|
|
Class
B-1
|
$ 2,379,000
|
(10)
|
$25,000
|
$1
|
MR-B-1
|
|
Class
B-2
|
$ 1,585,000
|
(10)
|
$25,000
|
$1
|
MR-B-2
|
|
Class
B-3
|
$ 793,000
|
(10)
|
$100,000
|
$1
|
MR-B-3
|
|
Class
B-4
|
$ 594,000
|
(10)
|
$100,000
|
$1
|
MR-B-4
|
|
Class
B-5
|
$ 793,676
|
(10)
|
$100,000
|
$1
|
MR-B-5
|
|
Class
1-P
|
$100
|
(11)
|
(12)
|
(13)
|
MR-1-P
|
|
Class
2-P
|
$100
|
(11)
|
(12)
|
(13)
|
MR-2-P
|
|
(1)
|
The
Pass-Through Rate for this Class of Certificates for the Interest
Accrual
Period for any Distribution Date will be a per annum rate equal to
the
Weighted Average Adjusted Net Mortgage Rate of the Group 1 Mortgage
Loans.
The Pass-Through Rate for this Class of Certificates for the Interest
Accrual Period related to the first Distribution Date will be 5.7355%
per
annum.
|
|
(2)
|
The
Pass-Through Rate for the Class 1-A-3 and Class 1-A-4 Certificates
for the
Interest Accrual Period for any Distribution Date will be a per annum
rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Group
1
Mortgage Loans minus the Pass-Through Rate of the Class 1-A-3X and
Class
1-A-4X Certificates, respectively.
|
|
(3)
|
The
Pass-Through Rate for the Class 1-A-3X and Class 1-A-4X Certificates
for
the Interest Accrual Period for any Distribution Date, (x) prior
to the
Distribution Date in February 2012, will be 0.2355% and 0.1105%,
respectively, and (y) on or after the Distribution Date in February
2012,
0.00000%.
|
|
(4)
|
The
Pass-Through Rate for this Class of Certificates for the Interest
Accrual
Period for any Distribution Date will be a per annum rate equal to
the sum
of (i) the Weighted Average Adjusted Net Mortgage Rate of the Group
1
Mortgage Loans and (ii) 0.7645% per
annum.
|
|
(5)
|
The
Pass-Through Rate for this Class of Certificates for the Interest
Accrual
Period for any Distribution Date will be a per annum rate equal to
the
excess of (i) the Weighted Average Adjusted Net Mortgage Rate of
the Group
1 Mortgage Loans over (ii) 0.4855% per
annum.
|
|
(6)
|
The
Pass-Through Rate for this Class of Certificates for the Interest
Accrual
Period for any Distribution Date will be a per annum rate equal to
the
excess of (i) the Weighted Average Adjusted Net Mortgage Rate of
the Group
1 Mortgage Loans over (ii) 0.2355% per
annum.
|
5
|
(7)
|
The
Pass-Through Rate for this Class of Certificates for the Interest
Accrual
Period for any Distribution Date will be a per annum rate equal to
the sum
of (i) the Weighted Average Adjusted Net Mortgage Rate of the Group
1
Mortgage Loans and (ii) 1.0145% per
annum.
|
|
(8)
|
The
Pass-Through Rate for this Class of Certificates for the Interest
Accrual
Period for any Distribution Date will be a per annum rate equal to
the
Weighted Average Adjusted Net Mortgage Rate of the Group 2 Mortgage
Loans.
The Pass-Through Rate for this Class of Certificates for the Interest
Accrual Period related to the first Distribution Date will be 6.0067%
per
annum.
|
|
(9)
|
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
$.01.
|
|
(10)
|
The
Pass-Through Rate for each Class of Subordinated Certificates for
each
Interest Accrual Period for any Distribution Date will be a per annum
rate
equal to the Subordinate Pass-Through Rate. The Pass-Through Rate
for the
Subordinated Certificates for the Interest Accrual Period for the
first
Distribution Date is 5.8227% per
annum.
|
|
(11)
|
The
Class 1-P and Class 2-P Certificates will not be entitled to any
interest,
but will be entitled to 100% of any Prepayment Charge Amount on the
Mortgage Loans in Loan Groups 1 and 2,
respectively.
|
|
(12)
|
This
Class of Certificates also has a notional amount equal to the aggregate
Stated Principal Balance as of the Cut-off Date of the Mortgage Loans
in
the related Loan Group that require the payment of a Prepayment
Charge.
|
|
(13)
|
The
minimum denomination for each of the Class 1-P and Class 2-P Certificates
is a 20% Percentage Interest. Any Percentage Interest in excess of
20% is
an authorized denomination.
|
It
is not
intended that the Class A-R Certificates be entitled to any cash flows pursuant
to this Agreement except as provided in Sections 4.02(a)(1)(ii) and
4.02(a)(1)(iv)(y) hereunder, (that is, the Class A-R Certificates’ entitlement
to $100 plus interest thereon in the waterfall).
The
following table specifies the class designation, interest rate, and principal
amount for each class of Master REMIC Interest:
|
Master
REMIC Interest
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
Possible
Corresponding ES Trust Certificates
|
|
MR-1-A-1-A
|
$11,675,337
|
(1)
|
0-X-0,
0-X-0, 0-X-0, 0-X-0,0-X-0,0-X-00,
1-A-12
|
6
|
MR-1-A-1-B
|
$11,675,337(2)
|
.1105%
|
0-X-0,0-X-0X,
0-X-0X,0-X-0,0-X-0,0-X-0, 0-X-00
|
|
XX-0-X-0-X
|
$11,675,337(2)
|
.1250%
|
0-X-0,
0-X-0X, 0-X-0, 0-X-0, 0-X-0,0-X-0, 1-A-11
|
|
MR-1-A-1-D
|
$11,675,337(2)
|
.2500%
|
0-X-0,
0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 1-A-12
|
|
MR-1-A-1-E
|
$16,046,357
|
(3)
|
0-X-0,
0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 1-A-12
|
|
MR-1-A-1-F
|
$16,046,357(2)
|
.1105%
|
1-A-1,
1-A-3X, 1-A-4X, 0-X-0, 0-X-0, 0-X-00
|
|
XX-0-X-0-X
|
$16,046,357(2)
|
.1250%
|
1-A-1,
1-A-3X, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 1-A-11
|
|
MR-1-A-1-H
|
$21,885,106
|
(3)
|
0-X-0,
0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-00
|
|
XX-0-X-0-X
|
$21,885,106(2)
|
.1105%
|
1-A-1,
1-A-3X, 1-A-4X, 0-X-0, 0-X-0, 0-X-0, 0-X-00,
|
|
XX-0-X-0-X
|
$21,885,106(2)
|
.1250%
|
1-A-1,
1-A-3X, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-00
|
|
XX-0-X-0-X
|
$46,701,345
|
(3)
|
0-X-0,
0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 1-A-11
|
|
MR-1-A-1-L
|
$46,701,345(2)
|
.1105%
|
1-A-1,
1-A-3X, 1-A-4X, 0-X-0, 0-X-0, 0-X-0, 0-X-00
|
|
XX-0-X-0-X
|
$46,701,345(2)
|
.1250%
|
1-A-1,
1-A-3X, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-00
|
|
XX-0-X-0-X
|
$151,605,854
|
(1)
|
1-A-1,
0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-00, 0-X-00
|
|
XX-0-X-0-X
|
$151,605,854(2)
|
.1105%
|
1-A-1,
1-A-3X, 1-A-4X, 0-X-0, 0-X-0, 0-X-0, 0-X-00
|
|
XX-0-X-0-X
|
$151,605,854(2)
|
.1250%
|
0-X-0,
0-X-0X, 0-X-0, 0-X-0, 0-X-0, 0-X-0,
1-A-11
|
7
|
MR-1-A-1-Q
|
$151,605,854(2)
|
.2500%
|
0-X-0,
0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0,0-X-00
|
|
MR-1-A-2
|
$10,329,000
|
(4)
|
1-A-2
|
|
MR-2-A-1
|
$117,410,000
|
(5)
|
Class
0-X-0
|
|
XX-0-X-0
|
$4,892,000
|
(5)
|
Class
2-A-2
|
|
MR-M
|
$
9,711,000
|
(6)
|
Class
M
|
|
MR-B-1
|
$2,379,000
|
(6)
|
Class
B-1
|
|
MR-B-2
|
$1,585,000
|
(6)
|
Class
B-2
|
|
MR-B-3
|
$793,000
|
(6)
|
Class
B-3
|
|
MR-B-4
|
$594,000
|
(6)
|
Class
B-4
|
|
MR-B-5
|
$793,676
|
(6)
|
Class
B-5
|
|
MR-1-P
|
$100
|
(7)
|
Class
1-P
|
|
MR-2-P
|
$100
|
(8)
|
Class
2-P
|
|
MR-A-R
|
$100
|
(9)
|
Class
A-R
|
|
(1)
|
This
Class of Master REMIC Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to the excess of (i) the
Weighted
Average Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans
over (ii)
0.4855% per annum.
|
|
(2)
|
This
Class of Master REMIC Interest has a Notional Principal
Balance.
|
|
(3)
|
This
Class of Master REMIC Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to the excess of (i) the
Weighted
Average Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans
over (ii)
0.2355%.
|
|
(4)
|
This
Class of Master REMIC Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to the Weighted Average
Adjusted
Net Mortgage Rate of the Group 1 Mortgage
Loans.
|
|
(5)
|
This
Class of Master REMIC Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to the Weighted Average
Adjusted
Net Mortgage Rate of the Group 2 Mortgage
Loans..
|
|
(6)
|
This
Class of Master REMIC Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to the Subordinate Pass-Through
Rate.
|
|
(7)
|
For
each Distribution Date, this class of Master REMIC Interest is entitled
to
all amounts payable with respect to the Class MTR-1-P Middle Tier
REMIC
Interest.
|
|
(8)
|
For
each Distribution Date, this class of Master REMIC Interest is entitled
to
all amounts payable with respect to the Class MTR-2-P Middle Tier
REMIC
Interest.
|
The
Class
MR-A-R Master REMIC Interest represents the sole Class of residual interest
in
the Master REMIC.
8
The
following table specifies the class designation, interest rate, and principal
amount for each class of Middle Tier REMIC Interests:
|
Middle
Tier REMIC Interest
Designation
|
Initial
Principal Balance
|
Interest
Rate
|
Possible
Corresponding Master REMIC Interests
|
|
MTR-1-A-1-A
|
$11,675,337
|
(1)
|
XX-0-X-0-X
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X (7)
|
|
MTR-1-A-1-E
|
$16,046,357
|
(1)
|
XX-0-X-0-X
XX-0-X-0-X, XX-0-X-0-X (8)
|
|
MTR-1-A-1-H
|
$21,885,106
|
(1)
|
XX-0-X-0-X
XX-0-X-0-X, XX-0-X-0-X (9)
|
|
MTR-1-A-1-K
|
$46,701,345
|
(1)
|
XX-0-X-0-X
XX-0-X-0-X, XX-0-X-0-X (10)
|
|
MTR-1-A-1-N
|
151,605,854
|
(1)
|
XX-0-X-0-X
XX-0-X-0-X, XX-0-X-0-X, XX-0-X-0-X (11)
|
|
MTR-$100
|
$100
|
(1)
|
MR-$100
|
|
MTR-1-A-2
|
$10,329,000
|
(1)
|
MR-1-A-2
|
|
MTR-2-A-1
|
$117,410,000
|
(2)
|
MR-2-A-1
|
|
MTR-2-A-2
|
$4,892,000
|
(2)
|
MR-2-A-2
|
|
MTR-M
|
$9,711,000
|
(3)
|
MR-M
|
|
MTR-B-1
|
$2,379,000
|
(3)
|
MR-B-1
|
|
MTR-B-2
|
$1,585,000
|
(3)
|
MR-B-2
|
|
MTR-B-3
|
$793,000
|
(3)
|
MR-B-3
|
|
MTR-B-4
|
$594,000
|
(3)
|
MR-B-4
|
|
MTR-B-5
|
$793,676
|
(3)
|
MR-B-5
|
|
MTR-1-P
|
$100
|
(4)
|
MR-1-P
|
|
MTR-2-P
|
$100
|
(5)
|
MR-2-P
|
|
MTR-A-R
|
(6)
|
(6)
|
N/A
|
|
(1)
|
This
Middle Tier REMIC Interest will have an Interest Rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage
Loans
in Loan Group 1.
|
|
(2)
|
This
Middle Tier REMIC Interest will have an Interest Rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage
Loans
in Loan Group 2.
|
|
(3)
|
This
Middle Tier REMIC Interest will have an Interest Rate equal to the
Subordinate Pass-Thorugh Rate.
|
9
|
(4)
|
This
class of Middle Tier REMIC Interest will be entitled to all amounts
payable with respect to the Class LTR-P-1 Lower Tier REMIC
Interest.
|
|
(5)
|
This
class of Middle Tier REMIC Interest will be entitled to all amounts
payable with respect to the Class LTR-P-2 Lower Tier REMIC
Interest.
|
|
(6)
|
The
MT-A-R is the sole Class of residual interest in the Middle Tier
REMIC. It pays no interest or
principal.
|
|
(7)
|
For
each Distribution Date, each of the Class MR-1-A-1-B, Class MR-1-A-1-C
and
Class MR-1-A-1-D Master REMIC Interest is entitled to a specified
portion
of the interest payable on the Class MTR-1-A-1-A Middle Tier REMIC
Interest. Specifically, for each Distribution Date, the Class MR-1-A-1-B,
Class MR-1-A-1-C and Class MR-1-A-1-D Master REMIC Interests are
entitled
to specified portion of the interest payable on the Class MTR-1-A-1-A
Middle Tier REMIC Interest at a per annum rate equal to .1105%, .1250%
and
.2500%, respectively.
|
|
(8)
|
For
each Distribution Date, each of the Class MR-1-A-1-F and Class MR-1-A-1-G
Master REMIC Interest is entitled to a specified portion of the interest
payable on the Class MTR-1-A-1-E Middle Tier REMIC Interest. Specifically,
for each Distribution Date, the Class MR-1-A-1-F and Class MR-1-A-1-G
Master REMIC Interests are entitled to specified portion of the interest
payable on the Class MTR-1-A-1-E Middle Tier REMIC Interest at a
per annum
rate equal to .1105% and .1250%,
respectively.
|
|
(9)
|
For
each Distribution Date, each of the Class MR-1-A-1-I and Class MR-1-A-1-J
Master REMIC Interest is entitled to a specified portion of the interest
payable on the Class MTR-1-A-1-H Middle Tier REMIC Interest. Specifically,
for each Distribution Date, the Class MR-1-A-1-I and Class MR-1-A-1-J
Master REMIC Interests are entitled to specified portion of the interest
payable on the Class MTR-1-A-1-H Middle Tier REMIC Interest at a
per annum
rate equal to .1105% and .1250%,
respectively.
|
|
(10)
|
For
each Distribution Date, each of the Class MR-1-A-1-L and Class MR-1-A-1-M
Master REMIC Interest is entitled to a specified portion of the interest
payable on the Class MTR-1-A-1-K Middle Tier REMIC Interest. Specifically,
for each Distribution Date, the Class MR-1-A-1-L and Class MR-1-A-1-M
Master REMIC Interests are entitled to specified portion of the interest
payable on the Class MTR-1-A-1-K Middle Tier REMIC Interest at a
per annum
rate equal to .1105% and .1250%,
respectively.
|
|
(11)
|
For
each Distribution Date, each of the Class MR-1-A-1-O, Class MR-1-A-1-P
and
Class MR-1-A-1-Q Master REMIC Interest is entitled to a specified
portion
of the interest payable on the Class MTR-1-A-1-N Middle Tier REMIC
Interest. Specifically, for each Distribution Date, the Class MR-1-A-1-O,
Class MR-1-A-1-P and Class MR-1-A-1-Q Master REMIC Interests are
entitled
to specified portion of the interest payable on the Class MTR-1-A-1-N
Middle Tier REMIC Interest at a per annum rate equal to .1105%, .1250%
and
.2500%, respectively.
|
On
each
Distribution Date, interest shall be payable on the Middle Tier REMIC Interests
according the formulas described above, and principal, Realized Losses and
Subsequent Recoveries shall be allocated among the Middle Tier REMIC Interests
in the same manner that such items are allocated among their corresponding
Master REMIC Interests.
10
The
following table set forth characteristics of the Interests in the Lower Tier
REMIC:
|
The
Lower Tier REMIC Interests
|
Initial
Principal Balance
|
Interest
Rate
|
Corresponding
Loan Group
|
|
LTR-A-1
|
(1)
|
(2)
|
1
|
|
LTR-B-1
|
(1)
|
(2)
|
1
|
|
LTR-C-1
|
(1)
|
(2)
|
1
|
|
LTR-A-2
|
(1)
|
(2)
|
2
|
|
LTR-B-2
|
(1)
|
(2)
|
2
|
|
LTR-C-2
|
(1)
|
(2)
|
2
|
|
LTR-P-1
|
$100
|
(3)
|
1
|
|
LTR-P-2
|
$100
|
(3)
|
2
|
|
LTR-A-R
|
(3)
|
(3)
|
N/A
|
_______________
|
(1)
|
Each
“LTR-A” Lower Tier REMIC Interest will have an initial principal balance
equal to 0.9% of the Subordinated Portion of its corresponding Loan
Group.
Each “LTR-B” Lower Tier REMIC Interest will have an initial principal
balance equal to 0.1% of the Subordinated Portion of its corresponding
Loan Group. Each “LTR-C” Lower Tier REMIC Interest will have an initial
principal balance equal to the excess of the aggregate Stated Principal
Balance of the Mortgage Loans of its corresponding Loan Group over
the
initial aggregate principal balances of the “LTR-A” and “LTR-B” Lower Tier
REMIC Interests corresponding to such Loan
Group.
|
|
(2)
|
This
Lower Tier REMIC Interest will bear interest equal to the weighted
average
of the Adjusted Net Mortgage Rates of the Mortgage Loans in the
corresponding Loan Group.
|
|
(3)
|
This
Lower Tier REMIC Interest pays no interest but is entitled to 100%
of any
Prepayment Charge Amount on the Mortgage Loans in the corresponding
Loan
Group.
|
|
(4)
|
The
LTR-A-R Interest is the sole class of residual interest in the Lower
Tier
REMIC. It has no principal balance and pays no principal or
interest.
|
On
each
Distribution Date, the Available Funds shall be distributed with respect to
the
Lower Tier REMIC Interests in the following manner:
|
(1)
|
Interest.
Interest is to be distributed with respect to each Lower Tier REMIC
Interest at the rate, or according to the formulas, described
above;
|
|
(2)
|
Principal,
if no Cross-Over Situation Exists.
If no Cross-Over Situation exists with respect to any Class of Lower
Tier
REMIC Interests, principal amounts arising with respect to each Loan
Group
will be allocated: first to cause the Loan Group’s corresponding “LTR-A”
and “LTR-B” Lower Tier REMIC Interests to equal, respectively, 0.9% of the
Subordinated Portion and 0.1% of the Subordinated Portion; and second
to
the Loan Group’s corresponding “LTR-C” Lower Tier REMIC
Interest;
|
11
|
(3)
|
Principal,
if a Cross-Over Situation Exists.
If a Cross-Over Situation exists with respect to the “LTR-A” and “LTR-B”
Lower Tier REMIC Interests:
|
|
(a)
|
If
the Calculation Rate in respect of the outstanding “LTR-A” and “LTR-B”
Lower Tier REMIC Interests is less than the Subordinate Pass-Through
Rate,
then Principal Relocation Payments will be made proportionately to
the
outstanding “LTR-A” Lower Tier REMIC Interests prior to any other
principal distributions from each such Loan
Group.
|
|
(b)
|
If
the Calculation Rate in respect of the outstanding “LTR-A” and “LTR-B”
Lower Tier REMIC Interests is greater than the Subordinate Pass-Through
Rate, Principal Relocation Payments will be made to the outstanding
“LTR-B” Lower Tier REMIC Interests prior to any other principal
distributions from each such Loan
Group.
|
In
each
case, Principal Relocation Payments will be made so as to cause the Calculation
Rate in respect of the outstanding “LTR-A” and “LTR-B” Lower Tier REMIC
Interests to equal the Subordinate Pass-Through Rate. With respect to each
Loan
Group, if (and to the extent that) the sum of (a) the principal payments
comprising the Principal Amount received during the Due Period and (b) the
Realized Losses incurred during such Due Period is insufficient to make the
necessary reductions of principal on the “LTR-A” and “LTR-B” Lower Tier REMIC
Interests, then interest will be added to the Loan Group’s “LTR-C” Lower Tier
REMIC Interest.
|
(c)
|
Unless
required to achieve the Calculation Rate, the outstanding aggregate
“LTR-A” and “LTR-B” Lower Tier REMIC Interests for both Loan Groups will
not be reduced below 1 percent of the excess of (i) the aggregate
outstanding Stated Principal Balances of the Mortgage Loans in both
Loan
Groups as of the end of any Due Period (reduced by Principal Prepayments
received after the Due Period that are to be distributed on the
Distribution Date related to the Due Period) over (ii) the aggregate
Class
Certificate Balance of the Senior Certificates for both Loan Groups
as of
the related Distribution Date (after taking into account distributions
of
principal on such Distribution
Date).
|
12
If
(and
to the extent that) the limitation in paragraph (c) prevents the distribution
of
principal to the “LTR-A” and “LTR-B” Lower Tier REMIC Interests of a Loan Group,
and if the Loan Group’s “LTR-C” Lower Tier REMIC Interest has already been
reduced to zero, then the excess principal from that Loan Group will be paid
to
the “LTR-C” Lower Tier REMIC Interests of the other Loan Groups the aggregate
“LTR-A” and “LTR-B” Lower Tier REMIC Interests of which are less than one
percent of the Subordinated Portion. If the Loan Group corresponding to the
“LTR-C” Lower Tier REMIC Interest that receives such payment has a Weighted
Average Adjusted Net Mortgage Rate below the Weighted Average Adjusted Net
Mortgage Rate of the Loan Group making the payment, then the payment will be
treated by the Lower Tier REMIC as a Realized Loss. Conversely, if a Loan Group
corresponding to the “LTR-C” Lower Tier REMIC Interest that receives such
payment has a Weighted Average Adjusted Net Mortgage Rate above the Weighted
Average Adjusted Net Mortgage Rate of the Loan Group making the payment, then
the payment will be treated by the Lower Tier REMIC as a reimbursement for
prior
Realized Losses.
13
Set
forth
below are designations of Classes or Components of Certificates to the
categories used in this Agreement:
|
Accretion
Directed
Certificates
|
None.
|
|
Accrual
Certificates
|
None.
|
|
Accrual
Components
|
None.
|
|
Book-Entry
Certificates.
|
All
Classes of Certificates other than the Physical
Certificates.
|
|
COFI
Certificates.
|
None.
|
|
Component
Certificates
|
None.
|
|
Components
|
None.
|
|
Delay
Certificates.
|
All
interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
|
|
Depositable
Certificates
|
Class 1-A-1
Certificates.
|
|
ERISA-Restricted Certificates. |
The
Residual Certificates and the Private Certificates; and any Certificate
that does not have or no longer has a rating of at least BBB- or
its
equivalent from at least one Rating Agency.
|
|
Exchangeable
Certificates
|
Class 1-A-3,
Class 1-A-3X, Class 1-A-4, Class 1-A-4X, Class 1-A-5,
Class 1-A-6, Class 1-A-7, Class 1-A-8, Class 1-A-9,
Class 1-A-10, Class 1-A-11 and Class 1-A-12,
Certificates
|
|
Group
1 Senior Certificates |
Class 1-A-1,
Class 1-A-2 and Class A-R Certificates.
|
|
Group
2
Senior
Certificates
|
Class
2-A-1 and Class 2-A-2 Certificates.
|
|
LIBOR
Certificates
|
None.
|
|
Non-Delay
Certificates
|
None.
|
|
Notional
Amount
Certificates.
|
Class
1-A-3X and Class 1-A-4X Certificates.
|
14
|
Notional
Components
|
None.
|
|
Offered
Certificates
|
All
Classes of Certificates other than the Private Certificates.
|
|
Physical
Certificates
|
Private
Certificates and the Residual Certificates.
|
|
Planned
Principal Classes
|
None.
|
|
|
|
|
Planned
Principal
Components
|
None.
|
|
Private
Certificates..
|
Class B-3,
Class B-4, Class B-5, Class 1-P and Class 2-P
Certificates.
|
|
Rating
Agencies.
|
S&P
and Fitch.
|
|
Regular
Certificates
|
All
Classes of Certificates, other than the Residual
Certificates.
|
|
Residual
Certificates
|
Class A-R
Certificates.
|
|
Senior
Certificate Group
|
Group
1 Senior Certificates and Group 2 Senior Certificates, as
applicable.
|
|
Senior
Certificates
|
Group
1 Senior Certificates and Group 2 Senior Certificates.
|
|
Subordinated
Certificates
|
Class M,
Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates.
|
|
Underwriter
|
UBS
Securities LLC.
|
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.
15
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
Exchangeable Certificates Distribution Account or any other account related
to
the Trust Fund or the Mortgage Loans.
Accretion
Directed Certificates:
As
specified in the Preliminary Statement.
Accretion
Direction Rule:
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.
Additional
Designated Information:
As
defined in Section 11.02.
Adjusted
Mortgage Rate:
As to
each Mortgage Loan and at any time, the per annum rate equal to the Mortgage
Rate less the Master Servicing Fee Rate.
Adjusted
Net Mortgage Rate:
As to
each Mortgage Loan and at any time, the per annum rate equal to the Mortgage
Rate less the Expense Fee Rate.
Adjustment
Date:
A date
specified in each Mortgage Note as a date on which the Mortgage Rate on the
related Mortgage Loan will be adjusted.
Advance:
As to a
Loan Group, the payment required to be made by the Master Servicer with respect
to any Distribution Date pursuant to Section 4.01, the amount of any such
payment being equal to the aggregate of payments of principal and interest
(net
of the Master Servicing Fee) on the Mortgage Loans in such Loan Group that
were
due on the related Due Date and not received by the Master Servicer as of the
close of business on the related Determination Date, together with an amount
equivalent to interest on each Mortgage Loan as to which the related Mortgaged
Property is an REO Property net of any net income with respect to 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
Subordinated Percentage:
As to
any Distribution Date, the fraction, expressed as a percentage, the numerator
of
which is equal to the aggregate Class Certificate Balance of the Subordinated
Certificates immediately prior to such Distribution Date and the denominator
of
which is the aggregate Stated Principal Balance of all the Mortgage Loans as
of
the Due Date in the month preceding the month of such Distribution Date (after
giving effect to Principal Prepayments received in the Prepayment Period related
to such Due Date).
16
Agreement:
This
Pooling and Servicing Agreement and all amendments or supplements this Pooling
and Servicing Agreement.
Allocable
Share:
As to
any Distribution Date, any Loan Group and any Class of Certificates, the ratio
that the amount calculated with respect to such Distribution Date (A) with
respect to the Senior Certificates of the related Senior Certificate Group,
pursuant to clause (i) of the definition of Class Optimal Interest Distribution
Amount (without giving effect to any reduction of such amount pursuant to
Section 4.02(d)) and (B) with respect to the Subordinated Certificates, pursuant
to the definition of Assumed Interest Amount for such Class or after a Senior
Termination 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 related 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)) or the definition of Assumed Interest Amount for
such Loan Group and Class, as applicable.
Amount
Held for Future Distribution:
As to
any Distribution Date and Mortgage Loans in a Loan Group, the aggregate amount
held in the Certificate Account at the close of business on the related
Determination Date on account of (i) Principal Prepayments received after the
related Prepayment Period and Liquidation Proceeds and Subsequent Recoveries
received in the month of such Distribution Date relating to that Loan Group
and
(ii) all Scheduled Payments due after the related Due Date relating to that
Loan
Group.
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 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.
17
Assumed
Interest Amount:
With
respect to any Distribution Date, any Class of Subordinated Certificates and
any
Loan Group, one month’s interest accrued during the related Interest Accrual
Period at the Pass-Through Rate on the related Subordinated Portion immediately
prior to that Distribution Date.
Available
Funds:
As to
any Distribution Date and each Loan Group, the sum of (a) the aggregate
amount held in the Certificate Account at the close of business on the related
Determination Date in respect of the related Mortgage Loans pursuant to Section
3.05(b) net of the related Amount Held for Future Distribution, net of
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) in respect of the Mortgage Loans in that Loan Group and amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses
(i)
- (v), inclusive, of Section 3.08(b) in respect of the Mortgage Loans in that
Loan Group, (b) the amount of the related Advance, (c) in connection with
Defective Mortgage Loans in such Loan Group, as applicable, the aggregate of
the
Purchase Prices and Substitution Adjustment Amounts deposited on the related
Distribution Account Deposit Date, and (d) the Transfer Payment Received for
such Loan Group less the Transfer Payment Made for such Loan Group; provided,
however, that on a Senior Termination Date, Available Funds with respect to
the
Loan Group relating to the remaining Senior Certificate Group shall include
the
Available Funds from the other Loan Groups after all distributions are made
on
the Senior Certificates of the other Senior Certificate Groups and on any
Distribution Date thereafter, Available Funds shall be calculated based on
all
the Mortgage Loans in the Mortgage Pool, as opposed to the Mortgage Loans in
the
related Loan Group. The Holders of the Class 1-P and Class 2-P Certificates
will
be entitled to all Prepayment Charges received on the Mortgage Loans in Loan
Group 1 and Loan Group 2, respectively, 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.
Calculation
Rate:
For
each Distribution Date, in the case of the “LT-A” and “LT-B” Lower Tier REMIC
Interests, the product of (i) 10 and
(ii) the
weighted average rate of the outstanding “LT-A” and “LT-B” Lower Tier REMIC
Interests, treating each “LT-A” Lower Tier REMIC Interest as having an interest
rate of 0.00%.
Certificate:
Any one
of the Certificates executed by the Trustee in substantially the forms attached
this Agreement as exhibits.
Certificate
Account:
The
separate Eligible Account or Accounts created and maintained by the Master
Servicer pursuant to Section 3.05 with a depository institution, initially
Countrywide 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 CHL Mortgage
Pass-Through Trust 2007-HY1, Mortgage Pass-Through Certificates Series
2007-HY1.”
18
Certificate
Balance:
With
respect to any Certificate, other than a Notional Amount Certificate, at any
date, the maximum dollar amount of principal to which the Holder thereof is
then
entitled 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. The Notional Amount
Certificates have no Certificate Balances.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
such Book-Entry Certificate. For the purposes of this Agreement, in order for
a
Certificate Owner to enforce any of its rights under this Agreement, it shall
first have to provide evidence of its beneficial ownership interest in a
Certificate that is reasonably satisfactory to the Trustee, the Depositor,
and/or the Master Servicer, as applicable.
Certificate
Register:
The
register maintained pursuant to Section 5.02.
Certificateholder
or Holder:
The
person in whose name a Certificate is registered in the Certificate Register,
except that, solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor or any
affiliate of the Depositor shall be deemed not to be Outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary
to
effect such consent has been obtained; provided, however, that if any such
Person (including the Depositor) owns 100% of the Percentage Interests evidenced
by a Class of Certificates, such Certificates shall be deemed to be Outstanding
for purposes of any provision of this Agreement (other than the second sentence
of Section 10.01) that requires the consent of the Holders of Certificates
of a
particular Class as a condition to the taking of any action under this
Agreement. The Trustee is entitled to rely conclusively on a certification
of
the Depositor or any affiliate of the Depositor in determining which
Certificates are registered in the name of an affiliate of the
Depositor.
Certification
Party:
As
defined in Section 11.05.
Certifying
Person:
As
defined in Section 11.05.
Class:
All
Certificates bearing the same class designation as set forth in the Preliminary
Statement.
Class
P Certificates:
The
Class 1-P and Class 2-P Certificates.
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.
19
Class
Interest Shortfall:
As to
any Distribution Date and Class, the amount by which the amount described in
clause (i) of the definition of Class Optimal Interest Distribution Amount
for such Class exceeds the amount of interest actually distributed on such
Class
on such Distribution Date pursuant to such clause (i).
Class
Optimal Interest Distribution Amount:
With
respect to any Distribution Date and interest-bearing Class, the sum of
(i) one month’s interest accrued during the related Interest Accrual Period
at the Pass-Through Rate for such Class on the related Class Certificate Balance
or Notional Amount, as applicable, as of the last day of the related Interest
Accrual Period, subject to reduction as provided in Section 4.02(d) and
(ii) any Class Unpaid Interest Amounts for such Class.
Class
P Certificates: The
Class
1-P and Class 2-P Certificates.
Class
P Principal Distribution Date:
For any
Class of Class P Certificates, the first Distribution Date that occurs after
the
end of the latest Prepayment Charge period for all Mortgage Loans in the related
Loan Group that have a Prepayment Charge.
Class
Subordination Percentage:
With
respect to any Distribution Date and each Class of Subordinated Certificates,
the quotient (expressed as a percentage) of (a) the Class Certificate
Balance of such Class of Certificates immediately prior to such Distribution
Date divided by (b) the aggregate of the Class Certificate Balances of all
Classes of Certificates immediately prior to such Distribution
Date.
Class
Unpaid Interest Amounts:
As to
any Distribution Date and Class of interest-bearing Certificates, the amount
by
which the aggregate Class Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount distributed on such Class on prior
Distribution Dates pursuant to clause (ii) of the definition of Class
Optimal Interest Distribution Amount.
Closing
Date:
February 28, 2007.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
COFI:
The
Monthly Weighted Average Cost of Funds Index for the Eleventh District Savings
Institutions published by the Federal Home Loan Bank of San
Francisco.
COFI
Certificates:
As
specified in the Preliminary Statement.
Commission:
The
U.S. Securities and Exchange Commission.
Compensating
Interest:
As to
any Distribution Date and Loan Group, an amount equal to one-half of the Master
Servicing Fee for the related Loan Group for such Distribution
Date.
Component:
As
specified in the Preliminary Statement.
Component
Notional Amount:
Not
applicable.
20
Component
Rate:
Not
applicable.
Coop
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under section 216 of the
Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Coop Shares and a Proprietary Lease.
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, including
the allocation of individual dwelling units to the holders of the Coop Shares
of
the Cooperative Corporation.
Cooperative
Unit:
A
single family dwelling located in a Cooperative Property.
Corporate
Trust Office:
The
designated office of the Trustee in the State of New York at which at any
particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000
(Attn: Mortgage-Backed Securities Group, CHL Mortgage Pass-Through Trust
2007-HY1), 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.
Cross-Over
Situation:
For
any
Distribution Date and for each Loan Group (after taking into account principal
distributions on such Distribution Date) with respect to the Class A and Class
B
Lower Tier REMIC Interests, a situation in which the Class A and Class B
Interests corresponding to any Loan Group are in the aggregate less than 1%
of
the Subordinated Portion of the Loan Group to which they
correspond.
Cut-off
Date:
As to
any Mortgage Loan, the later of the date of origination of that Mortgage Loan
and February 1, 2007.
Cut-off
Date Pool Principal Balance:
$396,370,776.83.
21
Cut
off Date Principal Balance:
As to
any Mortgage Loan, the Stated Principal Balance thereof as of the close of
business on the Cut-off Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a reduction
resulting from a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
Defective
Mortgage Loan:
Any
Mortgage Loan that is required to be repurchased pursuant to Section 2.02
or 2.03.
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 Trustee on the Closing Date. The number of Delay Delivery Mortgage
Loans in either Loan Group conveyed on the Closing Date shall not exceed 50%
of
the aggregate number of Initial Mortgage Loans in such Loan Group. 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 thereof.
Depositor:
CWMBS,
Inc., a Delaware corporation, or its successor in interest.
Depository:
The
initial Depository shall be The Depository Trust Company, the nominee of which
is CEDE & Co., as the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
22
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.
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 CHL Mortgage Pass-Through Trust 2007-HY1, Mortgage Pass-Through
Certificates, Series 2007-HY1.” 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, or if such 25th day is not a Business Day,
the
next succeeding Business Day, commencing in March 2007.
Due
Date:
With
respect to a Mortgage Loan, the date on which 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 is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings of
Xxxxx’x or Fitch and one of the two highest short-term ratings of S&P, if
S&P is a Rating Agency at the time any amounts are held on deposit therein,
or (ii) an account or accounts in a depository institution or trust company
in which such accounts are insured by the FDIC (to the limits established by
the
FDIC) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each
Rating Agency, the Certificateholders have a claim with respect to the funds
in
such account or a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments) securing such
funds
that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which such account is maintained,
or
(iii) a trust account or accounts maintained with (a) the trust
department of a federal or state chartered depository institution or (b) a
trust company, acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest, and
may
include, if otherwise qualified under this definition, accounts maintained
with
the Trustee.
23
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).
ES
Trust:
The
separate trust created under this Agreement pursuant to Section
5.07(a).
ES
Trust Certificate:
Any
Class of Depositable or Exchangeable Certificate issued by the ES Trust and
representing beneficial ownership of one or more uncertificated Master REMIC
regular interests held by such ES Trust.
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 of such Mortgage Loan received in 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.
Exchangeable
Certificates:
As
specified in the Preliminary Statement.
Exchangeable
Certificates Distribution Account:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 5.07 in the name of the Trustee for the benefit of the Holders of the
Exchangeable Certificates and designated “The Bank of New York in trust for
registered Holders of CHL Mortgage Pass-Through Trust 2007-HY1, Mortgage
Pass-Through Certificates, Series 2007-HY1.” Funds in the Exchangeable
Certificates Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
24
Exchange
Fee:
As
defined in Section 5.02(e).
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) with respect to
any
Lender PMI Mortgage Loan, the related mortgage insurance premium
rate.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor 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.
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.
Group
1 Senior Certificates:
As
specified in the Preliminary Statement.
Group
1 Weighted Average Component Rate:
Not
applicable.
Group
2 Senior Certificates:
As
specified in the Preliminary Statement.
25
Group
2 Weighted Average Component Rate:
Not
applicable.
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).
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 Distribution Date, the calendar month prior to the month of
such
Distribution Date.
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.
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.
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.
26
Loan
Group:
Either
of Loan Group 1 or Loan Group 2, as applicable.
Loan
Group 1:
All
Mortgage Loans identified as Loan Group 1 Mortgage Loans on the Mortgage Loan
Schedule.
Loan
Group 2:
All
Mortgage Loans identified as Loan Group 2 Mortgage Loans on the Mortgage Loan
Schedule.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan and as to any date of determination, the fraction
(expressed as a percentage) the numerator of which is the principal balance
of
the related Mortgage Loan at that date of determination and the denominator
of
which is the Appraised Value of the related Mortgaged Property.
Lost
Mortgage Note:
Any
Mortgage Note the original of which was permanently lost or destroyed and has
not been replaced.
Lower
Tier REMIC:
As
specified in the Preliminary Statement.
Lower
Tier REMIC Interest:
As
specified in the Preliminary Statement.
Maintenance:
With
respect to any Cooperative Unit, the rent paid by the Mortgagor to the
Cooperative Corporation pursuant to the Proprietary Lease.
Majority
in Interest:
As to
any Class of Regular Certificates, the Holders of Certificates of such Class
evidencing, in the aggregate, at least 51% of the Percentage Interests evidenced
by all Certificates of such Class.
Master
Servicer:
Countrywide Servicing, 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.
Master
Servicer Advance Date:
As to
any Distribution Date, 12:30 p.m. Pacific time on the Business Day immediately
preceding such Distribution Date.
Master
Servicing Fee:
As to
each Mortgage Loan and any Distribution Date, an amount payable out of each
full
payment of interest received on such Mortgage Loan and equal to one-twelfth
of
the Master Servicing Fee Rate multiplied by the Stated Principal Balance of
such
Mortgage Loan as of the Due Date in the month 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.
27
Master
Servicing Fee Rate:
With
respect to any Mortgage Loan, 0.175% per annum prior to and including the
initial Adjustment Date for that Mortgage Loan and 0.200% per annum after the
initial Adjustment Date for that Mortgage Loan.
Master
REMIC:
As
specified in the Preliminary Statement.
Master
REMIC Interest:
As
specified in the Preliminary Statement.
Maximum
Mortgage Rate:
With
respect to each Mortgage Loan, the percentage set forth in the related Mortgage
Note as the maximum Mortgage Rate thereunder.
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.
Middle
Tier REMIC:
As
specified in the Preliminary Statement.
Middle
Tier REMIC Interest:
As
specified in the Preliminary Statement.
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.
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.
28
Mortgage
File:
The
mortgage documents listed in Section 2.01 pertaining to a particular
Mortgage Loan and any additional documents delivered to the Trustee to be added
to the Mortgage File pursuant to this Agreement.
Mortgage
Index:
As to
each Mortgage Loan, the index from time to time in effect for adjustment of
the
Mortgage Rate as set forth as such on the related Mortgage Note.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as from time to time amended by the Master Servicer
to
reflect the addition of Substitute Mortgage Loans and the deletion of Deleted
Mortgage Loans pursuant to the provisions of this Agreement) transferred to
the
Trustee as part of the Trust Fund and from time to time subject to this
Agreement, attached to this Agreement as Schedule I, setting forth the following
information with respect to each Mortgage Loan by Loan Group:
(i) the
loan
number;
(ii) the
Mortgagor’s name and the street address of the Mortgaged Property, including the
zip code;
(iii) the
maturity date;
(iv) the
original principal balance;
(v) the
Cut-off Date Principal Balance;
(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;
(xi) the
Mortgage Rate in effect as of the Cut-off Date;
(xii) [reserved];
(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;
29
(xv) the
type
of documentation program pursuant to which the Mortgage Loan was
originated;
(xvi) the
direct servicer of such Mortgage Loan as of the Cut-off Date;
(xvii) a
code
indicating whether the Mortgage Loan is a MERS Mortgage Loan;
(xviii) a
code
indicating whether the Mortgage Loan is a Countrywide Mortgage Loan, a Park
Granada Mortgage Loan, a Park Monaco Mortgage Loan or a Park Sienna Mortgage
Loan; and
(xix) with
respect to each Mortgage Loan, the Gross Margin, the Mortgage Index, the Maximum
Mortgage Rate, the Minimum Mortgage Rate, the Periodic Rate Cap and the first
Adjustment Date for such Mortgage Loan.
Such
schedule shall also set forth the total of the amounts described under (iv)
and
(v) above for all of the Mortgage Loans and for each Loan Group.
Mortgage
Loans:
Such of
the mortgage loans 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.
Mortgage
Rate:
The
annual rate of interest borne by a Mortgage Note from time to time, net of
any
interest premium charged by the mortgagee to obtain or maintain any Primary
Insurance Policy.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan, which, with respect to a
Cooperative Loan, is the related Coop Shares and Proprietary Lease.
Mortgagor:
The
obligor(s) on a Mortgage Note.
National
Cost of Funds Index:
The
National Monthly Median Cost of Funds Ratio to SAIF-Insured Institutions
published by the Office of Thrift Supervision.
Net
Prepayment Interest Shortfalls:
As to
any Distribution Date and Loan Group, the amount by which the aggregate of
the
Prepayment Interest Shortfalls for such Loan Group for such Distribution Date
exceeds an amount equal to the sum of (a) the Compensating Interest for such
Loan Group and Distribution Date and (b) the excess, if any, of the Compensating
Interest for the other Loan Group for that Distribution Date over the Prepayment
Interest Shortfalls for such other Loan Group for such Distribution
Date.
Non-Delay
Certificates:
As
specified in the Preliminary Statement.
30
Nonrecoverable
Advance:
Any
portion of an Advance previously made or proposed to be made by the Master
Servicer that, in the good faith judgment of the Master Servicer, will not
be
ultimately recoverable by the Master Servicer from the related Mortgagor,
related Liquidation Proceeds or otherwise.
Notice
of Final Distribution:
The
notice to be provided pursuant to Section 9.02 to the effect that final
distribution on any of the Certificates shall be made only upon presentation
and
surrender thereof.
Notional
Amount:
With
respect to any Distribution Date and the Class 1-A-3X and Class 1-A-4X
Certificates, an amount equal to the Class Certificate Balance of the Class
1-A-3 and Class 1-A-4 Certificates, respectively, immediately prior to such
Distribution Date.
Notional
Amount Certificates:
As
specified in the Preliminary Statement.
Notional
Component:
As
specified in the Preliminary Statement.
Offered
Certificates:
As
specified in the Preliminary Statement.
Officer’s
Certificate:
A
certificate (i) in the case of the Depositor, signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director,
a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor, (ii) in the case of the Master Servicer, signed
by
the President, an Executive Vice President, a Vice President, an Assistant
Vice
President, the Treasurer, or one of the Assistant Treasurers or Assistant
Secretaries of Countrywide GP, Inc. (its general partner), (iii) if provided
for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required
by
this Agreement or (iv) in the case of any other Person, signed by an authorized
officer of such Person.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Depositor, a 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, a Seller and the
Master Servicer, (ii) not have any direct financial interest in the
Depositor, a Seller or the Master Servicer or in any affiliate thereof, and
(iii) not be connected with the Depositor, a 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.
Original
Applicable Credit Support Percentage:
With
respect to each of the following Classes of Subordinated Certificates, the
corresponding percentage described below, as of the Closing Date:
|
Class
M
|
4.00%
|
|
Class
B-1
|
1.55%
|
31
|
Class
B-2
|
0.95%
|
|
Class
B-3
|
0.55%
|
|
Class
B-4
|
0.35%
|
|
Class
B-5
|
0.20%
|
Original
Mortgage Loan:
The
mortgage loan refinanced in connection with the origination of a Refinancing
Mortgage Loan.
Original
Subordinate Principal Balance:
On or
prior to a Senior Termination Date, the Subordinated Percentage for a Loan
Group
of the aggregate Stated Principal Balance of the Mortgage Loans in such Loan
Group, in each case as of the Cut-off Date or, if such date is after a Senior
Termination Date, the aggregate 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 the end
of
the Prepayment Period related to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized
Group:
As
defined in Section 4.05.
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.
32
Park
Sienna:
Park
Sienna LLC, a Delaware limited liability company, and its successors and
assigns, in its capacity as the seller of the Park Sienna Mortgage Loans to
the
Depositor.
Park
Sienna Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which Park
Sienna is the applicable Seller.
Pass-Through
Rate:
For any
interest-bearing Class of Certificates, the per annum rate set forth or
calculated in the manner described in the Preliminary Statement.
Percentage
Interest:
As to
any Certificate, the percentage interest evidenced thereby in distributions
required to be made on the related Class, such percentage interest being set
forth on the face thereof or equal to the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of the same Class.
Performance
Certification:
As
defined in Section 11.05.
Periodic
Rate Cap:
With
respect to each Mortgage Loan and any Adjustment Date therefor, the fixed
percentage set forth in the related Mortgage Note, which is the maximum amount
by which the Mortgage Rate for such Mortgage Loan may increase or decrease
(without regard to the Maximum Mortgage Rate or the Minimum Mortgage Rate)
on
such Adjustment Date from the Mortgage Rate in effect immediately prior to
such
Adjustment Date.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
(i) obligations
of the United States or any agency thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency, or such lower rating as
will
not result in the downgrading or withdrawal of the ratings then assigned to
the
Certificates by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial paper
and/or long term unsecured debt obligations of such depository institution
or
trust company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx’x is not a Rating Agency)
are then rated one of the two highest long-term and the highest short-term
ratings of each Rating Agency for such securities, or such lower ratings as
will
not result in the downgrading or withdrawal of the rating then assigned to
the
Certificates by either Rating Agency;
33
(v) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(vi) units
of
a taxable money-market portfolio having the highest rating assigned by each
Rating Agency (except if Fitch is a Rating Agency and has not rated the
portfolio, the highest rating assigned by Moody’s) and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States of
America and repurchase agreements collateralized by such obligations;
and
(vii) such
other relatively risk free investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either Rating
Agency, as evidenced by a signed writing delivered by each Rating
Agency
provided,
that no such instrument shall be a Permitted Investment if such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument.
Permitted
Transferee:
Any
person other than (i) the United States, any State or political subdivision
thereof, or any agency or instrumentality of any of the foregoing, (ii) a
foreign government, International Organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers’
cooperatives described in section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by section 511
of
the Code on unrelated business taxable income) on any excess inclusions (as
defined in section 860E(c)(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.
34
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificate:
As
specified in the Preliminary Statement.
Plan:
An
“employee benefit plan” as defined in section 3(3) of ERISA that is subject to
Title I of ERISA, a “plan” as defined in section 4975 of the Code that is
subject to section 4975 of the Code, or any Person investing on behalf of or
with plan assets (as defined in 29 CFR §2510.3-101 or otherwise under ERISA) of
such an employee benefit plan or plan.
Planned
Balance:
With
respect to any Planned Principal Class or Planned Principal Component and any
Distribution Date appearing in Schedule V, the amount appearing opposite such
Distribution Date for such Class.
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 date of determination, the aggregate of the Stated Principal Balances of
the
Outstanding Mortgage Loans as of such date.
Prepayment
Charge Amount:
As to
any Loan Group and Distribution Date, the sum of the Prepayment Charges
collected on the related Mortgage Loans during the related Prepayment Period
and
any amounts paid pursuant to Section 3.19 with respect to such Loan Group and
Distribution Date.
Prepayment
Charge Period:
With
respect to any Mortgage Loan, the period of time during which a Prepayment
Charge may be imposed.
Prepayment
Charge Schedule:
As of
the Cut off Date with respect to each Mortgage Loan, a list attached hereto
as
Schedule VII (including the prepayment charge summary attached thereto), setting
forth the following information with respect to each Prepayment
Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Prepayment Charge; and
35
(vi) the
principal balance of the related Mortgage Loan as of the Cut off
Date.
As
of the
Closing Date, the Prepayment Charge Schedule shall contain the necessary
information for each Mortgage Loan. The Prepayment Charge Schedule shall be
amended from time to time by the Master Servicer in accordance with the
provisions of this Agreement and a copy of each related amendment shall be
furnished by the Master Servicer to the Class P Certificateholders.
Prepayment
Interest Excess:
As to
any Principal Prepayment received by the Master Servicer from the first day
through the fifteenth day of any calendar month (other than the calendar month
in which the Cut-off Date occurs), all amounts paid by the related Mortgagor
in
respect of interest on such Principal Prepayment. All Prepayment Interest Excess
shall be paid to the Master Servicer as additional master servicing
compensation.
Prepayment
Interest Shortfall:
As to
any Distribution Date, any Mortgage Loan and any Principal Prepayment received
during the portion of the related Prepayment Period in the prior calendar month,
the amount, if any, by which one month’s interest at the related Mortgage Rate,
net of the related Master Servicing Fee Rate, on such Principal Prepayment
exceeds the amount of interest paid in connection with such Principal
Prepayment.
Prepayment
Period:
As to
any Distribution Date and the related Due Date, the period from the 16th day
of
the calendar month immediately preceding the month in which the Distribution
Date occurs (or, in the case of the first Distribution Date, from February
1,
2007) through the 15th day of the calendar month in which the Distribution
Date
occurs.
Prepayment
Shift Percentage:
Not
applicable.
Primary
Insurance Policy:
Each
policy of primary mortgage guaranty insurance or any replacement policy therefor
with respect to any Mortgage Loan.
Prime
Rate:
The
prime commercial lending rate of The Bank of New York, as publicly announced
to
be in effect from time to time. The Prime Rate shall be adjusted automatically,
without notice, on the effective date of any change in such prime commercial
lending rate. The Prime Rate is not necessarily The Bank of New York’s lowest
rate of interest.
Principal
Amount:
As to
any Distribution Date and any Loan Group, an amount equal to (1) 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)
in
such Loan Group on the related Due Date, (b) the principal portion of the
Purchase Price of each Mortgage Loan in such Loan Group that was repurchased
by
the applicable Seller or purchased by the Master Servicer pursuant to this
Agreement as of such Distribution Date, (c) the Substitution Adjustment Amount
in connection with any Deleted Mortgage Loan in such Loan Group received with
respect to such Distribution Date, (d) any Insurance Proceeds or Liquidation
Proceeds allocable to recoveries of principal of Mortgage Loans in such Loan
Group that are not yet Liquidated Mortgage Loans received during the calendar
month preceding the month of such Distribution Date, (e) with respect to each
Mortgage Loan in a Loan Group that became a Liquidated Mortgage Loan during
the
calendar month preceding the month of such Distribution Date, the amount of
the
Liquidation Proceeds allocable to principal received during the calendar month
preceding the month of such Distribution Date with respect to such Mortgage
Loan, (f) all Principal Prepayments for such Loan Group received during the
related Prepayment Period, (g) any Subsequent Recoveries on the Mortgage Loans
in such Loan Group received during the calendar month preceding the month of
such Distribution Date, and (h) the principal portion of any Transfer Payment
Received for such Loan Group, minus (2) the principal portion of any Transfer
Payment Made for such Loan Group and Distribution Date in accordance with
Section 4.05.
36
Principal
Prepayment:
Any
payment of principal by a Mortgagor on a Mortgage Loan that is received in
advance of its scheduled Due Date and is not accompanied by an amount
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment. Partial Principal Prepayments shall
be
applied by the Master Servicer in accordance with the terms of the related
Mortgage Note.
Principal
Prepayment in Full:
Any
Principal Prepayment made by a Mortgagor of the entire principal balance of
a
Mortgage Loan.
Principal
Relocation Payment:
A
payment from any Loan Group to a Lower Tier REMIC Regular Interest other than
a
Regular Interest corresponding to that Loan Group as provided in the Preliminary
Statement. Principal Relocation Payments from a Loan Group shall be made of
the
amounts in respect of principal from the Mortgage Loans of the Loan Group and
shall include a proportionate allocation of the Realized Losses from the
Mortgage Loans of the Loan Group.
Principal
Reserve Fund:
A
separate Eligible Account created and maintained by the Trustee pursuant to
Section 3.05(g) with a depository institution in the name of the Trustee for
the
benefit of the Class P Certificateholders specified in Section 3.05(g) and
designated “The Bank of New York, Principal Reserve Fund in trust for registered
holders of CWMBS 0000-XX0 XXX Mortgage Pass-Through Trust, Mortgage Pass-Through
Certificates, Series 2007-HY1, Class 1-P and Class 2-P.”
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.
Pro
Rata Subordinated Percentage:
As to
any Distribution Date and Loan Group, 100% minus the related Senior Percentage
for such Distribution Date.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Coop Shares.
Prospectus:
The
prospectus dated November 14, 2006 generally relating to mortgage-pass through
certificates to be sold by the Depositor.
37
Prospectus
Supplement:
The
Prospectus Supplement dated February 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.
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 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.
38
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.
Recombination
Group:
Each
Class of Depositable Certificates and each Class of Exchangeable Certificates
included within any particular “Recombination” specified in Schedule
VIII.
Record
Date:
With
respect to any Distribution Date, the close of business on the last Business
Day
of the month preceding the month in which such Distribution Date
occurs.
Refinancing
Mortgage Loan:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
Regular
Certificates:
As
specified in the Preliminary Statement.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relief
Act:
The
Servicemembers Civil Relief Act.
Relief
Act Reductions:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended calendar month as a result of the application of the Relief
Act
or any similar 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.
39
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Reportable
Event:
Any
event required to be reported on Form 8-K, and in any event, the
following:
(a) entry
into a definitive agreement related to the Trust Fund, the Certificates or
the
Mortgage Loans, or an amendment to a Transaction Document, even if the Depositor
is not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination
of a Transaction Document (other than by expiration of the agreement on its
stated termination date or as a result of all parties completing their
obligations under such agreement), even if the Depositor is not a party to
such
agreement (e.g., a servicing agreement with a servicer contemplated by Item
1108(a)(3) of Regulation AB);
(c) with
respect to the Master Servicer only, if the Master Servicer becomes aware of
any
bankruptcy or receivership with respect to Countrywide, the Depositor, the
Master Servicer, any Subservicer, the Trustee, any enhancement or support
provider contemplated by Items 1114(b) or 1115 of Regulation AB, or any other
material party contemplated by Item 1101(d)(1) of Regulation AB;
(d) with
respect to the Trustee, the Master Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) the
resignation, removal, replacement, substitution of the Master Servicer, any
Subservicer or the Trustee;
(f) with
respect to the Master Servicer only, if the Master Servicer becomes aware that
(i) any material enhancement or support specified in Item 1114(a)(1) through
(3)
of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more Classes of the Certificates has terminated other than
by
expiration of the contract on its stated termination date or as a result of
all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or Item
1115 of Regulation AB has been added with respect to one or more Classes of
the
Certificates; or (iii) any existing material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
with
respect to one or more Classes of the Certificates has been materially amended
or modified; and
(g) with
respect to the Trustee, the Master Servicer and the Depositor only, a required
distribution to Holders of the Certificates is not made as of the required
Distribution Date under this Agreement.
40
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 on any Due Date allocable
to
principal and/or interest on such Mortgage Loan which, unless otherwise
specified in this Agreement, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of the monthly
payment due on such Mortgage Loan.
Securities
Act:
The
Securities Act of 1933, as amended.
Seller:
Countrywide, Park Granada, Park Monaco or Park Sienna, as
applicable.
Senior
Certificate Group:
As
specified in the Preliminary Statement.
Senior
Certificates:
As
specified in the Preliminary Statement.
Senior
Credit Support Depletion Date:
The
date on which the Class Certificate Balance of each Class of Subordinated
Certificates has been reduced to zero.
Senior
Percentage:
As to
any Senior Certificate Group and Distribution Date, the percentage equivalent
of
a fraction the numerator of which is the aggregate of the Class Certificate
Balances of each Class of Senior Certificates of such Senior Certificate Group
(other than the Notional Amount Certificates) immediately prior to such
Distribution Date and the denominator of which is the aggregate Stated Principal
Balance of Mortgage Loans in the related Loan Group as of the Due Date in the
month preceding the month of such Distribution Date (after giving effect to
Principal Prepayments received in the Prepayment Period related to such Due
Date); provided, however, that on any Distribution Date after a Senior
Termination Date, the Senior Percentage for the Senior Certificates of the
remaining Senior Certificate Group is the percentage equivalent of a fraction,
the numerator of which is the aggregate of the Class Certificate Balances of
each such Class of Senior Certificates (other than the Notional Amount
Certificates) immediately prior to such Distribution Date and the denominator
of
which is the aggregate of the Class Certificate Balances of all Classes of
Certificates (other than the Notional Amount Certificates) immediately prior
to
such Distribution Date. In no event will any Senior Percentage be greater than
100%.
41
Senior
Prepayment Percentage:
As to a
Senior Certificate Group and any Distribution Date during the seven years
beginning on the first Distribution Date, 100%. The related Senior Prepayment
Percentage for any Senior Certificate Group and Distribution Date occurring
on
or after the seventh 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 related Senior Percentage plus 70% of the related
Subordinated Percentage for such Distribution Date; for any Distribution Date
in
the second year thereafter, the related Senior Percentage plus 60% of the
related Subordinated Percentage for such Distribution Date; for any Distribution
Date in the third year thereafter, the related Senior Percentage plus 40% of
the
related Subordinated Percentage for such Distribution Date; for any Distribution
Date in the fourth year thereafter, the related Senior Percentage plus 20%
of
the related Subordinated Percentage for such Distribution Date; and for any
Distribution Date thereafter, the related Senior Percentage for such
Distribution Date; provided, however, that if on any Distribution Date the
related Senior Percentage exceeds the Senior Percentage of such Senior
Certificate Group as of the Closing Date, then the Senior Prepayment Percentage
for each Senior Certificate Group for such Distribution Date will equal 100%.
Notwithstanding the foregoing, no decrease in the related Senior Prepayment
Percentage will occur unless both of the Senior Step Down Conditions are
satisfied with respect to all Loan Groups. Notwithstanding the foregoing, if
the
Two Times Test is satisfied on a Distribution Date, the Senior Prepayment
Percentage for each Senior Certificate Group will equal (x) if such Distribution
Date is on or prior to the Distribution Date in February 2010, the related
Senior Percentage for such Distribution Date plus 50% of the related
Subordinated Percentage for that Distribution Date and (y) if such Distribution
Date is after the Distribution Date in January 2010, the related Senior
Percentage.
Senior
Principal Distribution Amount:
As to
any Distribution Date and Loan Group, the sum of (i) the related Senior
Percentage of all amounts described in clauses (a) through (d) of the
definition of “Principal Amount” with respect to that Loan Group for such
Distribution Date, (ii) with respect to any Mortgage Loan in that Loan
Group that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, the lesser of (x) the related Senior
Percentage of the Stated Principal Balance of such Mortgage Loan as of the
Due
Date in the month preceding the month of that Distribution Date and (y) the
related Senior Prepayment Percentage of the amount of the Liquidation Proceeds
allocable to principal received on the Mortgage Loan, (iii) the related
Senior Prepayment Percentage of the amounts described in clauses (f) and
(g) of the definition of “Principal Amount” with respect to that Loan Group for
such Distribution Date; and (iv) the principal portion of any Transfer Payment
Received for that Loan Group and Distribution Date; provided, however, on any
Distribution Date after a Senior Termination Date, the Senior Principal
Distribution Amount will be calculated pursuant to the above formula based
on
all the Mortgage Loans, as opposed to the Mortgage Loans in a Loan
Group.
42
Senior
Step Down Conditions:
On or
prior to a Senior Termination Date, with respect to the Mortgage Loans in a
Loan
Group and after a Senior Termination Date, with respect to all Mortgage Loans:
(i) the aggregate Stated Principal Balance of such 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 equal or exceed 50% of (1) on or prior to a Senior
Termination Date, the Subordinated Percentage for such Loan Group of the
aggregate Stated Principal Balance of the Mortgage Loans in such Loan Group
or
(2) after a Senior Termination Date, the aggregate Class Certificate Balance
of
the Subordinated Certificates on the Distribution Date and (ii) cumulative
Realized Losses on such Mortgage Loans do not exceed: (a) commencing with the
Distribution Date on the seventh anniversary of the first Distribution Date,
30%
of the Original Subordinate Principal Balance, (b) commencing with the
Distribution Date on the eighth anniversary of the first Distribution Date,
35%
of the Original Subordinate Principal Balance, (c) commencing with the
Distribution Date on the ninth anniversary of the first Distribution Date,
40%
of the Original Subordinate Principal Balance, (d) commencing the Distribution
Date on the tenth anniversary of the first Distribution Date, 45% of the
Original Subordinate Principal Balance and (e) commencing with the Distribution
Date on the eleventh anniversary of the first Distribution Date, 50% of the
Original Subordinate Principal Balance.
Senior
Termination Date:
For
each Senior Certificate Group, the Distribution Date on which the aggregate
Class Certificate Balance of the related Classes of Senior Certificates have
been reduced to zero.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses incurred
in the performance by the Master Servicer of its servicing obligations,
including, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any expenses
reimbursable to the Master Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.09.
Servicing
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.
43
Stated
Principal Balance:
As to
any Mortgage Loan and Due Date, the unpaid principal balance of such Mortgage
Loan as of such Due Date as specified in the amortization schedule at the time
relating thereto (before any adjustment to such amortization schedule by reason
of any moratorium or similar waiver or grace period), minus the sum of (i)
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, (iii) Principal Prepayments received through the
last
day of the related Prepayment Period 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.
Streamlined
Documentation Mortgage Loan:
Any
Mortgage Loan originated pursuant to Countrywide Home Loan Inc.’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.
Subordinate
Pass-Through Rate:
For the
Interest Accrual Period related to each Distribution Date, a per annum rate
equal to (1) the sum of the following for each Loan Group: the product of (x)
the Weighted Average Adjusted Net Mortgage Rate of the related Mortgage Loans
and (y) the related Subordinated Portion immediately prior to that Distribution
Date, divided by (2) the aggregate Class Certificate Balance of the Subordinated
Certificates immediately prior to that Distribution Date.
Subordinated
Certificates:
As
specified in the Preliminary Statement.
Subordinated
Percentage:
As to
any Loan Group and Distribution Date on or prior to a Senior Termination Date,
100% minus the Senior Percentage for such Distribution Date for the Senior
Certificate Group relating to such Loan Group. As to any Distribution Date
after
a Senior Termination Date, 100% minus the Senior Percentage for such
Distribution Date.
Subordinated
Portion:
For any
Distribution Date and Loan Group, an amount equal to the aggregate Stated
Principal Balance of the Mortgage Loans in that Loan Group as of the Due Date
in
the month prior to the month of such Distribution Date (after giving effect
to
Principal Prepayments in the Prepayment Period related to that prior Due Date),
minus the aggregate Class Certificate Balance of the related Senior Certificates
immediately prior to such Distribution Date.
44
Subordinated
Prepayment Percentage:
As to
any Distribution Date and Loan Group, 100% minus the related Senior Prepayment
Percentage for such Distribution Date.
Subordinated
Principal Distribution Amount:
With
respect to any Distribution Date and Loan Group, an amount equal to the excess
of (A) the sum, not less than zero, of the sum of (i) the Subordinated
Percentage of all amounts described in clauses (a) through (d) of the
definition of “Principal Amount” for that Loan Group and that Distribution Date,
(ii) with respect to each Mortgage Loan in that Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the 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 for such Loan Group of the Stated
Principal Balance of that Mortgage Loan, and (iii) the sum of the
Subordinated Prepayment Percentage for that Loan Group of all amounts described
in clauses (f) and (g) of the definition of “Principal Amount” for such
Loan Group and Distribution Date over (B) the principal portion of any Transfer
Payments Made for such Loan Group; provided, however, that on any Distribution
Date after a Senior Termination Date, the Subordinated Principal Distribution
Amount will not be calculated by Loan Group but will equal the amount calculated
pursuant to the formula set forth above based on the applicable Subordinated
Percentage and Subordinated Prepayment Percentage for the Subordinated
Certificates for such Distribution Date with respect to all of the Mortgage
Loans as opposed to the Mortgage Loans only in the related Loan
Group.
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 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, Mortgage Index reset period and Periodic Rate Cap as the Deleted Mortgage
Loan and a Gross Margin not more than 1% per annum higher or lower than that
of
the Deleted Mortgage Loan; (viii) not be a Cooperative Loan unless the
Deleted Mortgage Loan was a Cooperative Loan; and (ix) comply with each
representation and warranty set forth in Section 2.03.
45
Substitution
Adjustment Amount:
The
meaning ascribed to such term pursuant to Section 2.03.
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.
Transfer
Payment:
Either
or both of a Transfer Payment Made or a Transfer Payment Received.
Transfer
Payment Made:
As
defined in Section 4.05.
Transfer
Payment Received:
As
defined in Section 4.05.
Trust
Fund:
The
corpus of the trust created under this Agreement consisting of (i) the
Mortgage Loans and all interest and principal received on or with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance of the Mortgage Loans; (ii) the Certificate
Account, the Distribution Account, and 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 Pool Stated Principal Balance as of the Due Date in the
calendar month preceding the month in which such Distribution Date occurs (after
giving effect to Principal Prepayments received in the Prepayment Period related
to such Due Date).
Trustee
Fee Rate:
With
respect to each Mortgage Loan, 0.009% per annum.
Two
Times Test:
As to
any Distribution Date, if (i) the Aggregate Subordinated Percentage is at least
200% of the Aggregate 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 on or prior to February 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 after February 2010,
30% of the aggregate Class Certificate Balance of the Subordinated Certificates
as of the Closing Date.
46
Undercollateralized
Group:
As
defined in Section 4.05.
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 Senior Certificates that is a Class
of
Notional Amount Certificates, if any (such Voting Rights to be allocated among
the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no such Class of Certificates) shall be
allocated among Holders of the remaining Classes of Senior and Subordinated
Certificates in proportion to the Certificate Balances of their respective
Certificates on such date. Each Class of Exchangeable Certificates will be
allocated a proportionate share of the Voting Rights allocated to the Class
of
Depositable Certificates that has been surrendered.
Weighted
Average Adjusted Net Mortgage Rate:
For
each Loan Group and any Distribution Date, the average of the Adjusted Net
Mortgage Rate of each Mortgage Loan in that Loan Group, weighted on the basis
of
its Stated Principal Balance as of the Due Date in the month preceding the
month
of such Distribution Date (after giving effect to Principal Prepayments in
the
Prepayment Period related to that Due Date).
Weighted
Average Roll Date:
Not
applicable.
47
SECTION
1.02. Certain
Interpretative 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.
48
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 of this Agreement, hereby
sells, transfers, assigns, sets over and otherwise conveys to the Depositor,
without recourse, all its respective right, title and interest in and to the
related Mortgage Loans, including all interest and principal received or
receivable by such Seller on or with respect to the Mortgage Loans after the
Cut-off Date and all interest and principal payments on the related Mortgage
Loans received prior to the Cut-off Date in respect of installments of interest
and principal due thereafter, but not including payments of principal and
interest due and payable on such Mortgage Loans on or before the Cut-off Date.
On or prior to the Closing Date, Countrywide shall deliver to the Depositor
or,
at the Depositor’s direction, to the Trustee or other designee of the Depositor,
the Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule
(except that, in the case of the Delay Delivery Mortgage Loans (which may
include Countrywide Mortgage Loans, Park Granada Mortgage Loans, Park Monaco
Mortgage Loans and Park Sienna Mortgage Loans), such delivery may take place
within thirty (30) days following the Closing Date). Such delivery of the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Sellers and Depositor, for the Mortgage
Loans. With respect to any Mortgage Loan that does not have a first payment
date
on or before the Due Date in the month of the first Distribution Date,
Countrywide shall deposit into the Distribution Account on or before the
Distribution Account Deposit Date relating to the first Distribution Date,
an
amount equal to one month’s interest at the related Adjusted Mortgage Rate on
the Cut-off Date Principal Balance of such Mortgage Loan.
(b) Immediately
upon the conveyance of the Mortgage Loans referred to in clause (a), the
Depositor sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the benefit of the Certificateholders, without recourse, all the
right, title and interest of the Depositor in and to the Trust Fund together
with the Depositor’s right to require each Seller to cure any breach of a
representation or warranty made in this Agreement by such Seller or to
repurchase or substitute for any affected Mortgage Loan in accordance
herewith.
(c) In
connection with the transfer and assignment set forth in clause (b) above,
the
Depositor has delivered or caused to be delivered to the Trustee (or, in the
case of the Delay Delivery Mortgage Loans, will deliver or cause to be delivered
to the Trustee within thirty (30) days following the Closing Date) for the
benefit of the Certificateholders the following documents or instruments with
respect to each Mortgage Loan so assigned:
(i) (A) the
original Mortgage Note endorsed by manual or facsimile signature in blank in
the
following form: “Pay to the order of ____________ without recourse,” with all
intervening endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such endorsement
being sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
or
49
(B) with
respect to any Lost Mortgage Note, a lost note affidavit from Countrywide
stating that the original Mortgage Note was lost or destroyed, together with
a
copy of such Mortgage Note;
(ii) except
as provided below and for each Mortgage Loan that is not a MERS Mortgage Loan,
the original recorded Mortgage or a copy of such Mortgage, with recording
information, (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of each
MERS Mortgage Loan, the original Mortgage or a copy of such mortgage, with
recording information, noting the presence of the MIN of the Mortgage Loans
and
either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded;
(iii) in
the case of each Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage or a copy of such assignment, with recording
information, (which may be included in a blanket assignment or assignments),
together with, except as provided below, all interim recorded assignments of
such mortgage or a copy of such assignment, with recording information, (each
such assignment, when duly and validly completed, to be in recordable form
and
sufficient to effect the assignment of and transfer to the assignee thereof,
under the Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public recording
office, such assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such assignment of
Mortgage need not be delivered in the case of a Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico;
(iv) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any;
(v) except
as provided below, the original or a copy of lender’s title policy or a printout
of the electronic equivalent and all riders thereto; and
(vi)
in
the case of a Cooperative Loan, the originals of the following documents or
instruments:
(A) The
Coop
Shares, together with a stock power in blank;
(B) The
executed Security Agreement;
(C) The
executed Proprietary Lease;
(D) The
executed Recognition Agreement;
50
(E) The
executed UCC-1 financing statement with evidence of recording thereon which
have
been filed in all places required to perfect the applicable Seller’s interest in
the Coop Shares and the Proprietary Lease; and
(F) The
executed UCC-3 financing statements or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
In
addition, in connection with the assignment of any MERS Mortgage Loan, each
Seller agrees that it will cause, at the Trustee’s expense, the MERS® System to
indicate that the Mortgage Loans sold by such Seller to the Depositor have
been
assigned by that Seller to the Trustee in accordance with this Agreement for
the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in
such
computer files the information required by the MERS® System to identify the
series of the Certificates issued in connection with such Mortgage Loans. Each
Seller further agrees that it will not, and will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by such
Seller to the Depositor during the term of this Agreement unless and until
such
Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage or a copy of
such mortgage, with recording information, or (b) all interim recorded
assignments or a copy of such assignments, with recording information, or (c)
the lender’s title policy or a copy of lender’s title policy (together with all
riders thereto) satisfying the requirements of clause (ii), (iii) or (v) above,
respectively, concurrently with the execution and delivery of this Agreement
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above,
the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or
(iii) above, such original Mortgage or a copy of such mortgage, with recording
information, or such interim assignment or a copy of such assignments, with
recording information, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in
no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or,
in
the case of clause (v) above, no later than 120 days following the Closing
Date;
provided,
however,
in the
event the Depositor is unable to deliver by such date each Mortgage and each
such interim assignment by reason of the fact that any such documents have
not
been returned by the appropriate recording office, or, in the case of each
such
interim assignment, because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver such documents to
the
Trustee as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. The Depositor shall forward or cause to
be
forwarded to the Trustee (a) from time to time additional original documents
evidencing an assumption or modification of a Mortgage Loan and (b) any other
documents required to be delivered by the Depositor or the Master Servicer
to
the Trustee. In the event that the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan and the public
recording office requires the presentation of a “lost instruments affidavit and
indemnity” or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Master
Servicer shall execute and deliver or cause to be executed and delivered such
a
document to the public recording office. In the case where a public recording
office retains the original recorded Mortgage or in the case where a Mortgage
is
lost after recordation in a public recording office, Countrywide shall deliver
to the Trustee a copy of such Mortgage certified by such public recording office
to be a true and complete copy of the original recorded Mortgage.
51
As
promptly as practicable subsequent to such transfer and assignment, and in
any
event, within one hundred twenty (120) days after such transfer and assignment,
the Trustee shall (A) as the assignee thereof, affix the following language
to each assignment of Mortgage: “CWMBS Series 2007-HY1, 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, Countrywide (on its own behalf and on behalf of Park Granada,
Park
Monaco and Park Sienna) shall either (i) deliver to the Depositor, or at the
Depositor’s direction, to the Trustee or other designee of the Depositor the
Mortgage File as required pursuant to this Section 2.01 for each Delay Delivery
Mortgage Loan or (ii) either (A) substitute a Substitute Mortgage Loan for
the
Delay Delivery Mortgage Loan or (B) repurchase the Delay Delivery Mortgage
Loan,
which substitution or repurchase shall be accomplished in the manner and subject
to the conditions set forth in Section 2.03 (treating each Delay Delivery
Mortgage Loan as a Deleted Mortgage Loan for purposes of such Section 2.03);
provided, however, that if Countrywide fails to deliver a Mortgage File for
any
Delay Delivery Mortgage Loan within the thirty (30) day period provided in
the
prior sentence, Countrywide (on its own behalf and on behalf of Park Granada,
Park Monaco and Park Sienna) shall use its best reasonable efforts to effect
a
substitution, rather than a repurchase of, such Deleted Mortgage Loan and
provided further that the cure period provided for in Section 2.02 or in Section
2.03 shall not apply to the initial delivery of the Mortgage File for such
Delay
Delivery Mortgage Loan, but rather Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) shall have five (5) Business
Days
to cure such failure to deliver. At the end of such thirty (30) day period
the
Trustee shall send a Delay Delivery Certification for the Delay Delivery
Mortgage Loans delivered during such thirty (30) day period in accordance with
the provisions of Section 2.02.
52
(d) Neither
the Depositor nor the Trust will acquire or hold any Mortgage Loan that would
violate the representations made by Countrywide set forth in clauses (45),
(49)
and (50) 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 to this Agreement 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 the Mortgage Loans. The Trustee shall be under no duty or obligation to
inspect, review or examine said documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
On
or
about the thirtieth (30th) day after the Closing Date, the Trustee shall deliver
to the Depositor, the Master Servicer and Countrywide (on its own behalf and
on
behalf of Park Granada, Park Monaco and Park Sienna) a Delay Delivery
Certification with respect to the Mortgage Loans in the form annexed hereto
as
Exhibit G-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
Mortgage Loans in the form annexed hereto as Exhibit H-1 (a “Final
Certification”), with any applicable exceptions noted thereon.
53
If,
in
the course of such review, the Trustee finds any document constituting a part
of
a Mortgage File that does not meet the requirements of Section 2.01, the
Trustee shall list such as an exception in the Final Certification; provided,
however
that the
Trustee shall not make any determination as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note
or
(ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to which
the assignment relates. Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall promptly correct or cure such defect
within 90 days from the date it was so notified of such defect and, if
Countrywide does not correct or cure such defect within such period, Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
shall either (a) substitute for the related Mortgage Loan a Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase
such Mortgage Loan from the Trustee within 90 days from the date Countrywide
(on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
was
notified of such defect in writing at the Purchase Price of such Mortgage Loan;
provided,
however,
that in
no event shall such substitution or purchase occur more than 540 days from
the
Closing Date, except that if the substitution or purchase of a Mortgage Loan
pursuant to this provision is required by reason of a delay in delivery of
any
documents by the appropriate recording office, and there is a dispute between
either the Master Servicer or Countrywide (on its own behalf and on behalf
of
Park Granada, Park Monaco and Park Sienna) and the Trustee over the location
or
status of the recorded document, then such substitution or purchase shall occur
within 720 days from the Closing Date. The Trustee shall deliver written notice
to each Rating Agency within 270 days from the Closing Date indicating each
Mortgage Loan (a) that has not been returned by the appropriate recording
office or (b) as to which there is a dispute as to location or status of
such Mortgage Loan. Such notice shall be delivered every 90 days thereafter
until the related Mortgage Loan is returned to the Trustee. Any such
substitution pursuant to (a) above or purchase pursuant to (b) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05, if any, and any substitution pursuant to
(a) above shall not be effected prior to the additional delivery to the Trustee
of a Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such Mortgage
Loan
shall be deposited by Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) in the Certificate Account on or prior
to
the Distribution Account Deposit Date for the Distribution Date in the month
following the month of repurchase and, upon receipt of such deposit and
certification with respect thereto in the form of Exhibit N hereto, the
Trustee shall release the related Mortgage File to Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) and shall
execute and deliver at Countrywide’s (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) request such instruments of transfer
or
assignment prepared by Countrywide, in each case without recourse, as shall
be
necessary to vest in Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna), or its designee, the Trustee’s interest
in any Mortgage Loan released pursuant hereto. If pursuant to the foregoing
provisions Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) repurchases an Mortgage Loan that is a MERS Mortgage
Loan, the Master Servicer shall either (i) cause MERS to execute and deliver
an
assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS
to Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and
Park Sienna) or its designee and shall cause such Mortgage to be removed from
registration on the MERS® System in accordance with MERS’ rules and regulations
or (ii) cause MERS to designate on the MERS® System Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) or its
designee as the beneficial holder of such Mortgage Loan.
54
(b) [Reserved].
(c) [Reserved].
(d) The
Trustee shall retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions set forth in this Agreement. The
Master Servicer shall promptly deliver to the Trustee, upon the execution or
receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the possession of the Master
Servicer from time to time.
(e) It
is
understood and agreed that the respective obligations of each Seller to
substitute for or to purchase any Mortgage Loan sold to the Depositor by it
which does not meet the requirements of Section 2.01 above shall constitute
the sole remedy respecting such defect available to the Trustee, the Depositor
and any Certificateholder against that Seller.
SECTION
2.03. Representations,
Warranties and Covenants of the Sellers and Master Servicer.
(a) Countrywide
hereby makes the representations and warranties set forth in (i) Schedule II-A,
Schedule II-B, Schedule II-C and Schedule II-D hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee,
as
of the Closing Date, (ii) Schedule III-A hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee,
as
of the Closing Date, or if so specified therein, as of the Cut-off Date with
respect to all of the Mortgage Loans, and (iii) Schedule III-B hereto, and
by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date with respect to the Mortgage Loans that are Countrywide Mortgage
Loans. Park Granada hereby makes the representations and warranties set forth
in
(i) Schedule II-B hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii)
Schedule III-C hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or
if so
specified therein, as of the Cut-off Date with respect to the Mortgage Loans
that are Park Granada Mortgage Loans. Park Monaco hereby makes the
representations and warranties set forth in (i) Schedule II-C hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date and (ii) Schedule III-D hereto, and by
this
reference incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off
Date with respect to the Mortgage Loans that are Park Monaco Mortgage Loans.
Park Sienna hereby makes the representations and warranties set forth in (i)
Schedule II-D hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii)
Schedule III-E hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or
if so
specified therein, as of the Cut-off Date with respect to the Mortgage Loans
that are Park Sienna Mortgage Loans.
55
(b) The
Master Servicer hereby makes the representations and warranties set forth in
Schedule IV hereto, and by this reference incorporated herein, to the Depositor
and the Trustee, as of the Closing Date.
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty with respect to a Mortgage Loan made pursuant to Section 2.03(a) that
materially and adversely affects the interests of the Certificateholders in
that
Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. Each Seller hereby covenants that within 90 days
of the earlier of its discovery or its receipt of written notice from any party
of a breach of any representation or warranty with respect to a Mortgage Loan
sold by it pursuant to Section 2.03(a) that materially and adversely affects
the
interests of the Certificateholders in that Mortgage Loan, it shall cure such
breach in all material respects, and if such breach is not so cured, shall,
(i)
if such 90-day period expires prior to the second anniversary of the Closing
Date, remove such Mortgage Loan (a “Deleted Mortgage Loan”) from the Trust Fund
and substitute in its place a Substitute Mortgage Loan, in the manner and
subject to the conditions set forth in this Section; or (ii) repurchase the
affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price
in the manner set forth below; provided, however, that any such substitution
pursuant to (i) above shall not be effected prior to the delivery to the Trustee
of the Opinion of Counsel required by Section 2.05, if any, and any such
substitution pursuant to (i) above shall not be effected prior to the additional
delivery to the Trustee of a Request for Release substantially in the form
of
Exhibit N and the Mortgage File for any such Substitute Mortgage Loan. The
Seller repurchasing a Mortgage Loan pursuant to this Section 2.03(c) shall
promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. With respect to the representations
and
warranties described in this Section which are made to the best of a Seller’s
knowledge, if it is discovered by either the Depositor, a Seller or the Trustee
that the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein, notwithstanding that
Seller’s lack of knowledge with respect to the substance of such representation
or warranty, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
With
respect to any Substitute Mortgage Loan or Loans sold to the Depositor by a
Seller, Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment
of
the Mortgage, and such other documents and agreements as are required by
Section 2.01, with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be made in any
calendar month after the Determination Date for such month. Scheduled Payments
due with respect to Substitute Mortgage Loans in the month of substitution
shall
not be part of the Trust Fund and will be retained by the related Seller on
the
next succeeding Distribution Date. For the month of substitution, distributions
to Certificateholders will include the monthly payment due on any Deleted
Mortgage Loan for such month and thereafter that Seller shall be entitled to
retain all amounts received in respect of such Deleted Mortgage Loan. The Master
Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and
the
substitution of the Substitute Mortgage Loan or Loans and the Master Servicer
shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such
substitution, the Substitute Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the related Seller shall be deemed
to have made with respect to such Substitute Mortgage Loan or Loans, as of
the
date of substitution, the representations and warranties made pursuant to
Section 2.03(a) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the Certificate Account of the amount required
to be deposited therein in connection with such substitution as described in
the
following paragraph, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to such Deleted Mortgage Loan to
the
related Seller and shall execute and deliver at such Seller’s direction such
instruments of transfer or assignment prepared by Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna), in each case
without recourse, as shall be necessary to vest title in that Seller, or its
designee, the Trustee’s interest in any Deleted Mortgage Loan substituted for
pursuant to this Section 2.03.
56
For
any
month in which a Seller substitutes one or more Substitute Mortgage Loans for
one or more Deleted Mortgage Loans, the Master Servicer will determine the
amount (if any) by which the aggregate principal balance of all Substitute
Mortgage Loans sold to the Depositor by that Seller as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans repurchased by that Seller (after application of the scheduled
principal portion of the monthly payments due in the month of substitution).
The
amount of such shortage (the “Substitution Adjustment Amount”) plus an amount
equal to the aggregate of any unreimbursed Advances with respect to such Deleted
Mortgage Loans shall be deposited in the Certificate Account by Countrywide
(on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
on or
before the Distribution Account Deposit Date for the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
In
the
event that a Seller shall have repurchased a Mortgage Loan, the Purchase Price
therefor shall be deposited in the Certificate Account pursuant to
Section 3.05 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which that Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and
upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.05 and receipt of a Request for Release in the form
of Exhibit N hereto, the Trustee shall release the related Mortgage File
held for the benefit of the Certificateholders to such Person, and the Trustee
shall execute and deliver at such Person’s direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood
and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and
is
continuing shall constitute the sole remedy against such Persons respecting
such
breach available to Certificateholders, the Depositor or the Trustee on their
behalf.
The
representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Mortgage Files to the Trustee for the benefit
of the Certificateholders.
57
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 related Mortgage Notes were subject to no offsets,
defenses or counterclaims.
The
Depositor hereby assigns, transfers and conveys to the Trustee all of its rights
with respect to the Mortgage Loans including, without limitation, the
representations and warranties of each Seller made pursuant to
Section 2.03(a), together with all rights of the Depositor to require a
Seller to cure any breach thereof or to repurchase or substitute for any
affected Mortgage Loan in accordance with this Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the Trustee. Upon
discovery by the Depositor or the Trustee of a breach of any of the foregoing
representations and warranties set forth in this Section 2.04 (referred to
herein as a “breach”), which breach materially and adversely affects the
interest of the Certificateholders, the party discovering such breach shall
give
prompt written notice to the others and to each Rating Agency.
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.
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.
58
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.
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.
59
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.
60
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 hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer hereunder
and in connection with any such defaulted obligation to exercise the related
rights of the Master Servicer hereunder; provided that the Master Servicer
shall
not be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee. Neither the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by the Master Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
61
SECTION
3.04. Trustee
to Act as Master Servicer.
In
the
event that the Master Servicer shall for any reason no longer be the Master
Servicer hereunder (including by reason of an Event of Default or termination
by
the Depositor), the Trustee or its successor shall then assume all of the rights
and obligations of the Master Servicer hereunder arising thereafter (except
that
the Trustee shall not be (i) liable for losses of the Master Servicer
pursuant to Section 3.09 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 hereunder 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, the Certificate Account, the Distribution Account
and
the Principal Reserve Fund.
(a) The
Master Servicer shall make reasonable efforts in accordance with the customary
and usual standards of practice of prudent mortgage servicers to collect all
payments called for under the terms and provisions of the Mortgage Loans to
the
extent such procedures shall be consistent with this Agreement and the terms
and
provisions of any related Required Insurance Policy. Consistent with the
foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any prepayment charge or penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) extend the due dates for
payments due on a Mortgage Note for a period not greater than 180 days;
provided, however, that the Master Servicer cannot extend the maturity of any
such Mortgage Loan past the date on which the final payment is due on the latest
maturing Mortgage Loan as of the Cut-off Date. In the event of any such
arrangement, the Master Servicer shall make Advances on the related Mortgage
Loan in accordance with the provisions of Section 4.01 during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements. The Master Servicer
shall not be required to institute or join in litigation with respect to
collection of any payment (whether under a Mortgage, Mortgage Note or otherwise
or against any public or governmental authority with respect to a taking or
condemnation) if it reasonably believes that enforcing the provision of the
Mortgage or other instrument pursuant to which such payment is required is
prohibited by applicable law.
62
(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 Home Loans, Inc. is reduced below “A-” by S&P or “A3” by
Xxxxx’x, the Master Servicer shall deposit or cause to be deposited on a daily
basis within one Business Day of receipt), except as otherwise specifically
provided in this Agreement, the following payments and collections remitted
by
Subservicers or received by it in respect of Mortgage Loans subsequent to the
Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans on or before the Cut-off Date) and the following amounts required
to be deposited hereunder:
| (i) |
all
payments on account of principal on the Mortgage Loans, including
Principal Prepayments and Prepayment
Charges;
|
| (ii) |
all
payments on account of interest on the Mortgage Loans, net of the
related
Master Servicing Fee, any lender paid mortgage insurance premiums
and any
Prepayment Interest Excess;
|
| (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 rental income from REO
Property pursuant to
Section 3.11;
|
| (vi) |
all
Substitution Adjustment Amounts;
|
| (vii) |
all
Advances made by the Master Servicer pursuant to Section 4.01;
and
|
| (viii) |
any
other amounts required to be deposited under this
Agreement.
|
In
addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for such Mortgage Loan, in addition to the monthly
payment remitted by the Mortgagor, the Master Servicer shall cause funds to
be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to such Mortgage Loan equal to the amount
of
interest that has accrued on such Mortgage Loan from the preceding Due Date
at
the Mortgage Rate net of the related Master Servicing Fee.
The
foregoing requirements for remittance by the Master Servicer shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges or assumption fees,
if
collected, need not be remitted by the Master Servicer. In the event that the
Master Servicer shall remit any amount not required to be remitted, it may
at
any time withdraw or direct the institution maintaining the Certificate Account
to withdraw such amount from the Certificate Account, any provision in this
Agreement to the contrary notwithstanding. Such withdrawal or direction may
be
accomplished by delivering written notice thereof to the Trustee or such other
institution maintaining the Certificate Account which describes the amounts
deposited in error in the Certificate Account. The Master Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to
this
Section. All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders until withdrawn in accordance with
Section 3.08.
63
(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 or the Distribution Account is
maintained shall invest the funds in such account as directed in writing by
the
Master Servicer in Permitted Investments, which shall mature not later than
(i) in the case of the Certificate Account the second Business Day next
preceding the related Distribution Account Deposit Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than the Business
Day next preceding such Distribution Account Deposit Date) and (ii) in the
case of the Distribution Account, the Business Day next preceding the
Distribution Date (except that if such Permitted Investment is an obligation
of
the institution that maintains such fund or account, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gain net of any losses realized from any
such
investment of funds on deposit in the Certificate Account or the Distribution
Account shall be for the benefit of the Master Servicer as servicing
compensation and shall be remitted to it monthly as provided in this Agreement.
The amount of any realized losses in the Certificate Account or the Distribution
Account incurred in any such account in respect of any such investments shall
promptly be deposited by the Master Servicer in the Certificate Account or
paid
to the Trustee for deposit into the Distribution Account, as applicable. 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 or the Distribution Account
and made in accordance with this Section 3.05.
64
(f) The
Master Servicer shall give notice to the Trustee, each Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof. The Trustee shall give notice
to the Master Servicer, each Seller, each Rating Agency and the Depositor of
any
proposed change of the location of the Distribution Account prior to any change
thereof.
(g) The
Trustee shall establish and maintain, on behalf of the Holders of the Class
P
Certificateholders, a Principal Reserve Fund in the name of the Trustee. On
the
Closing Date, the Depositor shall deposit into the Principal Reserve Fund $200.
Funds on deposit in the Principal Reserve Fund shall not be
invested.
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 in such accounts 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 which is a savings and loan
association, bank or insurance company certain reports and reasonable access
to
information and documentation regarding the Mortgage Loans sufficient to permit
such Certificateholder and/or Certificate Owner to comply with applicable
regulations of the OTS or other regulatory authorities with respect to
investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder and/or Certificate
Owner for actual expenses incurred by the Master Servicer in providing such
reports and access.
SECTION
3.08. Permitted
Withdrawals from the Certificate Account, the Distribution Account and the
Principal 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 sum of (i) the related Available Funds, (ii) the related Prepayment Charges
and (iii) the pro rata portion of the Trustee Fee for such Distribution Date
(based on the aggregate Stated Principal Balance of the Mortgage Loans in each
Loan Group) 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
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;
67
(v) to
reimburse the Trustee for any Nonrecoverable Advance previously made by the
Trustee pursuant to Section 4.01(b) hereof, such right of reimbursement pursuant
to this subclause (v) being limited to amounts not otherwise reimbursed to
the
Trustee pursuant to Section 3.08(a)(iii) hereof; and
(vi) to
clear
and terminate the Distribution Account upon termination of the Agreement
pursuant to Section 9.01.
(c) On
the
Business Day before a Class P Principal Distribution Date, the Trustee shall
transfer from the Principal Reserve Fund to the Distribution Account $100 and
shall distribute such amount to the related Class of Class P Certificates on
that Class P Principal Distribution Date. Following the distributions to be
made
in accordance with the preceding sentence for the latest Class P Principal
Distribution Date, the Trustee shall then terminate the Principal Reserve
Fund
SECTION
3.09. Maintenance
of Hazard Insurance; Maintenance of Primary Insurance Policies.
(a) The
Master Servicer shall cause to be maintained, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to the
lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan or (ii) the greater of (y) the outstanding principal
balance of the Mortgage Loan and (z) an amount such that the proceeds of
such policy shall be sufficient to prevent the Mortgagor and/or the mortgagee
from becoming a co-insurer. Each such policy of standard hazard insurance shall
contain, or have an accompanying endorsement that contains, a standard mortgagee
clause. Any amounts collected by the Master Servicer under any such policies
(other than the amounts to be applied to the restoration or repair of the
related Mortgaged Property or amounts released to the Mortgagor in accordance
with the Master Servicer’s normal servicing procedures) shall be deposited in
the Certificate Account. Any cost incurred by the Master Servicer in maintaining
any such insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for their
benefit, be added to the principal balance of the Mortgage Loan, notwithstanding
that the terms of the Mortgage Loan so permit. Such costs shall be recoverable
by the Master Servicer out of late payments by the related Mortgagor or out
of
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 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.
68
(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 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.
69
(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 any foreclosure or other conversion, the Master Servicer shall follow
such
practices and procedures as it shall deem necessary or advisable and as shall
be
normal and usual in its general mortgage servicing activities and meet the
requirements of the insurer under any Required Insurance Policy; provided,
however, that the Master Servicer shall not be required to expend its own funds
in connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after reimbursement
to
itself of such expenses and (ii) that such expenses will be recoverable to
it through the proceeds of liquidation of the Mortgage Loan and Subsequent
Recoveries (respecting which it shall have priority for purposes of withdrawals
from the Certificate Account). The Master Servicer shall be responsible for
all
other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the proceeds
of
liquidation of the Mortgage Loan and Subsequent Recoveries with respect to
the
related Mortgaged Property, as provided in the definition of Liquidation
Proceeds. If the Master Servicer has knowledge that a Mortgaged Property which
the Master Servicer is contemplating acquiring in foreclosure or by deed in
lieu
of foreclosure is located within a 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.
70
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of the Certificateholders. The Trustee’s name shall be placed
on the title to such REO Property solely as the Trustee hereunder and not in
its
individual capacity. The Master Servicer shall ensure that the title to such
REO
Property references the Pooling and Servicing Agreement and the Trustee’s
capacity thereunder. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall either itself or through an agent selected by the Master
Servicer protect and conserve such REO Property in the same manner and to such
extent as is customary in the locality where such REO Property is located and
may, incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the Master Servicer
deems to be in the best interest of the Certificateholders for the period prior
to the sale of such REO Property. The Master Servicer shall prepare for and
deliver to the Trustee a statement with respect to each REO Property that has
been rented showing the aggregate rental income received and all expenses
incurred in connection with the maintenance of such REO Property at such times
as is necessary to enable the Trustee to comply with the reporting requirements
of the REMIC Provisions. The net monthly rental income, if any, from such REO
Property shall be deposited in the Certificate Account no later than the close
of business on each Determination Date. The Master Servicer shall perform the
tax reporting and withholding required by sections 1445 and 6050J of the
Code with respect to foreclosures and abandonments, the tax reporting required
by section 6050H of the Code with respect to the receipt of mortgage
interest from individuals and any tax reporting required by section 6050P
of the Code with respect to the cancellation of indebtedness by certain
financial entities, by preparing such tax and information returns as may be
required, in the form required, and delivering the same to the Trustee for
filing.
In
the
event that the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the Master Servicer shall dispose of such Mortgaged Property as soon as
practicable in a manner that maximizes the Liquidation Proceeds thereof, but
in
no event later than three years after its acquisition by the Trust Fund. In
that
event, the Trustee shall have been supplied with an Opinion of Counsel to the
effect that the holding by the Trust Fund of such Mortgaged Property subsequent
to a three-year period, if applicable, will not result in the imposition of
taxes on “prohibited transactions” of any REMIC hereunder as defined in
section 860F of the Code or cause any REMIC hereunder to fail to qualify as
a REMIC at any time that any Certificates are outstanding, and that the Trust
Fund may continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel) after the expiration of such three-year
period. Notwithstanding any other provision of this Agreement, no Mortgaged
Property acquired by the Trust Fund shall be rented (or allowed to continue
to
be rented) or otherwise used for the production of income by or on behalf of
the
Trust Fund in such a manner or pursuant to any terms that would (i) cause
such Mortgaged Property to fail to qualify as “foreclosure property” within the
meaning of section 860G(a)(8) of the Code or (ii) subject any REMIC
hereunder to the imposition of any federal, state or local income taxes on
the
income earned from such Mortgaged Property under section 860G(c) of the
Code or otherwise, unless the Master Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such
taxes.
71
In
the
event of a default on a Mortgage Loan one or more of whose obligor is not a
United States Person, as that term is defined in section 7701(a)(30) of the
Code, in connection with any foreclosure or acquisition of a deed in lieu of
foreclosure (together, “foreclosure”) in respect of such Mortgage Loan, the
Master Servicer will cause compliance with the provisions of Treasury Regulation
Section 1.1445-2(d)(3) (or any successor thereto) necessary to assure that
no withholding tax obligation arises with respect to the proceeds of such
foreclosure except to the extent, if any, that proceeds of such foreclosure
are
required to be remitted to the obligors on such Mortgage Loan.
The
decision of the Master Servicer to foreclose on a defaulted Mortgage Loan shall
be subject to a determination by the Master Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The income earned from the management of any REO Properties, net of
reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall
be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate Account. To the
extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for such calendar month, such excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as any income from
an
REO Property, will be applied in the following order of priority: first, to
reimburse the Master Servicer for any related unreimbursed Servicing Advances
and Master Servicing Fees; second, to reimburse the Master Servicer or the
Trustee for any unreimbursed Advances; third, to reimburse the Certificate
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer or the Trustee pursuant to
Section 3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued
and unpaid interest (to the extent no Advance has been made for such amount
or
any such Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Adjusted Net Mortgage Rate to the Due Date occurring in the
month in which such amounts are required to be distributed; and fifth, as a
recovery of principal of the Mortgage Loan. Excess Proceeds, if any, from the
liquidation of a Liquidated Mortgage Loan will be retained by the Master
Servicer as additional servicing compensation pursuant to
Section 3.14.
72
The
Master Servicer, in its sole discretion, shall have the right to purchase for
its own account from the Trust Fund any Mortgage Loan which is 151 days or
more
delinquent at a price equal to the Purchase Price; provided, however, that
the
Master Servicer may only exercise this right on or before the next to the last
day of the calendar month in which such Mortgage Loan became 151 days delinquent
(such month, the “Eligible Repurchase Month”); provided further, that any such
Mortgage Loan which becomes current but thereafter becomes delinquent may be
purchased by the Master Servicer pursuant to this Section in any ensuing
Eligible Repurchase Month. The Purchase Price for any Mortgage Loan purchased
under this Section 3.11 shall be deposited in the Certificate Account and the
Trustee, upon receipt of a certificate from the Master Servicer in the form
of
Exhibit N to this Agreement, shall release or cause to be released to the
purchaser of such Mortgage Loan the related Mortgage File and shall execute
and
deliver such instruments of transfer or assignment prepared by the purchaser
of
such Mortgage Loan, in each case without recourse, as shall be necessary to
vest
in the purchaser of such Mortgage Loan any Mortgage Loan released pursuant
hereto and the purchaser of such Mortgage Loan shall succeed to all the
Trustee’s right, title and interest in and to such Mortgage Loan and all
security and documents related thereto. Such assignment shall be an assignment
outright and not for security. The purchaser of such Mortgage Loan shall
thereupon own such Mortgage Loan, and all security and documents, free of any
further obligation to the Trustee or the Certificateholders with respect
thereto.
(b) Countrywide
may agree to a modification of any Mortgage Loan (the “Modified Mortgage Loan”)
if (i) the modification is in lieu of a refinancing, (ii) the Mortgage Rate
on
the Modified Mortgage Loan is approximately a prevailing market rate for
newly-originated mortgage loans having similar terms and (iii) Countrywide
purchases the Modified Mortgage Loan from the Trust Fund as described below.
Effective immediately after the modification, and, in any event, on the same
Business Day on which the modification occurs, all interest of the Trustee
in
the Modified Mortgage Loan shall automatically be deemed transferred and
assigned to Countrywide and all benefits and burdens of ownership thereof,
including the right to accrued interest thereon from the date of modification
and the risk of default thereon, shall pass to Countrywide. The Master Servicer
shall promptly deliver to the Trustee a certification of a Servicing Officer
to
the effect that all requirements of this paragraph have been satisfied with
respect to the Modified Mortgage Loan. For federal income tax purposes, the
Trustee shall account for such purchase as a prepayment in full of the Modified
Mortgage Loan.
Countrywide
shall pay to the Master Servicer, and the Master Servicer shall deposit the
Purchase Price for any Modified Mortgage Loan in the Certificate Account
pursuant to Section 3.05 within one Business Day after the purchase of the
Modified Mortgage Loan. Upon receipt by the Trustee of written notification
of
any such deposit signed 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 to this Agreement. 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.
73
SECTION
3.12. Trustee
to Cooperate; Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer
of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Master Servicer will immediately notify the Trustee by
delivering, or causing to be delivered a Request for Release substantially
in
the form of Exhibit N. Upon receipt of such request, the Trustee shall promptly
release the related Mortgage File to the Master Servicer, and the Trustee shall
at the Master Servicer’s direction execute and deliver to the Master Servicer
the request for reconveyance, deed of reconveyance or release or satisfaction
of
mortgage or such instrument releasing the lien of the Mortgage in each case
provided by the Master Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. The Master Servicer is authorized to cause
the
removal from the registration on the MERS System of such Mortgage and to execute
and deliver, on behalf of the Trustee and the Certificateholders or any of
them,
any and all instruments of satisfaction or cancellation or of partial or full
release. Expenses incurred in connection with any instrument of satisfaction
or
deed of reconveyance shall be chargeable to the related Mortgagor. From time
to
time and as shall be appropriate for the servicing or foreclosure of any
Mortgage Loan, including for such purpose, collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy, or for the purposes
of effecting a partial release of any Mortgaged Property from the lien of the
Mortgage or the making of any corrections to the Mortgage Note or the Mortgage
or any of the other documents included in the Mortgage File, the Trustee shall,
upon delivery to the Trustee of a Request for Release in the form of Exhibit
M
signed by a Servicing Officer, release the Mortgage File to the Master Servicer.
Subject to the further limitations set forth below, the Master Servicer shall
cause the Mortgage File or documents so released to be returned to the Trustee
when the need therefor by the Master Servicer no longer exists, unless the
Mortgage Loan is liquidated and the proceeds thereof are deposited in the
Certificate Account, in which case the Master Servicer shall deliver to the
Trustee a Request for Release in the form of Exhibit N, signed by a Servicing
Officer.
If
the
Master Servicer at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, the Master
Servicer shall deliver or cause to be delivered to the Trustee, for signature,
as appropriate, any court pleadings, requests for trustee’s sale or other
documents necessary to effectuate such foreclosure or any legal action brought
to obtain judgment against the Mortgagor on the Mortgage Note or the Mortgage
or
to obtain a deficiency judgment or to enforce any other remedies or rights
provided by the Mortgage Note or the Mortgage or otherwise available at law
or
in equity.
74
SECTION
3.13. Documents,
Records and Funds in Possession of Master Servicer to be Held for the
Trustee.
Notwithstanding
any other provisions of this Agreement, the Master Servicer shall transmit
to
the Trustee as required by this Agreement all documents and instruments in
respect of a Mortgage Loan coming into the possession of the Master Servicer
from time to time and shall account fully to the Trustee for any funds received
by the Master Servicer or which otherwise are collected by the Master Servicer
as Liquidation Proceeds, Insurance Proceeds or Subsequent Recoveries in respect
of any Mortgage Loan. All Mortgage Files and funds collected or held by, or
under the control of, the Master Servicer in respect of any Mortgage Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds and any Subsequent Recoveries, including but not limited
to, any funds on deposit in the Certificate Account, shall be held by the Master
Servicer for and on behalf of the Trustee and shall be and remain the sole
and
exclusive property of the Trustee, subject to the applicable provisions of
this
Agreement. The Master Servicer also agrees that it shall not create, incur
or
subject any Mortgage File or any funds that are deposited in the Certificate
Account, Distribution Account or any Escrow Account, or any funds that otherwise
are or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy,
writ
of attachment or other encumbrance, or assert by legal action or otherwise
any
claim or right of setoff against any Mortgage File or any funds collected on,
or
in connection with, a Mortgage Loan, except, however, that the Master Servicer
shall be entitled to set off against and deduct from any such funds any amounts
that are properly due and payable to the Master Servicer under this
Agreement.
SECTION
3.14. Servicing
Compensation.
As
compensation for its activities hereunder, the Master Servicer shall be entitled
to retain or withdraw from the Certificate Account an amount equal to the Master
Servicing Fee; provided, that the aggregate Master Servicing Fee with respect
to
any Distribution Date shall be reduced (i) by an amount equal to the aggregate
of the Prepayment Interest Shortfalls on all of the Mortgage Loans, if any,
with
respect to such Distribution Date, but not to exceed the Compensating Interest
for such Distribution Date, and (ii) with respect to the first Distribution
Date, an amount equal to any amount to be deposited into the Distribution
Account by the Depositor pursuant to Section 2.01(a) and not so
deposited.
Additional
servicing compensation in the form of Excess Proceeds, Prepayment Interest
Excess, 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.
75
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 or Certificate Owners
and
the examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer. Nothing
in this Section shall limit the obligation of the Master Servicer to observe
any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Master Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of this
Section.
SECTION
3.16. Annual
Statement as to Compliance.
(a) The
Master Servicer shall deliver to the Depositor and the Trustee on or before
March 15 of each year, commencing with its 2008 fiscal year, an Officer’s
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer under
this Agreement has been made under such officer’s supervision and (ii) to
the best of such officer’s knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there has been
a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status thereof.
(b) The
Master Servicer shall cause each Subservicer to deliver to the Depositor and
the
Trustee on or before March 15 of each year, commencing with its 2008 fiscal
year, an Officer’s Certificate stating, as to the signer thereof, that (i) a
review of the activities of such Subservicer during the preceding calendar
year
(or applicable portion thereof) and of the performance of the Subservicer under
the applicable Subservicing Agreement or primary servicing agreement, has been
made under such officer’s supervision and (ii) to the best of such officer’s
knowledge, based on such review, such Subservicer has fulfilled all its
obligations under the applicable Subservicing Agreement or primary servicing
agreement, in all material respects throughout such year (or applicable portion
thereof), or, if there has been a failure to fulfill any such obligation in
any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
(c) The
Trustee shall forward a copy of each such statement to each Rating
Agency.
SECTION
3.17. Errors
and Omissions Insurance; Fidelity Bonds.
The
Master Servicer shall for so long as it acts as master servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as
Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA or FHLMC for
persons performing servicing for mortgage loans purchased by FNMA or FHLMC.
In
the event that any such policy or bond ceases to be in effect, the Master
Servicer shall obtain a comparable replacement policy or bond from an insurer
or
issuer, meeting the requirements set forth above as of the date of such
replacement.
76
SECTION
3.18. Notification
of Adjustments.
On
each
Adjustment Date, the Master Servicer shall make interest rate and scheduled
payment adjustments for each Mortgage Loan in compliance with the requirements
of the related Mortgage and Mortgage Note and applicable regulations. The Master
Servicer shall execute and deliver the notices required by each Mortgage and
Mortgage Note and applicable regulations regarding interest rate adjustments.
The Master Servicer also shall provide timely notification to the Trustee of
all
applicable data and information regarding such interest rate adjustments and
the
Master Servicer’s methods of implementing such interest rate adjustments. Upon
the discovery by the Master Servicer or the Trustee that the Master Servicer
has
failed to adjust or has incorrectly adjusted a Mortgage Rate or a monthly
payment pursuant to the terms of the related Mortgage Note and Mortgage, the
Master Servicer shall immediately deposit in the Certificate Account from its
own funds the amount of any interest loss caused thereby without reimbursement
therefor; provided, however, the Master Servicer shall be held harmless with
respect to any interest rate adjustments made by any servicer prior to the
Master Servicer.
SECTION
3.19. 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 in a Loan Group, the Master Servicer
shall deliver to the Trustee an Officer’s Certificate substantially in the form
of Exhibit T no later than the third Business Day following the immediately
succeeding Determination Date with a copy to the Holders of the applicable
Class
of Class P Certificates. If the Master Servicer has waived or does not collect
all or a portion of a Prepayment Charge relating to a Principal Prepayment
in
full or in part due to any action or omission of the Master Servicer, other
than
as provided above, the Master Servicer shall deliver to the Trustee, together
with the Principal Prepayment in full or in part, the amount of such Prepayment
Charge (or such portion thereof as had been waived) for deposit into the
Certificate Account (not later than 1:00 p.m. Pacific time on the immediately
succeeding Master Servicer Advance Date, in the case of such Prepayment Charge)
for distribution in accordance with the terms of this Agreement.
77
(b) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee of
a
breach of the foregoing subsection (a), the party discovering the breach shall
give prompt written notice to the other parties.
(c) Countrywide
represents and warrants to the Depositor and the Trustee, as of the Closing
Date, that the information in the Prepayment Charge Schedule (including the
attached prepayment charge summary) is complete and accurate in all material
respects at the dates as of which the information is furnished and each
Prepayment Charge is permissible and enforceable in accordance with its terms
under applicable state law, except as the enforceability thereof is limited
due
to acceleration in connection with a foreclosure or other involuntary
payment.
(d) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee of
a
breach of the foregoing clause (c) that materially and adversely affects the
right of the Class P Certificateholders to any Prepayment Charge, the party
discovering the breach shall give prompt written notice to the other parties.
Within 60 days of the earlier of discovery by the Master Servicer or receipt
of
notice by Master Servicer of breach, Countrywide shall cure the breach in all
material respects or shall pay to the Master Servicer for deposit 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.
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)
With
respect to the Available Funds for Loan Group 1, on each Distribution Date,
the
Trustee shall withdraw such Available Funds from the Distribution Account and
apply such funds to distributions on the specified Classes of Group 1 Senior
Certificates in the following order and priority and, in each case, to the
extent of such funds remaining:
(i) [Reserved];
(ii) concurrently,
to each interest-bearing Class of the Group 1 Senior Certificates, an amount
allocable to interest equal to the related Class Optimal Interest Distribution
Amount for such Distribution Date, any shortfall being allocated among such
Classes in proportion to the amount of the Class Optimal Interest Distribution
Amount that would have been distributed in the absence of such
shortfall;
(iii) [Reserved];
(iv) to
each
Class of Group 1 Senior Certificates, concurrently as follows:
(x)
[Reserved]; and
(y)
the
related Principal Amount, up to the amount of the Senior Principal Distribution
Amount for Loan Group 1 for such Distribution Date will be distributed,
sequentially, as follows:
(1)
to
the Class A-R Certificates, until its Class Certificate Balance is reduced
to
zero;
(2)
concurrently, to the Class 1-A-1 and Class 1-A-2 Certificates, pro rata, until
their respective Class Certificate Balances are reduced to zero;
(2) With
respect to the Available Funds for Loan Group 2, on each Distribution Date,
the
Trustee shall withdraw such Available Funds from the Distribution Account and
apply such funds to distributions on the specified Classes of Group 2 Senior
Certificates in the following order and priority and, in each case, to the
extent of such funds remaining:
(i) [Reserved];
80
(ii) concurrently,
to each interest-bearing Class of Group 2 Senior Certificates, an amount
allocable to interest equal to the related Class Optimal Interest Distribution
Amount for such Distribution Date, any shortfall being allocated among such
Classes in proportion to the amount of the Class Optimal Interest Distribution
Amount that would have been distributed in the absence of such
shortfall;
(iii) [Reserved];
(iv) to
each
Class of Group 2 Senior Certificates, concurrently as follows:
(x)
[Reserved]; and
(y)
the
related Principal Amount, up to the amount of the Senior Principal Distribution
Amount for Loan Group 2 for such Distribution Date will be distributed,
concurrently, to the Class 2-A-1 and Class 2-A-2 Certificates, pro rata, until
their respective Class Certificate Balances are reduced to zero.
(3) On
each
Distribution Date, Available Funds from all Loan Groups remaining after making
the distributions described in Section 4.02(a)(1) through Section 4.02(a)(2),
shall be distributed to the Senior Certificates to the extent provided in
Section 4.05.
(4) On
each
Distribution Date, Available Funds from all Loan Groups remaining after making
the distributions described in Section 4.02(a)(1) through Section 4.02(a)(3)
above, shall be distributed to the Subordinated Certificates and the Class A-R
Certificates in the following order and priority and, in each case, to the
extent of such funds remaining:
(A) to
the
Class M Certificates, an amount allocable to interest equal to the Class
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(B) to
the
Class M Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(C) to
the
Class B-1 Certificates, an amount allocable to interest equal to the Class
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(D) to
the
Class B-1 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(E) to
the
Class B-2 Certificates, an amount allocable to interest equal to the Class
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
81
(F) to
the
Class B-2 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(G) to
the
Class B-3 Certificates, an amount allocable to interest equal to the amount
of the Class Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(H) to
the
Class B-3 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(I) to
the
Class B-4 Certificates, an amount allocable to interest equal to the amount
of the Class Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(J) to
the
Class B-4 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(K) to
the
Class B-5 Certificates, an amount allocable to interest equal to the Class
Optimal Interest Distribution Amount for such Class for such Distribution Date;
and
(L) to
the
Class B-5 Certificates, an amount allocable to principal equal to its Pro
Rata Share for such Distribution Date until the Class Certificate Balance
thereof is reduced to zero;
(M) [Reserved];
and
(N) to
the
Class A-R Certificates, any remaining funds in the Trust Fund.
On
each
Distribution Date, all amounts representing Prepayment Charges on the Mortgage
Loans in a Loan Group received during the related Prepayment Period will be
distributed to the Holders of the related Class of Class P
Certificates.
Notwithstanding
the foregoing, if the Class of Depositable Certificates has been surrendered
to
the Trustee for Exchangeable Certificates, then any amounts otherwise
distributable to such Class of Depositable Certificates in this Section 4.02(a)
shall be deposited in the Exchangeable Certificates Distribution Account and
distributed to the Holders of the related Class or Classes of Exchangeable
Certificates pursuant to Section 5.07.
(b) [Reserved]
(c) [Reserved]
82
(d) On
each
Distribution Date, the amount referred to in clause (i) of the definition of
Class Optimal Interest Distribution Amount for each Class of Certificates for
such Distribution Date shall be reduced for each Class of Senior Certificates
of
a Senior Certificate Group and each Class of Subordinated Certificates by the
related Class’ Allocable Share of (A) the Net Prepayment Interest Shortfalls for
the related Loan Group, (B) with respect to each Mortgage Loan in the related
Loan Group (or after the Senior Credit Support Depletion Date, any Mortgage
Loan) that became subject to a 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 in the related Loan Group (or after the Senior Credit Support
Depletion Date, any Mortgage Loan) incurred during the calendar month preceding
the month of such Distribution Date.
(e) Notwithstanding
the priority and allocation contained in Section 4.02(a)(4), if with
respect to any Class of Subordinated Certificates on any Distribution Date
(other than the Class of Subordinated Certificates then outstanding with the
highest priority of distribution) the sum of the related Class Subordination
Percentages of such Class and of all Classes of Subordinated Certificates which
have a higher numerical Class designation than such Class (the “Applicable
Credit Support Percentage”) is less than the Original Applicable Credit Support
Percentage for such Class, no distribution of Principal Prepayments will be
made
to any such Classes (the “Restricted Classes”) and the amount of such Principal
Prepayments otherwise distributable to the Restricted Classes shall be
distributed to any Classes of Subordinated Certificates having lower numerical
Class designations than such Class, pro rata, based on their respective Class
Certificate Balances immediately prior to such Distribution Date and shall
be
distributed in the sequential order provided in
Section 4.02(a)(4).
(f) If
Subsequent Recoveries have been received with respect to a Liquidated Mortgage
Loan in a Loan Group, the amount of such Subsequent Recoveries will be applied
sequentially, in the order of payment priority to increase the Class Certificate
Balance of each Class of related Certificates to which Realized Losses have
been
allocated, but in each case by not more than the amount of Realized Losses
previously allocated to that Class of Certificates pursuant to Section 4.04.
Holders of such Certificates will not be entitled to any payment in respect
of
the Class Optimal Interest Distribution Amount on the amount of such increases
for any Interest Accrual Period preceding the Distribution Date on which such
increase occurs. Any such increases shall be applied pro rata to the Certificate
Balance of each Certificate of such Class.
SECTION
4.03. [Reserved].
SECTION
4.04. Allocation
of Realized Losses.
(a) On
or
prior to each Determination Date, the Trustee shall determine the total amount
of Realized Losses, with respect to the related Distribution Date. For purposes
of allocating losses to the Subordinated Certificates, the Class M
Certificates will be deemed to have a lower numerical Class designation, and
to
be of a higher relative payment priority, than each other Class of Subordinated
Certificates.
Realized
Losses with respect to any Distribution Date shall be allocated as
follows:
83
| (i) |
[Reserved].
|
| (ii) |
Any
Realized Loss on the Mortgage Loans in a Loan Group shall be allocated
first to the Subordinated Certificates in reverse order of their
respective numerical Class designations (beginning with the Class
of
Subordinated Certificates then outstanding with the highest numerical
Class designation) until the respective Class Certificate Balance
of each
such Class is reduced to zero, and second to the Senior Certificates
of
the related Senior Certificate Group (other than any Notional Amount
Certificates), if applicable, in the following order, until the respective
Class Certificate Balance of each such Class has been reduced to
zero: (1)
in the case of Loan Group 1, sequentially, to the Class 1-A-2 and
Class
1-A-1 Certificates, in that order; and (2) in the case of Loan Group
2,
sequentially, to the Class 2-A-2 and Class 2-A-1 Certificates, in
that
order.
|
(b) The
Class
Certificate Balance of the Class of Subordinated Certificates then outstanding
with the highest numerical Class designation shall be reduced on each
Distribution Date by the amount, if any, by which the aggregate of the Class
Certificate Balances of all outstanding Classes of Certificates (after giving
effect to the distribution of principal and the allocation of Realized Losses
on
such Distribution Date) exceeds the Pool Stated Principal Balance as of the
Due
Date in the month of 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 any reduction in the
Certificate Balance of a Certificate, pursuant to Section 4.04(b) above
shall be accomplished by reducing the Certificate Balance, as applicable,
immediately following the distributions made on the related Distribution Date
in
accordance with the definition of “Certificate Balance” or “Subordinated
Portion,” as the case may be.
(e) On
each
Distribution Date on which a Class of Exchangeable Certificates shall be
entitled to receive distributions pursuant to Section 5.07, such Class shall
be
allocated a proportionate share of the Realized Losses allocable to the
Class(es) of Depositable Certificates in the related Recombination
Group.
SECTION
4.05. Cross-Collateralization;
Adjustments to Available Funds
If
on any
Distribution Date
the
Class Certificate Balance of the Senior Certificates in a Senior Certificate
Group immediately prior to each Distribution Date is greater than the aggregate
Stated Principal Balance of the Mortgage Loans in the related Loan Group as
of
the Due Date in the month preceding the month of that Distribution Date (after
giving effect to Principal Prepayments in the Prepayment Period related to
that
Due Date) (the “Undercollateralized
Group”),
then
the Trustee shall apply the Available Funds of the other Loan Group if it is
not
undercollateralized (the “Overcollateralized
Group”),
as
follows:
(1)
to
add to the Available Funds of the Undercollateralized Group an amount equal
to
the lesser of (a) one month’s interest on the Transfer Payment Received of the
Undercollateralized Group at the Weighted Average Adjusted Net Mortgage Rate
applicable to the Undercollateralized Group and (b) Available Funds of the
Overcollateralized Group remaining after making distributions to the
Certificates of the Overcollateralized Group on such Distribution Date pursuant
to Section 4.02; and
84
(2)
to
the Senior Certificates of the Undercollateralized Group, to the extent of
the
principal portion of Available Funds of the Overcollateralized Group remaining
after making distributions to the Senior Certificates of the Overcollateralized
Group on such Distribution Date pursuant to Section 4.02, until the Class
Certificate Balance of the Senior Certificates of such Undercollateralized
Group
equals the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group as of the Due Date in the month preceding the month of that
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that Due Date).
The
payment received by the Undercollateralized Group (including the interest
thereon as provided in (1) above) is referred to as a “Transfer
Payment Received.”
The
payment made by the Overcollateralized Group (including the interest thereon
as
provided in (1) above) is referred to as a “Transfer
Payment Made.”
SECTION
4.06. Monthly
Statements to Certificateholders.
(a) Concurrently
with each distribution on a Distribution Date, the Trustee will forward by
mail
to each Rating Agency and make available to Certificateholders on the Trustee’s
website (xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting
forth the information contained in Exhibit U hereto. Such statement shall also
indicate whether any exchanges of Exchangeable Certificates or Depositable
Certificates have occurred since the immediately preceding Distribution Date
and, if applicable, the Class designation, Class Certificate Balance or Notional
Amount, as applicable, and Pass-Through Rate of any Classes of Certificates
that
were received by a Certificateholder as a result of such exchange as well as
any
Net Prepayment Interest Shortfalls and Realized Losses allocated to such
Certificates as a result of such exchange.
(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.
85
(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.
86
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 Notional Amount
Certificate, (B) 100% of the Class Certificate Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder
appearing in the Certificate Register.
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Trustee by an authorized officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the countersignature and delivery of such Certificates
or
did not hold such offices at the date of such Certificate. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at
the
direction of the Depositor, or any affiliate of the Depositor.
The
Depositor shall provide, or cause to be provided, to the Trustee on a continuous
basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION
5.02. Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The
Trustee shall maintain, or cause to be maintained in accordance with the
provisions of Section 5.06, a Certificate Register for the Trust Fund in
which, subject to the provisions of subsections (b) and (c) below and to
such reasonable regulations as it may prescribe, the Trustee shall provide
for
the registration of Certificates and of transfers and exchanges of Certificates
as provided in this Agreement. Upon surrender for registration of transfer
of
any Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
87
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates
are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the holder thereof or
his
attorney duly authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. In the event that a transfer
is
to be made in reliance upon an exemption from the Securities Act and such laws,
in order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such Certificateholder’s
prospective transferee shall each certify to the Trustee in writing the facts
surrounding the transfer in substantially the forms set forth in
Exhibit J-2 (the “Transferor Certificate”) and (i) deliver a letter in
substantially the form of either Exhibit K (the “Investment Letter”) or
Exhibit L (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.
88
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(in the event such Certificate is a Private Certificate, such requirement is
satisfied only by the Trustee’s receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L, or in the event
such Certificate is a Residual Certificate, such requirement is satisfied only
by the Trustee’s receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that (x) such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA
or a plan or arrangement subject to Section 4975 of the Code, or a person acting
on behalf of any such plan or arrangement, or using the assets of any such
plan
or arrangement to effect such transfer or (y) in the case of a Certificate
that
is an ERISA-Restricted Certificate and that has been the subject of an
ERISA-Qualifying Underwriting, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained
in
an “insurance company general account” (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the
purchase and holding of such Certificates satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60 or (ii) in the case of any
ERISA-Restricted Certificate presented for registration in the name of an
employee benefit plan or arrangement subject to ERISA, or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee or any other person acting on behalf of any such
plan
or arrangement or using such plan’s or arrangement’s assets, an Opinion of
Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be
an
expense of the Trustee, the Master Servicer or the Trust Fund, addressed to
the
Trustee and the Master Servicer, to the effect that the purchase and holding
of
such ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, and will
not
subject the Trustee or the Master Servicer to any obligation in addition to
those expressly undertaken in this Agreement or to any liability (such Opinion
of Counsel, a “Benefit Plan Opinion”). For purposes of the preceding sentence,
with respect to an ERISA-Restricted Certificate that is not a Residual
Certificate, in the event the representation letter or Benefit Plan Opinion
referred to in the preceding sentence is not so furnished, one of the
representations in clause (i), as appropriate, shall be deemed to have been
made
to the Trustee by the transferee’s (including an initial acquiror’s) acceptance
of the ERISA-Restricted 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:
89
| (i) |
Each
Person holding or acquiring any Ownership Interest in a Residual
Certificate shall be a Permitted Transferee and shall promptly notify
the
Trustee of any change or impending change in its status as a Permitted
Transferee.
|
| (ii) |
Except
in connection with (i) the registration of the Tax Matters Person
Certificate in the name of the Trustee or (ii) any registration in
the
name of, or transfer of a Residual Certificate to, an affiliate of
the
Depositor (either directly or through a nominee) in connection with
the
initial issuance of the Certificates, no Ownership
Interest in a Residual Certificate may be registered on the Closing
Date
or thereafter transferred, and the Trustee shall not register the
Transfer
of any Residual Certificate unless, the Trustee shall have been furnished
with an affidavit (a “Transfer Affidavit”) of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
|
| (iii) |
Each
Person holding or acquiring any Ownership Interest in a Residual
Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Residual
Certificate
and (C) not to Transfer its Ownership Interest in a Residual
Certificate or to cause the Transfer of an Ownership Interest in
a
Residual Certificate to any other Person if it has actual knowledge
that
such Person is not a Permitted
Transferee.
|
| (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.
|
90
The
restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Master
Servicer, or any Seller, to the effect that the elimination of such restrictions
will not cause any REMIC hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax
on
the Trust Fund, a Certificateholder or another Person. Each Person holding
or
acquiring any Ownership Interest in a Residual Certificate hereby consents
to
any amendment of this Agreement which, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Residual Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a
Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Book-Entry Certificates; (iii) ownership and transfers of
registration of the Book-Entry Certificates on the books of the Depository
shall
be governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to
be
inconsistent if they are made with respect to different Certificate Owners;
and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
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.
91
If
(x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) after the occurrence of an
Event of Default, Certificate Owners representing at least 51% of the
Certificate Balance of the Book-Entry Certificates together advise the Trustee
and the Depository through the Depository Participants in writing that the
continuation of a book-entry system through the Depository is no longer in
the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
“Definitive Certificates”) to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Master Servicer,
the Depositor nor the Trustee shall be liable for any delay in delivery of
such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Master Servicer shall provide the Trustee with an
adequate inventory of certificates to facilitate the issuance and transfer
of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references in this Agreement to obligations imposed upon or to be performed
by
the Depository shall be deemed to be imposed upon and performed by the Trustee,
to the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by virtue
of
its assumption of such obligations become liable to any party for any act or
failure to act of the Depository.
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 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.
92
SECTION
5.06. Maintenance
of Office or Agency.
The
Trustee will maintain or cause to be maintained at its expense an office or
offices or agency or agencies in New York City where Certificates may be
surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
SECTION
5.07. Depositable
and Exchangeable Certificates.
(a) On
the
Closing Date, there is hereby established a separate trust (the “ES Trust”),
which shall be a Grantor Trust for federal income tax purposes. The ES Trust
shall be maintained by the Trustee in its name, for the benefit of the Holders
of the Certificates. The assets of the ES Trust shall consist of the LTR-A-R
Interest, the MTR-A-R Interest, the MR-A-R Interest and the uncertificated
Master REMIC Interests, which have been placed in the ES Trust through the
efforts of the Underwriter. The LTR-A-R Interest, the MTR-A-R Interest, the
MR-A-R Interest and the uncertificated Master REMIC Interests in the ES Trust
shall be held by the Trustee. On the Closing Date, the ES Trust shall issue
the
several Classes of Certificates. Each Class of Exchangeable Certificates shall
be issued on the Closing Date with a Class Certificate Balance of zero. Upon
the
sale of the Certificates on the Closing Date, the Exchangeable Certificates
shall be placed with the Trustee through the efforts of the Underwriter to
be
held to facilitate the exchange of Depositable and Exchangeable Certificates
on
and after the Closing Date. Among the Depositable and Exchangeable Certificates,
the beneficial interest of the uncertificated Master REMIC Interests shall
be
represented by the related Depositable Certificates until such Depositable
Certificates have been exchanged for Exchangeable Certificates, at which time,
such Exchangeable Certificates shall represent those uncertificated Master
REMIC
Interests.
The
Trustee, as trustee of the ES Trust, shall establish and maintain, on behalf
of
the Holders of the Exchangeable Certificates, the Exchangeable Certificates
Distribution Account. All funds on deposit in the Exchangeable Certificates
Distribution Account shall be held separate and apart from, and shall not be
commingled with, any other moneys, including without limitation, other moneys
held by the Trustee pursuant to this Agreement.
93
On
each
Distribution Date, the Trustee, as holder of any surrendered Depositable
Certificates, shall deposit in the Exchangeable Certificates Distribution
Account any amounts distributable to the surrendered Depositable Certificates
pursuant to Section 4.02. For the avoidance of doubt, if on any Distribution
Date no Classes of Depositable Certificates have been surrendered or if all
Classes of Exchangeable Certificates have been exchanged for Depositable
Certificates according to Section 5.07(e), then no amounts will be deposited
in
the Exchangeable Certificates Deposit Account on such Distribution Date.
On
each
Distribution Date, the Trustee shall make withdrawals from the Exchangeable
Certificates Distribution Account to make distributions to the Classes of
Exchangeable Certificates then entitled to distributions pursuant to Section
5.07(b).
Funds
in
the Exchangeable Certificates Distribution Account shall remain
uninvested.
(b) On
each
Distribution Date, the Trustee shall withdraw funds on deposit in the
Exchangeable Certificates Distribution Account on deposit therein from
distributions to the surrendered Depositable Certificates for such Distribution
Date and distribute such amount to the Holders of each related Class of
Exchangeable Certificates. Amounts related to interest distributed to the
surrendered Depositable Certificates shall be distributed as interest to the
related Class or Classes of Exchangeable Certificates pursuant to Section
4.02(a)(ii). All distributions of principal to the Exchangeable Certificates
shall be made pro rata among the Classes of Exchangeable Certificates within
each Recombination Group unless specifically provided for otherwise in Schedule
VIII. All distributions that are made with respect to a particular Class of
Exchangeable Certificates shall be made pro rata among all Certificates of
such
Class in proportion to their respective Class Certificate Balances.
In
addition, the Trustee may from time to time make withdrawals from the
Exchangeable Certificates Distribution Account for the following
purposes:
(i) to
withdraw any amount deposited in the Exchangeable Certificates Distribution
Account and not required to be deposited therein; and
(ii) to
clear
and terminate the Exchangeable Certificates Distribution Account upon the
termination of this Agreement.
(c) On
each
Distribution Date on which a Class of Exchangeable Certificates shall be
entitled to receive distributions pursuant to Section 5.07(b), such Class shall
be allocated a proportionate share of the Net Prepayment Interest Shortfalls
and
Relief Act Shortfalls allocable to the Classes of Depositable Certificates
in
the related Recombination Group.
(d) On
each
Distribution Date on which a Class of Exchangeable Certificates shall be
entitled to receive distributions pursuant to Section 5.07(b), such Class shall
be allocated a proportionate share of the Realized Losses allocable to the
Classes of Depositable Certificates in the related Recombination Group.
94
(e) Upon
the
presentation and surrender of the Depositable Certificates, the Holder thereof
transfers, assigns, sets over and otherwise conveys to the Trustee of the ES
Trust, all of such Holder’s right, title and interest in and to such Depositable
Certificates, including all payments of interest thereon received after the
month of the exchange. The Trustee on behalf of the ES Trust shall furnish
written acknowledgement to the Holder of such surrendered Certificate of the
transfer and assignment to it of such Depositable Certificates.
At
the
request of the Holder of a Class or Classes of Depositable Certificates, and
upon the surrender of such Depositable Certificates, the Trustee shall deliver
such Exchangeable Certificates as set forth in such Recombination Group in
the
respective Denominations determined based on the proportion that the initial
Class Certificate Balance or initial Notional Amounts of such Exchangeable
Certificates bear to the initial Class Certificate Balances of the Depositable
Certificates, as set forth in Schedule VIII, which shall represent in the
aggregate, the entire beneficial ownership of the Master REMIC Interests related
to such surrendered Certificates. In addition, at the request of the Holder
of a
Class or Classes of Exchangeable Certificates, and upon the surrender of such
Exchangeable Certificates, the Trustee shall exchange such Exchangeable
Certificates for another Class or Classes of Exchangeable Certificates or the
related surrendered Depositable Certificates, as set forth in Schedule VIII.
There shall be no limitation on the number of exchanges authorized pursuant
to
this Section 5.07.
Holders
may exchange their Certificates according to this Section 5.07(e) by (i)
providing notice to the Trustee no later than three (3) Business Days prior
to
the date on which the Holder wishes to make such exchange (the “Exchange Date”),
which Exchange Date is subject to the Trustee’s approval and shall not be the
first or last Business Day of the month, (ii) remitting the Exchange Fee, as
determined in the next paragraph, to the Trustee and (iii) remitting the
beneficial interest in the Depositable Certificates or the Exchangeable
Certificates, as applicable, to the Trustee. Any such notice to the Trustee
(A)
may be provided to the Trustee by email at xxxxxxx@xxxxxxxx.xxx or by telephone
at (000) 000-0000, (B) must include (i) the Certificateholder’s letterhead, (ii)
a medallion stamp guarantee or be signed by an authorized signatory and be
presented with an incumbency certificate and (iii) set forth the following
information: (a) the CUSIP number of both the Certificates to be exchanged
and
the Certificates to be received, (b) the outstanding Class Certificate Balance
and the initial Class Certificate Balance of the Certificates to be exchanged,
(c) the Certificateholder’s DTC participant number and (d) the proposed Exchange
Date, and (C) is irrevocable beginning on the second Business Day prior to
the
Exchange Date. Such exchange will be completed by the Trustee upon the receipt
by the Trustee of the Exchange Fee and the beneficial interest in the
Depositable Certificates or the Exchangeable Certificates, as
applicable.
The
preparation of all Certificates referred to in this Section 5.07(e) in
connection with an exchange shall be at the expense of the parties to such
exchanges. For each exchange, the Certificateholder must pay the Trustee a
fee
(the “Exchange Fee”) equal to 1/32 of 1% of the current Class Certificate
Balance of the Certificates to be Exchanged but in no event shall the fee be
less than $2,000 or greater than $25,000.
95
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.
96
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 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.
97
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.
|
98
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 (i) the Holders of Certificates evidencing not
less than 66 2/3% of the Voting Rights evidenced by the Certificates, the
Trustee shall by notice in writing to the Master Servicer (with a copy to each
Rating Agency and the Depositor), terminate all of the rights and obligations
of
the Master Servicer under this Agreement and in and to the Mortgage Loans and
the proceeds thereof, other than its rights as a Certificateholder hereunder.
In
addition, if during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Master Servicer shall fail
to
observe or perform any of the obligations that constitute a Limited Exchange
Act
Reporting Obligation or the obligations set forth in Section 3.16(a) or Section
11.07(a)(1) and (2), and such failure continues for the lesser of 10 calendar
days or such period in which the applicable Exchange Act Report can be filed
timely (without taking into account any extensions), so long as such failure
shall not have been remedied, the Trustee shall, but only at the direction
of
the Depositor, terminate all of the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof, other than its rights as a Certificateholder hereunder. The Depositor
shall not be entitled to terminate the rights and obligations of the Master
Servicer if a failure of the Master Servicer to identify a Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
On
and
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer hereunder, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The Trustee
shall thereupon make any Advance which the Master Servicer failed to make
subject to Section 4.01 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.
99
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
Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of the Master Servicing Fee permitted
to be
paid to the Master Servicer hereunder. The Trustee and such successor shall
take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Neither the Trustee nor any other successor master servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or
any delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the Master Servicer to
deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it.
100
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 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.
101
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
limiting the provisions of this Section 8.01 or Section 8.02, the
Trustee
shall be entitled to rely conclusively on the information delivered
to it
by the Master Servicer in a Trustee Advance Notice in determining
whether
it is required to make an Advance under Section 4.01(b), shall have
no
responsibility to ascertain or confirm any information contained
in any
Trustee Advance Notice, and shall have no obligation to make any
Advance
under Section 4.01(b) in the absence of a Trustee Advance Notice
or actual
knowledge of a Responsible Officer of the Trustee that (A) an Advance
was
not made by the Master Servicer and (B) such Advance is not a
Nonrecoverable Advance.
|
102
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 believing that repayment of such funds or
adequate
indemnity against such risk or liability is not assured to
it;
|
103
| (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) (i) incurred in connection with any claim or
legal action relating to (a) this Agreement, (b) the Certificates or
(c) in connection with the performance of any of the Trustee’s duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee’s duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from
any error in any tax or information return prepared by the Master Servicer.
Such
indemnity shall survive the termination of this Agreement or the resignation
or
removal of the Trustee hereunder. Without limiting the foregoing, the Master
Servicer covenants and agrees, except as otherwise agreed upon in writing by
the
Depositor and the Trustee, and except for any such expense, disbursement or
advance as may arise from the Trustee’s negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that
the
Trustee must engage such persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided in this Agreement, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties
as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses.
104
SECTION
8.06. Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce or withdraw their respective
then current ratings of the Certificates (or having provided such security
from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes reports
of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07. The entity serving as Trustee may
have normal banking and trust relationships with the Depositor and its
affiliates or the Master Servicer and its affiliates; provided,
however,
that
such entity cannot be an affiliate of the Master Servicer other than the Trustee
in its role as successor to the Master Servicer.
SECTION
8.07. Resignation
and Removal of Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Master Servicer
and each Rating Agency not less than 60 days before the date specified in such
notice when, subject to Section 8.08, such resignation is to take effect,
and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Trustee shall provide
(x) written notice to the Depositor of any successor pursuant to this Section
and (y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Trustee.
105
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 under this Section shall be required to meet
the
terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
107
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 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.
109
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, omissions 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 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 pursuant to
sections 23153 and 24874 of the California Revenue and Taxation Code, if
not paid as otherwise provided for in this Agreement, 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).
SECTION
8.12. Monitoring
of Significance Percentage.
[Reserved].
110
ARTICLE
IX
TERMINATION
SECTION
9.01. Termination
upon Liquidation or Purchase of all Mortgage Loans.
Subject
to Section 9.03, the obligations and responsibilities of the Depositor, the
Sellers, the Master Servicer and the Trustee created hereby with respect to
the
Trust Fund shall terminate upon the earlier of (a) the purchase by the
Master Servicer of all Mortgage Loans (and REO Properties) remaining in the
Trust Fund at the price equal to the sum of (i) 100% of the Stated
Principal Balance of each Mortgage Loan plus one month’s accrued interest
thereon at the applicable Adjusted Mortgage Rate, (ii) the lesser of
(x) the appraised value of any REO Property as determined by the higher of
two appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the Stated Principal
Balance of each Mortgage Loan related to any REO Property, and (iii) any
remaining unpaid costs and damages incurred by the Trust Fund that arises out
of
a violation of any predatory or abusive lending law that also constitutes an
actual breach of clause (49) on Schedule III-A, in all cases plus accrued and
unpaid interest thereon at the applicable Adjusted Mortgage Rate and
(b) the later of (i) the maturity or other liquidation (or any Advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund
and
the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to
this Agreement. In no event shall the trusts created hereby continue beyond
the
earlier of (i) the expiration of 21 years from the death of the survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. James’s, living on the date of this Agreement and
(ii) the Latest Possible Maturity Date.
The
Master Servicer shall have the right to purchase all Mortgage Loans and REO
Properties in the Trust Fund pursuant to clause (a) in the preceding paragraph
of this Section 9.01 only on or after the date on which the Pool Stated
Principal Balance, at the time of any such repurchase, is less than or equal
to
ten percent (10%) of the Cut-Off Date Pool Principal Balance.
SECTION
9.02. Final
Distribution on the Certificates.
If
on any
Determination Date, the Master Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Certificate Account, the Master Servicer shall direct the Trustee
promptly to send a final distribution notice to each Certificateholder. If
the
Master Servicer elects to terminate the Trust Fund pursuant to clause (a)
of Section 9.01, at least 20 days prior to the date notice is to be mailed
to the affected Certificateholders, the Master Servicer shall notify the
Depositor and the Trustee of the date the Master Servicer intends to terminate
the Trust Fund and of the applicable repurchase price of the Mortgage Loans
and
REO Properties.
Notice
of
any termination of the Trust Fund, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by letter
to Certificateholders mailed not earlier than the 10th day and no later than
the
15th day of the month next preceding the month of such final distribution.
Any
such notice shall specify (a) the Distribution Date upon which final
distribution on the Certificates will be made upon presentation and surrender
of
Certificates at the office therein designated, (b) the amount of such final
distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at the
office therein specified. The Master Servicer will give such notice to each
Rating Agency at the time such notice is given to
Certificateholders.
111
In
the
event such notice is given, the Master Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on or before the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of
the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class, in each case on the final
Distribution Date and in the order set forth in Section 4.02, in proportion
to their respective Percentage Interests, with respect to Certificateholders
of
the same Class, an amount equal to (i) as to each Class of Regular
Certificates, the Certificate Balance thereof plus accrued interest thereon
(or
on their Notional Amount, if applicable) in the case of an interest-bearing
Certificate and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
Notwithstanding the reduction of the Class Certificate Balance of any Class
of
Certificates to zero, such Class will be outstanding hereunder (solely for
the
purpose of receiving distributions and not for any other purpose) until the
termination of the respective obligations and responsibilities of the Depositor,
each Seller, the Master Servicer and the Trustee hereunder in accordance with
Article IX.
In
the
event that any affected Certificateholders shall not surrender 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.
SECTION
9.03. Additional
Termination Requirements.
(a) In
the
event the Master Servicer exercises its purchase option as provided in
Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, unless the Trustee has been supplied with
an
Opinion of Counsel, at the expense of the Master Servicer, to the effect that
the failure to comply with the requirements of this Section 9.03 will not
(i) result in the imposition of taxes on “prohibited transactions” on any
REMIC as defined in section 860F of the Code, or (ii) cause any REMIC
to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
112
(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 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.
113
ARTICLE
X
MISCELLANEOUS
PROVISIONS
SECTION
10.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, each Seller, the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to
correct any defective provision in this Agreement or to supplement any provision
in this Agreement which may be inconsistent with any other provision in this
Agreement, (iii) to conform this Agreement to the Prospectus and Prospectus
Supplement provided to investors in connection with the initial offering of
the
Certificates, (iv) to add to the duties of the Depositor, any Seller or the
Master Servicer, (v) to modify, alter, amend, add to or rescind any of the
terms
or provisions contained in this Agreement to comply with any rules or
regulations promulgated by the Securities and Exchange Commission from time
to
time, (vi) to add any other provisions with respect to matters or questions
arising hereunder or (vii) to modify, alter, amend, add to or rescind any
of the terms or provisions contained in this Agreement; provided that any action
pursuant to clauses (vi) or (vii) above shall not, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided,
however,
that
the amendment shall be deemed not to adversely affect in any material respect
the interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates; it being understood and agreed that any such letter in
and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Notwithstanding the foregoing, no amendment that
significantly changes the permitted activities of the trust created by this
Agreement may be made without the consent of a Majority in Interest of each
Class of Certificates affected by such amendment. Each party to this Agreement
hereby agrees that it will cooperate with each other party in amending this
Agreement pursuant to clause (v) above. The Trustee, each Seller, the Depositor
and the Master Servicer also may at any time and from time to time amend this
Agreement without the consent of the Certificateholders to modify, eliminate
or
add to any of its provisions to such extent as shall be necessary or helpful
to
(i) maintain the qualification of any REMIC as a REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on any REMIC
pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements
of the Code, provided that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but
in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain
such qualification, (ii) avoid or minimize the risk of the imposition of
such a tax or (iii) comply with any such requirements of the
Code.
This
Agreement may also be amended from time to time by the Depositor, each Seller,
the Master Servicer and the Trustee with the consent of the Holders of a
Majority in Interest of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
the Holders of Certificates; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class of Certificates
in a
manner other than as described in (i), without the consent of the Holders of
Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating 66-2/3%, or (iii) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Certificates then
outstanding.
114
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel, which opinion shall not be an expense of the Trustee or the Trust
Fund,
to the effect that such amendment will not cause the imposition of any tax
on
any REMIC or the Certificateholders or cause any REMIC to fail to qualify as
a
REMIC at any time that any Certificates are outstanding.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of such amendment to each Certificateholder and each Rating
Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Trustee or the Trust Fund), satisfactory to the Trustee that (i) such
amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any
material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
SECTION
10.02. Recordation
of Agreement; Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, such recordation to
be
effected by the Master Servicer at its expense, but only upon direction by
the
Trustee accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the
Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as in this Agreement
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to
be
an original, and such counterparts shall constitute but one and the same
instrument.
115
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
is
held or deemed to create a security interest in either such assets, then (i)
this Agreement shall be deemed to be a security agreement (within the meaning
of
the Uniform Commercial Code of the State of New York) with respect to all such
assets and security interests and (ii) the conveyances provided for in this
Agreement shall be deemed to be an assignment and a grant pursuant to the terms
of this Agreement (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.
|
116
| (iv) |
The
Depositor has received all consents and approvals required by the
terms of
the Mortgage Loans to the sale of the Mortgage Loans hereunder to
the
Trustee.
|
| (v) |
All
original executed copies of each Mortgage Note that are required
to be
delivered to the Trustee pursuant to Section 2.01 have been delivered
to
the Trustee.
|
| (vi) |
Other
than the security interest granted to the Trustee pursuant to this
Agreement, the Depositor has not pledged, assigned, sold, granted
a
security interest in, or otherwise conveyed any of the Mortgage Loans.
The
Depositor has not authorized the filing of and is not aware of any
financing statements against the Depositor that include a description
of
collateral covering the Mortgage Loans other than any financing statement
relating to the security interest granted to the Trustee hereunder
or that
has been terminated. The Depositor is not aware of any judgment or
tax
lien filings against the Depositor.
|
(c) The
Master Servicer shall take such action as is reasonably necessary to maintain
the perfection and priority of the security interest of the Trustee in the
Mortgage Loans; provided, however, that the obligation to deliver the Mortgage
File to the Trustee pursuant to Section 2.01 shall be solely the Depositor’s
obligation and the Master Servicer shall not be responsible for the safekeeping
of the Mortgage Files by the Trustee.
(d) It
is
understood and agreed that the representations and warranties set forth in
subsection (b) above shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any
of
the foregoing representations and warranties set forth in subsection (b) above,
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
SECTION
10.05. Notices.
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual
knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Master Servicer or the Trustee and the
appointment of any successor;
4. The
repurchase or substitution of Mortgage Loans pursuant to
Section 2.03;
5. The
final
payment
to Certificateholders; and
6. Any
rating action involving the long-term credit rating of Countrywide, which notice
shall be made by first class mail within two Business Days after the
Trustee gains actual knowledge of such a rating action.
117
In
addition, the Trustee shall promptly furnish to each Rating Agency copies of
the
following:
1. Each
report
to Certificateholders described in Section 4.06;
2. Each
annual
statement as to compliance described in Section 3.16;
3. Each
annual
independent public accountants’ servicing report described in
Section 11.07; and
4. Any
notice of
a purchase of a Mortgage Loan pursuant to Section 2.02, 2.03 or
3.11.
(b) All
directions, demands and notices 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 (a) in the case of the Depositor,
CWMBS, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number:
(000) 000-0000, Attention: Xxxx Xxxxx, (b) in the case of Countrywide,
Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number: (000) 000-0000, Attention: Xxxx Xxxxx, or such other address
as may be hereafter furnished to the Depositor and the Trustee by Countrywide
in
writing, (c) 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,
(d) 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, (e) in the case of Park
Sienna, 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, (f) 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, (g) in the case of the Trustee,
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000,
facsimile number: (000) 000-0000, Attention: Mortgage-Backed Securities Group,
CWMBS, Inc. Series 2007-HY1, or such other address as the Trustee may hereafter
furnish to the Depositor or Master Servicer and (h) 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.
118
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 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 to this Agreement or any of them.
No
Certificateholder shall have any right to vote (except as provided in this
Agreement) or in any manner otherwise control the operation and management
of
the Trust Fund, or the obligations of the parties hereto, nor shall anything
set
forth in this Agreement or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties
to
this Agreement pursuant to any provision of this Agreement.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as provided in this Agreement, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to
the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute
any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner provided in this Agreement
and
for the common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 10.08, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION
10.09. Inspection
and Audit Rights.
The
Master Servicer agrees that, on reasonable prior notice, it will permit and
will
cause each Subservicer to permit any representative of the Depositor or the
Trustee during the Master Servicer’s normal business hours, to examine all the
books of account, records, reports and other papers of the Master Servicer
relating to the Mortgage Loans, to make copies and extracts therefrom, to cause
such books to be audited by independent certified public accountants selected
by
the Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Master Servicer hereby authorizes
said accountants to discuss with such representative such affairs, finances
and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the Depositor
or the Trustee of any right under this Section 10.09 shall be borne by the
party requesting such inspection; all other such expenses shall be borne by
the
Master Servicer or the related Subservicer.
119
SECTION
10.10. Certificates
Nonassessable and Fully Paid.
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
SECTION
10.11. [Reserved].
SECTION
10.12. Protection
of Assets.
(a) Except
for transactions and activities entered into in connection with the
securitization that is the subject of this Agreement, the Trust Fund created
by
this Agreement is not authorized and has no power to:
(i) borrow
money or issue debt;
(ii) merge
with another entity, reorganize, liquidate or sell assets; or
(iii) engage
in
any business or activities.
(b) Each
party to this Agreement agrees that it will not file an involuntary bankruptcy
petition against the Trustee or the Trust Fund or initiate any other form of
insolvency proceeding until after the Certificates have been paid.
ARTICLE
XI
EXCHANGE
ACT REPORTING
SECTION
11.01. Filing
Obligations.
The
Master Servicer, the Trustee and each Seller shall reasonably cooperate with
the
Depositor in connection with the satisfaction of the Depositor’s reporting
requirements under the Exchange Act with respect to the Trust Fund. In addition
to the information specified below, if so requested by the Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act, the
Master Servicer, the Trustee and each Seller shall (and the Master Servicer
shall cause each Subservicer to) provide the Depositor with (a) such information
which is available to such Person without unreasonable effort or expense and
within such timeframe as may be reasonably requested by the Depositor to comply
with the Depositor’s reporting obligations under the Exchange Act and (b) to the
extent such Person is a party (and the Depositor is not a party) to any
agreement or amendment required to be filed, copies of such agreement or
amendment in XXXXX-compatible form.
120
SECTION
11.02. Form
10-D Filings.
(a) In
accordance with the Exchange Act, the Trustee shall prepare for filing and
file
within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act) with the Commission with respect to the Trust Fund,
a
Form 10-D with copies of the Monthly Statement and, to the extent delivered
to
the Trustee, no later than 10 days following the Distribution Date, such other
information identified by the Depositor or the Master Servicer, in writing,
to
be filed with the Commission (such other information, the “Additional Designated
Information”). If the Depositor or Master Servicer directs that any Additional
Designated Information is to be filed with any Form 10-D, the Depositor or
Master Servicer, as the case may be, shall specify the Item on Form 10-D to
which such information is responsive and, with respect to any Exhibit to be
filed on Form 10-D, the Exhibit number. Any information to be filed on Form
10-D
shall be delivered to the Trustee in XXXXX-compatible form or as otherwise
agreed upon by the Trustee and the Depositor or the Master Servicer, as the
case
may be, at the Depositor’s expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor’s expense. At the reasonable
request of, and in accordance with the reasonable directions of, the Depositor
or the Master Servicer, subject to the two preceding sentences, the Trustee
shall prepare for filing and file an amendment to any Form 10-D previously
filed
with the Commission with respect to the Trust Fund. The Master Servicer shall
sign the Form 10-D filed on behalf of the Trust Fund.
(b) No
later
than each Distribution Date, each of the Master Servicer and the Trustee shall
notify (and the Master Servicer shall cause any Subservicer to notify) the
Depositor and the Master Servicer of any Form 10-D Disclosure Item, together
with a description of any such Form 10-D Disclosure Item in form and substance
reasonably acceptable to the Depositor. In addition to such information as
the
Master Servicer and the Trustee are obligated to provide pursuant to other
provisions of this Agreement, if so requested by the Depositor, each of the
Master Servicer and the Trustee shall provide such information which is
available to the Master Servicer and the Trustee, as applicable, without
unreasonable effort or expense regarding the performance or servicing of the
Mortgage Loans (in the case of the Trustee, based on the information provided
by
the Master Servicer) as is reasonably required to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation AB. Such
information shall be provided concurrently with the delivery of the reports
specified in Section 4.06(c) in the case of the Master Servicer and the Monthly
Statement in the case of the Trustee, commencing with the first such report
due
not less than five Business Days following such request.
(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.
121
SECTION
11.03. Form
8-K Filings.
The
Master Servicer shall prepare and file on behalf of the Trust Fund any Form
8-K
required by the Exchange Act. Each Form 8-K must be signed by the Master
Servicer. Each of the Master Servicer (and the Master Servicer shall cause
any
Subservicer to promptly notify), and the Trustee shall promptly notify the
Depositor and the Master Servicer (if the notifying party is not the Master
Servicer), but in no event later than one (1) Business Day after its occurrence,
of any Reportable Event of which it has actual knowledge. Each Person shall
be
deemed to have actual knowledge of any such event to the extent that it relates
to such Person or any action or failure to act by such Person. Concurrently
with
any transfer of Supplemental Mortgage Loans, if any, Countrywide shall notify
the Depositor and the Master Servicer, if any material pool characteristic
of
the actual asset pool at the time of issuance of the Certificates differs by
5%
or more (other than as a result of the pool assets converting into cash in
accordance with their terms) from the description of the asset pool in the
Prospectus Supplement.
SECTION
11.04. Form
10-K Filings.
Prior
to
March 30th of each year, commencing in 2008 (or such earlier date as may be
required by the Exchange Act), the Depositor shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. A senior officer in charge of the servicing function of the Master Servicer
shall sign each Form 10-K filed on behalf of the Trust Fund. Such Form 10-K
shall include as exhibits each (i) annual compliance statement described under
Section 3.16, (ii) annual report on assessments of compliance with servicing
criteria described under Section 11.07 and (iii) accountant’s report described
under Section 11.07. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx
Certification required to be included therewith, as described in Section 11.05.
If
the
Item 1119 Parties listed on Exhibit 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.
122
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 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.
|
123
| (ii) |
Each
of the Master Servicer and the Trustee shall deliver to the Depositor
and
the Master Servicer a report of a registered public accounting firm
reasonably acceptable to the Depositor that attests to, and reports
on,
the assessment of compliance made by Master Servicer or the Trustee,
as
applicable, and delivered pursuant to the preceding paragraphs. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g)
of
Regulation S-X under the Securities Act and the Exchange Act, including,
without limitation that in the event that an overall opinion cannot
be
expressed, such registered public accounting firm shall state in
such
report why it was unable to express such an opinion. Such report
must be
available for general use and not contain restricted use language.
To the
extent any of the Servicing Criteria are not applicable to such Person,
with respect to asset-backed securities transactions taken as a whole
involving such Person and that are backed by the same asset type
backing
the Certificates, such report shall include such a statement 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.
|
(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.
124
(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 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. 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.
125
SECTION
11.09. Amendments.
In
the
event the parties to this Agreement desire to further clarify or amend any
provision of this Article XI, this Agreement shall be amended to reflect the
new
agreement between the parties covering matters in this Article XI pursuant
to
Section 10.01, which amendment shall not require any Opinion of Counsel or
Rating Agency confirmations or the consent of any Certificateholder. If, during
the period that the Depositor is required to file Exchange Act Reports with
respect to the Trust Fund, the Master Servicer is no longer an Affiliate of
the
Depositor, the Depositor shall assume the obligations and responsibilities
of
the Master Servicer in this Article XI with respect to the preparation and
filing of the Exchange Act Reports and/or acting as the Certifying Person,
if
the Depositor has received indemnity from such successor Master Servicer
satisfactory to the Depositor, and such Master Servicer has agreed to provide
a
Xxxxxxxx-Xxxxx Certification to the Depositor substantially in the form of
Exhibit 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.
|
CWMBS,
INC.,
as Depositor
|
||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: First Vice President | ||
|
THE BANK OF NEW YORK,
as Trustee
|
||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Assistant Treasurer | ||
|
COUNTRYWIDE HOME LOANS, INC.,
as a Seller
|
||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: First Vice President | ||
|
PARK
GRANADA LLC,
as a Seller
|
||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: First Vice President | ||
|
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By:
COUNTRYWIDE GP, INC.
|
||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: First Vice President | ||
|
PARK SIENNA LLC,
as a Seller
|
||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: First Vice President | ||
|
PARK MONACO INC.,
as a Seller
|
||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | ||
| Title: First Vice President | ||
127
| 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 | ||
128
SCHEDULE
I
Mortgage
Loan Schedule
[Delivered
at Closing to Trustee]
S-I-1
SCHEDULE
II-A
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
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,
CWMBS, Inc., as depositor, Countrywide Home Loans Servicing LP, as master
servicer and The Bank of New York, as trustee.
(1) Countrywide
is duly organized as a New York corporation and is validly existing and in
good
standing under the laws of the State of New York and is duly authorized and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide in any state in which a
Mortgaged Property is located or is otherwise not required under applicable
law
to effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to perform any of
its
obligations under the Pooling and Servicing Agreement in accordance with the
terms thereof.
(2) Countrywide
has the full corporate power and authority to sell each Countrywide Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has duly
authorized by all necessary corporate action on the part of Countrywide the
execution, delivery and performance of the Pooling and Servicing Agreement;
and
the Pooling and Servicing Agreement, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a legal, valid
and binding obligation of Countrywide, enforceable against Countrywide in
accordance with its terms, except that (a) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Countrywide,
the sale of the Countrywide Mortgage Loans by Countrywide under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
Countrywide and will not (A) result in a material breach of any term or
provision of the charter or by-laws of Countrywide or (B) materially
conflict with, result in a material breach, violation or acceleration of, or
result in a material default under, the terms of any other material agreement
or
instrument to which Countrywide is a party or by which it may be bound, or
(C) constitute a material violation of any statute, order or regulation
applicable to Countrywide of any court, regulatory body, administrative agency
or governmental body having jurisdiction over Countrywide; and Countrywide
is
not in breach or violation of any material indenture or other material agreement
or instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair Countrywide’s ability to
perform or meet any of its obligations under the Pooling and Servicing
Agreement.
S-II-A-1
(4) Countrywide
is an approved servicer of conventional mortgage loans for FNMA or FHLMC and
is
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act.
(5) No
litigation is pending or, to the best of Countrywide’s knowledge, threatened,
against Countrywide that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the ability
of Countrywide to sell the Countrywide Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Countrywide
of,
or compliance by Countrywide with, the Pooling and Servicing Agreement or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Countrywide has obtained the
same.
(7) Countrywide
intends to treat the transfer of the Countrywide Mortgage Loans to the Depositor
as a sale of the Countrywide Mortgage Loans for all tax, accounting and
regulatory purposes.
(8) Countrywide
is a member of MERS in good standing, and will comply in all material respects
with the rules and procedures of MERS in connection with the servicing of the
MERS Mortgage Loans in the Trust Fund for as long as such Mortgage Loans are
registered with MERS.
S-II-A-2
SCHEDULE
II-B
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
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, CWMBS, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park
Granada is a limited liability company duly formed and validly existing and
in
good standing under the laws of the State of Delaware.
(2) Park
Granada has the full corporate power and authority to sell each Park Granada
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of Park
Granada the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Granada, enforceable
against Park Granada in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Granada,
the sale of the Park Granada Mortgage Loans by Park Granada under the Pooling
and Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
Park
Granada and will not (A) result in a material breach of any term or provision
of
the certificate of formation or the limited liability company agreement of
Park
Granada or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Park Granada is a party or
by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Park Granada of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park
Granada; and Park Granada is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Granada’s ability to perform or meet any of
its obligations under the Pooling and Servicing Agreement.
S-II-B-1
(4) No
litigation is pending or, to the best of Park Granada’s knowledge, threatened,
against Park Granada that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the ability
of Park Granada to sell the Park Granada Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Granada
of,
or compliance by Park Granada with, the Pooling and Servicing Agreement or
the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Granada has obtained the
same.
(6) Park
Granada intends to treat the transfer of the Park Granada Mortgage Loans to
the
Depositor as a sale of the Park Granada Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-B-2
SCHEDULE
II-C
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
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, CWMBS, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park
Monaco is a corporation duly formed and validly existing and in good standing
under the laws of the State of Delaware.
(2) Park
Monaco has the full corporate power and authority to sell each Park Monaco
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of Park
Monaco the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Monaco, enforceable
against Park Monaco in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Monaco,
the sale of the Park Monaco Mortgage Loans by Park Monaco under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
Park
Monaco and will not (A) result in a material breach of any term or provision
of
the certificate of incorporation or bylaws 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
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
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-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-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, Park Monaco Inc, as a seller, Park Granada
LLC,
as a seller, Countrywide, as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWMBS, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park
Sienna is a limited liability company duly formed and validly existing and
in
good standing under the laws of the State of Delaware.
(2) Park
Sienna has the full corporate power and authority to sell each Park Sienna
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Pooling and Servicing Agreement
and has duly authorized by all necessary corporate action on the part of Park
Sienna the execution, delivery and performance of the Pooling and Servicing
Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Sienna, enforceable
against Park Sienna in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought.
(3) The
execution and delivery of the Pooling and Servicing Agreement by Park Sienna,
the sale of the Park Sienna Mortgage Loans by Park Sienna under the Pooling
and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms thereof are in the ordinary course of business of
Park
Sienna and will not (A) result in a material breach of any term or provision
of
the certificate of formation or the limited liability company agreement of
Park
Sienna or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which Park Sienna is a party or by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Park Sienna of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Park Sienna;
and Park Sienna is not in breach or violation of any material indenture or
other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
Park Sienna’s ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
S-II-D-1
(4) No
litigation is pending or, to the best of Park Sienna’s knowledge, threatened,
against Park Sienna that would materially and adversely affect the execution,
delivery or enforceability of the Pooling and Servicing Agreement or the ability
of Park Sienna to sell the Park Sienna Mortgage Loans or to perform any of
its
other obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(5) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Park Sienna
of,
or compliance by Park Sienna with, the Pooling and Servicing Agreement or the
consummation of the transactions contemplated thereby, or if any such consent,
approval, authorization or order is required, Park Sienna has obtained the
same.
(6) Park
Sienna intends to treat the transfer of the Park Sienna Mortgage Loans to the
Depositor as a sale of the Park Sienna Mortgage Loans for all tax, accounting
and regulatory purposes.
S-II-D-2
SCHEDULE
III-A
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
Representations
and Warranties of Countrywide as to all of the Mortgage Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-A to the Depositor, the Master Servicer and
the
Trustee, with respect to all of the Mortgage Loans as of the Closing Date,
or if
so specified herein, as of the Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule III-A shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) relating to the above-referenced Series, among Countrywide, as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWMBS, Inc., as depositor, and The Bank of New York, as
trustee.
(1) The
information set forth on Schedule I to the Pooling and Servicing Agreement
with
respect to each Mortgage Loan is true and correct in all material
respects.
(2) As
of the
Cut-off Date, none of the Mortgage Loans are currently 30 days or more
delinquent;.
(3) No
Mortgage Loan had a Loan-to-Value Ratio at origination in excess of
100.00%.
(4) Each
Mortgage is a valid and enforceable first lien on the Mortgaged Property subject
only to (a) the lien of non delinquent current real property taxes and
assessments, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of
such
Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal made
in connection with the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage.
(5) [Reserved].
(6) There
is
no delinquent tax or assessment lien against any Mortgaged
Property.
(7) There
is
no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal of or
interest on such Mortgage Note.
(8) There
are
no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with, the
lien
of such Mortgage, except those which are insured against by the title insurance
policy referred to in item (12) below.
S-III-A-1
(9) 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) 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 an adjustable rate rider,
condominium endorsement and extended coverage endorsement, if applicable, in
an
amount at least equal to the Cut-off Date Stated Principal Balance of each
such
Mortgage Loan or a commitment (binder) to issue the same was effective on the
date of the origination of each Mortgage Loan, each such policy is valid and
remains in full force and effect, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the Mortgaged
Property is located and acceptable to FNMA or FHLMC and is in a form acceptable
to FNMA or FHLMC, which policy insures Countrywide and successor owners of
indebtedness secured by the insured Mortgage, as to the first priority lien
of
the Mortgage subject to the exceptions set forth in paragraph (4) above and
against any loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment in the
mortgage interest rate and/or monthly payment; to the best of Countrywide’s
knowledge, no claims have been made under such mortgage title insurance policy
and no prior holder of the related Mortgage, including Countrywide, has done,
by
act or omission, anything which would impair the coverage of such mortgage
title
insurance policy.
(13) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended) by an entity that satisfied at
the
time of origination the requirements of Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended.
(14) To
the
best of Countrywide’s knowledge, all of the improvements which were included for
the purpose of determining the Appraised Value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property.
(15) To
the
best of Countrywide’s knowledge, no improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or regulation.
To the best of Countrywide’s knowledge, all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities, unless the lack thereof would not have a material adverse effect
on
the value of such Mortgaged Property, and the Mortgaged Property is lawfully
occupied under applicable law.
S-III-A-2
(16) Each
Mortgage Note and the related Mortgage are genuine, and each is the legal,
valid
and binding obligation of the maker thereof, enforceable in accordance with
its
terms and under applicable law. To the best of Countrywide’s knowledge, all
parties to the Mortgage Note and the Mortgage had legal capacity to execute
the
Mortgage Note and the Mortgage and each Mortgage Note and Mortgage have been
duly and properly executed by such parties.
(17) The
proceeds of the Mortgage Loans have been fully disbursed, there is no
requirement for future advances thereunder and any and all requirements as
to
completion of any on-site or off-site improvements and as to disbursements
of
any escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making, or closing or recording the Mortgage Loans were
paid.
(18) The
related Mortgage contains customary and enforceable provisions which render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure.
(19) With
respect to each Mortgage constituting a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses
are
or will become payable by the Certificateholders to the trustee under the deed
of trust, except in connection with a trustee’s sale after default by the
Mortgagor.
(20) Each
Mortgage Note and each Mortgage is in substantially one of the forms acceptable
to FNMA or FHLMC, with such riders as have been acceptable to FNMA or FHLMC,
as
the case may be.
(21) There
exist no deficiencies with respect to escrow deposits and payments, if such
are
required, for which customary arrangements for repayment thereof have not been
made, and no escrow deposits or payments of other charges or payments due
Countrywide have been capitalized under the Mortgage or the related Mortgage
Note.
(22) The
origination, underwriting and collection practices used by Countrywide with
respect to each Mortgage Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(23) There
is
no pledged account or other security other than real estate securing the
Mortgagor’s obligations.
(24) No
Mortgage Loan has a shared appreciation feature, or other contingent interest
feature.
(25) Each
Mortgage Loan contains a customary “due on sale” clause.
S-III-A-3
(26) As
of the
Closing Date, approximately 24.35% and 34.08% of the Mortgage Loans in Loan
Groups 1 and 2, respectively, by aggregate Stated Principal Balance of the
respective Loan Group as of the Cut-off Date, provide for a prepayment
charge.
(27) 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.
(28) As
of the
Closing Date, the improvements upon each Mortgaged Property are covered by
a
valid and existing hazard insurance policy with a generally acceptable carrier
that provides for fire and extended coverage and coverage for such other hazards
as are customary in the area where the Mortgaged Property is located in an
amount which is at least equal to the lesser of (i) the maximum insurable value
of the improvements securing such Mortgage Loan or (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds of such policy shall be sufficient to prevent the Mortgagor and/or
the mortgagee from becoming a co-insurer. If the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a blanket policy
for the condominium unit. All such individual insurance policies and all flood
policies referred to in item (29) below contain a standard mortgagee clause
naming Countrywide or the original mortgagee, and its successors in interest,
as
mortgagee, and Countrywide has received no notice that any premiums due and
payable thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such insurance
at
the Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor.
(29) If
the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, a flood
insurance policy in a form meeting the requirements of the current guidelines
of
the Flood Insurance Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
not less than the least of (A) the original outstanding principal balance of
the
Mortgage Loan, (B) the minimum amount required to compensate for damage or
loss
on a replacement cost basis, or (C) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973, as
amended.
S-III-A-4
(30) To
the
best of Countrywide’s knowledge, there is no proceeding occurring, pending or
threatened for the total or partial condemnation of the Mortgaged
Property.
(31) There
is
no material monetary default existing under any Mortgage or the related Mortgage
Note and, to the best of Countrywide’s knowledge, there is no material event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration under the Mortgage or the related Mortgage Note; and Countrywide
has not waived any default, breach, violation or event of
acceleration.
(32) Each
Mortgaged Property is improved by a one- to four-family residential dwelling
including condominium units and dwelling units in PUDs, which, to the best
of
Countrywide’s knowledge, does not include cooperatives or mobile homes and does
not constitute other than real property under state law.
(33) Each
Mortgage Loan is being master serviced by the Master Servicer.
(34) Any
future advances made prior to the Cut-off Date have been consolidated with
the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term
reflected on the Mortgage Loan Schedule. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan. The Mortgage
Note
does not permit or obligate the Master Servicer to make future advances to
the
Mortgagor at the option of the Mortgagor.
(35) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed, but is not yet due and payable. Except for (A) payments in the nature
of escrow payments, and (B) interest accruing from the date of the Mortgage
Note
or date of disbursement of the Mortgage proceeds, whichever is later, to the
day
which precedes by one month the Due Date of the first installment of principal
and interest, including without limitation, taxes and insurance payments, the
Master Servicer has not advanced funds, or induced, solicited or knowingly
received any advance of funds by a party other than the Mortgagor, directly
or
indirectly, for the payment of any amount required by the Mortgage.
(36) Each
Mortgage Loan was underwritten in all material respects in accordance with
the
underwriting guidelines described in the Prospectus Supplement.
(37) Other
than with respect to any Streamlined Documentation Mortgage Loan as to which
the
loan-to-value ratio of the related Original Mortgage Loan was less than 90%
at
the time of the origination of such Original Mortgage Loan, prior to the
approval of the Mortgage Loan application, an appraisal of the related Mortgaged
Property was obtained from a qualified appraiser, duly appointed by the
originator, who had no interest, direct or indirect, in the Mortgaged Property
or in any loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; such appraisal
is
in a form acceptable to FNMA and FHLMC.
S-III-A-5
(38) None
of
the Mortgage Loans are graduated payment mortgage loans or growing equity
mortgage loans, and none of the Mortgage Loans are subject to a buydown or
similar arrangement.
(39) Any
leasehold estate securing a Mortgage Loan has a term of not less than five
years
in excess of the term of the related Mortgage Loan.
(40) The
Mortgage Loans were selected from among the outstanding adjustable-rate one-
to
four-family mortgage loans in the portfolios of the Sellers at the Closing
Date
as to which the representations and warranties made as to the Mortgage Loans
set
forth in this Schedule III can be made. Such selection was not made in a manner
intended to adversely affect the interests of Certificateholders.
(41) Except
for approximately 1.57% of the Mortgage Loans in Loan Groups 1 by aggregate
Stated Principal Balance of that Loan Group 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 the Due Date in the month of the first Distribution
Date.
(42) With
respect to any Mortgage Loan as to which an affidavit has been delivered to
the
Trustee certifying that the original Mortgage Note is a Lost Mortgage Note,
if
such Mortgage Loan is subsequently in default, the enforcement of such Mortgage
Loan or of the related Mortgage by or on behalf of the Trustee will not be
materially adversely affected by the absence of the original Mortgage Note.
A
“Lost Mortgage Note” is a Mortgage Note the original of which was permanently
lost or destroyed and has not been replaced.
(43) The
Mortgage Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(44) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
(45) None
of
the Mortgage Loans are “high cost” loans as defined by applicable predatory and
abusive lending laws.
(46) None
of
the Mortgage Loans are covered by the Home Ownership and Equity Protection
Act
of 1994 (“HOEPA”).
(47) 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.).
(48) 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.).
(49) 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.
S-III-A-6
(50) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and with
respect to the foregoing, the terms “High Cost Loan” and “Covered Loan” have the
meaning assigned to them in the then current Standard & Poor’s LEVELS®
Version 5.7 Glossary Revised, Appendix E which is attached hereto as Exhibit
O
(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
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
Representations
and Warranties of Countrywide as to the Countrywide Mortgage
Loans
Countrywide
Home Loans, Inc. (“Countrywide”) hereby makes the representations and warranties
set forth in this Schedule III-B to the Depositor, the Master Servicer and
the
Trustee, with respect to the Countrywide Mortgage Loans as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule III-B shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Countrywide, as a seller, Park Granada LLC, as a seller, Park Monaco
Inc.,
as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing
LP,
as master servicer, CWMBS, 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
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
Representations
and Warranties of Park Granada as to the Park Granada Mortgage
Loans
Park
Granada LLC (“Park Granada”) hereby makes the representations and warranties set
forth in this Schedule III-C to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Granada Mortgage Loans as of the Closing
Date.
Capitalized terms used but not otherwise defined in this Schedule III-C shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Granada, as a seller,
Park
Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWMBS, 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
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
Representations
and Warranties of Park Monaco as to the Park Monaco Mortgage
Loans
Park
Monaco Inc. (“Park Monaco”) hereby makes the representations and warranties set
forth in this Schedule III-D to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Monaco Mortgage Loans as of the Closing Date.
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, CWMBS, 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
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
Representations
and Warranties of Park Sienna as to the Park Sienna Mortgage
Loans
Park
Sienna LLC (“Park Sienna”) hereby makes the representations and warranties set
forth in this Schedule III-E to the Depositor, the Master Servicer and the
Trustee, with respect to the Park Sienna Mortgage Loans as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule III-E shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”) relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Sienna, as a seller,
Park
Monaco Inc., as a seller, Park Granada LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWMBS, 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
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
2007-HY1
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 Sienna LLC, as
a
seller, Park Monaco Inc., as a seller, Countrywide Home Loans Servicing LP,
as
master servicer, CWMBS, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Countrywide
Servicing is duly organized as a limited partnership and is validly existing
and
in good standing under the laws of the State of Texas and is duly authorized
and
qualified to transact any and all business contemplated by the Pooling and
Servicing Agreement to be conducted by Countrywide Servicing in any state in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary to
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
SCHEDULE
VII
Prepayment
Charge Schedule
S-VII-1
SCHEDULE
VIII
Available
Exchanges of Depositable Certificates for Exchangeable
Certificates(1)(2)
|
Classes
of Depositable Certificates
|
Related
Classes of Exchangeable Certificates
|
||||
|
Classes
of Depositable Certificates
|
Original
Class Certificate Balance or Notional Amount
|
Pass-Through
Rate
|
Classes
of Exchangeable Certificates
|
Original
Class Certificate Balance or Notional Amount
|
Pass-Through
Rate
|
|
Recombination
1
|
|||||
|
Class 1-A-1
|
$247,884,000
|
(3)
|
Class
1-A-3
|
$247,884,000
|
(4)
|
|
Class
1-A-3X(5)
|
$247,884,000
|
(6)
|
|||
|
Recombination
2
|
|||||
|
Class 1-A-1
|
$247,884,000
|
(3)
|
Class
1-A-4
|
$247,884,000
|
(4)
|
|
Class
1-A-4X(5)
|
$247,884,000
|
(6)
|
|||
|
Recombination
3
|
|||||
|
Class 1-A-1
|
$247,884,000
|
(3)
|
Class
1-A-5
|
$96,278,145
|
(7)
|
|
Class
1-A-6
|
$151,605,854
|
(8)
|
|||
|
Recombination
4
|
|||||
|
Class 1-A-1
|
$247,884,000
|
(3)
|
Class
1-A-7
|
$58,376,682
|
(7)
|
|
Class
1-A-8
|
$189,507,318
|
(9)
|
|||
|
Recombination
5
|
|||||
|
Class 1-A-1
|
$247,884,000
|
(3)
|
Class
1-A-9
|
$80,231,788
|
(10)
|
|
Class
1-A-10
|
$167,652,212
|
(8)
|
|||
|
Recombination
6
|
|||||
|
Class 1-A-1
|
$247,884,000
|
(3)
|
Class
1-A-11
|
$46,701,345
|
(10)
|
|
Class
1-A-12
|
$201,182,654
|
(9)
|
|||
______________
|
(1)
|
Depositable
Certificates and Exchangeable Certificates may be exchanged only
in the
proportions shown in this Schedule VIII. In any exchange, the relative
proportions of the Depositable Certificates to be delivered (or,
if
applicable, received) in such exchange will equal the proportions
reflected by the outstanding Class Certificate Balances of the Depositable
Certificates at the time of
exchange.
|
|
(2)
|
If,
as a result of a proposed exchange, a Certificateholder would hold
a
Depositable Certificate or Exchangeable Certificate of a Class in
an
amount less than the applicable minimum denomination for that Class,
the
Certificateholder will be unable to effect the proposed
exchange.
|
S-VIII-1
|
(3)
|
The
Pass-Through Rate for the Class 1-A-1 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum
rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans in Loan Group 1.
|
|
(4)
|
The
Pass-Through Rate for the Class 1-A-3 and Class 1-A-4 Certificates
for the
Interest Accrual Period related to any Distribution Date will be
a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate
of the
Mortgage Loans in Loan Group 1 minus the Pass-Through Rate of the
Class
1-A-3X and Class 1-A-4X Certificates,
respectively.
|
|
(5)
|
The
Class 1-A-3X and Class 1-A-4X Certificates are interest only Notional
Amount Certificates.
|
|
(6)
|
The
Pass-Through Rate for the Class 1-A-3X and Class 1-A-4X Certificates
for
the Interest Accrual Period related to any Distribution Date (x)
prior to
the Distribution Date in February 2012, will be 0.2355% and 0.1105%,
respectively, and (y) on or after the Distribution Date in February
2012,
0.00000%.
|
|
(7)
|
The
Pass-Through Rate for this Class of Certificates for any Interest
Accrual
Period for any Distribution Date will be the sum of (i) a per annum
rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans in Loan Group 1 and (ii) 0.7645% per
annum.
|
|
(8)
|
The
Pass-Through Rate for this Class of Certificates for any Interest
Accrual
Period for any Distribution Date will be the excess of (i) a per
annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate of
the
Mortgage Loans in Loan Group 1 over (ii) 0.4855% per
annum.
|
|
(9)
|
The
Pass-Through Rate for this Class of Certificates for any Interest
Accrual
Period for any Distribution Date will be the excess of (i) a per
annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate of
the
Mortgage Loans in Loan Group 1 over (ii) 0.2355% per
annum.
|
|
(10)
|
The
Pass-Through Rate for this Class of Certificates for any Interest
Accrual
Period for any Distribution Date will be the sum of (i) a per annum
rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans in Loan Group 1 and (ii) 1.0145 % per
annum.
|
S-VIII-2
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 | : |
CWMBS,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional mortgage loans (the “Mortgage Loans”) secured by first
liens on one- to four-family residential properties
CWMBS,
Inc., as Depositor
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 CWMBS, Inc. (the “Depositor”). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among the Depositor, Countrywide Home Loans,
Inc., as 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 | : |
CWMBS,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional mortgage
loans
(the “Mortgage Loans”) secured by first liens on one- to four-family residential
properties
CWMBS,
Inc., as Depositor
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 CWMBS, Inc. (the “Depositor”). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among the Depositor, Countrywide Home Loans,
Inc., as a
seller
(“CHL”), Park Granada LLC, as a seller (“Park Granada”), Park Monaco Inc., as a
seller (“Park Monaco”), and Park Sienna LLC, as a seller (“Park Sienna” and,
together with CHL, Park Granada and Park Monaco, the “Sellers”), Countrywide
Home Loans Servicing LP, as master servicer (the “Master Servicer”),
and The
Bank of New York, as trustee (the “Trustee”). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions
and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
[No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Securities
Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event that a transfer
is to be
made in reliance upon an exemption from the Securities Act and such laws,
in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such Certificateholder’s
prospective transferee shall each certify to the Trustee in writing the
facts
surrounding the transfer. In the event that such a transfer is to be made
within
three years from the date of the initial issuance of Certificates pursuant
hereto, there shall also be delivered (except in the case of a transfer
pursuant
to Rule 144A of the Securities Act) to the Trustee an Opinion of Counsel
that
such transfer may be made pursuant to an exemption from the Securities
Act and
such state securities laws, which Opinion of Counsel shall not be obtained
at
the expense of the Trustee, the Sellers,
the Master Servicer or the Depositor. The Holder hereof desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not
so exempt
or is not made in accordance with such federal and state laws.]
[No
transfer of a Certificate of this Class shall be made unless the Trustee
shall
have received either (i) a representation letter
from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not
an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of
or
investing plan assets of any
such
benefit plan or arrangement, which representation letter shall not be an
expense
of the Trustee, the Master Servicer or the Trust Fund, (ii) if such certificate
has been the subject of an ERISA-Qualifying Underwriting and the transferee
is
an insurance company, a representation that the transferee is purchasing
such
Certificate with funds contained in an “insurance company general account” (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificate
satisfy
the requirements for exemptive relief
under
Sections I and III of PTCE 95-60, or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject
to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions 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-2
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-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
B-4
EXHIBIT
C-1
[FORM
OF
RESIDUAL CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT (i)
SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR ARRANGEMENT SUBJECT
TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF OF OR INVESTING
THE
ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR
(ii)
IF
SUCH
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING AND
THE
TRANSFEREE
IS AN
INSURANCE COMPANY, A REPRESENTATION THAT THE TRANSFEREE
IS
PURCHASING SUCH CERTIFICATE WITH FUNDS CONTAINED IN AN“INSURANCE
COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN SECTION V(e)
OF
PROHIBITED
TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND THE PURCHASE AND HOLDING OF THE
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS
I AND
III OF PTCE 95-60, OR (B)
AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT
TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL
BE
VOID AND OF NO EFFECT.
[THIS
CERTIFICATE REPRESENTS THE “TAX MATTERS PERSON RESIDUAL INTEREST” ISSUED UNDER
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE TRANSFERRED
TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE TRANSFEREE
OF THE
DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1-1
| Certificate No. | : | |
| Cut-off Date | : | |
| First Distribution Date | : | |
| Initial Certificate Balance | ||
| of this Certificate | ||
| ("Denomination") | : | $ |
| Initial Certificate Balance | ||
| of all Certificates of | ||
| this Class | : | $ |
| CUSIP | : | |
| Interest Rate | : | |
| Maturity Date | : |
CWMBS,
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
CWMBS,
Inc., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor,
the
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 CWMBS, Inc. (the “Depositor”). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of the Cut-off Date specified
above (the “Agreement”) among the Depositor, Countrywide Home Loans, Inc., as
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-1-2
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-1-3
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-1-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
THE
BANK
OF NEW YORK,
as
Trustee
By
______________________
Countersigned:
By
__________________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-1-5
EXHIBIT
C-2
[FORM
OF
CLASS P CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986
(THE “CODE”).
THIS
CLASS P CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE EXTENT
DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS P CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT (i)
SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN OR ARRANGEMENT SUBJECT
TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF OF OR INVESTING
THE
ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR
(ii)
IF
SUCH
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING AND
THE
TRANSFEREE
IS AN
INSURANCE COMPANY, A REPRESENTATION THAT THE TRANSFEREE
IS
PURCHASING SUCH CERTIFICATE WITH FUNDS CONTAINED IN AN“INSURANCE
COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN SECTION V(e)
OF
PROHIBITED
TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND THE PURCHASE AND HOLDING OF THE
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS
I AND
III OF PTCE 95-60, OR (B)
AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
SUBJECT
TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL
BE
VOID AND OF NO EFFECT.
C-2-1
| Certificate No. | : | |
| Initial Certificate Balance | ||
| of this Certificate | ||
| ("Denomination") | : | $ |
| Initial Certificate Balance | ||
| of all Certificates of | ||
| this Class | : | $ |
| CUSIP | : | |
| ISIN | : | |
| Interest Rate | : | |
| Maturity Date | : |
CWMBS,
INC.
CHL
Mortgage Pass-Through Trust 200____-____
Mortgage
Pass-Through Certificates, Series 200____-____
evidencing
a percentage interest in the distributions allocable to the Class P Certificates
with respect to a Trust Fund consisting primarily of a pool of conventional,
credit blemished mortgage loans (the “Mortgage Loans”) secured by first and
second liens on one- to four-family residential properties
CWMBS,
Inc., as Depositor
This
Certificate does not evidence an obligation of, or an interest in, and
is not
guaranteed by the Depositor, the 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 CWMBS, Inc. (the “Depositor”). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of the Cut-off Date specified
above (the “Agreement”) among the Depositor, Countrywide Home Loans, Inc., as 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
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th
day of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in
an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class
P
Certificates on such Distribution Date pursuant to Section 4.04 of the
Agreement. The Record Date applicable to each Distribution Date is the
last
Business Day of the month immediately preceding such Distribution
Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the
related
Record Date and such Certificateholder shall hold 100% of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Balance
of
$1,000,000 or more, or, if not, by check mailed by first class mail to
the
address of such Certificateholder appearing in the Certificate Register.
The
final distribution on each Certificate will be made in like manner, but
only
upon presentment and surrender of such Certificate at the Corporate Trust
Office
or such other location specified in the notice to Certificateholders of
such
final distribution.
No
transfer of a Class 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.
C-2-3
No
transfer of a Class P Certificate shall be made unless the Trustee shall
have
received either (i)
a
representation letter from the transferee of a
Class
P
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit
plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975
of the Code, or a person acting on behalf of or investing plan assets of
any
such benefit plan or arrangement, which representation letter shall not
be an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if
such
Class P Certificate has been the subject of an ERISA-Qualifying Underwriting
and
the transferee is an insurance company, a representation that the transferee
is
purchasing such Class P Certificate with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such
Class P
Certificate
satisfy the requirements for exemptive relief under Sections I and III
of PTCE
95-60, or (iii) in the case of a
Class
P
Certificate presented for registration in the name of an employee benefit
plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the
Code
(or comparable provisions of any subsequent enactments), a trustee of any
such
benefit plan or arrangement or any other person acting on behalf of any
such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the
Trustee
to the effect that the purchase and holding of such Certificate will not
result
in a prohibited transaction under Section 406 of ERISA or Section 4975
of the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel
shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer
of
a
Class
P
Certificate to or on behalf of an employee benefit plan subject to ERISA
or a
plan or arrangement subject to Section 4975 of the Code without the opinion
of
counsel satisfactory to the Trustee as described above shall be void and
of no
effect.
This
Class P Certificate may not be pledged or used as collateral for any other
obligation if it would cause any portion of the Trust Fund to be treated
as a
taxable mortgage pool under Section 7701(i) of the Code.
Each
Holder of this Class P Certificate will be deemed to have agreed to be
bound by
the transfer restrictions set forth in the Agreement and all other terms
and
provisions of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or
be valid
for any purpose unless the certificate of authentication hereon has been
manually executed by an authorized officer of the Trustee.
*
* *
C-2-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
| THE
BANK OF NEW YORK,
as
Trustee
|
||
| By | ___________________________________________ | |
| Name: | ||
| Title: | ||
Countersigned:
By
__________________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-2-5
EXHIBIT
C-3
[FORM
OF
CLASS C CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986
(THE “CODE”).
THIS
CLASS C CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE EXTENT
DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS C CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS
CLASS C CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING ON BEHALF OF ANY
SUCH
PLAN OR ARRANGEMENT OR USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO
EFFECT
THAT TRANSFER, OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT TO SECTION 4975
OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
C-3-1
| Certificate No. | : | |
| Initial Certificate Balance | ||
| of this Certificate | ||
| ("Denomination") | : | $ |
| Initial Certificate Balance | ||
| of all Certificates of | ||
| this Class | : | $ |
| CUSIP | : | |
| ISIN | : | |
| Interest Rate | : | |
| Maturity Date | : |
CWMBS,
INC.
CHL
Mortgage Pass-Through Trust 200____-____
Mortgage
Pass-Through Certificates, Series 200____-____
evidencing
a percentage interest in the distributions allocable to the Class C Certificates
with respect to a Trust Fund consisting primarily of a pool of conventional
mortgage loans (the “Mortgage Loans”) secured by first and second liens on one-
to four-family residential properties
CWMBS,
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
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 CWMBS, Inc. (the “Depositor”). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among
the
Depositor, Countrywide Home Loans, Inc., as 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-3-2
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th
day of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in
an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class
C
Certificates on such Distribution Date pursuant to Section 4.02 of the
Agreement. The Record Date applicable to each Distribution Date is the
last
Business Day of the month immediately preceding such Distribution
Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five Business Days prior to the
related
Record Date and such Certificateholder shall hold 100% of a Class of Regular
Certificates or of Certificates with an aggregate Initial Certificate Balance
of
$1,000,000 or more, or, if not, by check mailed by first class mail to
the
address of such Certificateholder appearing in the Certificate Register.
The
final distribution on each Certificate will be made in like manner, but
only
upon presentment and surrender of such Certificate at the Corporate Trust
Office
or such other location specified in the notice to Certificateholders of
such
final distribution.
No
transfer of a Class C Certificate shall be made unless such transfer is
made
pursuant to an effective registration statement under the Act and any applicable
state securities laws or is exempt from the registration requirements under
the
Act and such laws. In the event that a transfer is to be made in reliance
upon
an exemption from the Act and such laws, in order to assure compliance
with the
Act and such laws, the Certificateholder desiring to effect such transfer
and
such Certificateholder’s prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer. In the event that
such a
transfer is to be made within two years from the date of the initial issuance
of
Certificates, there shall also be delivered (except in the case of a transfer
pursuant to Rule 144A of the Regulations promulgated pursuant to the Act)
to the
Trustee an Opinion of Counsel that such transfer may be made pursuant to
an
exemption from the Act and such state securities laws, which Opinion of
Counsel
shall not be obtained at the expense of the Trustee, the Master Servicer
or the
Depositor. The Holder hereof desiring to effect such transfer shall, and
does
hereby agree to, indemnify the Trustee, the Certificate and the Depositor
against any liability that may result if the transfer is not so exempt
or is not
made in accordance with such federal and state laws.
No
transfer of a Class C Certificate shall be made unless the Trustee shall
have
received either (i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Trustee, to
the
effect that such transferee is not an employee benefit plan subject to
section
406 of ERISA or a plan subject to section 4975 of the Code, or a Person
acting
on behalf of any such plan or using the assets of any such plan, or (ii)
in the
case of any Class C Certificate presented for registration in the name
of an
employee benefit plan subject to ERISA, or a plan subject to section 4975
of the
Code (or comparable provisions of any subsequent enactments), or a trustee
of
any such plan or any other person acting on behalf of or investing plan
assets
of any such plan, an Opinion of Counsel satisfactory to the Trustee to
the
effect that the purchase or holding of such Class C Certificate will not
result
in a non-exempt prohibited transaction under ERISA or Section 4975 of the
Code
and will not subject the Trustee to any obligation in addition to those
expressly undertaken in the Agreement, which Opinion of Counsel shall not
be an
expense of the Trustee. Notwithstanding anything else to the contrary herein,
any purported transfer of a Class C Certificate to or on behalf of an employee
benefit plan subject to section 406 of ERISA or a plan subject to section
4975
of the Code without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no
effect.
C-3-3
This
Class C Certificate may not be pledged or used as collateral for any other
obligation if it would cause any portion of the Trust Fund to be treated
as a
taxable mortgage pool under Section 7701(i) of the Code.
Each
Holder of this Class C Certificate will be deemed to have agreed to be
bound by
the transfer restrictions set forth in the Agreement and all other terms
and
provisions of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or
be valid
for any purpose unless the certificate of authentication hereon has been
manually executed by an authorized officer of the Trustee.
* * *
C-3-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
____________, 20__
| THE
BANK OF NEW YORK,
as
Trustee
|
||
| By | ||
| Name: | ||
| Title: | ||
Countersigned:
By
__________________________________
Authorized
Signatory of
THE
BANK
OF NEW YORK,
as
Trustee
C-3-5
EXHIBIT
C-4
[FORM
OF
CLASS R-X CERTIFICATE]
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE 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.
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.
C-4-1
| Certificate No. | : | |
| Cut-off Date | : | |
| First Distribution Date | : | |
| CUSIP | : | |
| ISIN | : | |
| Interest Rate | : | 100% |
| Maturity Date | : |
CWMBS,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
R-X
evidencing
the distributions allocable to the Class R-X 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
CWMBS,
INC., as Depositor
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor,
the
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 CWMBS, INC. (the “Depositor”). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among the Depositor, Countrywide Home Loans,
Inc., as a seller (a “Seller”), Park Granada LLC, as a seller (a “Seller”), Park
Monaco Inc., as a seller (a “Seller”), Park Sienna LLC, as a seller (a
“Seller”), Countrywide Home Loans Servicing LP, as master servicer (the “Master
Servicer”) and The Bank of New York, as trustee (the “Trustee”). To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned
in the Agreement. This Certificate is issued under and is subject to the
terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
C-4-2
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 Seller, the Master Servicer or the Depositor.
The Holder hereof desiring to effect such transfer shall, and does hereby
agree
to, indemnify the Trustee and the Depositor against any liability that
may
result if the transfer is not so exempt or is not made in accordance with
such
federal and state laws.
No
transfer of a Class R-X 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 R-X 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 R-X 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 R-X Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class R-X 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 R-X 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 R-X Certificate must agree not to transfer an Ownership
Interest in this Class R-X 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 R-X Certificate
in
violation of such restrictions will be absolutely null and void and will
vest no
rights in the purported transferee.
C-4-3
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-4-4
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-4-5
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 | : |
CWMBS,
INC.
Mortgage
Pass-Through Certificates, Series 200____-____
Class
[ ]
evidencing
a percentage interest in the distributions allocable to the Certificates
of the
above-referenced Class with respect to a Trust Fund consisting primarily
of a
pool of conventional
mortgage
loans
(the “Mortgage Loans”) secured by first liens on one- to four-family residential
properties
CWMBS,
Inc., as Depositor
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 CWMBS, Inc. (the “Depositor”). The Trust Fund
was created pursuant to a Pooling and Servicing Agreement dated as of
the
Cut-off
Date specified above (the “Agreement”) among the Depositor, Countrywide Home
Loans, Inc., as 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
CWMBS,
INC.
Mortgage
Pass-Through Certificates
This
Certificate is one of a duly authorized issue of Certificates designated
as
CWMBS, Inc. Mortgage Pass-Through Certificates, of the Series specified
on the
face hereof (herein collectively called the “Certificates”), and representing a
beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders
for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 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.
E-2
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
E-3
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
________________________________________
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on
the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the
following
address:
___________________________________________________________________________________________________
Dated:
| Signature by or on behalf of assignor |
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds to,
______________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________,
for
the
account of
_____________________________________________________________________________________________,
account
number ________________________, or, if mailed by check, to
__________________________________________________.
Applicable
statements should be mailed to
__________________________________________________________________________,
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________.
This
information is provided
by ___________________________________________________________________________,
the
assignee named above, or
___________________________________________________________________________________,
as
its
agent.
E-4
| STATE OF | ) | ||
| ) |
ss.:
|
||
| COUNTY OF | ) |
On
the
_____day of ___________________, 20__ before me, a notary public in and
for said
State, personally appeared _____________________________________,
known
to me who, being by me duly sworn, did depose and say that he executed
the
foregoing instrument.
|
Notary
Public
|
[Notarial
Seal]
E-5
EXHIBIT
F-1
[FORM
OF]
INITIAL CERTIFICATION OF TRUSTEE
(INITIAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
___________________
___________________
| Re: |
Pooling
and Servicing Agreement among CWMBS, 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
[Reserved]
F-2-1
EXHIBIT
G-1
[FORM
OF]
DELAY DELIVERY CERTIFICATION
(INITIAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_____________________
_____________________
|
Re:
|
Pooling
and Servicing Agreement among CWMBS, 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
[Reserved]
G-2-1
EXHIBIT
H-1
[FORM
OF]
FINAL CERTIFICATION OF TRUSTEE
(INITIAL
MORTGAGE LOANS)
[date]
[Depositor]
[Master
Servicer]
[Countrywide]
_____________________
_____________________
|
Re:
|
Pooling
and Servicing Agreement among CWMBS, 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.
H-1-2
The
Trustee has made no independent examination of any documents contained
in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations as
to:
(i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents contained in each Mortgage File of any of the Initial
Mortgage
Loans identified on the [Mortgage Loan Schedule][Loan Number and Borrower
Identification Mortgage Loan Schedule] or (ii) the collectibility,
insurability, effectiveness or suitability of any such
Initial
Mortgage
Loan.
H-1-3
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
|
THE
BANK OF NEW YORK,
as Trustee
By:_______________________________
|
|
| Name: | |
| Title: |
X-0-0
XXXXXXX
X-0
[Reserved]
H-2-1
EXHIBIT
I
[FORM
OF]
TRANSFER AFFIDAVIT
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
| STATE OF | ) | ||
| ) |
ss.:
|
||
| COUNTY OF | ) |
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of ,
the
proposed Transferee of an Ownership Interest in a Class A-R Certificate
(the
“Certificate”) issued pursuant to the Pooling and Servicing Agreement, dated as
of _________ __, 2___ (the “Agreement”), by and among CWMBS, 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.
I-2
11. The
Transferee has provided financial statements or other financial information
requested by the Transferor in connection with the transfer of the Certificate
to permit the Transferor to assess the financial capability of the Transferee
to
pay such taxes. The Transferee historically has paid its debts as they
have come
due and intends to pay its debts as they come due in the future.
12. Unless
the Transferor (or any subsequent transferor) expressly waives such requirement,
the Transferee (and any subsequent transferee) certifies (or will certify),
respectively, that the transfer satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula Test” imposed by Treasury
Regulation § 1.860E-1(c)(7).
* * *
I-3
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf by its duly authorized officer, this_____ day of ___________,
2___.
| PRINT NAME OF TRANSFEREE | ||
|
By:
|
||
|
Name:
Title:
|
||
[Corporate
Seal]
ATTEST:
___________________________________
[Assistant]
Secretary
Personally
appeared before me the above-named
,
known
or proved to me to be the same person who executed the foregoing instrument
and
to be the
of the
Transferee, and acknowledged that he executed the same as his free act
and deed
and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
| NOTARY PUBLIC | |
|
My
Commission expires the
___
day of ,
20__
|
I-4
WAIVER
OF
REQUIREMENT THAT TRANSFEREE CERTIFIES TRANSFER OF CERTIFICATE SATISFIES
CERTAIN
REGULATORY “SAFE HARBORS”
The
Transferor hereby waives the requirement that the Transferee certify that
the
transfer of the Certificate satisfies either the “Asset Test” imposed by
Treasury Regulation § 1.860E-1(c)(5) or the “Formula Test” imposed by Treasury
Regulation § 1.860E-1(c)(7).
| CWMBS, 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
CWMBS,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx
-
0X
Xxx
Xxxx,
Xxx Xxxx 00000
| Attention: | Mortgage-Backed Securities Group |
| Series 200_-_ | |
| Re: CWMBS, Inc. Mortgage Pass-Through Certificates | |
| Series 200_-_, Class |
Ladies and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
to the
extent we are disposing of a Class A-R Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee.
| Very truly yours, | ||
|
|
||
| Print Name of Transferor | ||
| |
|
|
| By: | ||
|
|
||
|
Authorized
Officer
|
||
J-1-1
EXHIBIT
J-2
[FORM
OF]
TRANSFEROR CERTIFICATE
(PRIVATE)
_____________________
Date
CWMBS,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx
-
0X
Xxx
Xxxx,
Xxx Xxxx 00000
| Attention: | Mortgage-Backed Securities Group |
| Series 200_-_ | |
| Re: CWMBS, Inc. Mortgage Pass-Through Certificates | |
| Series 200_-_, Class |
Ladies and Gentlemen:
In
connection with our disposition of the above Certificates we certify that
(a) we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act,
(b) we
have not offered or sold any Certificates to, or solicited offers to buy
any
Certificates from, any person, or otherwise approached or negotiated with
any
person with respect thereto, in a manner that would be deemed, or taken
any
other action which would result in, a violation of Section 5 of the
Act.
| Very truly yours, | ||
|
|
||
| Print Name of Transferor | ||
| |
|
|
| By: | ||
|
|
||
|
Authorized
Officer
|
||
J-2-1
EXHIBIT
K
[FORM
OF]
INVESTMENT LETTER (NON-RULE 144A)
| Date | |
CWMBS,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx
-
0X
Xxx
Xxxx,
Xxx Xxxx 00000
| Attention: | Mortgage-Backed Securities Group |
| Series 200_-_ | |
|
Re: CWMBS,
Inc. Mortgage Pass-Through Certificates
|
|
| Series 200_-_, Class |
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an “accredited investor,”
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the
merits
and risks of investments in the Certificates, (c) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the
purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(d)
either (i) we are not an employee benefit plan that is subject to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or a plan or
arrangement that is subject to Section 4975 of the Internal Revenue Code
of
1986, as amended, nor are we acting on behalf of or investing the assets
of any
such benefit plan or arrangement to effect such acquisition or (ii) if
the
Certificates have been the subject of an ERISA-Qualifying Underwriting
and we
are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy
the requirements for exemptive relief
under
Sections I and III of PTCE 95-60, (e) we are acquiring the Certificates
for
investment for our own account and not with a view to any distribution
of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below),
(f)
we have not offered or sold any Certificates to, or solicited offers to
buy any
Certificates from, any person, or otherwise approached or negotiated with
any
person with respect thereto, or taken any other action which would result
in a
violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or
other
disposition is made pursuant to an effective registration statement under
the
Act or is exempt from such registration requirements, and if requested,
we will
at our expense provide an opinion of counsel satisfactory to the addressees
of
this Certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) the purchaser or transferee
of such
Certificate has executed and delivered to you a certificate to substantially
the
same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and
Servicing Agreement.
| Very truly yours, | ||
|
|
||
| Print Name of Transferor | ||
|
By:
|
||
|
Authorized
Officer
|
||
K-1
EXHIBIT
L-1
[FORM
OF]
RULE 144A LETTER
| Date | |
CWMBS,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx
-
0X
Xxx
Xxxx,
Xxx Xxxx 00000
| Attention: | Mortgage-Backed Securities Group |
| Series 200_-_ | |
|
Re: CWMBS,
Inc. Mortgage Pass-Through Certificates
|
|
| Series 200_-_, Class |
Ladies and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that
(a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Certificates, (c) we have had
the
opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificates and all matters relating thereto
or
any additional information deemed necessary to our decision to purchase
the
Certificates, (d) either (i) we are not an employee benefit plan that is
subject
to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended, nor are we acting on behalf of or investing the
assets
of any such benefit plan or arrangement to effect such acquisition or (ii)
if
the Certificates have been the subject of an ERISA-Qualifying Underwriting
and
we are an insurance company, we are purchasing such Certificates with funds
contained in an “insurance company general account” (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and
the purchase and holding of such Certificates satisfy
the requirements for exemptive relief
under
Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting
on our
behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means
of
general advertising or in any other manner, or taken any other action,
that
would constitute a distribution of the Certificates under the Securities
Act or
that would render the disposition of the Certificates a violation of Section
5
of the Securities Act or require registration pursuant thereto, nor will
act,
nor has authorized or will authorize any person to act, in such manner
with
respect to the Certificates, (f) we are a “qualified institutional buyer” as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as
Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance
on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may
be
resold, pledged or transferred only (i) to a person reasonably believed
to be a
qualified institutional buyer that purchases for its own account or for
the
account of a qualified institutional buyer to whom notice is given that
the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities
Act.
| Very truly yours, | ||
|
|
||
| Print Name of Transferor | ||
|
By:
|
||
| Authorized Officer | ||
|
|
||
L-1-1
ANNEX
1 TO EXHIBIT L-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933,
as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis either at least $100,000 in securities or, if Buyer
is a
dealer, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities (except for the excluded securities referred
to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
|
___
|
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar
business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as
amended.
|
|
___
|
Bank.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any State, territory or the District of Columbia,
the business
of which is substantially confined to banking and is supervised
by the
State or territorial banking commission or similar official or
is a
foreign bank or equivalent institution, and (b) has an audited
net worth
of at least $25,000,000 as demonstrated in its latest annual
financial
statements, a
copy of which is attached hereto.
|
|
___
|
Savings
and Loan.
The Buyer (a) is a savings and loan association, building and
loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is
a foreign
savings and loan association or equivalent institution and (b)
has an
audited net worth of at least $25,000,000 as demonstrated in
its latest
annual financial statements, a
copy of which is attached hereto.
|
L-1-2
|
___
|
Broker-dealer.
The Buyer is a dealer registered pursuant to Section 15 of the
Securities
Exchange Act of 1934.
|
|
___
|
Insurance
Company.
The Buyer is an insurance company whose primary and predominant
business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of
a State,
territory or the District of
Columbia.
|
|
___
|
State
or Local Plan.
The Buyer is a plan established and maintained by a State, its
political
subdivisions, or any agency or instrumentality of the State or
its
political subdivisions, for the benefit of its
employees.
|
|
___
|
ERISA
Plan.
The Buyer is an employee benefit plan within the meaning of Title
I of the
Employee Retirement Income Security Act of
1974.
|
|
___
|
Investment
Advisor.
The Buyer is an investment advisor registered under the Investment
Advisors Act of 1940.
|
|
___
|
Small
Business Investment Company.
Buyer is a small business investment company licensed by the
U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business
Investment Act of 1958.
|
|
___
|
Business
Development Company.
Buyer is a business development company as defined in Section
202(a)(22)
of the Investment Advisors Act of
1940.
|
3. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities
that
are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or
invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount,
the
Buyer may have included securities owned by subsidiaries of the Buyer,
but only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
L-1-3
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each
of the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a bank or savings and
loan
is provided above, the Buyer agrees that it will furnish to such parties
updated
annual financial statements promptly after they become available.
| ________________________________________________ | ||
|
Print
Name of Buyer
|
||
| By: | ____________________________________________ | |
| Name: | ||
| Title: | ||
| Date: | ____________________________________________ | |
L-1-4
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).
L-1-5
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii)
bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands
that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance
on Rule
144A. In addition, the Buyer will only purchase for the Buyer’s own
account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until
such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of
such
purchase.
| ________________________________________________ | ||
|
Print
Name of Buyer or Adviser
|
||
| By: | _____________________________________________ | |
| Name: | ||
| Title: | ||
| IF AN ADVISER: | ||
| ________________________________________________ | ||
|
Print
Name of Buyer
|
||
|
Date:
|
_____________________________________________
|
|
X-0-0
XXXXXXX
X-0
[FORM
OF]
ERISA LETTER (COVERED CERTIFICATES)
| Date | |
CWMBS,
Inc.
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
Xxxxx
The
Bank
of New York
000
Xxxxxxx Xxxxxx - 0X
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mortgage-Backed
Securities Group
Series
200_-_
|
Re:
|
CWMBS,
Inc. Mortgage Pass-Through Certificates,
Series
200_-_,
Class
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates, we certify that
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)
CWMBS,
Inc.
Mortgage
Pass-Through Certificates
Series
200_-_
Loan
Information
| Name of Mortgagor: | ||
| Servicer Loan No.: | ||
| Trustee | ||
| Name: | ||
| Address: | ||
|
Trustee
Mortgage
File
No.:
|
The
undersigned Master Servicer hereby acknowledges that it has received from
The
Bank of New York, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to
below
(the “Documents”). All capitalized terms not otherwise defined in this Request
for Release shall have the meanings given them in the Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”) relating to the
above-referenced Series among the Trustee, Countrywide Home Loans, Inc.,
as
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 CWMBS, Inc., as
Depositor.
|
(
)
|
Mortgage
Note dated _______________, 20__, in the original principal sum
of
$___________,
made by ____________________________, payable to, or endorsed
to the order
of, the Trustee.
|
|
(
)
|
Mortgage
recorded on __________________
as
instrument no. ______________________ in the County Recorder’s Office of
the County of _________________________,
State of _______________________
in
book/reel/docket _________________________ of official records
at
page/image _______________________________.
|
M-1
|
(
)
|
Deed
of Trust recorded on ______________________ as instrument no.
___________
in the County Recorder’s Office of the County of __________________________,
State of _____________________
in
book/reel/docket _________________________
of
official records at page/image
____________________________.
|
|
(
)
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on
_____________________ as instrument no. __________________ in
the County
Recorder’s Office of the County of _____________________, State of
___________________ in book/reel/docket ________________ of official
records at page/image
______________________.
|
|
(
)
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
(
)_______________________________________________________________________________________________
(
)_______________________________________________________________________________________________
(
)_______________________________________________________________________________________________
(
)_______________________________________________________________________________________________
The
undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The
Master Servicer shall hold and retain possession of the Documents in trust
for
the benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Master Servicer shall not cause or knowingly permit the Documents to become
subject to, or encumbered by, any claim, liens, security interest, charges,
writs of attachment or other impositions nor shall the Servicer assert
or seek
to assert any claims or rights of setoff to or against the Documents or
any
proceeds thereof.
(3) The
Master Servicer shall return each and every Document previously requested
from
the Mortgage File to the Trustee when the need therefor no longer exists,
unless
the Mortgage Loan relating to the Documents has been liquidated and the
proceeds
thereof have been remitted to the Certificate Account and except as expressly
provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds,
coming
into the possession or control of the Master Servicer shall at all times
be
earmarked for the account of the Trustee, and the Master Servicer shall
keep the
Documents and any proceeds separate and distinct from all other property
in the
Master Servicer’s possession, custody or control.
M-2
|
COUNTRYWIDE
HOME LOANS
SERVICING LP
|
||
|
By
|
____________________________________________
|
|
| Its | ____________________________________________ | |
Date:_________________,
20__
M-3
EXHIBIT
N
[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,
CWMBS, Inc. and The Bank of New York,
as Trustee
|
Ladies
and Gentlemen:
In
connection with the administration of the Mortgage Loans held by you as
Trustee
for CWMBS, Inc., we request the release of the Mortgage Loan File for the
Mortgage Loan(s) described below, for the reason indicated.
FT
Account #: Pool
#:
Mortgagor’s
Name, Address and Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents (check one)
|
1.
|
Mortgage
Loan paid in full (Countrywide Home Loans, Inc. hereby certifies
that all
amounts have been received).
|
|
2.
|
Mortgage
Loan Liquidated (Countrywide Home Loans, Inc. hereby certifies
that all
proceeds of foreclosure, insurance, or other liquidation have
been finally
received).
|
|
3.
|
Mortgage
Loan in Foreclosure.
|
|
4.
|
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
EXHIBIT
O
[Reserved]
O-1
EXHIBIT
P
[Reserved]
P-1
EXHIBIT
Q
GLOSSARY
of TERMS for STANDARD & POOR’S LEVELS® VERSION 5.7 FILE FORMAT
APPENDIX
E - Standard & Poor’s Predatory Lending Categories
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that
certain loans classified by the relevant statute as Covered are included
in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by
the
industry.
|
Standard
& Poor’s High Cost Loan
Categorization
|
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January
1, 2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
Q-1
|
Standard
& Poor’s High Cost Loan
Categorization
|
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id.§
16a-3-207) and;
|
|
High
APR Consumer Loan (id.§
16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev. Stat. §§ 360.100
et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
Q-2
|
Standard
& Poor’s High Cost Loan
Categorization
|
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
and 209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines
of
credit)
|
High
Cost Home Loan
|
|
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
|
Q-3
|
Standard
& Poor’s High Cost Loan
Categorization
|
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending
Law
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
Q-4
|
Standard
& Poor’s Home Loan
Categorization
|
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines
of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Q-5
EXHIBIT
R
[Reserved]
R-1
EXHIBIT
S-1
[Reserved]
S-1-1
EXHIBIT
S-2
[Reserved]
S-2-1
EXHIBIT
T
[FORM
OF]
OFFICER’S CERTIFICATE WITH RESPECT TO PREPAYMENTS
MORTGAGE
BACKED CERTIFICATES,
Series
200_-__
[Date]
Via
Facsimile
__________________,
as
Trustee
_______________
_______________________
Dear
Sir
or Madam:
Reference
is made to the Pooling and Servicing Agreement, dated as of _________,
200_,
(the “Pooling and Servicing Agreement”) among [CWMBS, Inc.], as Depositor,
[Countrywide Home Loans, Inc.], as a Seller, [Park
Granada LLC], as a Seller,
[Park
Monaco Inc.], as a Seller, [Park Sienna LLC], as a Seller, [Countrywide
Home
Loans Servicing LP], as Master Servicer and __________________, as Trustee.
Capitalized terms used herein shall have the meanings ascribed to such
terms in
the Pooling and Servicing Agreement.
__________________
hereby certifies that he/she is a Servicing Officer, holding the office
set
forth beneath his/her name and hereby further certifies as follows:
With
respect to the Distribution Date in _________ 200_ and each Mortgage Loan
set
forth in the attached schedule:
1.
A
Principal Prepayment in full or in part was received during the related
Prepayment Period;
2.
Any
Prepayment Charge due under the terms of the Mortgage Note with respect
to such
Principal Prepayment was or was not, as indicated on the attached schedule
using
“Yes” or “No”, received from the Mortgagor and deposited in the Certificate
Account;
3.
As to
each Mortgage Loan set forth on the attached schedule for which all or
part of
the Prepayment Charge required in connection with the Principal Prepayment
was
waived by the Master Servicer, such waiver was, as indicated on the attached
schedule, based upon:
(i)
the
Master Servicer’s determination that such waiver would maximize recovery of
Liquidation Proceeds for such Mortgage Loan, taking into account the value
of
such Prepayment Charge, or
(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
T-1
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.
|
|
W-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
|
W-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
|
W-3
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
|
W-4
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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-5
[NAME
OF
MASTER SERVICER] [NAME OF TRUSTEE] [NAME OF CO-TRUSTEE] [NAME OF
SUBSERVICER]
Date: _________________________
By:
________________________________
Name:
Title:
W-6
EXHIBIT
X
[FORM
OF]
LIST OF ITEM 1119 PARTIES
CHL
MORTGAGE PASS-THROUGH TRUST 200_-__
MORTGAGE
PASS-THROUGH CERTIFICATES,
Series
200_-__
[Date]
|
Party
|
Contact
Information
|
X-1
EXHIBIT
Y
FORM
OF
XXXXXXXX-XXXXX CERTIFICATION
(REPLACEMENT
OF MASTER SERVICER)
Y-1
