EXHIBIT 99.1
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6
EXECUTION COPY
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CWALT, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
PARK GRANADA LLC,
Seller
PARK MONACO INC.,
Seller
PARK SIENNA LLC,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
and
THE BANK OF NEW YORK,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2005
----------------------------------
ALTERNATIVE LOAN TRUST 2005-14
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-14
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Table of Contents
Page
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ARTICLE I DEFINITIONS
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans..................................52
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans...................56
SECTION 2.03. Representations, Warranties and Covenants of the Sellers
and Master Servicer...........................................58
SECTION 2.04. Representations and Warranties of the Depositor
as to the Mortgage Loans......................................60
SECTION 2.05. Delivery of Opinion of Counsel in Connection
with Substitutions............................................61
SECTION 2.06. Execution and Delivery of Certificates........................61
SECTION 2.07. REMIC Matters.................................................61
SECTION 2.08. Covenants of the Master Servicer..............................62
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans.....................63
SECTION 3.02. Subservicing; Enforcement of the Obligations
of Subservicers...............................................64
SECTION 3.03. Rights of the Depositor and the Trustee in Respect
of the Master Servicer........................................64
SECTION 3.04. Trustee to Act as Master Servicer.............................65
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account; Carryover Reserve Fund; Corridor
Contract Reserve Fund; Par Price Account; Auction
Proceeds Account..............................................65
SECTION 3.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts...............................................69
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans..................................70
SECTION 3.08. Permitted Withdrawals from the Certificate Account,
the Distribution Account, the Carryover Shortfall
Reserve Fund and Corridor Contract Reserve Fund...............70
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies....................................73
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements.....74
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.....................................75
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files...............79
SECTION 3.13. Documents, Records and Funds in Possession of
Master Servicer to be Held for the Trustee....................79
SECTION 3.14. Servicing Compensation........................................80
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SECTION 3.15. Access to Certain Documentation...............................80
SECTION 3.16. Annual Statement as to Compliance.............................81
SECTION 3.17. Annual Independent Public Accountants' Servicing
Statement; Financial Statements...............................81
SECTION 3.18. Errors and Omissions Insurance; Fidelity Bonds................81
SECTION 3.19. Notification of Adjustments...................................82
SECTION 3.20. Corridor Contracts............................................82
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances......................................................83
SECTION 4.02. Priorities of Distribution....................................84
SECTION 4.03. Allocation of Net Deferred Interest...........................91
SECTION 4.04. Allocation of Realized Losses.................................92
SECTION 4.05. Cross-Collateralization; Adjustments to Available Funds.......94
SECTION 4.06. Monthly Statements to Certificateholders......................95
SECTION 4.07. [Reserved]....................................................97
SECTION 4.08. Determination of Pass-Through Rates for LIBOR Certificates....97
SECTION 4.09. Distributions from the Corridor Contract Reserve Fund.........99
SECTION 4.10. Auction Administration Agreement; Par Price Payment
Agreement; Mandatory Auction of the Auction Certificates......99
ARTICLE V THE CERTIFICATES
SECTION 5.01. The Certificates.............................................100
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.....................................100
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates............106
SECTION 5.04. Persons Deemed Owners........................................106
SECTION 5.05. Access to List of Certificateholders' Names and Addresses....106
SECTION 5.06. Maintenance of Office or Agency..............................107
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the
Master Servicer..............................................108
SECTION 6.02. Merger or Consolidation of the Depositor or
the Master Servicer..........................................108
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers,
the Master Servicer and Others...............................108
SECTION 6.04. Limitation on Resignation of Master Servicer.................109
ARTICLE VII DEFAULT
SECTION 7.01. Events of Default............................................110
SECTION 7.02. Trustee to Act; Appointment of Successor.....................111
SECTION 7.03. Notification to Certificateholders...........................113
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ARTICLE VIII CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................114
SECTION 8.02. Certain Matters Affecting the Trustee........................115
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans........116
SECTION 8.04. Trustee May Own Certificates.................................116
SECTION 8.05. Trustee's Fees and Expenses..................................116
SECTION 8.06. Eligibility Requirements for Trustee.........................117
SECTION 8.07. Resignation and Removal of Trustee...........................117
SECTION 8.08. Successor Trustee............................................118
SECTION 8.09. Merger or Consolidation of Trustee...........................118
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................119
SECTION 8.11. Tax Matters..................................................120
ARTICLE IX TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all
Mortgage Loans...............................................122
SECTION 9.02. Final Distribution on the Certificates.......................123
SECTION 9.03. Additional Termination Requirements..........................124
ARTICLE X MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment....................................................125
SECTION 10.02. Recordation of Agreement; Counterparts.......................127
SECTION 10.03. Governing Law................................................127
SECTION 10.04. Intention of Parties.........................................127
SECTION 10.05. Notices......................................................128
SECTION 10.06. Severability of Provisions...................................129
SECTION 10.07. Assignment...................................................129
SECTION 10.08. Limitation on Rights of Certificateholders...................129
SECTION 10.09. Inspection and Audit Rights..................................130
SECTION 10.10. Certificates Nonassessable and Fully Paid....................130
SECTION 10.11. [Reserved]...................................................131
SECTION 10.12. Protection of Assets.........................................131
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SCHEDULES
Schedule I Mortgage Loan Schedule..................................S-I-1
Schedule II-A Representations and Warranties of Countrywide........S-II-A-1
Schedule II-B Representations and Warranties of Park Granada.......S-II-B-1
Schedule II-C Representations and Warranties of Park Monaco Inc....S-II-C-1
Schedule II-D Representations and Warranties of Park Sienna LLC....S-II-D-1
Schedule III-A Representations and Warranties of Countrywide
as to the Mortgage Loans............................S-III-A-1
Schedule III-B Representations and Warranties of Countrywide
as to the Countrywide Mortgage Loans................S-III-B-1
Schedule III-C Representations and Warranties of Park Granada
as to the Park Granada Mortgage Loans...............S-III-C-1
Schedule III-D Representations and Warranties of Park Monaco Inc.
as to the Park Monaco Inc. Mortgage Loans...........S-III-D-1
Schedule III-E Representations and Warranties of Park Sienna LLC
as to the Park Sienna LLC Mortgage Loans............S-III-E-1
Schedule IV Representations and Warranties of the
Master Servicer........................................S-IV-1
Schedule V Principal Balance Schedules (if applicable).............S-V-1
Schedule VI Form of Monthly Master Servicer Report........S-VI-I
EXHIBITS
Exhibit A: Form of Senior Certificate (other than 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: Form of Initial Certification of Trustee......................F-1
Exhibit G: Form of Delay Delivery Certification of Trustee...............G-1
Exhibit H: Form of Final Certification of Trustee........................H-1
Exhibit I: Form of Transfer Affidavit....................................I-1
Exhibit J-1: Form of Transferor Certificate (Residual).....................J-1
Exhibit J-2: Form of Transferor Certificate (Private)......................J-2
Exhibit K: Form of Investment Letter [Non-Rule 144A].....................K-1
Exhibit L: Form of Rule 144A Letter......................................L-1
Exhibit M: Form of Request for Release (for Trustee).....................M-1
Exhibit N: Form of Request for Release of Documents (Mortgage Loan)
Paid in Full, Repurchased and Replaced).......................N-1
Exhibit O: [Reserved]....................................................O-1
Exhibit P: [Reserved]....................................................P-1
Exhibit Q: Standard & Poor's LEVELS(R) Version 5.6b Glossary Revised,
Appendix E....................................................Q-1
Exhibit R: Form of Corridor Contract.....................................R-1
Exhibit S: Form of Assignment Agreement..................................S-1
Exhibit T: Form of Officer's Certificate pursuant to Section 5.02(b).....T-1
iv
v
THIS POOLING AND SERVICING AGREEMENT, dated as of March 1, 2005, among
CWALT, INC., a Delaware corporation, as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC. ("Countrywide"), a New York corporation, as a
seller (a "Seller"), PARK GRANADA LLC ("Park Granada"), a Delaware limited
liability company, as a seller (a "Seller"), PARK MONACO INC. ("Park Monaco"),
a Delaware corporation, as a seller (a "Seller"), PARK SIENNA LLC ("Park
Sienna"), a Delaware limited liability company, as a seller (a "Seller"),
COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership, as master
servicer (the "Master Servicer"), and THE BANK OF NEW YORK, a banking
corporation organized under the laws of the State of New York, as trustee (the
"Trustee").
WITNESSETH THAT
In consideration of the mutual agreements contained in this Agreement,
the parties to this Agreement agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. For federal income tax purposes,
the Trust Fund (other than the Carryover Shortfall Reserve Fund, the Corridor
Contracts and the Corridor Contract Reserve Fund) will consist of four real
estate mortgage investment conduits (each a "REMIC" or, in the alternative,
the "Lower Tier REMIC A," the "Lower Tier REMIC B," the "Middle Tier REMIC"
and the "Master REMIC," respectively). Each Certificate, other than the Class
A-R Certificate, will represent ownership of one or more regular interests in
the Master REMIC for purposes of the REMIC Provisions. The Class A-R
Certificate represents ownership of the sole class of residual interest in the
Lower Tier REMIC A, the Lower Tier REMIC B, the Middle Tier REMIC and the
Master REMIC. The Master REMIC will hold as assets the several classes of
uncertificated Middle Tier REMIC Interests (other than the Class MT-A-R
Interest). The Middle Tier REMIC will hold as assets the several classes of
uncertificated Lower Tier REMIC B Interests (other than the Class LTB-A-R
Interest). The Lower Tier REMIC B will hold as assets the several classes of
uncertificated Lower Tier REMIC A Interests (other than the Class LTA-A-R
Interest). The Lower Tier REMIC A will hold as assets all property of the
Trust Fund (other than the Carryover Shortfall Reserve Fund, the Corridor
Contracts and the Corridor Contract Reserve Fund). Each Middle Tier REMIC
Interest (other than the Class MT-A-R Interest) is hereby designated as a
regular interest in the Middle Tier REMIC. Each Lower Tier REMIC B Interest
(other than the Class LTB-A-R Interest) is hereby designated as a regular
interest in the Lower Tier REMIC B and each Lower Tier REMIC A Interest (other
than the Class LTA-A-R Interest) is hereby designated as a regular interest in
the Lower Tier REMIC A. The latest possible maturity date of all REMIC regular
interests created in this Agreement shall be the Latest Possible Maturity
Date.
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Master REMIC as cash flow on a REMIC
regular interest, without creating any shortfall-actual or potential (other
than for credit losses) to any REMIC regular interest. It is not intended that
the Class A-R Certificates be entitled to any cash flow pursuant to this
Agreement except as provided in Section 4.02(a)(1)(ii) and (iv)(y) hereunder,
(that is, its entitlement to $100 plus interest thereon).
The following table sets forth characteristics of the Interests in the
Lower Tier REMIC A.
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The Lower Tier REMIC A Initial Principal Interest Rate Corresponding
Interests Balance Aggregate Group
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LTA-I............. (1) (2) I
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LTA-II............ (1) (2) II
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LTA-A-R........... (3) (3) N/A
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(1) This Class of Lower Tier REMIC A Interest will have an initial Principal
Balance equal to the initial principal balance of the mortgages in the
Corresponding Aggregate Group.
(2) This Class of Lower Tier REMIC A Interest will have an Interest Rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans in the Corresponding Aggregate Group.
(3) The Class LTA-AR Interest is the sole class of residual interest in the
Lower Tier REMIC A. It has no principal balance and pays no principal or
interest.
On each Distribution Date, the Available Funds for each Aggregate Loan
Group will be distributed with respect to the corresponding Aggregate Loan
Group's corresponding LTA Interests in the following manner:
(1) Interest. Interest will be distributed with respect to the
corresponding LTA Interest at the rate, or according to the formula, described
above;
(2) Principal. All principal amounts with respect to Aggregate Loan Group
I will be distributed to the LTA-I Interest and all principal amounts with
respect to Aggregate Loan Group II will be distributed to the LTA-II Interest.
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The following table specifies the Class designation, interest rate,
and principal amount for each Class of Lower Tier REMIC B Interest:
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Lower Tier Initial Pass-Through Rate Corresponding Loan Corresponding
REMIC B Interests Balance Group Aggregate Group
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LTB-1 ................ (1) (2) 1 I
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LTB-A-2 .............. (1) (3) 2 II
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LTB-B-2 .............. (1) (3) 2 II
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LTB-C-2 .............. (1) (3) 2 II
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LTB-A-3 .............. (1) (3) 3 II
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LTB-B-3 .............. (1) (3) 3 II
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LTB-C-3 .............. (1) (3) 3 II
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LTB-A-4 .............. (1) (3) 4 II
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LTB-B-4 .............. (1) (3) 4 II
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LTB-C-4 .............. (1) (3) 4 II
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LTB-A-R............... (4) (4) N/A N/A
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(1) A Rate equal to the Weighted Average Adjusted Net Mortgage Rate of the
Mortgage Loans of the Corresponding Loan Group.
(2) The LTB-1 Lower Tier REMIC B Interest will have an initial Principal
Balance equal to the initial principal balance of the mortgages in the
Corresponding Aggregate Group.
(3) With respect to these Interests, each Lower Tier REMIC B Interest having
an "A" designation (each, an "LTB-A Interest") will have a principal
balance initially equal to 0.9% of the Subordinate Portion ("SP") of its
Corresponding Loan Group. Each Lower Tier REMIC B Interest having a "B"
designation (each, an "LTB-B Interest") will have a principal balance
initially equal to 0.1% of the SP of its Corresponding Loan Group. The
initial principal balance of each Lower Tier REMIC B Interest having a
"C" designation (each, an "LTB-C Interest") will equal the excess of its
Corresponding Loan Group over the initial aggregate principal balances of
the LTB-A and LTB-B Interests corresponding to such Loan Group.
(4) This Lower Tier REMIC B Interest is the sole class of residual interest
in Lower Tier REMIC B. It has no principal balance and pays no principal
or interest.
On each Distribution Date, the Available Funds for Aggregate Loan Group I
will be distributed with respect to the corresponding Aggregate Group I
Interests in the following manner:
(1) Interest. Interest will be distributed with respect to the LTB-1
Lower Tier REMIC B Interest at the rate, or according to the formula,
described above;
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(2) Principal. All principal amounts with respect to Aggregate Loan Group
I will be distributed to the LTB-1 Lower Tier REMIC B Interest.
On each Distribution Date, the Available Funds for Aggregate Loan Group
II will be distributed with respect to the corresponding Aggregate Group II
Interests in the following manner:
(1) Interest. Interest will be distributed with respect to each Aggregate
Group II 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 Aggregate Group II Interests,
Principal Amounts arising with respect to each of Loan Group 2, Loan Group 3
and Loan Group 4 will be allocated: first to cause the Loan Group's
corresponding LTB-A and LTB-B Interests to equal, respectively, 0.9% of the SP
and 0.1% of the SP of the Corresponding Loan Group, and then to the
corresponding LTB-C Interest.
(3) Principal if a Cross-Over Situation Exists. If a Cross-Over Situation
exists with respect to the Class A and Class B Aggregate Group II Interests of
a Loan Group, then:
(a) If the Calculation Rate in respect of the outstanding Class A and
Class B Interests of a Loan Group is less than the Subordinate
Pass-Through Rate for Aggregate Loan Group II, then Principal Relocation
Payments will be made proportionately to the outstanding Class A
Interests prior to any other principal distributions from the Loan Group.
(b) If the Calculation Rate in respect of the outstanding Class A and
Class B Interests of a Loan Group is greater than the Subordinate
Pass-Through Rate for Aggregate Loan Group II, then Principal Relocation
Payments will be made to the outstanding Class B Interests prior to any
other principal distributions from the Loan Group.
In each case, Principal Relocation Payments will be made so as to cause
the Calculation Rate in respect of the outstanding Class A and Class B
Interests to equal the Subordinate Pass-Through Rate for Aggregate Loan Group
II. With respect to each Corresponding 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, are insufficient to make
the necessary reductions of principal on the Class A and Class B Interests,
then interest will be added to the Loan Group's Class C Interest.
(c) The outstanding aggregate Class A and Class B Interests for all
Corresponding Loan Groups in Aggregate Loan Group II will not be reduced
below 1% of the excess of (i) the aggregate outstanding Stated Principal
Balances of the Mortgage Loans in Aggregate Loan Group II as of the end
of any Due Period over (ii) the aggregate Class Certificate Balance of
the Group II Senior Certificates as of the related Distribution Date
(after taking into account distributions of principal on such
Distribution Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the corresponding Class A and Class B Interests
of a Loan Group, and if the Loan
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Group's Class C Interest has already been reduced to zero, then the excess
principal from that Loan Group will be paid to the Class C Interests of the
other corresponding Loan Groups in Aggregate Loan Group II, the aggregate
Class A and Class B Interests of which are less than 1% of the Subordinated
Portion of such Loan Groups. If the Loan Group Corresponding to the Class C
Interest that receives such payment has a Weighted Average Adjusted Net
Mortgage Rate below the Weighted Average Adjusted Net Mortgage Rate of the
Loan Group making the payment, then the payment will be treated by the Lower
Tier REMIC B as a Realized Loss. Conversely, if a Loan Group corresponding to
the Class C Interest that receives such payment has a Weighted Average
Adjusted Net Mortgage Rate above the Weighted Average Adjusted Net Mortgage
Rate of the Loan Group making the payment, then the payment will be treated by
the Lower Tier REMIC B as a reimbursement for prior Realized Losses.
The following table sets forth characteristics of the Interests in the
Middle Tier REMIC (the "Middle Tier REMIC Interests"):
The following table specifies the Class designation, interest rate, and
principal amount for each Class of Middle Tier REMIC Interests:
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Middle Tier REMIC Interest Initial Principal Balance Interest Rate Corresponding Master REMIC
Certificate
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MT-1-A-1 $90,043,000.00 (1) Class 1-A-1, Class 1-X (2)
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MT-1-$100 $100.00 (1) Class A-R
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MT-2-A-1 (3) (4) Class 2-A-1
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MT-2-A-2 (3) (4) Class 2-A-2
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MT-2-A-3 (3) (4) Class 2-A-3
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MT-2-X- Accrual (3) (4) N/A
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MT-3-A-1 (5) (6) Class 3-A-1
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MT-3-X-Accrual (5) (6) N/A
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MT-4-A-1 (7) (8) Class 4-A-1
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MT-4-A-2 (7) (8) Class 4-A-2
----------------------------------------------------------------------------------------------------------------------
MT-4-X-Accrual (7) (8) N/A
----------------------------------------------------------------------------------------------------------------------
MT-I-M-1 $4,675,000.00 (9) Class I-M-1
----------------------------------------------------------------------------------------------------------------------
MT-I-B-1 $1,328,000.00 (9) Class I-B-1
----------------------------------------------------------------------------------------------------------------------
MT-I-B-2 $689,000.00 (9) Class I-B-2
----------------------------------------------------------------------------------------------------------------------
MT-I-B-3 $738,000.00 (9) Class I-B-3
----------------------------------------------------------------------------------------------------------------------
MT-I-B-4 $541,000.00 (9) Class I-B-4
----------------------------------------------------------------------------------------------------------------------
MT-I-B-5 $394,520.58 (9) Class I-B-5
----------------------------------------------------------------------------------------------------------------------
MT-II-M-1 (10) (11) Class II-M-1
----------------------------------------------------------------------------------------------------------------------
MT-II-B-1 (10) (11) Class II-B-1
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MT-II-B-2 (10) (11) Class II-B-2
----------------------------------------------------------------------------------------------------------------------
MT-II-B-3 $16,186,000.00 (11) Class II-B-3
----------------------------------------------------------------------------------------------------------------------
5
----------------------------------------------------------------------------------------------------------------------
MT-II-B-4 $7,515,000.00 (11) Class II-B-4
----------------------------------------------------------------------------------------------------------------------
MT-II-B-5 $5,202,902.33 (11) Class II-B-5
----------------------------------------------------------------------------------------------------------------------
MT-II-B-X-Accrual (10) (11) N/A
----------------------------------------------------------------------------------------------------------------------
MT-A-R (12) (12) N/A
----------------------------------------------------------------------------------------------------------------------
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(1) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate of
Loan Group 1.
(2) For each Distribution Date up to an including the Distribution Date in
February 2008, the Class 1-X Certificates are entitled to a portion of
the interest payable on this Class of Middle Tier REMIC Interest.
Specifically, for each such Distribution Date, the Class 1-X Certificates
are entitled to the interest payable on this Class of Middle Tier REMIC
Interest in excess of 3.30% per annum. For each Distribution Date after
the Distribution Date in February 2008, the Class 1-X Certificates are
entitled to 0.00%.
(3) This Middle Tier REMIC Interest has a principal balance that is initially
equal to 50% of its Corresponding Certificate Class issued by the Master
REMIC. Principal payments, both scheduled and prepaid, Realized Losses,
Subsequent Recoveries and interest accruing on the MT-2-X-Accrual
Interest will be allocated to this class to maintain its size relative to
its Corresponding Certificate Class (that is, 50%) with any excess
payments of principal, Realized Losses and Subsequent Recoveries being
allocated to the MT-2-X-Accrual Interest in such manner as to cause the
principal balance of the MT-2-X Accrual Interest to have a principal
balance equal to the principal balance of the Class MT-2-A-1, Class
MT-2-A-2 and Class MT-2-A-3 Interests (the "MT-2-A Interests" and
together with the MT-2-X Accrual Interest, the "MT-2 Interests") plus (b)
100% of the net deferred interest allocated to the Class 2-X
Certificates.
(4) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate of
Loan Group 2 (the "Group 2 Net Rate Cap").
(5) This Middle Tier REMIC Interest has a principal balance that is initially
equal to 50% of its Corresponding Certificate Class issued by the Master
REMIC. Principal payments, both scheduled and prepaid, Realized Losses,
Subsequent Recoveries and interest accruing on the MT-3-X-Accrual
Interest will be allocated to this class to maintain its size relative to
its Corresponding Certificate Class (that is, 50%) with any excess
payments of principal, Realized Losses and Subsequent Recoveries being
allocated to the MT-3-X-Accrual Interest in such manner as to cause the
principal balance of the MT-3-X Accrual Interest to have a principal
balance equal to the principal balance of the Class MT-3-A-1 interest
(the "MT-3-A Interests" and together with the MT-3-X Accrual Interest,
the "MT-3 Interests") plus (b) 100% of the net deferred interest
allocated to the Class 3-X Certificates.
(6) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate of
Loan Group 3 (the "Group 3 Net Rate Cap").
6
(7) This Middle Tier REMIC Interest has a principal balance that is initially
equal to 50% of its Corresponding Certificate Class issued by the Master
REMIC. Principal payments, both scheduled and prepaid, Realized Losses,
Subsequent Recoveries and interest accruing on the MT-4-X-Accrual
Interest will be allocated to this class to maintain its size relative to
its Corresponding Certificate Class (that is, 50%) with any excess
payments of principal, Realized Losses and Subsequent Recoveries being
allocated to the MT-4-X-Accrual Interest in such manner as to cause the
principal balance of the MT-4-X Accrual Interest to have a principal
balance equal to the principal balance of the Class MT-4-A-1 and Class
MT-4-A-2 Interests (the "MT-4-A Interests" and together with the MT-4-X
Accrual Interest, the "MT-4 Interests") plus (b) 100% of the net deferred
interest allocated to the Class 4-X Certificates.
(8) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate of
Loan Group 4 (the "Group 4 Net Rate Cap").
(9) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate equal to the Aggregate Group I Weighted Average Rate.
(10) This Middle Tier REMIC Interest has a principal balance that is initially
equal to 50% of its Corresponding Certificate Class issued by the Master
REMIC. Principal payments, both scheduled and prepaid, Realized Losses,
Subsequent Recoveries and interest accruing on the MT-II-B-X-Accrual
Interest will be allocated to this class to maintain its size relative to
its Corresponding Certificate Class (that is, 50%) with any excess
payments of principal, Realized Losses and Subsequent Recoveries being
allocated to the MT-II-B-X-Accrual Interest in such manner as to cause
the principal balance of the MT-II-B-X Accrual Interest to have a
principal balance equal to the principal balance of the Class MT-II-M-1,
MT-II-B-1 and Class MT-II-B-2 Interests (the "MT-II-Sub Interests" and
together with the MT-II-B-X Accrual Interest, the "MT-II Interests") plus
(b) 100% of the net deferred interest allocated to the Class II-B-X
Certificates.
(11) The interest rate with respect to any Distribution Date (and the related
Interest Accrual Period) for this Middle Tier REMIC Interest is a per
annum rate equal to the Aggregate Group II Weighted Average Rate (the
"Group II Net Rate Cap").
(12) The MT-A-R is the sole Class of residual interest in the Middle Tier
REMIC. It pays no interest or principal.
On each Distribution Date, the Available Funds payable with respect to
the Lower Tier REMIC B Interest (other than the Class LTB-A-R Interest) shall
be distributed with respect to the Middle Tier REMIC Interests in the
following manner:
(1) Interest is to be distributed with respect to each Middle Tier REMIC
Interest at the rate, or according to the formulas, described above; and
(2) Principal is to be distributed with respect to each Middle Tier REMIC
Interest in the manner described above.
7
On each Distribution Date, Realized Losses (and increases in Principal
Balances attributable to Subsequent Recoveries) shall be allocated among the
Middle Tier REMIC Interests in the manner described above.
The following table sets forth characteristics of the Certificates,
together with minimum denominations and integral multiples in excess thereof
in which such Classes shall be issued (except that one Certificate of each
Class of Certificates may be issuable in a different amount and, in addition,
one Residual Certificate representing the Tax Matters Person Certificate may
be issued in a different amount for each class of REMIC Interest):
The following table sets forth characteristics of the Certificates,
together with minimum denominations and integral multiples in excess thereof
in which such Classes shall be issued (except that one Certificate of each
Class of Certificates may be issuable in a different amount and, in addition,
one Residual Certificate representing the Tax Matters Person Certificate may
be issued in a different amount for each class of REMIC Interest):
----------------------------------------------------------------------------------------------------------------------
Initial Class Pass-Through Integral
Class Certificate Rate Multiples
Designation Balance (per annum) Minimum Denomination in Excess of Minimum
----------------------------------------------------------------------------------------------------------------------
Class 1-A-1 $90,043,000.00 (1) $1,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class 1-X (2) (3) $25,000.00(21) $1,000.00(21)
----------------------------------------------------------------------------------------------------------------------
Class A-R $100.00 (4) (5) (5)
----------------------------------------------------------------------------------------------------------------------
Class 2-A-1 $401,593,000.00 (6) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class 2-A-2 $66,932,000.00 (6) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class 2-A-3 $200,796,000.00 (7) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class 2-X (8) (9) $25,000.00(21) $1,000.00(21)
----------------------------------------------------------------------------------------------------------------------
Class 3-A-1 $162,491,000.00 (10) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class 3-X (11) (12) $25,000.00(21) $1,000.00(21)
----------------------------------------------------------------------------------------------------------------------
Class 4-A-1 $137,012,000.00 (13) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class 4-A-2 $91,342,000.00 (13) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class 4-X (14) (15) $25,000.00(21) $1,000.00(21)
----------------------------------------------------------------------------------------------------------------------
Class I-M-1 $4,675,000.00 (16) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class I-B-1 $1,328,000.00 (16) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class I-B-2 $689,000.00 (16) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class I-B-3 $738,000.00 (16) $100,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class I-B-4 $541,000.00 (16) $100,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class I-B-5 $394,520.58 (16) $100,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class II-M-1 $28,326,000.00 (17) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class II-B-1 $21,966,000.00 (17) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
8
----------------------------------------------------------------------------------------------------------------------
Class II-B-2 $16,764,000.00 (17) $25,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class II-B-3 $16,186,000.00 (18) $100,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class II-B-4 $7,515,000.00 (18) $100,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class II-B-5 $5,202,902.33 (18) $100,000.00 $1,000.00
----------------------------------------------------------------------------------------------------------------------
Class II-B-X (19) (20) $25,000.00(21) $1,000.00(21)
----------------------------------------------------------------------------------------------------------------------
------------------------------------------
(1) The Pass-Through Rate for the Class 1-A-1 Certificates will be for (x)
the Interest Accrual Period for each Distribution Date up to and
including the Distribution Date in February 2008 3.300000% per annum and
(y) the Interest Accrual Period for each Distribution Date thereafter, a
per annum rate equal to the Weighted Average Adjusted Net Mortgage Rate
of the Group 1 Mortgage Loans.
(2) The Class 1-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount (initially, $90,043,000.00).
(3) The Pass-Through Rate for the Class 1-X Certificates will be for (x) the
Interest Accrual Period for each Distribution Date up to and including
the Distribution Date in February 2008, a per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans
minus 3.300000% and (y) the Interest Accrual Period for each Distribution
Date thereafter, 0.000000% per annum.
(4) The Pass-Through Rate for the Class A-R Certificates for the Interest
Accrual Period related to each 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. The Pass-Through Rate for the Class A-R
Certificates for the Interest Accrual Period for the first Distribution
Date is 5.737704% per annum.
(5) The Class A-R Certificate will be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of $0.01.
(6) The Pass-Through Rates for the Class 2-A-1 and Class 2-A-2 Certificates
for the Interest Accrual Period related to each Distribution Date will be
the least of (x) LIBOR plus the applicable Pass-Through Margin, (y) the
related Net WAC Cap and (z) 10.50%. The Pass-Through Rates for the Class
2-A-1 and Class 2-A-2 Certificates for the Interest Accrual Period
related to the initial Distribution Date are 3.06000% and 3.10000% per
annum, respectively.
(7) The Pass-Through Rate for the Class 2-A-3 Certificates for the Interest
Accrual Period related to each Distribution Date will be the least of (x)
LIBOR plus the applicable Pass-Through Margin, (y) the related Net WAC
Cap and (z) 11.00%. The Pass-Through Rate for the Class 2-A-3
Certificates for the Interest Accrual Period related to the initial
Distribution Date is 3.15000% per annum, respectively.
9
(8) The Class Certificate Balance will equal the Component Principal Balance
(initially zero) of the Class 2-X P Component.
(9) Interest will accrue with respect to the Class 2-X Certificates for each
Interest Accrual Period related to each Distribution Date in an amount
equal to the sum of the interest accrued on the Class 2-X IO Component
(based upon the Component Notional Amount) and the Class 2-X P Component
(based upon the Component Principal Balance) at its respective
Pass-Through Rate for that Distribution Date. For income tax purposes,
the Class 2-X Certificates are entitled to, for each Interest Accrual
Period, the "Class 2-X Distributable Amount," which is a specified
portion of the interest on the MT-2 Interests equal to the excess of the
Loan Group 2 Net Rate Cap over the product of two and the weighted
average interest rate of the MT-2 Interests with each Interest (other
than the Class 2-X-Accrual Interest) subject to a cap equal to the
Pass-Through Rate of the corresponding Certificate Class and the
2-X-Accrual Interest subject to a cap of 0.00%. The Pass-Through Rate of
the Class 2-X Certificates shall be a rate sufficient to entitle the
Class 2-X Certificate to all interest accrued on the MT-2 Interests less
the interest accrued on the Class 2-A-1, Class 2-A-2 and Class 2-A-3
Certificates. The Class 2-X Distributable Amount (other than the X P
Component) for any Distribution Date is payable from current interest on
the Group 2 Mortgage Loans.
(10) The Pass-Through Rate for the Class 3-A-1 Certificates will be a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate of
the Group 3 Mortgage Loans minus 1.166000%. The Pass-Through Rate for the
Class 3-A-1 Certificates for the first Interest Accrual Period is
1.933763%.
(11) The Class Certificate Balance will equal the Component Principal Balance
(initially zero) of the Class 3-X P Component.
(12) Interest will accrue with respect to the Class 3-X Certificates for each
Interest Accrual Period related to each Distribution Date in an amount
equal to the sum of the interest accrued on the Class 3-X IO Component
(based upon the Component Notional Amount) and the Class 3-X P Component
(based upon the Component Principal Balance) at its respective
Pass-Through Rate for that Distribution Date. For income tax purposes,
the Class 3-X Certificates are entitled to, for each Interest Accrual
Period, the "Class 3-X Distributable Amount," which is a specified
portion of the interest on the MT-3 Interests equal to the excess of the
Loan Group 3 Net Rate Cap over the product of two and the weighted
average interest rate of the MT-3 Interests with each Interest (other
than the Class 3-X-Accrual Interest) subject to a cap equal to the
Pass-Through Rate of the corresponding Certificate Class and the
3-X-Accrual Interest subject to a cap of 0.00%. The Pass-Through Rate of
the Class 3-X Certificates shall be a rate sufficient to entitle the
Class 3-X Certificate to all interest accrued on the MT-3 Interests less
the interest accrued on the Class 3-A-1 Certificates. The Class 3-X
Distributable Amount (other than the X P Component) for any Distribution
Date is payable from current interest on the Group 3 Mortgage Loans.
(13) The Pass-Through Rates for the Class 4-A-1 and Class 4-A-2 Certificates
for the Interest Accrual Period related to each Distribution Date will be
the least of (x) LIBOR plus the applicable Pass-Through Margin, (y) the
related Net WAC Cap and (z) 10.50%. The
10
Pass-Through Rates for the Class 4-A-1 and Class 4-A-2 Certificates for
the Interest Accrual Period related to the initial Distribution Date are
3.070000% and 3.140000% per annum, respectively.
(14) The Class Certificate Balance will equal the Component Principal Balance
(initially zero) of the Class 4-X P Component.
(15) Interest will accrue with respect to the Class 4-X Certificates for each
Interest Accrual Period related to each Distribution Date in an amount
equal to the sum of the interest accrued on the Class 4-X IO Component
(based upon the Component Notional Amount) and the Class 4-X P Component
(based upon the Component Principal Balance) at its respective
Pass-Through Rate for that Distribution Date. For income tax purposes,
the Class 4-X Certificates are entitled to, for each Interest Accrual
Period, the "Class 4-X Distributable Amount," which is a specified
portion of the interest on the MT-4 Interests equal to the excess of the
Loan Group 4 Net Rate Cap over the product of two and the weighted
average interest rate of the MT-4 Interests with each Interest (other
than the Class 4-X-Accrual Interest) subject to a cap equal to the
Pass-Through Rate of the corresponding Certificate Class and the
4-X-Accrual Interest subject to a cap of 0.00%. The Pass-Through Rate of
the Class 4-X Certificates shall be a rate sufficient to entitle the
Class 4-X Certificate to all interest accrued on the MT-4 Interests less
the interest accrued on the Class 4-A-1 and Class 4-A-2 Certificates. The
Class 4-X Distributable Amount (other than the X P Component) for any
Distribution Date is payable from current interest on the Group 4
Mortgage Loans.
(16) The Pass-Through Rate for the Class I-M-1, Class I-B-1, Class I-B-2,
Class I-B-3, Class I-B-4 and Class I-B-5 Certificates for the Interest
Accrual Period related to each Distribution Date will be a per annum rate
equal to the Aggregate Group I Weighted Average Rate. The Pass-Through
Rate for the Class I-M-1, Class I-B-1, Class I-B-2, Class I-B-3, Class
I-B-4 and Class I-B-5 Certificates for the first Interest Accrual Period
is 5.737704%.
(17) The Pass-Through Rates for the Class II-M-1, Class II-B-1 and Class
II-B-2 Certificates for the Interest Accrual Period related to each
Distribution Date will be the least of (x) LIBOR plus the applicable
Pass-Through Margin, (y) the related Net WAC Cap and (z) 10.50%. The
Pass-Through Rate for the Class II-M-1, Class II-B-1 and Class II-B-2
Certificates for the Interest Accrual Period related to the first
Distribution Date is 2.010285% per annum.
(18) The Pass-Through Rate for the Class II-B-3, Class II-B-4 and Class II-B-5
Certificates for the Interest Accrual Period related to each Distribution
Date will be a per annum rate equal to the Aggregate Group II Weighted
Average Rate. The Pass-Through Rate for the Class II-B-3, Class II-B-4
and Class II-B-5 Certificates for the Interest Accrual Period related to
the first Distribution Date is 1.742247% per annum.
(19) The Class Certificate Balance will equal the Component Principal Balance
(initially zero) of the Class II-B-X P Component.
11
(20) Interest will accrue with respect to the Class II-B-X Certificates for
each Interest Accrual Period related to each Distribution Date in an
amount equal to the sum of the interest accrued on the Class II-B-X IO
Component (based upon the Component Notional Amount) and the Class II-B-X
P Component (based upon the Component Principal Balance) at its
respective Pass-Through Rate for that Distribution Date. For income tax
purposes, the Class II-B-X Certificates are entitled to, for each
Interest Accrual Period, the "Class II-B-X Distributable Amount," which
is a specified portion of the interest on the MT-II Interests equal to
the excess of the Group II Net Rate Cap over the product of two and the
weighted average interest rate of the MT-II Interests with each Interest
(other than the Class II-B-X-Accrual Interest) subject to a cap equal to
the Pass-Through Rate of the corresponding Certificate Class and the
II-B-X-Accrual Interest subject to a cap of 0.00%. The Pass-Through Rate
of the Class II-B-X Certificates shall be a rate sufficient to entitle
the Class II-B-X Certificate to all interest accrued on the MT-II
Interests less the interest accrued on the Class II-M-1 and Class II-B-1
and Class II-B-2 Certificates. The Class II-B-X Distributable Amount
(other than the X P Component) for any Distribution Date is payable from
current interest on the Group II Mortgage Loans.
(21) Denomination is based on Notional Amount.
12
Set forth below are designations of Classes or Components of Certificates
and other defined terms to the categories used in this Agreement:
Accretion Directed
Certificates........................ None.
Accretion Directed Components....... None.
Accrual Certificates................ None.
Accrual Components.................. None.
Book-Entry Certificates............. All Classes of Certificates other than the Physical Certificates.
COFI Certificates................... None.
Combined Certificates............... None.
Component Certificates.............. Class 2-X, Class 3-X, Class 4-X and Class II-B-X Certificates.
Components.......................... The Class 2-X Certificates are comprised of the Class 2-X IO Component and the Class
2-X P Component. The Class 3-X Certificates are comprised of the Class 3-X IO
Component and the Class 3-X P Component. The Class 4-X Certificates are comprised of
the Class 4-X IO Component and the Class 4-X P Component. The Class II-B-X
Certificates are comprised of the Class II-B-X IO Component and the Class II-B-X P
Component. Each Component will have the Initial Component Principal Balance or
Component Notional Amount, as applicable, and Pass-Through Rate set forth below:
Initial
Component Pass-
Principal Initial Component Through
Designation Balance Notional Amount Rate
----------- --------- ----------------- --------
Class 2-X IO Component N/A $669,321,000 (1)
Class 2-X P Component $0 N/A (2)
Class 3-X IO Component N/A $162,491,000 (3)
Class 3-X P Component $0 N/A (4)
Class 4-X IO Component N/A $228,654,000 (5)
Class 4-X P Component $0 N/A (6)
Class II-B-X IO Component N/A $67,056,000 (7)
Class II-B-X P Component $0 N/A (8)
13
(1) (For the Interest Accrual Period related to each Distribution Date, a per annum
rate equal to the excess, if any, of (i) the Weighted Average Adjusted Net Mortgage
Rate of the Mortgage Loans in Loan Group 2 over (ii) the weighted average of the
Pass-Through Rates of the Class 2-A-1, Class 2-A-2 and Class 2-A-3 Certificates (as
adjusted to reflect the accrual of interest on the basis of a 360-day year consisting
of twelve 30-day months) for their corresponding Interest Accrual Period (which in the
case of the first Interest Accrual Period will be calculated assuming an Interest
Accrual Period that begins on the Closing Date). The Pass-Through Rate for the Class
2-X IO Component for the Interest Accrual Period related to the first Distribution
Date is 0.000000% per annum.
(2) For the Interest Accrual Period related to each Distribution Date, a per annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans in
Loan Group 2. The Pass-Through Rate for the Class 2-X P Component for the Interest
Accrual Period related to the first Distribution Date is 1.749264% per annum.
(3) The Pass-Through Rate for the Class 3-X IO Component for the Interest Accrual
Period related to the first Distribution Date is 0.00000% per annum. The Pass-Through
Rate for the Class 3-X IO Component for the Interest Accrual Period for any
Distribution Date thereafter will be 1.166000%.
(4) For the Interest Accrual Period related to each Distribution Date, a per annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans in
Loan Group 3. The Pass-Through Rate for the Class 3-X P Component for the Interest
Accrual Period related to the first Distribution Date is 1.933763% per annum.
(5) For the Interest Accrual Period related to each Distribution Date, a per annum
rate equal to the excess, if any, of (i) the Weighted Average Adjusted Net Mortgage
Rate of the Mortgage Loans in Loan Group 4 over (ii) the weighted average of the
Pass-Through Rates of the Class 4-A-1 and Class 4-A-2 Certificates (as adjusted to
reflect the accrual of interest on the basis of a 360-day year consisting of twelve
30-day months) for their corresponding Interest Accrual Period (which in the case of
the first Interest Accrual Period will be calculated assuming an Interest Accrual
Period that begins on the Closing Date). The Pass-Through Rate for the Class 4-X IO
Component for the Interest Accrual Period related to the first Distribution Date is
0.000000% per annum.
(6) For the Interest Accrual Period related to each Distribution Date, a per annum
rate equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans in
Loan Group 4. The Pass-Through Rate for the Class 4-X P Component for the Interest
Accrual Period related to the first Distribution Date is 1.585395% per annum.
(7) For the Interest Accrual Period related to each Distribution Date, a per annum
rate equal to the excess, if any, of (i) the Group II Subordinate Weighted Average
Rate over (ii) the weighted average of the Pass-Through Rates of the Class II-M-1,
Class II-B-1 and Class II-B-2 Certificates (as adjusted to reflect the accrual of
interest on the basis of a 360-day year consisting of twelve 30-day months) for their
corresponding Interest Accrual Period (which in the case of the first Interest Accrual
Period will be calculated assuming an Interest Accrual Period that begins on the
Closing Date). The Pass-Through Rate for the
14
Class II-B-X IO Component for the Interest Accrual Period related to the first
Distribution Date is 0.000000% per annum.
(8) For the Interest Accrual Period related to each Distribution Date, a per annum
rate equal to the Aggregate Group II Weighted Average Rate (as adjusted to reflect the
accrual of interest on the basis of a 360-day year consisting of twelve 30-day
months). The Pass-Through Rate for the Class II-B-X P Component for the Interest
Accrual Period related to the first Distribution Date is 1.742247%.
Delay Certificates.................. All interest-bearing Classes of Certificates other than the Non-Delay Certificates,
if any.
ERISA-Restricted
Certificates........................ The Residual Certificates and Private Certificates; any Certificate of a Class that
does not or no longer satisfies the applicable rating requirement under the
Underwriter's Exemption.
Group 1 Senior Certificates......... Class 1-A-1, Class 1-X and Class A-R Certificates.
Group 1 Certificates................ Group 1 Senior Certificates and the Group I Subordinated Certificates.
Group 2 Senior Certificates......... Class 2-A-1, Class 2-A-2, Class 2-A-3 and Class 2-X Certificates.
Group 2 Certificates................ Group 2 Senior Certificates and the Subordinated Portion related to Loan Group 2.
Group 3 Senior Certificates......... Class 3-A-1 and Class 3-X Certificates.
Group 3 Certificates................ Group 3 Senior Certificates and the Subordinated Portion related to Loan Group 3.
Group 4 Senior Certificates......... Class 4-A-1, Class 4-A-2 and Class 4-X Certificates.
Group 4 Certificates................ Group 4 Senior Certificates and the Subordinated Portion related to Loan Group 4.
Group I Senior Certificates......... Group 1 Senior Certificates.
Group I
Subordinated Certificates........... Class I-M-1, Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4 and Class I-B-5
Certificates.
Group I Certificates................ Group I Senior Certificates and Group I Subordinated Certificates.
15
Group II
Senior Certificates................. Group 2 Senior Certificates, Group 3 Senior Certificates and Group 4 Senior
Certificates.
Group II
Subordinated Certificates........... Class II-B-X, Class II-M-1, Class II-B-1, Class II-B-2, Class II-B-3,
Class II-B-4 and Class II-B-5 Certificates.
Group II Certificates............... Group II Senior Certificates and Group II Subordinated Certificates.
LIBOR Certificates.................. Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 4-A-1, Class 4-A-2,
Class II-M-1, Class II-B-1 and Class II-B-2 Certificates.
Non-Delay Certificates.............. LIBOR Certificates.
Notional Amount
Certificates........................ Class 1-X Certificates.
Notional Amount
Components.......................... Class 2-X IO, Class 3-X IO, Class 4-X IO and Class II-B-X IO
Components.
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.
Principal and Interest
Components.......................... Class 2-X P, Class 3-X P, Class 4-X P and Class II-B-X P Components.
Principal Only Certificates......... None.
Private Certificates................ Class I-B-3, Class I-B-4, Class I-B-5, Class II-B-3, Class II-B-4 and
Class II-B-5 Certificates.
Rating Agencies..................... S&P and Xxxxx'x.
Regular Certificates................ All Classes of Certificates, other than the Residual Certificates.
Residual Certificates............... Class A-R Certificates.
16
Senior Certificate Group............ Group 1 Senior Certificates, Group 2 Senior Certificates, Group 3
Senior Certificates and Group 4 Senior Certificates, as applicable.
Senior Certificates................. Class 1-A-1, Class 1-X, Class 2-A-1, Class 2-A-1, Class 2-A-3, Class 2-X, Class 3-A-1,
Class 3-X, Class 4-A-1, Class 4-A-2, Class 4-X and Class A-R Certificates.
Subordinated Certificates........... Class I-M-1, Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4, Class I-B-5, Class
II-M-1, Class II-B-1, Class II-B-2, Class II-B-3, Class II-B-4, Class II-B-5 and Class
II-B-X Certificates.
Targeted Principal Classes.......... None.
Underwriter......................... Banc of America 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.
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the 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.
17
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.
Adjusted Rate Cap: Not applicable.
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 from 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 Certificate Group: The Group I Certificates or the Group II
Certificates as the context requires.
Aggregate Group I Weighted Average Rate: For each Interest Accrual Period
related to each Distribution Date, a per annum rate equal to (x) the Weighted
Average Adjusted Net Mortgage Rate of the Mortgage Loans in Loan Group 1
divided by the aggregate Class Certificate Balance of the Group I Subordinated
Certificates immediately prior to that Distribution Date.
Aggregate Group II Weighted Average Rate: For each Interest Accrual
Period related to each Distribution Date, a per annum rate equal to the sum of
the following for each Loan Group in Aggregate Loan Group II: the product of
(x) the Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans in
the related Loan Group and (y) a fraction, the numerator of which is the
related Subordinated Portion immediately prior to that Distribution Date and
the denominator of which is the aggregate Class Certificate Balance of the
Group II Subordinated Certificates immediately prior to that Distribution
Date.
Aggregate Loan Group: Aggregate Loan Group I or Aggregate Loan Group II,
as the context requires.
Aggregate Loan Group I: Loan Group 1.
Aggregate Loan Group II: Collectively, Loan Group 2, Loan Group 3 and
Loan Group 4.
Aggregate Subordinated Percentage: As to any Distribution Date and any
Aggregate Loan Group, the fraction, expressed as a percentage, the numerator
of which is equal to the aggregate Class Certificate Balance of the related
Subordinated Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate Stated Principal Balance of all the
Mortgage Loans in such Aggregate 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 that prior
Due Date).
18
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements to this Pooling and Servicing Agreement.
Allocable Share: As to any Distribution Date, any Loan Group and any
Class of Certificates, the ratio that the amount calculated with respect to
such Distribution Date (A) with respect to any of the Group I Senior
Certificates, Group II Senior Certificates or Group I Subordinated
Certificates, pursuant to clause (i) of the definition of Class Optimal
Interest Distribution Amount (without giving effect to any reduction of such
amount pursuant to Section 4.02(d)) and (B) with respect to any of the Group
II Subordinated Certificates, pursuant to the definition of Assumed Interest
Amount for such Class or after the second Group II 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) 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 Mortgage Loans in that Loan Group and (ii) all
Scheduled Payments due after the related Due Date relating to Mortgage Loans
in 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 being originated is greater than $650,000, the value of the
Mortgaged Property based upon the appraisal (which may be a drive-by
appraisal) made at the time of the origination of such Streamlined
Documentation Mortgage Loan.
19
Assignment Agreement: With respect to each Corridor Contract, the
agreement, dated as of the Closing Date, among Banc of America Securities LLC,
The Bank of New York and Bank of America, N.A., a form of which is attached
hereto as Exhibit S.
Assumed Interest Amount: With respect to any Distribution Date, any Class
of Group II Subordinated Certificates and the related Loan Group, one month's
interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class on the related Subordinated Portion
immediately prior to that Distribution Date.
Auction Administration Agreement: The Auction Administration Agreement,
dated as of March 30, 2005, between Bank of America, N.A. and The Bank of New
York, as Trustee and Certificate Registrar, and referred to as an Auction
Administrator and intermediary agent for the Holders of the Certificates under
the Auction Administration Agreement, as such agreement may be modified,
amended, or waived, in whole or in part.
Auction Administrator: The Bank of New York, not in its individual
capacity but solely as auction administrator under the Auction Administration
Agreement, together with any successor in such capacity.
Auction Certificates: The Class 1-A-1 Certificates.
Auction Distribution Date: The Distribution Date in February 2008.
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 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) - (iii),
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 plus
interest thereon as provided in Section 4.05 for such Loan Group less the
Transfer Payment Made plus interest thereon as provided in Section 4.05 for
such Loan Group; provided, however, that with respect to any Loan Group in
Aggregate Loan Group II, on the second Senior Termination Date related to that
Aggregate Loan Group, Available Funds with respect to the Loan Group relating
to the remaining Senior Certificate Group shall include the Available Funds
from the remaining Loan Group in that Aggregate Loan Group after all
distributions are made on the related Senior Certificates of the other Senior
Certificate Group, and on any Distribution Date thereafter, Available Funds
shall be calculated based on all the Mortgage Loans in that Aggregate Loan
Group, as opposed to the Mortgage Loans in the related Loan Group.
Bankruptcy Code: Title 11 of the United States Code, as amended.
Benefit Plan Opinion: As defined in Section 5.02(b).
20
Book-Entry Auction Certificates: Book-Entry Certificates that are also
Auction Certificates.
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 Class A
and Class B Lower Tier REMIC B Interests, the product of (i) 10 and (ii) the
weighted average rate of the outstanding Class A and Class B Interests,
treating each Class A Interest as capped at zero or reduced by a fixed
percentage of 100% of the interest accruing on such Class.
Carryover Shortfall Amount: For any Class of LIBOR Certificates and any
Distribution Date, the sum of (a) the excess, if any, of (i) the amount of
interest such Class of Certificates would have been entitled to receive on
such Distribution Date had the applicable Pass-Through Rate not been subject
to the related Net WAC Cap up to the related Maximum Rate, over (ii) the
amount of interest such Class of Certificates received on such Distribution
Date based on the related Net WAC Cap (in each case, prior to the reduction
for Net Deferred Interest and Net Interest Shortfalls) and (b) with respect to
any Class of LIBOR Certificates the unpaid portion of any such excess from
prior Distribution Dates (and interest accrued thereon at the then applicable
Pass-Through Rate on such Class of Certificates, without giving effect to the
related Net WAC Cap up to the related Maximum Rate).
Carryover Shortfall Reserve Fund: The separate fund created and initially
maintained by the Trustee pursuant to Section 3.05(g) in the name of the
Trustee for the benefit of the Holders of the LIBOR Certificates and the
Notional Amount Certificates and designated "The Bank of New York in trust for
registered holders of CWALT, Inc., Alternative Loan Trust 2005-14, Mortgage
Pass-Through Certificates, Series 2005-14." Funds in the Carryover Shortfall
Reserve Fund shall be held in trust for the Holders of the LIBOR Certificates
and the Notional Amount Certificates for the uses and purposes set forth in
this Agreement.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached this Agreement as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Master Servicer pursuant to Section 3.05 with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of Certificateholders and designated "Countrywide Home
Loans Servicing LP in trust for the registered holders of Alternative Loan
Trust 2005-14, Mortgage Pass-Through Certificates Series 2005-14."
Certificate Balance: With respect to any Certificate (other than the
Notional Amount Certificates or Components) 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
21
sum of (i) all distributions of principal previously made with respect to that
Certificate and (ii) all Realized Losses allocated to that Certificate and, in
the case of any Subordinated Certificates, all other reductions in Certificate
Balance previously allocated to that Certificate pursuant to Section 4.04
without duplication, and (C) increased by the amount of Net Deferred Interest
for the related Loan Group allocated to the applicable Class pursuant to
Section 4.03. The Notional Amount Certificates have no Certificate Balances.
Certificate Group: The Group 1 Certificates, Group 2 Certificates, Group
3 Certificates and Group 4 Certificates as the context requires.
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.
Class: All Certificates bearing the same class designation as set forth
in the Preliminary Statement.
Class Certificate Balance: With respect to any Class and as to any date
of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class LTI-A-R Interest: The sole class of "residual interest" in the
Lower Tier REMIC I.
Class LTII-A-R Interest: The sole class of "residual interest" in the
Lower Tier REMIC II.
22
Class MT-A-R Interest: The sole class of "residual interest" in the
Middle Tier REMIC.
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing Class or Component, the sum of (i)
interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class or Component on the related Class Certificate
Balance, Component Principal Balance, Notional Amount or Component Notional
Amount, as applicable, immediately prior to such Distribution Date, subject to
reduction as provided in Section 4.02(d) and (ii) any Class Unpaid Interest
Amounts for such Class or Component (other than any Carryover Shortfall
Amounts), reduced by any Net Deferred Interest for the related Distribution
Date added to their respective Class Certificate Balances or Component
Principal Balances, as applicable, as described in Section 4.03. Interest on
the LIBOR Certificates shall be calculated on the basis of a 360-day year and
the actual number of days in the applicable Interest Accrual Period. Interest
on all other Classes of Certificates shall be calculated on the basis of a
360-day year comprised of twelve 30-day months.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinated Certificates in an Aggregate Certificate Group, the
quotient (expressed as a percentage) of (a) the Class Certificate Balance of
such Class of Subordinated Certificates immediately prior to such Distribution
Date, divided by (b) the aggregate of the Class Certificate Balances of all
Classes of Certificates in that Aggregate Certificate Group (other than the
related Notional Amount Certificates) immediately prior to such Distribution
Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest-bearing Certificates or any interest-bearing Component, the amount by
which the aggregate Class Interest Shortfalls for such Class or Component on
prior Distribution Dates exceeds the amount distributed on such Class or
Component on prior Distribution Dates pursuant to clause (ii) of the
definition of Class Optimal Interest Distribution Amount.
Closing Date: March 30, 2005.
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.
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 the related Due Period.
Component: As specified in the Preliminary Statement.
Component Balance: Not applicable.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: With respect to any Distribution Date and (i)
the Class 2-X IO Component, the aggregate Class Certificate Balance of the
Class 2-A-1, Class 2-A-2 and
23
Class 2-A-3 Certificates immediately prior to such Distribution Date, (ii) the
Class 3-X IO Component, the aggregate Class Certificate Balance of the Class
3-A-1 Certificates immediately prior to such Distribution Date, (iii) the
Class 4-X IO Component, the aggregate Class Certificate Balance of the Class
4-A-1 and Class 4-A-2 Certificates immediately prior to such Distribution Date
and (iv) the Class II-B-X IO Component, the aggregate Class Certificate
Balance of the Class II-M-1, Class II-B-1 and Class II-B-2 Certificates
immediately prior to such Distribution Date.
Component Principal Balance: As of any Distribution Date, the Class 2-X
P, Class 3-X P, Class 4-X P and Class II-B-X P Component will each have a
Component Principal Balance equal to (i) the aggregate Net Deferred Interest
allocated to such Component prior to that Distribution Date pursuant to
Section 4.03 minus (ii) all amounts actually distributed as principal of such
Component and all Realized Losses applied in reduction of principal of such
Component on all prior Distribution Dates plus (iii) any increase in the
Component Principal Balance of such Component pursuant to Section 4.02 due to
the receipt of Subsequent Recoveries. As of the Closing Date, the Component
Principal Balance of each of the Class 2-X P, Class 3-X P, Class 4-X P and
Class II-B-X P Components will equal $0.
Confirmation: The confirmations, each relating to a Class of
Certificates, with reference numbers and dates as shown in the following
table, each evidencing a transaction between the Corridor Contract
Counterparty and Bank of America LLC, or its relevant affiliate.
-----------------------------------------------------------------------------
Related Class of Confirmation Reference
Certificates Number Dated as of
-----------------------------------------------------------------------------
Class 2-A-1 4217853, 4217855 March 28, 2005
-----------------------------------------------------------------------------
Class 2-A-2 4217858, 4217854 March 28, 2005
-----------------------------------------------------------------------------
Class 2-A-3 4217858, 4217860 March 28, 2005
-----------------------------------------------------------------------------
Class 4-A-1 4217850, 4217856 March 28, 2005
-----------------------------------------------------------------------------
Class 4-A-2 4217849, 4217851 March 28, 2005
-----------------------------------------------------------------------------
Class II-M-1 4217863, 4217848 March 28, 2005
-----------------------------------------------------------------------------
Class II-B-1 4217862, 4217861 March 28, 2005
-----------------------------------------------------------------------------
Class II-B-2 4217859, 4217852 March 28, 2005
-----------------------------------------------------------------------------
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.
24
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the State
of New York at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, 0X, Xxx
Xxxx, Xxx Xxxx 00000 (Attn: Mortgage-Backed Securities Group, CWALT, Inc.
Series 2005-14, facsimile no. (000) 000-0000, and which is the address to
which notices to and correspondence with the Trustee should be directed.
Corridor Contracts: With respect to the Class 2-A-1, Class 2-A-2, Class
2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1 and Class II-B-2
Certificates, the transactions evidenced by the related Confirmation (as
assigned to the Trustee pursuant to the Assignment Agreement), a form of which
is attached hereto as Exhibit R.
Corridor Contract Counterparty: Bank of America, N.A. and its successors.
Corridor Contract Reserve Fund: The separate fund created and initially
maintained by the Trustee pursuant to Section 3.05(h) in the name of the
Trustee for the benefit of the Holders of the Class 2-A-1, Class 2-A-2, Class
2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1 and Class II-B-2
Certificates and designated "The Bank of New York in trust for registered
holders of CWALT, Inc., Alternative Loan Trust 2005-14, Mortgage Pass-Through
Certificates, Series 2005-14." Funds in the Corridor Contract Reserve Fund
shall be held in trust for the Holders of the Class 2-A-1, Class 2-A-2, Class
2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1 and Class II-B-2
Certificates for the uses and purposes set forth in this Agreement.
Corridor Contract Scheduled Termination Date: The Distribution Date in
March 2015.
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.
Cross-Over Situation: For any Distribution Date and for each applicable
Loan Group (after taking into account principal distributions on such
Distribution Date) a situation in which the Class A and Class B Interests
corresponding to the Loan Group are in the aggregate less than 1% of the
Subordinate 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 March 1, 2005.
25
Cut-off Date Pool Principal Balance: $1,254,534,522.91.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by
a court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deferred Interest: With respect to any Negative Amortization Mortgage
Loan and Due Date, the amount of interest accrued on such Mortgage Loan at the
applicable Mortgage Rate that is greater than the Scheduled Payment due on
such Mortgage Loan on that related Due Date and that is added to the principal
balance of such Mortgage Loan in accordance with the terms of the related
Mortgage Note.
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. With respect to up to 50% of the Mortgage Loans in each Loan Group, the
Depositor may deliver all or a portion of each related Mortgage File to the
Trustee not later than thirty days after the Closing Date. To the extent that
Countrywide Servicing shall be in possession of any Mortgage Files with
respect to any Delay Delivery Mortgage Loan, until delivery of such Mortgage
File to the Trustee as provided in Section 2.01, Countrywide Servicing shall
hold such files as Master Servicer hereunder, as agent and in trust for the
Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Denomination: With respect to each Certificate, the amount set forth on
the face of that Certificate as the "Initial Certificate Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if
neither of the foregoing, the Percentage Interest appearing on the face of
that Certificate.
26
Depositor: CWALT, Inc., a Delaware corporation, or its successor in
interest.
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 22nd day of each
month or, if such 22nd day is not a Business Day, the preceding Business Day;
provided, however, that if such 22nd day or such Business Day, whichever is
applicable, is less than two Business Days prior to the related Distribution
Date, the Determination Date shall be the first Business Day that is two
Business Days preceding such Distribution Date.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05(d) in the name of the
Trustee for the benefit of the Certificateholders and designated "The Bank of
New York in trust for registered holders of Alternative Loan Trust 2005-14
Mortgage Pass-Through Certificates, Series 2005-14." 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 month or, if such 25th day is not
a Business Day, the next Business Day, commencing in April 2005.
Due Date: With respect to a Mortgage Loan, the date on which Scheduled
Payments are due on that Mortgage Loan. With respect to any Distribution Date,
the first day of the calendar month in which that Distribution Date occurs.
Due Period: With respect to a Mortgage Loan, 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.
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 Moody's 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
27
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii) a
trust account or accounts maintained with (a) the trust department of a
federal or state chartered depository institution or (b) a trust company,
acting in its fiduciary capacity or (iv) any other account acceptable to each
Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Trustee.
Eligible Repurchase Month: As defined in Section 3.11.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a).
Event of Default: As defined in Section 7.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds received with
respect to such Mortgage Loan during the calendar month in which such Mortgage
Loan became a Liquidated Mortgage Loan plus any Subsequent Recoveries received
with respect to such Mortgage Loan, net of any amounts previously reimbursed
to the Master Servicer as Nonrecoverable Advance(s) with respect to such
Mortgage Loan pursuant to Section 3.08(a)(iii), exceeds (i) the unpaid
principal balance of such Liquidated Mortgage Loan as of the Due Date in the
month in which such Mortgage Loan became a Liquidated Mortgage Loan plus (ii)
accrued interest at the Mortgage Rate from the Due Date as to which interest
was last paid or advanced (and not reimbursed) to Certificateholders up to the
Due Date applicable to the Distribution Date immediately following the
calendar month during which such liquidation occurred.
Expense Fee: As to each Mortgage Loan and any Distribution Date, the
product of the Expense Fee Rate and its Stated Principal Balance as of that
Distribution Date.
Expense Fee Rate: As to each Mortgage Loan and any date of determination,
the sum of (a) the related Master Servicing Fee Rate and (b) the Trustee Fee
Rate.
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.
28
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.
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 2 Senior Certificates: As specified in the Preliminary Statement.
Group 3 Senior Certificates: As specified in the Preliminary Statement.
Group 4 Senior Certificates: As specified in the Preliminary Statement.
Group I Certificates: As specified in the Preliminary Statement.
Group I Senior Certificates: As specified in the Preliminary Statement.
Group I Subordinated Certificates: As specified in the Preliminary
Statement.
Group II Certificates: As specified in the Preliminary Statement.
Group II Senior Certificates: As specified in the Preliminary Statement.
Group II Subordinated Certificates: As specified in the Preliminary
Statement.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Certification: As defined in Section 2.02(a).
Initial Component Principal Balance: As specified in the Preliminary
Statement.
Insurance Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including all riders and endorsements thereto in
effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
29
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates, its corresponding Lower Tier/Middle Tier REMIC Regular Interest
and any Distribution Date, the calendar month prior to the month of such
Distribution Date. With respect to any Class of Non-Delay Certificates, its
corresponding Lower Tier/Middle Tier REMIC Regular Interest and any
Distribution Date, the period commencing on the 25th day of the month prior to
the month of such Distribution Date (other than the first Distribution Date,
for which it is the Closing Date) and ending on the 24th day of the month in
which that Distribution Date occurs.
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: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 4.08.
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which the Master Servicer has determined (in accordance with this Agreement)
that it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of an REO
Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Master Servicing Fees,
Servicing Advances and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2, Loan Group 3 and Loan
Group 4, as applicable.
Loan Group 1: All Mortgage Loans identified as Loan Group 1 Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Loan Group 2 Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group 3: All Mortgage Loans identified as Loan Group 3 Mortgage
Loans on the Mortgage Loan Schedule.
30
Loan Group 4: All Mortgage Loans identified as Loan Group 4 Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group Principal Balance: As to any Distribution Date and Loan Group,
the aggregate Stated Principal Balance of the Mortgage Loans in that Loan
Group outstanding on the Due Date in the month preceding the month of the
Distribution Date (after giving effect to Principal Prepayments received in
the Prepayment Period related to such Due Date).
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any date
of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at that date of
determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Lower Tier REMIC: As described in the Preliminary Statement.
Lower Tier REMIC Regular Interest: As described in the Preliminary
Statement.
Maintenance: With respect to any Cooperative Unit, the rent paid by the
Mortgagor to the Cooperative Corporation pursuant to the Proprietary Lease.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least
51% of the Percentage Interests evidenced by all Certificates of such Class.
Master REMIC: As described in the Preliminary Statement.
Master Servicer: Countrywide Servicing LP in its capacity as master
servicer hereunder.
Master Servicer Advance Date: As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month of such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loan on such Due Date), subject to
reduction as provided in Section 3.14.
Master Servicing Fee Rate: With respect to each Mortgage Loan in Loan
Group 1, 0.250% per annum of the Stated Principal balance of the related
Mortgage Loan, with respect to each Mortgage Loan in Loan Group 2, Loan Group
3 and Loan Group 4, 0.375% per annum of the Stated Principal balance of the
related Mortgage Loan.
Maximum Mortgage Rate: With respect to each Mortgage Loan, the percentage
set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
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Maximum Negative Amortization: With respect to each Negative Amortization
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
percentage of the original principal balance of Mortgage Note, that if
exceeded due to Deferred Interest, will result in a recalculation of the
Scheduled Payment so that the then unpaid principal balance of the Mortgage
Note will be fully amortized over the Mortgage Loan's remaining term to
maturity.
Maximum Rate: With respect to the Class 2-A-1, Class 2-A-2, Class 4-A-1,
Class 4-A-2, Class II-M-1, Class II-B-1 and Class II-B-2 Certificates, 10.50%.
With respect to the Class 2-A-3 Certificates, 11.00%.
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(R)
System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Middle Tier REMIC: As described in the Preliminary Statement.
Middle Tier REMIC Regular Interest: As described in the Preliminary
Statement.
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Mortgage Rate: With respect to each Mortgage Loan in Loan group
1, 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.
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.
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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) the Master Servicing Fee Rate both before and after the
initial Adjustment Date for each Mortgage Loan;
(xiii) a code indicating whether the Mortgage Loan is a Lender PMI
Mortgage Loan and, in the case of any Lender PMI Mortgage Loan, a
percentage representing the amount of the related interest premium
charged to the borrower;
(xiv) the purpose for the Mortgage Loan;
(xv) the type of documentation program pursuant to which the
Mortgage Loan was originated;
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(xvi) a code indicating whether the Mortgage Loan is a Countrywide
Mortgage Loan, a Park Granada Mortgage Loan, a Park Monaco Mortgage
Loan or a Park Sienna Mortgage Loan;
(xvii) the direct servicer of such Mortgage Loan as of the Cut-off
Date;
(xviii) a code indicating whether the Mortgage Loan is a MERS
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, the first Adjustment Date, the Payment
Adjustment Date and Maximum Negative Amortization for such Mortgage
Loan, as applicable.
Such schedule shall also set forth the total of the amounts described
under (iv) and (v) above for all of the Mortgage Loans and for each Loan
Group.
Mortgage Loans: Such of the mortgage loans as from time to time are
transferred and assigned to the Trustee pursuant to the provisions of this
Agreement and that are held as a part of the Trust Fund (including any REO
Property), the mortgage loans so held being identified in the Mortgage Loan
Schedule, notwithstanding foreclosure or other acquisition of title of the
related Mortgaged Property.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage 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.
Negative Amortization Mortgage Loan: Each Mortgage Loan in Loan Group 2,
Loan Group 3 and Loan Group 4.
Net Deferred Interest: With respect to each of Loan Group 2, Loan Group 3
and Loan Group 4 and Distribution Date, an amount equal to the excess, if any,
of the Deferred Interest that accrued on the Mortgage Loans in that Loan Group
for the related Due Period over the Principal Prepayment Amount for those
Mortgage Loans received during the related Prepayment Period.
Net Prepayment Interest Shortfalls: As to any Distribution Date and Loan
Group in an Aggregate Loan Group, the amount by which the aggregate of
Prepayment Interest Shortfalls for
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such Loan Group exceeds an amount equal to the sum of (a) the Compensating
Interest for such Loan Group for such Distribution Date and (b) the excess, if
any, of the Compensating Interest with respect to the Mortgage Loans in the
other Loan Group in the same Aggregate Loan Group for such Distribution Date
over the Prepayment Interest Shortfalls experienced by the Mortgage Loans in
such other Loan Group.
Net Prepayments: As to any Distribution Date and Loan Group 2, Loan Group
3 or Loan Group 4, the amount equal to the excess, if any, of the (i)
Principal Prepayment Amount for that Loan Group over (ii) the aggregate amount
of Deferred Interest accrued on the Mortgage Loans in that Loan Group from the
preceding Due Date to the Due Date related to that Distribution Date.
Net WAC Cap: As to any Class of LIBOR Certificates, other than the LIBOR
Certificates in the Group II Subordinated Certificates, the Weighted Average
Adjusted Net Mortgage Rate of the Mortgage Loans in the related Loan Group,
adjusted for the related Interest Accrual Period. As to any Class of LIBOR
Certificates in the Group II Subordinated Certificates, the Aggregate Group II
Weighted Average Rate.
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class 1-X Certificates and any
Distribution Date, an amount equal to the Class Certificate Balance of the
Class 1-A-1 Certificates immediately prior to such Distribution Date.
Notional Amount Certificates: As specified in the Preliminary Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) in the case of the Depositor,
signed by the Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President (however denominated), an
Assistant Vice President, the Treasurer, the Secretary, or one of the
Assistant Treasurers or Assistant Secretaries of the Depositor, (ii) in the
case of the Master Servicer, signed by the President, an Executive Vice
President, a Vice President, an Assistant Vice President, the Treasurer, or
one of the Assistant Treasurers or Assistant Secretaries of Countrywide GP,
Inc., its general partner or (iii) if provided for in this Agreement, signed
by a Servicing Officer, as the case may be, and delivered to the Depositor and
the Trustee, as the case may be, as required by this Agreement.
35
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, any Sellers or the Master Servicer, including in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such counsel must
(i) in fact be independent of the Depositor, any Sellers and the Master
Servicer, (ii) not have any direct financial interest in the Depositor, any
Sellers or the Master Servicer or in any affiliate of either, and (iii) not be
connected with the Depositor, any Sellers or the Master Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Optional Termination: As to Aggregate Loan Group I or Aggregate Loan
Group II, the termination of the related portion of the Trust Fund created
under this Agreement in connection with the purchase of the related Mortgage
Loans pursuant to Section 9.01.
Optional Termination Date: As to Aggregate Loan Group I or Aggregate Loan
Group II, the Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans in that Aggregate Loan Group is less than or
equal to 10% of the aggregate Stated Principal Balance of the Mortgage Loans
in that Aggregate Loan Group as of the Cut-off Date.
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:
Group I Subordinated Certificates
-----------------------------------------------------
Class I-M-1.......................... 4.75%
Class I-B-1.......................... 1.35%
Class I-B-2.......................... 0.70%
Class I-B-3.......................... 0.75%
Class I-B-4.......................... 0.55%
Class I-B-5.......................... 0.40%
Group II Subordinated Certificates
-----------------------------------------------------
Class II-M-1......................... 2.45%
Class II-B-1......................... 1.90%
Class II-B-2......................... 1.45%
Class II-B-3......................... 1.40%
Class II-B-4......................... 0.65%
Class II-B-5......................... 0.45%
Original Mortgage Loan: The mortgage loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
Original Subordinate Principal Balance: For the Group I Certificates, the
aggregate of the Class Certificate Balances of the Group I Subordinated
Certificates as of the Closing Date. For the Group II Certificates, the
aggregate of the Class Certificate Balances of the Group II Subordinated
Certificates as of the Closing Date.
OTS: The Office of Thrift Supervision.
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Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero, which was not the subject of a
Principal Prepayment in Full prior to such Due Date or during the related
Prepayment Period and which did not become a Liquidated Mortgage Loan prior to
such Due Date.
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.
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.
Par Price: As defined in the Par Price Payment Agreement.
Par Price Payment Agreement: The Par Price Payment Agreement, dated as of
March 30, 2005, between Bank of America, N.A. and the Auction Administrator.
Par Price Payment Agreement Counterparty: The "Counterparty," as such
term is defined in the Par Price Payment Agreement.
Pass-Through Margin: With respect to any Distribution Date and each Class
of LIBOR Certificates, the per annum rate indicated in the following table:
37
Class Pass-Through Margin (1) Pass-Through Margin (2)
----------------------- ------------------------ -------------------------
Class 2-A-1............. 0.210% 0.420%
Class 2-A-2............. 0.250% 0.500%
Class 2-A-3............. 0.300% 0.600%
Class 4-A-1............. 0.220% 0.440%
Class 4-A-2............. 0.290% 0.580%
Class II-M-1............ 0.500% 0.750%
Class II-B-1............ 0.800% 1.200%
Class II-B-2............ 1.530% 2.295%
-------------------------
(1) For the Interest Accrual Period related to any Distribution Date
occurring on or prior to the applicable Optional Termination Date.
(2) For each other Interest Accrual Period.
Pass-Through Rate: For any interest-bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
Payment Adjustment Date: For each Negative Amortization Mortgage Loan,
the date specified in the related Mortgage Note as the annual date on which
the Mortgage Rate on the related Scheduled Payment will be adjusted.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Rate Cap: With respect to each Group 1 Mortgage Loan and any
Adjustment Date thereof, 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;
38
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state
thereof and subject to supervision and examination by federal and/or
state banking authorities, provided that the commercial paper and/or
long term unsecured debt obligations of such depository institution
or trust company (or in the case of the principal depository
institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of such holding company, but
only if Xxxxx'x is not a Rating Agency) are then rated one of the
two highest long-term and the highest short-term ratings of each
Rating Agency for such securities, or such lower ratings as will not
result in the downgrading or withdrawal of the rating then assigned
to the Certificates by either Rating Agency;
(v) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (iv) above;
(vi) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if Fitch is a Rating
Agency and has not rated the portfolio, the highest rating assigned
by Moody's) and restricted to obligations issued or guaranteed by
the United States of America or entities whose obligations are
backed by the full faith and credit of the United States of America
and repurchase agreements collateralized by such obligations; and
(vii) such other relatively risk free investments bearing interest
or sold at a discount acceptable to each Rating Agency as will not
result in the downgrading or withdrawal of the rating then assigned
to the Certificates by either Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency provided, that no
such instrument shall be a Permitted Investment if such instrument
evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax 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
39
of the trust unless such Person has furnished the transferor and the Trustee
with a duly completed Internal Revenue Service Form W-8ECI or any applicable
successor form, and (vii) any other Person so designated by the Depositor
based upon an Opinion of Counsel that the Transfer of an Ownership Interest in
a Residual Certificate to such Person may cause any REMIC created under this
Agreement to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality
of the United States or of any State or political subdivision thereof for
these purposes if all of its activities are subject to tax and, with the
exception of the Federal Home Loan Mortgage Corporation, a majority of its
board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Balance: With respect to any Planned Principal Class or Component
and any Distribution Date appearing in Schedule V, the amount appearing
opposite such Distribution Date for such Class or Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Planned Principal Components: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date and an
Aggregate Loan Group, the aggregate of the Stated Principal Balances of the
Mortgage Loans in such Aggregate Loan Group that were Outstanding Mortgage
Loans on the Due Date in the month preceding the month of such Distribution
Date (after giving effect to Principal Prepayments received in the related
Prepayment Period related to such prior Due Date) and, as to any other date of
determination, the aggregate of the Stated Principal Balances of the
Outstanding Mortgage Loans in such Aggregate Loan Group as of such date.
Prepayment Interest Excess: As to any Principal Prepayment received by
the Master Servicer from the first day through the fifteenth day of any
calendar month (other than the calendar month in which the Cut-off Date
occurs), all amounts paid by the related Mortgagor in respect of interest on
such Principal Prepayment. All Prepayment Interest Excess shall be paid to the
Master Servicer as additional master servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, any Mortgage
Loan and any Principal Prepayment received on or after the sixteenth day of
the month preceding the month of such Distribution Date (or, in the case of
the first Distribution Date, on or after March 1, 2005) and on or before the
last day of the month preceding the month of such Distribution Date, the
amount, if any, by which one month's interest at the related Mortgage Rate,
net of the related Master Servicing Fee Rate, on such Principal Prepayment
exceeds the amount of interest paid in connection with such Principal
Prepayment.
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Prepayment Period: As to any Distribution Date and the related Due Date,
the period from the 16th day of the calendar month immediately preceding the
month in which the Distribution Date occurs (or, in the case of the first
Distribution Date, from March 1, 2005) through the 15th day of the calendar
month in which the Distribution Date occurs.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Prime Rate: The prime commercial lending rate of The Bank of New York, as
publicly announced to be in effect from time to time. The Prime Rate shall be
adjusted automatically, without notice, on the effective date of any change in
such prime commercial lending rate. The Prime Rate is not necessarily The Bank
of New York's lowest rate of interest.
Principal Amount: As to any Distribution Date and any Loan Group, 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 the related Loan Group on the related Due Date to the extent received or
advanced, (b) the principal portion of the Purchase Price of each Mortgage
Loan in the related 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 net Liquidation Proceeds
allocable to recoveries of principal of Mortgage Loans in the related Loan
Group that are not yet Liquidated Mortgage Loans received during the calendar
month preceding the month of such Distribution Date, (e) with respect to each
Mortgage Loan in a Loan Group that became a Liquidated Mortgage Loan during
the calendar month preceding the month of such Distribution Date, the amount
of the net 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 for Loan
Group 1 received during the calendar month preceding the month of such
Distribution Date and (h) the principal portion of any Transfer Payments
Received for such Loan Group, minus the principal portion of any Transfer
Payments Made for such Loan Group and Distribution Date in accordance with
Section 4.05.
Principal Payment Amount: As to any Distribution Date and any Loan Group,
the sum of the amounts described in clauses (a) through (e) of the definition
of "Principal Amount" for such Distribution Date and Loan Group.
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 Amount: As to any Distribution Date and any Loan
Group, an amount equal to the sum of the amounts described in clauses (f) and
(g) of the definition of "Principal Amount" for such Distribution Date and
Loan Group.
41
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 Lower Tier REMIC B
Regular Interests other than those of their Corresponding Loan Group as
provided in the Preliminary Statement. Principal Relocation Payments shall be
made of principal allocations comprising the Principal Amount from a Loan
Group and shall also consist of a proportionate allocation of Realized Losses
from the Mortgage Loans of a Loan Group.
Private Certificate: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date, the Subordinated Principal
Distribution Amount for an Aggregate Loan Group and any related Class of
Subordinated Certificates, the portion of the related Subordinated Principal
Distribution Amount allocable to such Class, equal to the product of the
related 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 Group I Subordinated Certificates or Group II
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 September 23, 2004 generally relating to
mortgage-pass through certificates to be sold by the Depositor.
Prospectus Supplement: The prospectus supplement dated March 28, 2005
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
42
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.
Rate Cap: Not applicable.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References 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. With respect to each
Mortgage Loan that has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
To the extent the Master Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of Realized Losses with respect to
that Mortgage Loan will be reduced by the amount of those Subsequent
Recoveries.
Recognition Agreement: With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative Property.
Record Date: With respect to any Distribution Date, (i) in the case of
the LIBOR Certificates represented by Book-Entry Certificates, the Business
Day immediately preceding such Distribution Date and (ii) in the case of LIBOR
Certificates represented by Definitive Certificates and in the case of all
other Certificates, the close of business on the last Business Day of the
month preceding the month in which such Distribution Date occurs.
Reference Bank: As defined in Section 4.07.
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Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Servicemembers' Civil Relief Act and similar state laws.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation, revenue
ruling, revenue procedure or other official announcement or interpretation
relating to REMICs and the REMIC Provisions issued after the Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
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).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
in the related Due Period allocable to principal and/or interest on such
Mortgage Loan which, unless otherwise specified in this Agreement, shall give
effect to any related Debt Service Reduction and any Deficient Valuation that
affects the amount of the monthly payment due on such Mortgage Loan.
44
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: With respect to the Group I Senior
Certificates and the Group II Senior Certificates, as applicable, the date on
which the aggregate Class Certificate Balance of the Group I Subordinated
Certificates and Group II Subordinated Certificates, respectively, 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 Class Certificate Balance 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 of the Stated Principal Balance of each Mortgage Loan in the
related Loan Group as of the Due Date in the prior month (after giving effect
to Principal Prepayments received in the Prepayment Period related to that
prior Due Date); provided, however, that with respect to a Senior Certificate
related to Aggregate Loan Group II, on any Distribution Date after the second
Senior Termination Date for that Aggregate Loan Group, the Senior Percentage
for the Senior Certificates of the related 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 the related Senior Certificates and the related
Subordinated Certificates immediately prior to such Distribution Date.
Senior Prepayment Percentage: As to any Senior Certificate Group in an
Aggregate Certificate Group and any Distribution Date occurring during the ten
years beginning on the first Distribution Date will be 100%. The Senior
Prepayment Percentage for any Distribution Date occurring on or after the
tenth anniversary of the first Distribution Date will, except as provided in
this Agreement, be as follows: for any Distribution Date in the first year
thereafter, the related Senior Percentage plus 70% of the related Subordinated
Percentage for such Distribution Date; for any Distribution Date in the second
year thereafter, the related Senior Percentage plus 60% of the related
Subordinated Percentage for such Distribution Date; for any Distribution Date
in the third year thereafter, the related Senior Percentage plus 40% of the
related Subordinated Percentage for such Distribution Date; for any
Distribution Date in the fourth year thereafter, the related Senior Percentage
plus 20% of the related Subordinated Percentage for such Distribution Date;
and for any Distribution Date thereafter, the related Senior Percentage for
such Distribution Date (unless on any Distribution Date the related Senior
Percentage exceeds the Senior Percentage of such Senior Certificate Group as
of the Closing Date, in which case the related Senior Prepayment Percentage
for such Senior Certificates Group for such Distribution Date will once again
equal 100%). Notwithstanding the foregoing, no decrease in the Prepayment
Percentage for a Senior Certificate Group will occur unless both of the Senior
Step Down Conditions are satisfied with respect to each of the Loan Groups in
the applicable Aggregate Loan Group . Notwithstanding the foregoing, if the
Two Times Test is satisfied with
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respect to an Aggregate Certificate Group, on a Distribution Date, the Senior
Prepayment Percentage for each Loan Group in that Aggregate Loan Group will
equal (x) if such Distribution Date is on or prior to the Distribution Date in
March 2008, the related Senior Percentage for such Distribution Date plus 50%
of the related Subordinated Percentage for the Distribution Date and (y) if
such Distribution Date is after the Distribution Date in March 2008, the
related Senior Percentage.
Senior Principal Distribution Amount: As to any Distribution Date and
Senior Certificate Group, the sum of (i) the related Senior Percentage of the
related Principal Payment Amount, (ii) the related Senior Prepayment
Percentage of (x) the Principal Prepayment Amount (in the case of Loan Group
1) or (y) the Net Prepayments (in the case of Loan Group 2, Loan Group 3 and
Loan Group 4) with respect to the related Loan Group for such Distribution
Date; (iii) in the case of Loan Group 2, Loan Group 3 and Loan Group 4, the
principal portion of any Transfer Payments Received for that Loan Group and
Distribution Date.
Senior Step Down Conditions: With respect to each Loan Group in an
Aggregate Loan Group: (i) the outstanding principal balance of all Mortgage
Loans in that Loan Group delinquent 60 days or more (including Mortgage Loans
in foreclosure, REO Property and Mortgage Loans the Mortgagors of which are in
bankruptcy) (averaged over the preceding six month period), as a percentage of
the Group I Subordinated Certificates in the case of Aggregate Loan Group I or
(a) in the case of Aggregate Loan Group II, if such date is on or prior to the
Second Senior Termination Date for that Aggregate Certificate Group, the
Subordinated Percentage for such Loan Group of the aggregate Stated Principal
Balances of the Mortgage Loans in that Loan Group, or (b) if such date is
after the second Senior Termination Date for Aggregate Certificate Group II,
the aggregate Class Certificate Balance of the Group II Subordinated
Certificates for such Distribution Date does not equal or exceed 50%, and (ii)
cumulative Realized Losses on all the Mortgage Loans in the related Aggregate
Loan Group do not exceed: (a) commencing with the Distribution Date on the
tenth anniversary of the first Distribution Date, 30% of the related Original
Subordinate Principal Balance, (b) commencing with the Distribution Date on
the eleventh anniversary of the first Distribution Date, 35% of the related
Original Subordinate Principal Balance, (c) commencing with the Distribution
Date on the twelfth anniversary of the first Distribution Date, 40% of the
related Original Subordinate Principal Balance, (d) commencing with the
Distribution Date on the thirteenth anniversary of the first Distribution
Date, 45% of the related Original Subordinate Principal Balance and (e)
commencing with the Distribution Date on the fourteenth anniversary of the
first Distribution Date, 50% of the related Original Subordinate Principal
Balance.
Senior Termination Date: For a Senior Certificate Group related to
Aggregate Loan Group II, 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.
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Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. If S&P is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to S&P
shall be Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Mortgage Surveillance Monitoring, or such other address
as S&P may hereafter furnish to the Depositor and the Master Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to the sum of: (i) any
previous partial Principal Prepayments and the payment of principal due on
such Due Date, irrespective of any delinquency in payment by the related
Mortgagor, (ii) Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) received in the prior calendar month
and Principal Prepayments received through the last day of the related
Prepayment Period, in each case, with respect to that Mortgage Loan and (iii)
any Deferred Interest added to the principal balance of that Mortgage Loan
pursuant to the terms of the related Mortgage Note on or prior to that Due
Date.
Streamlined Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to Countrywide's Streamlined Loan Documentation Program then in
effect. For the purposes of this Agreement, a Mortgagor is eligible for a
mortgage pursuant to Countrywide's Streamlined Loan Documentation Program if
that Mortgagor is refinancing an existing mortgage loan that was originated or
acquired by Countrywide where, among other things, the mortgage loan has not
been more than 30 days delinquent in payment during the previous twelve month
period.
Subordinate Pass-Through Rate: For the Interest Accrual Period related to
each Distribution Date and Aggregate Loan Group I, a per annum rate equal to
the Weighted Average Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans
divided by the aggregate Class Certificate Balance of the Group I Subordinated
Certificates immediately prior to that Distribution Date. For the Interest
Accrual Period related to each Distribution Date and Aggregate Loan Group II,
a per annum rate equal to (1) the sum of the following for each Loan Group in
that Aggregate 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 Group II Subordinated
Certificates immediately prior to that Distribution Date.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date and Loan Group on or
prior to a Senior Termination Date for the related Aggregate Loan Group, 100%
minus the Senior Percentage for the Senior Certificate Group relating to such
Loan Group for such Distribution
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Date. As to any Distribution Date after a Senior Termination Date for the
related Aggregate Loan Group, the difference between 100% and the related
Senior Percentage for such Distribution Date.
Subordinated Portion: For any Distribution Date and a Loan Group in
Aggregate Loan Group II, an amount equal to the aggregate Stated Principal
Balance of the Mortgage Loans in that Loan Group as of the Due Date (after
giving effect to Principal Prepayments received in the Prepayment Period
related to that prior Due Date) minus the sum of the Class Certificate
Balances of the related Classes of Senior Certificates immediately prior to
such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior Prepayment Percentage for such
Distribution Date.
Subordinated Principal Distribution Amount: With respect to any
Distribution Date and the Group I or Group II Subordinated Certificates, as
applicable, the sum of the following amounts for each Loan Group in the
related Aggregate Loan Group: an amount equal to the excess of (A) 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 related Subordinated Percentage for
such Loan Group of the Stated Principal Balance of that Mortgage Loan as of
the first day of the related Due Period, and (iii) the related Subordinated
Prepayment Percentage for that Loan Group of either (x) the Principal
Prepayment Amount (in the case of Loan Group 1) or (y) the Net Prepayments (in
the case of Loan Group 2, Loan Group 3 and Loan Group 4) with respect to the
related Loan Group for such Distribution Date and in the case of Loan Group 1,
any Subsequent Recoveries received on the Mortgage Loans in that Loan Group
received during the calendar month preceding the month of the Distribution
Date over (B) in the case of Aggregate Loan Group II, the principal portion of
any Transfer Payments Made for such Loan Group; provided, however, that on any
Distribution Date after the second related 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, as applicable, for the Group II Subordinated
Certificates for such Distribution Date with respect to all of the Mortgage
Loans the related Aggregate Loan Group 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.
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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 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; (ix) have the same
Maximum Negative Amortization, payment cap and recast provisions as the
Deleted Mortgage Loan; and (x) comply with each representation and warranty
set forth in Section 2.03.
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 ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)1T. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
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, the Corridor Contract Reserve
Fund and the Carryover Shortfall Reserve Fund, 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. The Par Price
Account and the Auction Proceeds Account will not be assets of the Trust Fund.
49
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 of
each Aggregate Loan Group with respect to such Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, the per annum rate
agreed upon in writing on or prior to the Closing Date by the Trustee and the
Depositor.
Two Times Test: As to any Distribution Date and with respect to either
the Group I Subordinated Certificates or the Group II Subordinated
Certificates, if (x) on or before the Distribution Date in March 2008, the
Aggregate Subordinated Percentage for the Group I Subordinated Certificates or
the Group II Subordinated Certificates, as applicable, is at least 200% of the
related Aggregate Subordinated Percentage as of the Closing Date, the
applicable delinquency test set forth in the definition of Senior Stepdown
Conditions is satisfied and cumulative Realized Losses on the Mortgage Loans
in the related Aggregate Loan Group do not exceed 20% of the aggregate Class
Certificate Balance of the related group of Subordinated Certificates as of
the Closing Date, the related Senior Prepayment Percentage for each Loan Group
in that Aggregate Loan Group will equal the Senior Percentage for that
Distribution Date plus 50% of the amount equal to 100% minus the related
Senior Percentage and (y) after the Distribution Date in March 2008, the
Aggregate Subordinated Percentage for the Group I Subordinated Certificates or
the Group II Subordinated Certificates, as applicable, is at least 200% of the
related Aggregate Subordinated Percentage as of the Closing Date, the
applicable delinquency test set forth in the definition of Senior Stepdown
Conditions is satisfied and cumulative Realized Losses on the Mortgage Loans
in the related Aggregate Loan Group do not exceed 30% of the aggregate Class
Certificate Balance of the related group of Subordinated Certificates as of
the Closing Date.
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.
Underwriter: As specified in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates, if any (such Voting Rights to be allocated among
the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among Holders of
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the remaining Classes of Certificates in proportion to the Certificate
Balances of their respective Certificates on such date.
Weighted Average Adjusted Net Mortgage Rate: As to any Distribution Date
and for each Loan Group, the average of the Adjusted Net Mortgage Rate of each
Mortgage Loan in that Loan Group, weighted on the basis of its Stated
Principal Balance as of the end of the Prepayment Period related to the
immediately preceding Distribution Date.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 Conveyance of Mortgage Loans.
----------------------------
(a) Each Seller concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the
Depositor, without recourse, all its respective right, title and interest in
and to the related Mortgage Loans, including all interest and principal
received or receivable by such Seller, on or with respect to the applicable
Mortgage Loans after the Cut-off Date and all interest and principal payments
on the related Mortgage Loans received prior to the Cut-off Date in respect of
installments of interest and principal due thereafter, but not including
payments of principal and interest due and payable on such Mortgage Loans on
or before the Cut-off Date. On or prior to the Closing Date, Countrywide shall
deliver to the Depositor or, at the Depositor's direction, to the Trustee or
other designee of the Depositor, the Mortgage File for each Mortgage Loan
listed in the Mortgage Loan Schedule (except that, in the case of the Delay
Delivery Mortgage Loans (which may include both Countrywide Mortgage Loans,
Park Granada Mortgage Loans, Park Monaco Mortgage Loans or Park Sienna
Mortgage Loans), such delivery may take place within thirty (30) days
following the Closing Date). Such delivery of the Mortgage Files shall be made
against payment by the Depositor of the purchase price, previously agreed to
by the Sellers and Depositor, for the Mortgage Loans. With respect to any
Mortgage Loan that does not have a first payment date on or before the Due
Date in the month of the first Distribution Date, Countrywide shall deposit
into the Distribution Account on or before the Distribution Account Deposit
Date relating to the first applicable Distribution Date, an amount equal to
one month's interest at the related Adjusted Mortgage Rate on the Cut-off Date
Principal Balance of such Mortgage Loan.
(b) Immediately upon the conveyance of the Mortgage Loans referred to in
clause (a), the Depositor sells, transfers, assigns, sets over and otherwise
conveys to the Trustee for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to the
Trust Fund together with the Depositor's right to require each Seller to cure
any breach of a representation or warranty made herein by such Seller, or to
repurchase or substitute for any affected Mortgage Loan in accordance
herewith.
(c) In connection with the transfer and assignment set forth in clause
(b) above, the Depositor has delivered or caused to be delivered to the
Trustee (or, in the case of the Delay Delivery Mortgage Loans, will deliver or
cause to be delivered to the Trustee) within thirty (30) days following the
Closing Date for the benefit of the Certificateholders the following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) (A) the original Mortgage Note endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
____________ without recourse," with all intervening endorsements
showing a complete chain of endorsement from the originator to the
Person endorsing the Mortgage Note (each such endorsement being
sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note); or
52
(B) with respect to any Lost Mortgage Note, a lost note
affidavit from Countrywide stating that the original Mortgage Note
was lost or destroyed, together with a copy of such Mortgage Note;
(ii) except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or a
copy of such Mortgage certified by Countrywide as being a true and
complete copy of the Mortgage (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the Commonwealth
of Puerto Rico, a true copy of the Mortgage certified as such by the
applicable notary) and in the case of each MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the Mortgage
Loans and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was
not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded;
(iii) in the case of each Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage (which may
be included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of such
mortgage (each such assignment, when duly and validly completed, to
be in recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the
assignment relates); provided that, if the related Mortgage has not
been returned from the applicable public recording office, such
assignment of the Mortgage may exclude the information to be
provided by the recording office; provided, further, that such
assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
(v) except as provided below, the original or duplicate
original lender's title policy or a printout of the electronic
equivalent and all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) The Coop Shares, together with a stock power in blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
53
(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(R)
System to indicate that the Mortgage Loans sold by such Seller to the
Depositor have been assigned by that Seller to the Trustee in accordance with
this Agreement for the benefit of the Certificateholders by including (or
deleting, in the case of Mortgage Loans which are repurchased in accordance
with this Agreement) in such computer files the information required by the
MERS(R) System to identify the series of the Certificates issued in connection
with such Mortgage Loans. Each Seller further agrees that it will not, and
will not permit the Master Servicer to, and the Master Servicer agrees that it
will not, alter the information referenced in this paragraph with respect to
any Mortgage Loan sold by such Seller to the Depositor during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance
with the terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage,
(b) all interim recorded assignments or (c) the lender's title policy
(together with all riders thereto) satisfying the requirements of clause (ii),
(iii) or (v) above, respectively, concurrently with the execution and delivery
hereof because such document or documents have not been returned from the
applicable public recording office in the case of clause (ii) or (iii) above,
or because the title policy has not been delivered to either the Master
Servicer or the Depositor by the applicable title insurer in the case of
clause (v) above, the Depositor shall promptly deliver to the Trustee, in the
case of clause (ii) or (iii) above, such original Mortgage or such interim
assignment, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office, but in no event
shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or,
in the case of clause (v) above, no later than 120 days following the Closing
Date; provided, however, in the event the Depositor is unable to deliver by
such date each Mortgage and each such interim assignment by reason of the fact
that any such documents have not been returned by the appropriate recording
office, or, in the case of each such interim assignment, because the related
Mortgage has not been returned by the appropriate recording office, the
Depositor shall deliver such documents to the Trustee as promptly as possible
upon receipt thereof and, in any event, within 720 days following the Closing
Date. The Depositor shall forward or cause to be forwarded to the Trustee (a)
from time to time additional original documents evidencing an assumption or
modification of a Mortgage Loan and (b) any other documents required to be
delivered by the Depositor or the Master Servicer to the Trustee. In the event
that the original Mortgage is not delivered and in connection with the payment
in full of the related Mortgage Loan and the public recording office requires
the presentation of a "lost
54
instruments affidavit and indemnity" or any equivalent document, because only
a copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Master Servicer shall execute and deliver or cause to be
executed and delivered such a document to the public recording office. In the
case where a public recording office retains the original recorded Mortgage or
in the case where a Mortgage is lost after recordation in a public recording
office, Countrywide shall deliver to the Trustee a copy of such Mortgage
certified by such public recording office to be a true and complete copy of
the original recorded Mortgage.
As promptly as practicable subsequent to such transfer and assignment,
and in any event, within thirty (30) days thereafter, the Trustee shall (i) as
the assignee thereof, affix the following language to each assignment of
Mortgage: "CWALT Series 2005-14, The Bank of New York, as trustee", (ii) cause
such assignment to be in proper form for recording in the appropriate public
office for real property records and (iii) cause to be delivered for recording
in the appropriate public office for real property records the assignments of
the Mortgages to the Trustee, except that, with respect to any assignments of
Mortgage as to which the Trustee has not received the information required to
prepare such assignment in recordable form, the Trustee's obligation to do so
and to deliver the same for such recording shall be as soon as practicable
after receipt of such information and in any event within thirty (30) days
after receipt thereof and that the Trustee need not cause to be recorded any
assignment which relates to a Mortgage Loan (a) the Mortgaged Property and
Mortgage File relating to which are located in California or (b) in any other
jurisdiction (including Puerto Rico) under the laws of which in the opinion of
counsel the recordation of such assignment is not necessary to protect the
Trustee's and the Certificateholders' interest in the related Mortgage Loan.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee, will deposit in the Certificate Account the portion of such payment
that is required to be deposited in the Certificate Account pursuant to
Section 3.05.
Notwithstanding anything to the contrary in this Agreement, within thirty
(30) days after the Closing Date with respect to the Mortgage Loans,
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) shall either (i) deliver to the Depositor, or at the Depositor's
direction, to the Trustee or other designee of the Depositor the Mortgage File
as required pursuant to this Section 2.01 for each Delay Delivery Mortgage
Loan or (ii) either (A) substitute a Substitute Mortgage Loan for the Delay
Delivery Mortgage Loan or (B) repurchase the Delay Delivery Mortgage Loan,
which substitution or repurchase shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 (treating each Delay
Delivery Mortgage Loan as a Deleted Mortgage Loan for purposes of such Section
2.03); provided, however, that if Countrywide fails to deliver a Mortgage File
for any Delay Delivery Mortgage Loan within the thirty (30) day period
provided in the prior sentence, Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) shall use its best reasonable
efforts to effect a substitution, rather than a repurchase of, such Deleted
Mortgage Loan and provided further that the cure period provided for in
Section 2.02 or in Section 2.03 shall not apply to the initial delivery of the
Mortgage File for such Delay Delivery Mortgage Loan, but rather Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
shall have five (5) Business Days to cure such failure to deliver. At the end
of such thirty (30) day period the Trustee shall send a Delay Delivery
Certification for the Delay
55
Delivery Mortgage Loans delivered during such thirty (30) day period in
accordance with the provisions of Section 2.02.
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans.
-------------------------------------------
(a) The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form annexed hereto as Exhibit F (an "Initial
Certification") and declares that it holds and will hold such documents and
the other documents delivered to it constituting the Mortgage Files, and that
it holds or will hold such other assets as are included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it will maintain possession
of the Mortgage Notes in the State of California, unless otherwise permitted
by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) an Initial Certification
in the form annexed hereto as Exhibit F. Based on its review and examination,
and only as to the documents identified in such Initial Certification, the
Trustee acknowledges that such documents appear regular on their face and
relate to the Mortgage Loans. The Trustee shall be under no duty or obligation
to inspect, review or examine said documents, instruments, certificates or
other papers to determine that the same are genuine, enforceable or
appropriate for the represented purpose or that they have actually been
recorded in the real estate records or that they are other than what they
purport to be on their face.
On or about the thirtieth (30th) day after the Closing Date, the Trustee
shall deliver to the Depositor, the Master Servicer and Countrywide (on its
own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a Delay
Delivery Certification with respect to the Mortgage Loans in the form annexed
hereto as Exhibit G (a "Delay Delivery Certification"), with any applicable
exceptions noted thereon.
Not later than 90 days after the Closing Date, the Trustee shall deliver
to the Depositor, the Master Servicer and Countrywide (on its own behalf and
on behalf of Park Granada, Park Monaco and Park Sienna) a Final Certification
with respect to the Mortgage Loans in the form annexed hereto as Exhibit H (a
"Final Certification"), with any applicable exceptions noted thereon.
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
56
accomplished in the manner and subject to the conditions set forth in Section
2.03, or (b) purchase such Mortgage Loan from the Trustee within 90 days from
the date Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) was notified of such defect in writing at the Purchase
Price of such Mortgage Loan; provided, however, that in no event shall such
substitution or purchase occur more than 540 days from the Closing Date,
except that if the substitution or purchase of a Mortgage Loan pursuant to
this provision is required by reason of a delay in delivery of any documents
by the appropriate recording office, and there is a dispute between either the
Master Servicer or Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) and the Trustee over the location or
status of the recorded document, then such substitution or purchase shall
occur within 720 days from the Closing Date. The Trustee shall deliver written
notice to each Rating Agency within 270 days from the Closing Date indicating
each Mortgage Loan (a) that has not been returned by the appropriate recording
office or (b) as to which there is a dispute as to location or status of such
Mortgage Loan. Such notice shall be delivered every 90 days thereafter until
the related Mortgage Loan is returned to the Trustee. Any such substitution
pursuant to (a) above or purchase pursuant to (b) above shall not be effected
prior to the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05, if any, and any substitution pursuant to (a) above shall not be
effected prior to the additional delivery to the Trustee of a Request for
Release substantially in the form of Exhibit N. No substitution is permitted
to be made in any calendar month after the Determination Date for such month.
The Purchase Price for any such Mortgage Loan shall be deposited by
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) in the Certificate Account on or prior to the Distribution
Account Deposit Date for the Distribution Date in the month following the
month of repurchase and, upon receipt of such deposit and certification with
respect thereto in the form of Exhibit N hereto, the Trustee shall release the
related Mortgage File to Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) and shall execute and deliver at
Countrywide's (on its own behalf and on behalf of Park Granada, Park Monaco
and Park Sienna) request such instruments of transfer or assignment prepared
by Countrywide, in each case without recourse, as shall be necessary to vest
in Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and Park Sienna), or its designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto. If pursuant to the foregoing provisions Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Master Servicer
shall either (i) cause MERS to execute and deliver an assignment of the
Mortgage in recordable form to transfer the Mortgage from MERS to Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
or its designee and shall cause such Mortgage to be removed from registration
on the MERS(R) System in accordance with MERS' rules and regulations or (ii)
cause MERS to designate on the MERS(R) System Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) or its designee as
the beneficial holder of such Mortgage Loan.
(b) [Reserved].
(c) [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
57
other documents or instruments constituting the Mortgage File as come into the
possession of the Master Servicer from time to time.
(e) It is understood and agreed that the respective obligations of each
Seller to substitute for or to purchase any Mortgage Loan sold to the
Depositor by it that does not meet the requirements of Section 2.01 above
shall constitute the sole remedy respecting such defect available to the
Trustee, the Depositor and any Certificateholder against that Seller.
SECTION 2.03. Representations, Warranties and Covenants of the Sellers
--------------------------------------------------------
and Master Servicer.
-------------------
(a) Countrywide hereby makes the representations and warranties set forth
in (i) Schedule II-A, Schedule II-B, Schedule II-C and Schedule II-D hereto,
and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, (ii) Schedule III-A hereto,
and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, or if so specified therein,
as of the Cut-off Date with respect to all of the Mortgage Loans, and (iii)
Schedule III-B hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or if
so specified therein, as of the Cut-off Date with respect to the Mortgage
Loans that are Countrywide Mortgage Loans. Park Granada hereby makes the
representations and warranties set forth in (i) Schedule II-B hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date and (ii) Schedule III-C hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date with respect to the Mortgage Loans that are Park Granada Mortgage
Loans. Park Monaco hereby makes the representations and warranties set forth
in (i) Schedule II-C hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii) Schedule III-D hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or if
so specified therein, as of the Cut-off Date with respect to the Mortgage
Loans that are Park Monaco Mortgage Loans. Park Sienna hereby makes the
representations and warranties set forth in (i) Schedule II-D hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date and (ii) Schedule III-E hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date with respect to the Mortgage Loans that are Park Sienna Mortgage
Loans.
(b) The Master Servicer hereby makes the representations and warranties
set forth in Schedule IV hereto, and by this reference incorporated herein, to
the Depositor and the Trustee, as of the Closing Date.
(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
58
such breach is not so cured, shall, (i) if such 90-day period expires prior to
the second anniversary of the Closing Date, remove such Mortgage Loan (a
"Deleted Mortgage Loan") from the Trust Fund and substitute in its place a
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below; provided, however, that any such substitution pursuant to (i) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05 hereof, if any, and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery
to the Trustee of a Request for Release substantially in the form of Exhibit N
and the Mortgage File for any such Substitute Mortgage Loan. The Seller
repurchasing a Mortgage Loan pursuant to this Section 2.03(c) shall promptly
reimburse the Master Servicer and the Trustee for any expenses reasonably
incurred by the Master Servicer or the Trustee in respect of enforcing the
remedies for such breach. With respect to the representations and warranties
described in this Section which are made to the best of a Seller's knowledge,
if it is discovered by either the Depositor, a Seller or the Trustee that the
substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein, notwithstanding that
Seller's lack of knowledge with respect to the substance of such
representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
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.
59
For any month in which a Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer
will determine the amount (if any) by which the aggregate Stated Principal
Balance of all Substitute Mortgage Loans sold to the Depositor by that Seller
as of the date of substitution is less than the aggregate Stated Principal
Balance of all Deleted Mortgage Loans repurchased by that Seller (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed
Advances with respect to such Deleted Mortgage Loans shall be deposited in the
Certificate Account by Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) on or before the Distribution Account
Deposit Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan became required to be purchased
or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan, the
Purchase Price therefor shall be deposited in the Certificate Account pursuant
to Section 3.05 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which that Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and
upon such deposit of the Purchase Price, the delivery of the Opinion of
Counsel required by Section 2.05 and receipt of a Request for Release in the
form of Exhibit N hereto, the Trustee shall release the related Mortgage File
held for the benefit of the Certificateholders to such Person, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and
is continuing shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor or the Trustee on
their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
SECTION 2.04. Representations and Warranties of the Depositor as to the
---------------------------------------------------------
Mortgage Loans.
--------------
The Depositor hereby represents and warrants to the Trustee with respect
to each Mortgage Loan as of the date of this Agreement or such other date set
forth in this Agreement that as of the Closing Date, and following the
transfer of the Mortgage Loans to it by each Seller, the Depositor had good
title to the Mortgage Loans and the Mortgage Notes were subject to no offsets,
defenses or counterclaims.
The Depositor hereby assigns, transfers and conveys to the Trustee all of
its rights with respect to the Mortgage Loans including, without limitation,
the representations and warranties of each Seller made pursuant to Section
2.03(a) hereof, together with all rights of the Depositor to require a Seller
to cure any breach thereof or to repurchase or substitute for any affected
Mortgage Loan in accordance with this Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the
60
Depositor or the Trustee of a breach of any of the foregoing representations
and warranties set forth in this Section 2.04 (referred to herein as a
"breach"), which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt
written notice to the others and to each Rating Agency.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
-------------------------------------------------
Substitutions.
-------------
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than
90 days after the Closing Date unless Countrywide delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause any REMIC created under this Agreement to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, a Seller, the Master Servicer, or
the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five (5) Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) at its option, to either
(i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to Countrywide the Mortgage Loan to be released pursuant to this
Section in the same manner, and on the same terms and conditions, as it would
a Mortgage Loan repurchased for breach of a representation or warranty
contained in Section 2.03.
SECTION 2.06. Execution and Delivery of Certificates.
--------------------------------------
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates and to perform the duties set forth in this
Agreement to the best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
SECTION 2.07. REMIC Matters.
-------------
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created hereby. The "Startup Day" for purposes 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.
61
SECTION 2.08. Covenants of the Master Servicer.
--------------------------------
The Master Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and requirements of
the insurer under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by the Master Servicer
pursuant to this Agreement will contain any untrue statement of a material
fact or omit to state a material fact necessary to make such information,
certificate, statement or report not misleading.
62
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(R) System, or cause the removal from
the registration of any Mortgage Loan on the MERS(R) System, to execute and
deliver, on behalf of the Trustee and the Certificateholders or any of them,
any and all instruments of assignment and other comparable instruments with
respect to such assignment or re-recording of a Mortgage in the name of MERS,
solely as nominee for the Trustee and its successors and assigns.
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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
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Subservicers.
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(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
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Master Servicer.
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The Depositor may, but is not obligated to, enforce the obligations of
the Master Servicer under this Agreement and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the
Master Servicer under this Agreement and in connection with any such defaulted
obligation to exercise the related rights of the Master Servicer under this
Agreement; provided that the Master Servicer shall not be relieved of any of
its obligations under this Agreement by virtue of such performance by the
Depositor or its designee. Neither the Trustee nor the Depositor shall have
any responsibility or liability for any action or failure to act by the Master
Servicer nor shall the Trustee or the Depositor be obligated to supervise the
performance of the Master Servicer under this Agreement or otherwise.
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SECTION 3.04. Trustee to Act as Master Servicer.
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In the event that the Master Servicer shall for any reason no longer be
the Master Servicer under this Agreement (including by reason of an Event of
Default), the Trustee or its successor shall then assume all of the rights and
obligations of the Master Servicer under this Agreement arising thereafter
(except that the Trustee shall not be (i) liable for losses of the Master
Servicer pursuant to Section 3.09 or any acts or omissions of the predecessor
Master Servicer under this Agreement), (ii) obligated to make Advances if it
is prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans under this Agreement including,
but not limited to, repurchases or substitutions of Mortgage Loans pursuant to
Section 2.02 or 2.03, (iv) responsible for expenses of the Master Servicer
pursuant to Section 2.03 or (v) deemed to have made any representations and
warranties of the Master Servicer under this Agreement). Any such assumption
shall be subject to Section 7.02. If the Master Servicer shall for any reason
no longer be the Master Servicer (including by reason of any Event of
Default), the Trustee or its successor shall succeed to any rights and
obligations of the Master Servicer under each subservicing agreement.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the substitute
subservicing agreement to the assuming party.
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate Account;
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Distribution Account; Carryover Reserve Fund; Corridor Contract Reserve Fund;
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Par Price Account; Auction Proceeds Account.
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(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.
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(b) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit or cause to be deposited
no later than two Business Days after receipt (or, if the current long-term
credit rating of Countrywide is reduced below "A-" by S&P or Fitch or "A3" by
Xxxxx'x, the Master Servicer shall deposit or cause to be deposited on a daily
basis within one Business Day of receipt), except as otherwise specifically
provided in this Agreement, the following payments and collections remitted by
Subservicers or received by it in respect of Mortgage Loans subsequent to the
Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans on or before the Cut-off Date) and the following amounts
required to be deposited under this Agreement:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Master Servicing Fee and any lender paid mortgage
insurance premiums;
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair
of a Mortgaged Property or released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master Servicer or
the Depositor pursuant to Section 3.05(e) in connection with any losses
on Permitted Investments for which it is responsible;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.09(c) and in respect of net monthly rental income
from REO Property pursuant to Section 3.11;
(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 prepayment penalties,
late payment charges or assumption fees, if collected, need not be remitted by
the Master Servicer. In the event that the Master Servicer shall remit any
amount not required to be remitted, it may at any time withdraw or direct the
institution maintaining the Certificate Account to withdraw such amount from
the Certificate Account, any
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provision in this Agreement to the contrary notwithstanding. Such withdrawal
or direction may be accomplished by delivering written notice thereof to the
Trustee or such other institution maintaining the Certificate Account which
describes the amounts deposited in error in the Certificate Account. The
Master Servicer shall maintain adequate records with respect to all
withdrawals made pursuant to this Section. All funds deposited in the
Certificate Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.08.
(c) [Reserved].
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain in the Distribution
Account the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.08(a)(ix);
(ii) any amount deposited by the Master Servicer pursuant to Section
3.05(e) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not required
to be remitted, it may at any time direct the Trustee to withdraw such amount
from the Distribution Account, any provision in this Agreement to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in
the Distribution Account. All funds deposited in the Distribution Account
shall be held by the Trustee in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.08. In no event shall the Trustee incur liability for withdrawals
from the Distribution Account at the direction of the Master Servicer.
(e) Each institution at which the Certificate Account or the Distribution
Account is maintained shall invest the funds therein as directed in writing by
the Master Servicer in Permitted Investments, which shall mature not later
than (i) in the case of the Certificate Account, the second Business Day next
preceding the related Distribution Account Deposit Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than the
Business Day next preceding such Distribution Account Deposit Date) and (ii)
in the case of the Distribution Account, the Business Day next preceding the
Distribution Date (except that if such Permitted Investment is an obligation
of the institution that maintains such fund or account, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All income and gain net of any losses
realized from any such investment of funds on deposit in the Certificate
Account or the Distribution Account shall be for the benefit of the Master
Servicer as servicing compensation and shall be remitted to it monthly as
provided in this Agreement. The amount of any realized losses in the
Certificate Account or Distribution Account incurred in any such account in
respect of
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any such investments shall promptly be deposited by the Master Servicer in the
Certificate Account or paid to the Trustee for deposit into the Distribution
Account, as applicable. The Trustee in its fiduciary capacity shall not be
liable for the amount of any loss incurred in respect of any investment or
lack of investment of funds held in the Certificate Account or the
Distribution Account and made in accordance with this Section 3.05.
(f) The Master Servicer shall give notice to the Trustee, each Seller,
each Rating Agency and the Depositor of any proposed change of the location of
the Certificate Account prior to any change thereof. The Trustee shall give
notice to the Master Servicer, each Seller, each Rating Agency and the
Depositor of any proposed change of the location of the Distribution Account
or the Carryover Shortfall Reserve Fund prior to any change thereof.
(g) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the LIBOR Certificates, the
Carryover Shortfall Reserve Fund and shall deposit $1,000 therein upon receipt
from or on behalf of the Depositor of such amount. All funds on deposit in the
Carryover Shortfall Reserve Fund shall (x) 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, and
(y) remain uninvested.
On each Distribution Date, the Trustee shall deposit all amounts
distributable as interest to the Class 2-X IO, Class 4-X IO and Class II-B-X
IO Components on such Distribution Date into the Carryover Shortfall Reserve
Fund. The Trustee shall make withdrawals from the Carryover Shortfall Reserve
Fund to make distributions pursuant to Section 4.02(a)(13) exclusively (other
than as expressly provided for in Section 3.08).
(h) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the Class 2-A-1, Class 2-A-2,
Class 2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1 and Class II-B-2
Certificates, the Corridor Contract Reserve Fund, and shall deposit $1,000
therein upon receipt from or on behalf of the Depositor of such amount. All
funds on deposit in the Corridor Contract Reserve Fund shall be held separate
and apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trustee pursuant to this
Agreement.
On each Distribution Date, the Trustee shall deposit into the Corridor
Contract Reserve Fund all amounts received in respect of the Corridor
Contracts for the related Interest Accrual Period. The Trustee shall make
withdrawals from the Corridor Contract Reserve Fund to make distributions
pursuant to Section 4.09 exclusively (other than as expressly provided for in
Section 3.08).
Funds in the Corridor Contract Reserve Fund may be invested in Permitted
Investments at the direction of Bank of America LLC, which Permitted
Investments shall mature not later than the Business Day immediately preceding
the first Distribution Date that follows the date of such investment (except
that if such Permitted Investment is an obligation of the institution that
maintains the Corridor Contract Reserve Fund, then such Permitted Investment
shall mature not later than such Distribution Date) and shall not be sold or
disposed of prior to maturity. All such Permitted Investments shall be made in
the name of the Trustee, for the benefit of the Holders of the Class 2-A-1,
Class 2-A-2, Class 2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1
and Class II-B-2 Certificates. In the absence of such written direction, all
funds in the Corridor
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Contract Reserve Fund shall be invested by the Trustee in The Bank of New York
cash reserves. Any net investment earnings on such amounts shall be retained
therein until withdrawn as provided in Section 3.08. Any losses incurred in
the Corridor Contract Reserve Fund in respect of any such investments shall be
charged against amounts on deposit in the Corridor Contract Reserve Fund (or
such investments) immediately as realized. The Trustee shall not be liable for
the amount of any loss incurred in respect of any investment or lack of
investment of funds held in the Corridor Contract Reserve Fund and made in
accordance with this Section 3.05. The Corridor Contract Reserve Fund will not
constitute an asset of any REMIC created hereunder.
(i) The Trustee shall establish and maintain, on behalf of the Auction
Administrator the Par Price Account and shall administer it in accordance with
the Auction Administration Agreement and the Par Price Payment Agreement. All
funds on deposit in the Par Price 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.
All funds deposited in the Par Price Account shall be held by the Trustee
in trust for Bank of America, N.A. until disbursed in accordance with this
Agreement or the Par Price Payment Agreement. Funds in the Par Price Account
may be invested in Permitted Investments at the direction of Bank of America,
N.A., which Permitted Investments shall mature on or before the Auction
Distribution Date for credit of the Par Price Account. All such Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Bank of America, N.A. In the absence of such written direction, all funds in
the Par Price Account shall be invested by the Trustee in The Bank of New York
cash reserves. Any losses incurred in the Par Price Account in respect of any
such investments shall be charged against amounts on deposit in the Par Price
Account (or such investments) immediately as realized. The Trustee shall not
be liable for the amount of any loss incurred in respect of any investment or
lack of investment of funds held in the Par Price Account and made in
accordance with this Section 3.05. The Par Price Account will not constitute
an asset of any REMIC created hereunder.
(j) The Trustee shall establish and maintain, on behalf of the Auction
Administrator the Auction Proceeds Account and shall administer it in
accordance with the Auction Administration Agreement. All funds on deposit in
the Auction Proceeds 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.
All funds deposited in the Auction Proceeds Account shall be held by the
Trustee in trust for the Holders of the Auction Certificates until disbursed
in accordance with this Agreement or the Auction Administration Agreement.
Funds in the Auction Proceeds Account may not be invested. The Auction
Proceeds Account will not constitute an asset of any REMIC created hereunder.
SECTION 3.06. Collection of Taxes, Assessments and Similar Items; Escrow
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Accounts.
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(a) To the extent required by the related Mortgage Note and not violative
of current law, the Master Servicer shall establish and maintain one or more
accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by the Master Servicer) for the
payment of taxes, assessments, hazard insurance premiums or
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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.
SECTION 3.07. Access to Certain Documentation and Information Regarding
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the Mortgage Loans.
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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
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Distribution Account, the Carryover Shortfall Reserve Fund and Corridor
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Contract Reserve Fund.
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(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,
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earnings on or investment income with respect to funds in or credited to
the Certificate Account;
(ii) to reimburse each of the Master Servicer and the Trustee for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made;
(iii) to reimburse each of the Master Servicer and the Trustee for
any Nonrecoverable Advance previously made by it;
(iv) to reimburse the Master Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed Servicing
Advances, the Master Servicer's right to reimbursement pursuant to this
clause (a) with respect to any Mortgage Loan being limited to amounts
received on such Mortgage Loan(s) that represent late recoveries of the
payments for which such advances were made pursuant to Section 3.01 or
Section 3.06 and (b) for unpaid Master Servicing Fees as provided in
Section 3.11;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02, 2.03 or 3.11, all amounts received on such Mortgage Loan
after the date of such purchase;
(vii) to reimburse the Sellers, the Master Servicer or the Depositor
for expenses incurred by any of them and reimbursable pursuant to Section
6.03;
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited in the Certificate Account;
(ix) on or prior to the Distribution Account Deposit Date, to
withdraw an amount equal to the related Available Funds and the Trustee
Fee for such Distribution Date and remit such amount to the Trustee for
deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon termination
of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Certificate
Account pursuant to subclause (iii), the Master Servicer shall deliver to the
Trustee an Officer's Certificate of a Servicing Officer indicating the amount
of any previous Advance determined by the Master Servicer to be a
Nonrecoverable Advance and identifying the related Mortgage Loans(s), and
their respective portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that
it is authorized to withhold pursuant to the last
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paragraph of Section 8.11). In addition, the Trustee may from time to time
make withdrawals from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution
Date;
(ii) to pay to the Master Servicer as additional servicing
compensation, earnings on or the investment income with respect to funds
in the Distribution Account;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein;
(iv) to reimburse the Trustee for any unreimbursed Advances made by
it pursuant to Section 4.01(b) hereof, such right of reimbursement
pursuant to this subclause (iv) being limited to (x) amounts received on
the related Mortgage Loan(s) in respect of which any such Advance was
made and (y) amounts not otherwise reimbursed to the Trustee pursuant to
Section 3.08(a)(ii) hereof;
(v) to reimburse the Trustee for any Nonrecoverable Advance
previously made by the Trustee pursuant to Section 4.01(b) hereof, such
right of reimbursement 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) The Trustee shall withdraw funds from the Carryover Shortfall Reserve
Fund for distribution to the LIBOR Certificates and the Notional Amount
Components in the manner specified in Section 4.02(a)(8) (and to withhold from
the amounts so withdrawn the amount of any taxes that it is authorized to
retain pursuant to the last paragraph of Section 8.11). In addition, the
Trustee may from time to time make withdrawals from the Carryover Shortfall
Reserve Fund for the following purposes:
(i) to withdraw any amount deposited in the Carryover Shortfall
Reserve Fund and not required to be deposited therein; and
(ii) to clear and terminate the Carryover Shortfall Reserve Fund
upon the retirement of the LIBOR Certificates, the Notional Amount
Certificates and the Notional Amount Components pursuant to Section 9.01.
(d) The Trustee shall withdraw funds from the Corridor Contract Reserve
Fund for distribution to the Class 2-A-1, Class 2-A-2, Class 2-A-3, Class
4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1 and Class II-B-2 Certificates
in the manner specified in Section 4.09 (and to withhold from the amounts so
withdrawn the amount of any taxes that it is authorized to retain pursuant to
the last paragraph of Section 8.11). In addition, the Trustee may from time to
time make withdrawals from the Corridor Contract Reserve Fund for the
following purposes:
(i) to withdraw any amount deposited in the Corridor Contract
Reserve Fund and not required to be deposited therein; and
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(ii) to clear and terminate the Corridor Contract Reserve Fund upon
the earlier of (i) the last Corridor Contract Scheduled Termination Date
and (ii) the termination of this Agreement pursuant to Section 9.01.
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
-------------------------------------------------------
Insurance Policies.
------------------
(a) The Master Servicer shall cause to be maintained, for each Mortgage
Loan, hazard insurance with extended coverage in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (y) the outstanding
principal balance of the Mortgage Loan, including any Deferred Interest, and
(z) an amount such that the proceeds of such policy shall be sufficient to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer. Each
such policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any
amounts collected by the Master Servicer under any such policies (other than
the amounts to be applied to the restoration or repair of the related
Mortgaged Property or amounts released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures) shall be deposited in the
Certificate Account. Any cost incurred by the Master Servicer in maintaining
any such insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for
their benefit, be added to the principal balance of the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs
shall be recoverable by the Master Servicer out of late payments by the
related Mortgagor or out of liquidation proceeds 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.
(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
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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 liquidation
proceeds and Subsequent Recoveries.
(c) In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present on behalf of itself, the Trustee
and Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Master Servicer under
any Primary Insurance Policies shall be deposited in the Certificate Account.
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements.
---------------------------------------------------------
(a) Except as otherwise provided in this Section, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of such conveyance, enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing, the Master
Servicer is not required to exercise such rights with respect to a Mortgage
Loan if the Person to whom the related Mortgaged Property has been conveyed or
is proposed to be conveyed satisfies the terms and conditions contained in the
Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under such Mortgage Note or Mortgage is not otherwise so required under such
Mortgage Note or Mortgage as a condition to such transfer. In the event that
the Master Servicer is prohibited by law from enforcing any such due-on-sale
clause, or if coverage under any Required Insurance Policy would be adversely
affected, or if nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3.10(b), to take or enter into an
assumption and modification agreement from or with the person to whom such
property has been or is about to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon, provided that the Mortgage
Loan shall continue to be covered (if so covered before the Master Servicer
enters such agreement) by the applicable Required Insurance Policies. The
Master Servicer, subject to Section 3.10(b), is also authorized with the prior
approval of the insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is substituted
as Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Master Servicer shall not be deemed to be in default under this
Section by reason of any transfer or assumption which the Master Servicer
reasonably believes it is restricted by law from preventing, for any reason
whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.10(a), 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
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signature of the Trustee, or if an instrument of release signed by the Trustee
is required releasing the Mortgagor from liability on the Mortgage Loan, the
Master Servicer shall prepare and deliver or cause to be prepared and
delivered to the Trustee for signature and shall direct, in writing, the
Trustee to execute the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. In connection with
any such assumption, no material term of the Mortgage Note may be changed. In
addition, the substitute Mortgagor and the Mortgaged Property must be
acceptable to the Master Servicer in accordance with its underwriting
standards as then in effect. Together with each such substitution, assumption
or other agreement or instrument delivered to the Trustee for execution by it,
the Master Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed by forwarding
to the Trustee the original of such substitution or assumption agreement,
which in the case of the original shall be added to the related Mortgage File
and shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Master Servicer for entering into an
assumption or substitution of liability agreement will be retained by the
Master Servicer as additional servicing compensation.
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of
--------------------------------------------------------
Certain Mortgage Loans.
----------------------
(a) The Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
In connection with such foreclosure or other conversion, the Master Servicer
shall follow such practices and procedures as it shall deem necessary or
advisable and as shall be normal and usual in its general mortgage servicing
activities and meet the requirements of the insurer under any Required
Insurance Policy; provided, however, that the Master Servicer shall not be
required to expend its own funds in connection with any foreclosure or towards
the restoration of any property unless it shall determine (i) that such
restoration and/or foreclosure will increase the proceeds of liquidation of
the Mortgage Loan after reimbursement to itself of such expenses and (ii) that
such expenses will be recoverable to it through Liquidation Proceeds and
Subsequent Recoveries (respecting which it shall have priority for purposes of
withdrawals from the Certificate Account). The Master Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement of
such costs and expenses from the liquidation proceeds 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
75
the Mortgaged Property, consider such risks and only take action in accordance
with its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Certificateholders,
or its nominee, on behalf of the Certificateholders. The Trustee's name shall
be placed on the title to such REO Property solely as the Trustee hereunder
and not in its individual capacity. The Master Servicer shall ensure that the
title to such REO Property references the Pooling and Servicing Agreement and
the Trustee's capacity thereunder. Pursuant to its efforts to sell such REO
Property, the Master Servicer shall either itself or through an agent selected
by the Master Servicer protect and conserve such REO Property in the same
manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of
the interests of the Certificateholders, rent the same, or any part thereof,
as the Master Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO Property. The
Master Servicer shall prepare for and deliver to the Trustee a 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.
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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 pursuant to Section
3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in which
such amounts are required to be distributed; and fifth, as a recovery of
principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation
of a Liquidated Mortgage Loan will be retained by the Master Servicer as
additional servicing compensation pursuant to Section 3.14.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Trust Fund any Mortgage Loan that is 151
days or more delinquent at a price equal to the Purchase Price; provided,
however, that the Master Servicer may only exercise this right on or before
the next to the last day of the calendar month in which such Mortgage Loan
became 151 days delinquent (such month, the "Eligible Repurchase Month");
provided further, that any such Mortgage Loan that becomes current but
thereafter becomes delinquent may be purchased by the Master Servicer pursuant
to this Section in any ensuing Eligible Repurchase Month. The 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
77
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) The Master Servicer may agree to a modification of any Mortgage Loan
(the "Modified Mortgage Loan") if (i) the modification is in lieu of a
refinancing, (ii) the Mortgage Rate on the Modified Mortgage Loan is
approximately a prevailing market rate for newly-originated mortgage loans
having similar terms and (iii) the Master Servicer purchases the Modified
Mortgage Loan from the Trust Fund as described below. Effective immediately
after the modification, and, in any event, on the same Business Day on which
the modification occurs, all interest of the Trustee in the Modified Mortgage
Loan shall automatically be deemed transferred and assigned to the Master
Servicer and all benefits and burdens of ownership thereof, including the
right to accrued interest thereon from the date of modification and the risk
of default thereon, shall pass to the Master Servicer. The Master Servicer
shall promptly deliver to the Trustee a certification of a Servicing Officer
to the effect that all requirements of this paragraph have been satisfied with
respect to the Modified Mortgage Loan. For federal income tax purposes, the
Trustee shall account for such purchase as a prepayment in full of the
Modified Mortgage Loan.
The Master Servicer shall deposit the Purchase Price for any Modified
Mortgage Loan in the Certificate Account pursuant to Section 3.05 within one
Business Day after the purchase of the Modified Mortgage Loan. Upon receipt by
the Trustee of written notification of any such deposit signed by a Servicing
Officer, the Trustee shall release to the Master Servicer the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the Master
Servicer any Modified Mortgage Loan previously transferred and assigned
pursuant hereto. The Master Servicer covenants and agrees to indemnify the
Trust Fund against any liability for any "prohibited transaction" taxes and
any related interest, additions, and penalties imposed on the Trust Fund
established hereunder as a result of any modification of a Mortgage Loan
effected pursuant to this subsection (b), any holding of a Modified Mortgage
Loan by the Trust Fund or any purchase of a Modified Mortgage Loan by the
Master Servicer (but such obligation shall not prevent the Master Servicer or
any other appropriate Person from in good faith contesting any such tax in
appropriate proceedings and shall not prevent the Master Servicer from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The Master Servicer shall have no right of reimbursement
for any amount paid pursuant to the foregoing indemnification, except to the
extent that the amount of any tax, interest, and penalties, together with
interest thereon, is refunded to the Trust Fund or the Master Servicer.
78
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.
-----------------------------------------------
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately
notify the Trustee by delivering, or causing to be delivered a "Request for
Release" substantially in the form of Exhibit N of this Agreement. Upon
receipt of such request, the Trustee shall promptly release the related
Mortgage File to the Master Servicer, and the Trustee shall at the Master
Servicer's direction execute and deliver to the Master Servicer the request
for reconveyance, deed of reconveyance or release or satisfaction of mortgage
or such instrument releasing the lien of the Mortgage in each case provided by
the Master Servicer, together with the Mortgage Note with written evidence of
cancellation on the Mortgage Note. The Master Servicer is authorized to cause
the removal from the registration on the MERS(R) 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.
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
79
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 for each Aggregate Loan
Group, if any, with respect to such Distribution Date, but not to exceed the
related Compensating Interest for each Aggregate Loan Group 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 penalties, assumption fees, late payment charges and all income and
gain net of any losses realized from Permitted Investments shall be retained
by the Master Servicer to the extent not required to be deposited in the
Certificate Account pursuant to Section 3.05. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its master
servicing activities hereunder (including payment of any premiums for hazard
insurance and any Primary Insurance Policy and maintenance of the other forms
of insurance coverage required by this Agreement) and shall not be entitled to
reimbursement therefor except as specifically provided in this Agreement.
SECTION 3.15. Access to Certain Documentation.
-------------------------------
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Certificateholders and/or
Certificate Owners and the examiners and supervisory agents of the OTS, the
FDIC and such other authorities, access to the documentation regarding the
Mortgage Loans required by applicable regulations of the OTS and the FDIC.
Such access shall be afforded without charge, but only upon reasonable and
prior written request and during normal business hours at the offices
designated by the Master Servicer. Nothing in this Section shall limit the
obligation of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of the
Master Servicer to provide access as provided in this Section as a result of
such obligation shall not constitute a breach of this Section.
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SECTION 3.16. Annual Statement as to Compliance.
---------------------------------
The Master Servicer shall deliver to the Depositor and the Trustee on or
before 80 days after the end of the Master Servicer's fiscal year, commencing
with its 2005 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer during the
preceding calendar year and of the performance of the Master Servicer under
this Agreement has been made under such officer's supervision and (ii) to the
best of such officer's knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. The Trustee shall forward a copy of each such statement to each
Rating Agency.
SECTION 3.17. Annual Independent Public Accountants' Servicing Statement;
-----------------------------------------------------------
Financial Statements.
--------------------
On or before 80 days after the end of the Master Servicer's fiscal year,
commencing with its 2005 fiscal year, the Master Servicer at its expense shall
cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, a
Seller or any affiliate thereof) which is a member of the American Institute
of Certified Public Accountants to furnish a statement to the Trustee and the
Depositor to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement
or of mortgage loans under pooling and servicing agreements substantially
similar to this Agreement (such statement to have attached thereto a schedule
setting forth the pooling and servicing agreements covered thereby) and that,
on the basis of such examination, conducted substantially in compliance with
the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC, such servicing has been
conducted in compliance with such pooling and servicing agreements except for
such significant exceptions or errors in records that, in the opinion of such
firm, the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC requires it to report. In
rendering such statement, such firm may rely, as to matters relating to direct
servicing of mortgage loans by Subservicers, upon comparable statements for
examinations conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FNMA and FHLMC (rendered within one year of such statement) of
independent public accountants with respect to the related Subservicer. Copies
of such statement shall be provided by the Trustee to any Certificateholder
upon request at the Master Servicer's expense, provided that such statement is
delivered by the Master Servicer to the Trustee.
SECTION 3.18. Errors and Omissions Insurance; Fidelity Bonds.
----------------------------------------------
The Master Servicer shall for so long as it acts as master servicer under
this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA or FHLMC for
persons performing servicing for mortgage loans purchased by FNMA or FHLMC. In
the event that any such policy
81
or bond ceases to be in effect, the Master Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer, meeting the requirements
set forth above as of the date of such replacement.
SECTION 3.19. Notification of Adjustments.
---------------------------
On each Adjustment Date, the Master Servicer shall make interest rate
and/or monthly payment adjustments for each Mortgage Loan in compliance with
the requirements of the related Mortgage and Mortgage Note and applicable
regulations. The Master Servicer shall execute and deliver the notices
required by each Mortgage and Mortgage Note and applicable regulations
regarding interest rate and/or monthly payment adjustments. The Master
Servicer also shall provide timely notification to the Trustee of all
applicable data and information regarding such interest rate or monthly
payment adjustments and the Master Servicer's methods of implementing such
adjustments. Upon the discovery by the Master Servicer or the Trustee that the
Master Servicer has failed to adjust or has incorrectly adjusted a Mortgage
Rate or a monthly payment pursuant to the terms of the related Mortgage Note
and Mortgage, the Master Servicer shall immediately deposit in the Certificate
Account from its own funds the amount of any interest and/or principal loss
caused thereby without reimbursement therefor; provided, however, the Master
Servicer shall be held harmless with respect to any interest rate and/or
monthly payment adjustments made by any servicer prior to the Master Servicer.
SECTION 3.20. Corridor Contracts.
------------------
The Master Servicer shall cause Bank of America LLC (or its relevant
affiliate) to assign all of its right, title and interest in and to the
Corridor Contracts to, and shall cause all of Bank of America LLC's
obligations in respect of such transaction to be assumed by, the Trustee on
behalf of the Trust Fund, on the terms and conditions set forth in the
Assignment Agreement. The Corridor Contracts will be assets of the Trust Fund
but will not be assets of any REMIC. The Master Servicer, on behalf of the
Trustee, shall cause to be deposited any amounts received from time to time
with respect to the Corridor Contracts into the Corridor Contract Reserve
Fund.
The Master Servicer, on behalf of the Trustee, shall, upon receipt of
direction from Bank of America LLC., prepare and deliver any notices required
to be delivered under the Corridor Contracts.
The Master Servicer, on behalf of the Trustee, shall act as calculation
agent and/or shall terminate the Corridor Contracts, in each case upon the
occurrence of certain events of default or termination events to the extent
specified thereunder. Upon any such termination, the Corridor Contract
Counterparty will be obligated to pay the Trustee, for the benefit of the
Trust Fund, an amount in respect of such termination. Any amounts received by
the Trustee for the benefit of the Trust Fund in respect of such termination
shall be deposited and held in the Corridor Contract Reserve Fund and applied
on future Distribution Dates to pay any Carryover Shortfall Amounts on the
Class of Certificates related to that Corridor Contract. Any amounts remaining
in the Corridor Contract Reserve Fund related to a particular Corridor
Contract, after the Class Certificate Balance of the Certificates related to
that Corridor Contract have been reduced to zero, will be distributed to Bank
of America Securities LLC.
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ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances.
--------
(a) The Master Servicer shall determine on or before each Master Servicer
Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make
an Advance, it shall, on or before the Master Servicer Advance Date, either
(i) deposit into the Certificate Account an amount equal to the Advance or
(ii) make an appropriate entry in its records relating to the Certificate
Account that any Amount Held for Future Distribution has been used by the
Master Servicer in discharge of its obligation to make any such Advance. Any
funds so applied shall be replaced by the Master Servicer by deposit in the
Certificate Account no later than the close of business on the next Master
Servicer Advance Date. The Master Servicer shall be entitled to be reimbursed
from the Certificate Account for all Advances of its own funds made pursuant
to this Section as provided in Section 3.08. The obligation to make Advances
with respect to any Mortgage Loan shall continue if such Mortgage Loan has
been foreclosed or otherwise terminated and the related Mortgaged Property has
not been liquidated.
(b) If the Master Servicer determines that it will be unable to comply
with its obligation to make the Advances as and when described in the second
sentence of Section 4.01(a), it shall use its best efforts to give written
notice thereof to the Trustee (each such notice a "Trustee Advance Notice";
and such notice may be given by telecopy), not later than 3:00 P.M., New York
time, on the Business Day immediately preceding the related Master Servicer
Advance Date, specifying the amount that it will be unable to deposit (each
such amount an "Advance Deficiency") and certifying that such Advance
Deficiency constitutes an Advance hereunder and is not a Nonrecoverable
Advance. If the Trustee receives a Trustee Advance Notice on or before 3:30
P.M., New York time on a Master Servicer Advance Date, the Trustee shall, not
later than 3:00 P.M., New York time, on the related Distribution Date, deposit
in the Distribution Account an amount equal to the Advance Deficiency
identified in such Trustee Advance Notice unless it is prohibited from so
doing by applicable law. Notwithstanding the foregoing, the Trustee shall not
be required to make such deposit if the Trustee shall have received written
notification from the Master Servicer that the Master Servicer has deposited
or caused to be deposited in the Certificate Account an amount equal to such
Advance Deficiency. All Advances made by the Trustee pursuant to this Section
4.01(b) shall accrue interest on behalf of the Trustee at the Trustee Advance
Rate from and including the date such Advances are made to but excluding the
date of repayment, with such interest being an obligation of the Master
Servicer and not the Trust Fund. The Master Servicer shall reimburse the
Trustee for the amount of any Advance made by the Trustee pursuant to this
Section 4.01(b) together with accrued interest, not later than the fifth day
following the related Master Servicer Advance Date. In the event that the
Master Servicer does not reimburse the Trustee in accordance with the
requirements of the preceding sentence, the Trustee shall 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.
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(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 and, with respect to each Distribution Date that is an Auction
Distribution Date, the Auction Administrator, 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, (ii) the amount of the related
Scheduled Payments and (iii) with respect to each Distribution Date that is an
Auction Distribution Date, the Par Price for each Auction Certificate. 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 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, first, to the
Class A-R Certificates, until its Class Certificate Balance is
reduced to zero, and second, to the Class 1-A-1 Certificates, until
its Class Certificate Balances is 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];
(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
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have been distributed in the absence of such shortfall; provided,
however, that the amount of interest otherwise distributable to the Class
2-X IO Component shall be deposited into the Carryover Shortfall Reserve
Fund and shall be distributed in accordance with Section 4.02(a)(8);
(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 sequentially, first
concurrently to the Class 2-A-1, Class 2-A-2 and Class 2-A-3
Certificates, pro rata, until their respective Class Certificate
Balances are reduced to zero, and second, to the Class 2-X P
Component, until its Component Principal Balance is reduced to zero;
(3) With respect to the Available Funds for Loan Group 3, 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 3 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 Group 3 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; provided, however, that the
amount of interest otherwise distributable to the Class 3-X IO Component
shall be deposited into the Carryover Shortfall Reserve Fund and shall be
distributed in accordance with Section 4.02(a)(8);
(iii) [Reserved];
(iv) to each Class of Group 3 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 3 for such
Distribution Date will be distributed sequentially, first to the
Class 3-A-1 Certificates, until its Class Certificate Balances is
reduced to zero, and second, to the Class 3-X P Component, until its
Component Principal Balance is reduced to zero;
(4) With respect to the Available Funds for Loan Group 4, on each
Distribution Date, the Trustee shall withdraw such Available Funds from the
Distribution Account and apply such
85
funds to distributions on the specified Classes of Group 4 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 Group 4 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; provided, however, that the
amount of interest otherwise distributable to the Class 4-X IO Component
shall be deposited into the Carryover Shortfall Reserve Fund and shall be
distributed in accordance with Section 4.02(a)(8);
(iii) [Reserved];
(iv) to each Class of Group 4 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 4 for such
Distribution Date will be distributed sequentially, first
concurrently to the Class 4-A-1 and Class 4-A-2 Certificates, pro
rata, until their respective Class Certificate Balances are reduced
to zero, and second, to the Class 4-X P Component, until its
Component Principal Balance is reduced to zero;
(5) On each Distribution Date, Available Funds from each Loan Group in
Aggregate Loan Group II remaining after making the distributions described in
Section 4.02(a)(2), Section 4.02(a)(3) and Section 4.02(a)(4) above, will be
distributed to each Class of the related Senior Certificates to the extent
provided in Section 4.05 hereof.
(6) On each Distribution Date, Available Funds from Aggregate Loan Group
I remaining after making the distributions described in Section 4.02(a)(1) and
Section 4.02(a)(4) above, will be distributed to the Group I 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 I-M-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(B) to the Class I-M-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(C) to the Class I-B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
86
(D) to the Class I-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 I-B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(F) to the Class I-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 I-B-3 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(H) to the Class I-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 I-B-4 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date; and
(J) to the Class I-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 I-B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(L) to the Class I-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; and
(M) to the Class A-R Certificates, any remaining funds related
to Aggregate Loan Group I.
(7) On each Distribution Date, Available Funds from Aggregate Loan Group
II remaining after making the distributions described in Section 4.02(a)(2),
Section 4.02(a)(3), Section 4.02(a)(4) and Section 4.02(a)(5) above, will be
distributed to the Group II 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 II-B-X Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date; provided, however, that the
amount of interest otherwise distributable to the Class II-B-X IO
Component shall be deposited into the
87
Carryover Shortfall Reserve Fund and shall be distributed in
accordance with Section 4.02(a)(8);
(B) to the Class II-B-X P Component, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Component Principal Balance thereof is reduced to zero;
(C) to the Class II-M-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 II-M-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Certificate Balance thereof is reduced to zero;
(E) to the Class II-B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(F) to the Class II-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;
(G) to the Class II-B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(H) to the Class II-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;
(I) to the Class II-B-3 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(J) to the Class II-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;
(K) to the Class II-B-4 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 II-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;
88
(M) to the Class II-B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date; and
(N) to the Class II-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; and
(O) to the Class A-R Certificates, any remaining funds related
to Aggregate Loan Group II.
(8) On each Distribution Date, any amounts deposited in the Carryover
Shortfall Reserve Fund pursuant to Sections 4.02(a)(2)(ii), 4.02(a)(3)(ii),
4.02(a)(4)(ii) and 4.02(a)(7)(A) hereof will be distributed after taking
account amounts paid for the Corridor Contract Reserve Fund, sequentially, in
the following order of priority:
(i) first, from amounts originally on deposit in the Carryover
Shortfall Reserve Fund, concurrently, to the Class 2-A-1, Class 2-A-2,
Class 2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1 and
Class II-B-2 Certificates, pro rata, based on the Carryover Shortfall
Amount for each such Class, in an amount up to their respective Carryover
Shortfall Amounts with respect to each such Class of Certificates; and
(ii) second,
(A) any amounts on deposit in the Carryover Shortfall Reserve
Fund otherwise payable to the Class 2-X IO Component on that
Distribution Date pursuant to Section 4.02(a)(2)(ii) will be
distributed, first, sequentially, to the Class 2-A-1, Class 2-A-2
and Class 2-A-3 Certificates, in that order, in an amount up to
their respective Carryover Shortfall Amounts and second, to the
Class 2-X Certificates;
(B) any amounts on deposit in the Carryover Shortfall Reserve
Fund otherwise payable to the Class 3-X IO Component on that
Distribution Date pursuant to Section 4.02(a)(3)(ii) will be
distributed, first, to the Class 3-A-1 Certificates, in an amount up
to its Carryover Shortfall Amounts and second, to the Class 3-X
Certificates;
(C) any amounts on deposit in the Carryover Shortfall Reserve
Fund otherwise payable to the Class 4-X IO Component on that
Distribution Date pursuant to Section 4.02(a)(4)(ii) will be
distributed, first, sequentially, to the Class 4-A-1 and Class 4-A-2
Certificates, in that order, in an amount up to their respective
Carryover Shortfall Amounts and second, to the Class 2-X
Certificates; and
(D) any amounts on deposit in the Carryover Shortfall Reserve
Fund otherwise payable to the Class II-B-X IO Component on that
Distribution Date pursuant to Section 4.02(a)(7)(A) will be
distributed, first, sequentially, to the Class II-M-1, Class II-B-1
and Class II-B-2 Certificates, in that order, in an
89
amount up to their respective Carryover Shortfall Amounts and second
to the Class II-B-X Certificates;
(b) [Reserved].
(c) [Reserved].
(d) On each Distribution Date, the amount referred to in clause (i) of
the definition of Class Optimal Interest Distribution Amount for each Class of
Certificates or Component thereof for such Distribution Date shall be reduced
for each Class or Component of Senior Certificates of a Senior Certificate
Group, each related Class of Subordinated Certificates by (i) the related
Class' pro rata share of the Net Prepayment Interest Shortfalls for the
related Loan Group based (x) with respect to a Class of Senior Certificates or
Component thereof, on the related Class Optimal Interest Distribution Amount
for such Distribution Date, and (y) with respect to the Group II Subordinated
Certificates on and prior to the related second Senior Termination Date on the
Assumed Interest Amount or after the second Senior Termination Date, the
related Class Optimal Interest Distribution Amount for such Distribution Date
in the absence of such Net Prepayment Interest Shortfalls, and (ii) the
related Class' Allocable Share of (A) with respect to each Mortgage Loan in
the related Loan Group (or after the related Senior Credit Support Depletion
Date, any Mortgage Loan in Aggregate Loan Group I or any Mortgage Loan in
Aggregate Loan Group II, as applicable) 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, (B) each
Relief Act Reduction for the Mortgage Loans in the related Loan Group (or
after the related Senior Credit Support Depletion Date, any Mortgage Loan in
Aggregate Loan Group I or any Mortgage Loan in Aggregate Loan Group II, as
applicable) incurred during the calendar month preceding the month of such
Distribution Date.
(e) Notwithstanding the priority and allocation contained in Section
4.02(a)(6), if, on any Distribution Date, with respect to any Class of Group I
Subordinated Certificates (other than the Class of Group I 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 Group I 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
Group I 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)(6). Notwithstanding
anything in this Agreement to the contrary, the Class of Group I Subordinated
Certificates then outstanding with the highest distribution priority shall not
be a Restricted Class.
Notwithstanding the priority and allocation contained in Section
4.02(a)(7), if, on any Distribution Date, with respect to any Class of Group
II Subordinated Certificates (other than the Class of Group II Subordinated
Certificates then outstanding with the highest priority of distribution), the
Applicable Credit Support Percentage for a Class of Group II Subordinated
Certificates is less than the Original Applicable Credit Support Percentage
for such Class, no distribution of Net Prepayments will be made to any such
Classes (the "Restricted Classes") and
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the amount of such Net Prepayments, otherwise distributable to the Restricted
Classes shall be distributed to any Classes of Group II 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)(7). Notwithstanding anything in this Agreement to
the contrary, the Class of Group II Subordinated Certificates then outstanding
with the highest distribution priority shall not be a Restricted Class.
(f) If Subsequent Recoveries have been received with respect to a
Liquidated Mortgage Loan in an Aggregate Loan Group, the amount of such
Subsequent Recoveries will be applied sequentially, in the order of payment
priority to increase the Class Certificate Balance or Component Principal
Balance of each Class of Certificates or Component thereof related to that
Aggregate Loan Group to which Realized Losses have been allocated, but in each
case by not more than the amount of Realized Losses previously allocated to
that Class of Certificates or Component pursuant to Section 4.04. Holders of
such Certificates will not be entitled to any payment in respect of the Class
Optimal Interest Distribution Amount on the amount of such increases for any
Interest Accrual Period preceding the Distribution Date on which such increase
occurs. Any such increases shall be applied pro rata to the Certificate
Balance or Component Balance of each Certificate of such Class or Component
thereof.
SECTION 4.03. Allocation of Net Deferred Interest.
-----------------------------------
(a) For any Distribution Date, the Net Deferred Interest on the Mortgage
Loans in Loan Group 2 will be allocated among the Class 2-A-1, Class 2-A-2,
Class 2-A-3 and Class 2-X Certificates and the Group II Subordinated
Certificates as follows:
(i) the related Senior Percentage of the Net Deferred Interest will
be allocated sequentially as follows: first to the Class 2-X Certificates
to the extent of their interest entitlement (prior to any reduction for
Net Deferred Interest), and second, to the Class 2-A-1, Class 2-A-2 and
Class 2-A-3 Certificates, pro rata, based on and to the extent of their
interest entitlements (prior to any reduction for Net Deferred Interest)
on such Distribution Date, and
(ii) the related Subordinated Percentage of Net Deferred Interest
will be allocated among the Group II Subordinated Certificates
sequentially as follows: first to the Class II-B-X Certificates based on
and to the extent of the portion of their interest entitlement (prior to
any reduction for Net Deferred Interest) attributable to the related
Subordinated Portion, and second, to the Class II-M-1, Class II-B-1 and
Class II-B-2 Certificates, pro rata, based on and to the extent of the
portions of their respective interest entitlements (prior to any
reduction for Net Deferred Interest) attributable to the related
Subordinated Portion.
(b) For any Distribution Date, the Net Deferred Interest on the Mortgage
Loans in Loan Group 3 will be allocated among the Class 3-A-1 and Class 3-X
Certificates and the Group II Subordinated Certificates as follows:
(i) the related Senior Percentage of the Net Deferred Interest will
be allocated sequentially as follows: first to the Class 3-X Certificates
to the extent of their interest
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entitlement (prior to any reduction for Net Deferred Interest), and
second, to the Class 3-A-1 Certificates, to the extent of their interest
entitlement (prior to any reduction for Net Deferred Interest) on such
Distribution Date, and
(ii) the related Subordinated Percentage of Net Deferred Interest
will be allocated among the Group II Subordinated Certificates
sequentially as follows: first to the Class II-B-X Certificates based on
and to the extent of the portion of their interest entitlement (prior to
any reduction for Net Deferred Interest) attributable to the related
Subordinated Portion, and second, to the Class II-M-1, Class II-B-1 and
Class II-B-2 Certificates, pro rata, based on and to the extent of the
portions of their respective interest entitlements (prior to any
reduction for Net Deferred Interest) attributable to the related
Subordinated Portion.
(c) For any Distribution Date, the Net Deferred Interest on the Mortgage
Loans in Loan Group 4 will be allocated among the Class 4-A-1, Class 4-A-2 and
Class 4-X Certificates and the Group II Subordinated Certificates as follows:
(i) the related Senior Percentage of the Net Deferred Interest will
be allocated sequentially as follows: first to the Class 4-X Certificates
to the extent of their interest entitlement (prior to any reduction for
Net Deferred Interest), and second, to the Class 4-A-1 and Class 4-A-2
Certificates, pro rata, based on and to the extent of their interest
entitlements (prior to any reduction for Net Deferred Interest) on such
Distribution Date, and
(ii) the related Subordinated Percentage of Net Deferred Interest
will be allocated among the Group II Subordinated Certificates
sequentially as follows: first to the Class II-B-X Certificates based on
and to the extent of the portion of their interest entitlement (prior to
any reduction for Net Deferred Interest) attributable to the related
Subordinated Portion, and second, to the Class II-M-1, Class II-B-1 and
Class II-B-2 Certificates, pro rata, based on and to the extent of the
portions of their respective interest entitlements (prior to any
reduction for Net Deferred Interest) attributable to the related
Subordinated Portion.
(d) Any Net Deferred Interest allocated to a Class or Component shall be
added to the Class Certificate Balance of such Class except that any Net
Deferred Interest allocated to a Class X IO Component shall be added to the
Component Principal Balance of the related Class XP Component.
SECTION 4.04. Allocation of Realized Losses.
-----------------------------
(a) On or prior to each Determination Date, the Trustee shall determine
the total amount of Realized Losses, including Excess Losses, with respect to
the related Distribution Date.
Realized Losses with respect to any Distribution Date shall be allocated
as follows:
(i) [Reserved];
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(ii) (1) any Realized Loss on the Mortgage Loans in Aggregate Loan
Group I shall be allocated first, to the Group I Subordinated
Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Group I 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 Group I Senior Certificates
(other than any Notional Amount Certificates), pro rata, on the basis of
their respective Class Certificate Balances immediately prior to the
related Distribution Date until the respective Class Certificate Balance
of each such Class is reduced to zero and (2) any Realized Loss on the
Mortgage Loans in a Loan Group in Aggregate Loan Group II shall be
allocated first, to the Group II Subordinated Certificates in reverse
order of their respective numerical Class designations (beginning with
the Class of Group II 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 or Components, if applicable), pro
rata, on the basis of their respective Class Certificate Balances
immediately prior to the related Distribution Date until the respective
Class Certificate Balance of each such Class is reduced to zero;
provided, however, that any Realized Losses on the Mortgage Loans in Loan
Group 2, otherwise allocable to the Class 2-A-1 and Class 2-A-2
Certificates shall be allocated instead to the Class 2-A-3 Certificates,
until its Class Certificate Balance is reduced to zero, thereafter, any
Realized Losses on the Mortgage Loans in Loan Group 2, otherwise
allocable to the Class 2-A-1 Certificates shall be allocated instead to
the Class 2-A-2 Certificates, until its Class Certificate Balance is
reduced to zero; and any Realized Losses on the Mortgage Loans in Loan
Group 4, otherwise allocable to the Class 4-A-1 Certificates shall be
allocated instead to the Class 4-A-2 Certificates, until its Class
Certificate Balance is reduced to zero; and
(b) The Class Certificate Balance of the Class of Group I Subordinated
Certificates and Group II Subordinated Certificates, as applicable, then
outstanding with the highest numerical Class designation shall be reduced on
each Distribution Date by the amount, if any, by which the aggregate Class
Certificate Balance of all outstanding Classes of Certificates in the related
Aggregate Certificate Group (after giving effect to the distribution of
principal and the allocation of Realized Losses on such Distribution Date)
exceeds the Pool Stated Principal Balance of the applicable Aggregate Loan
Group as of the last day of the Due Period related to such Distribution Date
(after giving effect to Principal Prepayments in the related Prepayment
Period).
(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 or Subordinated
Portion thereof, 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.
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For purposes of allocating losses to the Group II Subordinated
Certificates, the Class II-B-X P Component will be considered to have a lower
numerical class designation than the Class II-M-1 Certificates and each other
Class of Group II Subordinated Certificates.
SECTION 4.05. Cross-Collateralization; Adjustments to Available Funds
-------------------------------------------------------
On each Distribution Date prior to the earlier of the Senior Credit
Support Depletion Date related to the Group II Senior Certificates and the
related second Senior Termination Date, but after a Senior Termination Date
for a Senior Certificate Group related to a Loan Group in Aggregate Loan Group
II, the Trustee shall distribute the principal portion of Available Funds on
the Mortgage Loans relating to that Senior Certificate Group that will have
been paid in full to the holders of the Senior Certificates of the other
Certificate Groups related to Aggregate Loan Group II, pro rata, based on
Class Certificate Balances, provided, however, that the Trustee shall not make
such distribution on such Distribution Date if (a) the Aggregate Subordinated
Percentage for the Group II Subordinated Certificates for that Distribution
Date is greater than or equal to 200% of the related Aggregate Subordinated
Percentage as of the Closing Date and (b) the average aggregate Stated
Principal Balance of the Mortgage Loans in Aggregate Loan Group I delinquent
60 days or more over the last six months, as a percentage of the aggregate
Class Certificate Balance of the Group II Subordinated Certificates, is less
than 50%.
If on any Distribution Date the aggregate Class Certificate Balance of
the Senior Certificates in a Senior Certificate Group related to a Loan Group
in Aggregate Loan Group II is greater than the aggregate Stated Principal
Balance of the Mortgage Loans in that Loan Group as of the first day of the
related Due Period (the "Undercollateralized Group"), then the Trustee shall
reduce the Available Funds of the other related Loan Groups in Aggregate Loan
Group II that are not undercollateralized (the "Overcollateralized Groups"),
as follows:
(1) to add to the Available Funds of each Undercollateralized Group in
Aggregate Loan Group II an amount equal to the lesser of (a) one month's
interest on the Transfer Payment of each Undercollateralized Group at the
Weighted Average Adjusted Net Mortgage Rate applicable to the
Undercollateralized Group(s) and (b) Available Funds of the
Overcollateralized Group(s) in Aggregate Loan Group II remaining after
making distributions to the Certificates of such Overcollateralized
Group(s) on such Distribution Date pursuant to Section 4.02; and
(2) to the related Senior Certificates of each Undercollateralized Group
in Aggregate Loan Group II, to the extent of the principal portion of
Available Funds of the Overcollateralized Group(s) in Aggregate Loan
Group II remaining after making distributions to the Senior Certificates
of such Overcollateralized Group(s) on such Distribution Date pursuant to
Section 4.02, until the aggregate Class Certificate Balance of the Senior
Certificates of each such Undercollateralized Group(s) equals the
aggregate Stated Principal Balance of the Mortgage Loans in the related
Loan Group(s)
If more than one Overcollateralized Group in Aggregate Loan Group II is
required to make a Transfer Payment Made on any Distribution Date, such
Transfer Payments shall be allocated among such Loan Groups, pro rata, on the
basis of the aggregate Class Certificate Balance of the related Senior
Certificates. If more than one Undercollateralized Group in Aggregate Loan
Group II is required to make a Transfer Payment Made on any Distribution
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Date, such Transfer Payments shall be allocated among such Loan Groups, pro
rata, on the basis of the aggregate Class Certificate Balance of the related
Senior Certificates. The amount of principal from the Mortgage Loans in a Loan
Group in an Aggregate Loan Group that is distributed to the Holders of Senior
Certificates of an unrelated Loan Group in the same Aggregate Loan Group is
referred to as a "Transfer Payment." The Transfer Payment received by the
Undercollateralized Group is referred to as a "Transfer Payment Received." The
Transfer Payment made by the Overcollateralized Group is referred to as a
"Transfer Payment Made." No payments will be made between Aggregate Loan
Groups under any circumstances.
SECTION 4.06. Monthly Statements to Certificateholders.
----------------------------------------
(a) Concurrently with each distribution on a Distribution Date, the
Trustee will forward by electronic delivery to each Rating Agency and make
available to Certificateholders on the Trustee's website
(xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting forth the
following information:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments,
Liquidation Proceeds and Subsequent Recoveries included therein;
(ii) the amount thereof allocable to interest, any Class Unpaid
Interest Amounts included in such distribution and any remaining Class
Unpaid Interest Amounts after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest;
(iv) the Class Certificate Balance or Notional Amount of each Class
of Certificates after giving effect to the distribution of principal on
such Distribution Date;
(v) the Pool Stated Principal Balance of each Aggregate Loan Group
for the following Distribution Date;
(vi) the Senior Percentage and Subordinated Percentage for each Loan
Group for the following Distribution Date;
(vii) the amount of the Master Servicing Fees paid to or retained by
the Master Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each Class of Certificates with
respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
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(x) the number and aggregate principal amounts of Mortgage Loans in
each Loan Group and in the aggregate (A) delinquent (exclusive of
Mortgage Loans in foreclosure) (1) 1 to 30 days (2) 31 to 60 days (3) 61
to 90 days and (4) 91 or more days and (B) in foreclosure and delinquent
(1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more
days, as of the close of business on the last day of the calendar month
preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xii) the total number and principal balance of any REO Properties
in each Loan Group and in the aggregate (and market value, if available)
as of the close of business on the Determination Date preceding such
Distribution Date;
(xiii) the Senior Prepayment Percentage and Subordinated Prepayment
Percentage for each Loan Group for the following Distribution Date;
(xiv) the aggregate amount of Realized Losses in each Loan Group and
in the aggregate incurred during the preceding calendar month and the
aggregate amount of Subsequent Recoveries, if any, reducing the Realized
Losses from the preceding calendar months;
(xv) [Reserved];
(xvi) with respect to the second Distribution Date, the number and
aggregate balance of any Delay Delivery Mortgage Loans not delivered
within thirty days after the Closing Date;
(xvii) the amount of Net Deferred Interest added to the Class
Certificate Balance of any related Class of Certificates;
(xviii) the amount due, and the amount paid, under the Corridor
Contracts;
(xix) the amount paid to the Class 2-A-1, Class 2-A-2, Class 2-A-3,
Class 4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1 and Class II-B-2
Certificates from the Corridor Contract Reserve Fund pursuant to the
Corridor Contracts;
(xx) the amount paid from the Carryover Shortfall Reserve Amount and
the amount of Carryover Shortfall remaining unpaid; and
(xxi) the amount on deposit in the Corridor Contract Reserve Fund
for the following Distribution Date.
(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.
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(c) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day prior to
the related Distribution Date), the Master Servicer shall deliver to the
Trustee (which delivery may be by electronic data transmission) a report in
substantially the form set forth as Schedule VI to this Agreement.
(d) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(i), (a)(ii) and (a)(vii) of this Section
4.06 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
SECTION 4.07. [Reserved].
----------
SECTION 4.08. Determination of Pass-Through Rates for LIBOR Certificates.
----------------------------------------------------------
(a) On each Interest Determination Date so long as any LIBOR Certificates
are outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m. London time on
each LIBOR Determination Date. "Telerate Page 3750" means the display page
currently so designated on the Moneyline Telerate Service (formerly the Dow
Xxxxx Markets) (or such other page as may replace that page on that service
for the purpose of displaying comparable rates or prices).
(b) If on any Interest Determination Date, LIBOR cannot be determined as
provided in paragraph (A) of this Section 4.08, the Trustee shall either (i)
request each Reference Bank to inform the Trustee of the quotation offered by
its principal London office for making one-month United States dollar deposits
in leading banks in the London interbank market, as of 11:00 a.m. (London
time) on such Interest Determination Date or (ii) in lieu of making any such
request, rely on such Reference Bank quotations that appear at such time on
the Reuters Screen LIBO Page (as defined in the International Swap Dealers
Association Inc. Code of Standard Wording, Assumptions and Provisions for
Swaps, 1986 Edition), to the extent available. LIBOR for the next Interest
Accrual Period will be established by the Trustee on each interest
Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next applicable
Interest Accrual Period shall be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate per
annum which the Trustee determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 1/32%) of
the one-month United States dollar lending rates that New York City banks
selected by the Trustee are
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quoting, on the relevant Interest Determination Date, to the principal
London offices of at least two of the Reference Banks to which such
quotations are, in the opinion of the Trustee, being so made, or (ii) in
the event that the Trustee can determine no such arithmetic mean, the
lowest one-month United States dollar lending rate which New York City
banks selected by the Trustee are quoting on such Interest Determination
Date to leading European banks.
(iii) If on any Interest Determination Date the Trustee is required
but is unable to determine the Reserve Interest Rate in the manner
provided in paragraph (b) above, LIBOR for the related Classes of
Certificates shall be LIBOR as determined on the preceding applicable
Interest Determination Date or in the case of the first Distribution
Date, 2.850000%.
Until all of the LIBOR Certificates are paid in full, the Trustee will at
all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each Interest Determination Date. The Master Servicer
initially shall designate the Reference Banks. Each "Reference Bank" shall be
a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by, or be
under common control with, the Trustee and shall have an established place of
business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Master Servicer should terminate its appointment as
Reference Bank, the Trustee shall promptly appoint or cause to be appointed
another Reference Bank. The Trustee shall have no liability or responsibility
to any Person for (i) the selection of any Reference Bank for purposes of
determining LIBOR or (ii) any inability to retain at least four Reference
Banks which is caused by circumstances beyond its reasonable control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each Interest
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR Certificates,
any Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered
quotations (whether written, oral or on the Dow Xxxxx Markets) from the BBA
designated banks, the Reference Banks or the New York City banks as to LIBOR,
the Interest Settlement Rate or the Reserve Interest Rate, as appropriate, in
effect from time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee's selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City banks
or to determine such arithmetic mean, all as provided for in this Section
4.08.
The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
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SECTION 4.09. Distributions from the Corridor Contract Reserve Fund.
-----------------------------------------------------
On each Distribution Date amounts on deposit in the Corridor Contract
Reserve Fund will be withdrawn from the Corridor Contract Reserve Fund and
distributed sequentially in the following order of priority:
(a) From the $1,000 deposited pursuant to Section 3.05(h), to the Class
2-A-1, Class 2-A-2, Class 2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1, Class
II-B-1 and Class II-B-2 Certificates, pro rata, based on the amount of any
Carryover Shortfall Amount for such Distribution Date,
(b) On each Distribution Date on or prior to the date on which the Class
Certificate Balance of the related Class of Certificates is reduced to zero,
amounts received by the Trustee in respect of a Corridor Contract will be
withdrawn from the Corridor Contract Reserve Fund and distributed to the
related Class of Certificates, to the extent needed to pay any Carryover
Shortfall Amounts for such Distribution Date. Any remaining amounts received
on a Corridor Contract shall be held in the Corridor Contract Reserve Fund and
applied on future Distribution Dates to pay any Carryover Shortfall Amounts on
the related Class of Certificates.
(c) Any amounts received by the Trustee in respect of a Corridor Contract
remaining in the Corridor Contract Reserve Fund after the Class Certificate
Balance of the related Class of Certificates has been reduced to zero, will be
distributed to Bank of America Securities LLC.
SECTION 4.10. Auction Administration Agreement; Par Price Payment
---------------------------------------------------
Agreement; Mandatory Auction of the Auction Certificates.
--------------------------------------------------------
(a) Concurrently with the execution and delivery of this Agreement, at
the direction of the Depositor, the certificate registrar and the Trustee,
acting solely as Auction Administrator for the Holders of the Auction
Certificates and not as Trustee or on behalf of the Trust, shall execute and
deliver the Auction Administration Agreement, and the Auction Administrator
shall execute and deliver the Par Price Payment Agreement in the forms
presented. Neither the certificate registrar nor the Trustee shall have any
duty to review or otherwise determine the adequacy of the Auction
Administration Agreement or the Par Price Payment Agreement.
(b) Each Holder of an Auction Certificate is deemed, by acceptance of
such Certificate, (i) to authorize The Bank of New York to execute and deliver
the Auction Administration Agreement and the Par Price Payment Agreement as
its agent and (ii) to acknowledge and accept and agree to be bound by the
provisions of the Auction Administration Agreement and the Par Price Payment
Agreement. The certificate registrar shall be entitled to all protections,
indemnification and indemnities extended to the Trustee under this Agreement.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
----------------
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
Subject to Section 9.02 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.
100
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly
executed by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In
the event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer in
substantially the forms set forth in Exhibit J (the "Transferor Certificate")
and (i) deliver a letter in substantially the form of either Exhibit K (the
"Investment Letter") or Exhibit L (the "Rule 144A Letter") or (ii) there shall
be delivered to the Trustee at the expense of the transferor an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the Master
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably
request to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee and the Depositor, each Seller and the Master
Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and 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
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a representation letter from the transferee substantially in the form of
Exhibit K or Exhibit L, or in the event such Certificate is a Residual
Certificate, such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I), to the effect that (x) such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA or a plan or arrangement subject
to Section 4975 of the Code, or a person acting on behalf of any such plan or
arrangement, or using the assets of any such plan or arrangement to effect
such transfer or (y) in the case of a Certificate that is an ERISA-Restricted
Certificate and that has been the subject of an ERISA-Qualifying Underwriting,
a representation that the transferee is an insurance company which is
purchasing such 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 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.
In the case of any Auction Certificate presented for registration in the
name of any Person prior to the related Auction Distribution Date, the
prospective transferee shall be required to provide the Trustee and the
Depositor (A) an officer's certificate substantially in the form of Exhibit T
attached to this Agreement acceptable to and in form and substance
satisfactory to the Trustee and the Depositor, which officer's certificate
shall not be an expense of the Trust Fund, the Trustee, the Master Servicer or
the Depositor, and (B) only if such officer's certificate indicates that a
Benefit Plan Opinion is delivered in connection therewith, a Benefit Plan
Opinion.
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Notwithstanding the foregoing, a certification (and, if applicable, a
Benefit Plan Opinion) as described in this Section 5.02(b) will not be
required with respect to the transfer of any Auction Certificate to a
Depository, or for any subsequent transfer of any interest in an Auction
Certificate for so long as such Certificate is a Book-Entry Auction
Certificate. Any transferee of a Book-Entry Auction Certificate prior to the
related Auction Distribution Date will be deemed to have represented, by
virtue of its acquisition or holding of such Certificate (or interest
therein), that either (i) such transferee is not an employee benefit plan or
arrangement subject to the prohibited transaction provisions of ERISA or
Section 4975 of the Code, 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 (a
"Plan Investor"), or (ii) the acquisition and holding of such Certificate are
eligible for the exemptive relief available under Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00 xx XXXX 96-23.
If any Book-Entry Auction Certificate (or any interest therein) is
acquired or held in violation of the provisions of this Section 5.02(b), then
the last preceding transferee (i) that is not a Plan Investor or (ii) whose
acquisition and holding of such Certificate are eligible for the exemptive
relief available under XXXX 00-00, XXXX 91-38, XXXX 00-0, XXXX 95-60 or XXXX
00-00 xxxxx xx restored, to the extent permitted by law, to all rights and
obligations as beneficial Holder thereof retroactive to the date of transfer
of such Certificate by such preceding transferee. Neither the Trust Fund nor
the Trustee shall be under any liability to any Person for making any payments
due on such Certificate to such preceding transferee.
Any purported beneficial Holder whose acquisition or holding of any
Book-Entry Auction Certificate (or interest therein) was effected in violation
of the restrictions in this Section 5.02(b) shall indemnify and hold harmless
the Depositor, the Trustee, the Master Servicer, the Trust, the Underwriter
and the Par Price Payment Agreement Counterparty from and against any and all
liabilities, claims, costs or expenses incurred by such parties as a result of
such acquisition or holding.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been furnished with
an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached to this Agreement as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to
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obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of a
Residual Certificate and (C) not to Transfer its Ownership Interest in a
Residual Certificate or to cause the Transfer of an Ownership Interest in
a Residual Certificate to any other Person if it has actual knowledge
that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Residual Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Residual Certificate to any
Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Master Servicer or the Sellers, 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.
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(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and indirect participating
firms as representatives of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of holders under this
Agreement, and requests and directions for and votes of such representatives
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (vi) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants
with respect to indirect participating firms and persons shown on the books of
such indirect participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) after the occurrence of an Event
of Default, Certificate Owners representing at least 51% of the Certificate
Balance of the Book-Entry Certificates together advise the Trustee and the
Depository through the Depository Participants in writing that the
continuation of a book-entry system through the Depository is no longer in the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of definitive, fully-registered Certificates
(the "Definitive Certificates") to Certificate Owners requesting the same.
Upon surrender to the Trustee of the related Class of Certificates by the
Depository, accompanied by the instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Master Servicer, the Depositor nor the Trustee shall be liable for any delay
in delivery of such instruction and each may conclusively rely on, and shall
be protected in relying on, such instructions. The Master Servicer shall
provide the Trustee with an adequate inventory of certificates to facilitate
the issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates all references in this Agreement to obligations
imposed upon or to be performed by the Depository shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
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Each Definitive Certificate that is an Auction Certificate and is issued
before the related Auction Distribution Date shall bear the following legend:
PURSUANT TO THE AUCTION ADMINISTRATION AGREEMENT AND THE PAR PRICE
PAYMENT AGREEMENT (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
THE HOLDER OF THIS CERTIFICATE WILL BE REQUIRED TO SURRENDER THIS CERTIFICATE
PRIOR TO THE DISTRIBUTION DATE IN FEBRUARY 2008 TO THE CERTIFICATE REGISTRAR
FOR REGISTRATION OF TRANSFER TO A THIRD-PARTY INVESTOR, AND IN EXCHANGE
THEREFOR THE HOLDER OF THIS CERTIFICATE WILL RECEIVE, TO THE EXTENT RECEIVED
PURSUANT TO THE AUCTION ADMINISTRATION AGREEMENT AND THE PAR PRICE PAYMENT
AGREEMENT, THE PAR PRICE FOR THIS CERTIFICATE.
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
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Trustee, if any, and (y) assist the Depositor, the Master Servicer or such
Certificateholders and/or Certificate Owners at such recipients' expense with
obtaining from the Depository a list of the related Depository Participants
acting on behalf of Certificate Owners of Book Entry Certificates. The
Depositor and every Certificateholder and Certificate Owner, by receiving and
holding a Certificate or beneficial interest therein, agree that the Trustee
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders and/or Depository
Participants hereunder, regardless of the source from which such information
was derived.
SECTION 5.06. Maintenance of Office or Agency.
-------------------------------
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates
may be surrendered for registration of transfer or exchange. The Trustee
initially designates its Corporate Trust Office for such purposes. The Trustee
will give prompt written notice to the Certificateholders of any change in
such location of any such office or agency.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master
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Servicer.
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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.
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
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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.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
-----------------
"Event of Default," wherever used in this Agreement, means any one of the
following events:
(i) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment required to be made under the
terms of this Agreement, which failure shall continue unremedied for five
days after the date upon which written notice of such failure shall have
been given to the Master Servicer by the Trustee or the Depositor or to
the Master Servicer and the Trustee by the Holders of Certificates having
not less than 25% of the Voting Rights evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer contained in this Agreement, which failure materially
affects the rights of Certificateholders, that failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure shall have been given to the Master Servicer by the
Trustee or the Depositor, or to the Master Servicer and the Trustee by
the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates; provided, however, that the sixty
day cure period shall not apply to the initial delivery of the Mortgage
File for Delay Delivery Mortgage Loans nor the failure to substitute or
repurchase in lieu of delivery; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) the Master Servicer shall fail to reimburse in full the Trustee
within five days of the Master Servicer Advance Date for any Advance made
by the Trustee pursuant to Section 4.01(b) together with accrued and
unpaid interest.
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If an Event of Default described in clauses (i) to (vi) of this Section
shall occur with respect to an Aggregate Loan Group, then, and in each and
every such case, so long as such Event of Default shall not have been
remedied, the Trustee may, or at the direction of the Holders of Certificates
related to that Aggregate Loan Group evidencing not less than 66-2/3% of the
Voting Rights evidenced by such Certificates, the Trustee shall by notice in
writing to the Master Servicer (with a copy to each Rating Agency), terminate
all of the rights and obligations of the Master Servicer under this Agreement
with respect to that Aggregate Loan Group and in and to the related Mortgage
Loans and the proceeds thereof, other than its rights as a Certificateholder
hereunder. On and after the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer hereunder with respect
to that Aggregate Loan Group, whether with respect to the related Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The Trustee
shall thereupon make any Advance related to that Aggregate Loan Group which
the Master Servicer failed to make subject to Section 4.01 whether or not the
obligations of the Master Servicer with respect to that Aggregate Loan Group
have been terminated pursuant to this Section. With respect to such Aggregate
Loan Group, 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 related 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
with respect to the related Aggregate Loan Group, including, without
limitation, the transfer to the Trustee of all related cash amounts which
shall at the time be credited to the Certificate Account, or thereafter be
received with respect to the related 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 with respect to that Aggregate Loan Group 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 with respect to that
Aggregate Loan Group under this Agreement.
SECTION 7.02. Trustee to Act; Appointment of Successor.
----------------------------------------
On and after the time the Master Servicer receives a notice of
termination with respect to an Aggregate Loan Group 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 for
such Aggregate Loan Group 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 in that Aggregate Loan Group that the Master Servicer would
have been entitled
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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 related 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
with respect to that Aggregate Loan Group 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 related Mortgage Loans and
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, which contains an assumption by such Person of
the rights, powers, duties, responsibilities, obligations and liabilities of
the Master Servicer with respect to that Aggregate Loan Group (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 related Certificates in
effect immediately prior to such assignment and delegation will not be
qualified or reduced as a result of such assignment and delegation. Pending
appointment of a successor to the Master Servicer hereunder, the Trustee,
unless the Trustee is prohibited by law from so acting, shall, subject to
Section 3.04, act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the Trustee may make such arrangements for
the compensation of such successor out of payments on the related Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of the related Master Servicing Fee permitted
to be paid to the Master Servicer hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to effectuate any such succession. Neither the Trustee nor any other successor
master servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer with respect to
an Aggregate Loan Group shall give notice to the related 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,
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documents and other instruments as may be necessary or desirable to effect a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the
MERS(R) System to the successor Master Servicer or (y) in causing MERS to
designate on the MERS(R) System the successor Master Servicer as the servicer
of such Mortgage Loan. The predecessor Master Servicer shall file or cause to
be filed any such assignment in the appropriate recording office. The
successor Master Servicer shall cause such assignment to be delivered to the
Trustee promptly upon receipt of the original with evidence of recording
thereon or a copy certified by the public recording office in which such
assignment was recorded.
SECTION 7.03. Notification to Certificateholders.
----------------------------------
(a) Upon any termination of or appointment of a successor to the Master
Servicer with respect to an Aggregate Loan Group, the Trustee shall give
prompt written notice thereof to the related Certificateholders and to each
Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default with
respect to an Aggregate Loan Group, the Trustee shall transmit by mail to all
related Certificateholders notice of each such Event of Default hereunder
known to the Trustee, unless such Event of Default shall have been cured or
waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
-----------------
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are
in the form required by this Agreement; provided, however, that the Trustee
shall not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that:
(i) unless an Event of Default known to the Trustee shall have
occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in
good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be finally proven that the Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than
25% of the Voting Rights of Certificates in the applicable Aggregate
Certificate Group relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Agreement; and
(iv) without in any way limiting the provisions of this Section 8.01
or Section 8.02, the Trustee shall be entitled to rely conclusively on
the information delivered to it
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by the Master Servicer in a Trustee Advance Notice in determining whether
it is required to make an Advance under Section 4.01(b), shall have no
responsibility to ascertain or confirm any information contained in any
Trustee Advance Notice, and shall have no obligation to make any Advance
under Section 4.01(b) in the absence of a Trustee Advance Notice or
actual knowledge of a Responsible Officer of the Trustee that (A) such
Advance was not made by the Master Servicer and (B) such Advance is not a
Nonrecoverable Advance.
SECTION 8.02. Certain Matters Affecting the Trustee.
-------------------------------------
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties and the Trustee
shall have no responsibility to ascertain or confirm the genuineness of
any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing not less than 25% of the Voting Rights
allocated to each Class of Certificates in the applicable Aggregate
Certificate Group;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers
hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
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(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(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates. The Trustee shall not be accountable
for the use or application by the Depositor or the Master Servicer of any
funds paid to the Depositor or the Master Servicer in respect of the Mortgage
Loans or deposited in or withdrawn from the Certificate Account by the
Depositor or the Master Servicer.
SECTION 8.04. Trustee May Own Certificates.
----------------------------
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights as it would have if it were
not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
---------------------------
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Distribution Account on each Distribution Date
an amount equal to the Trustee Fee for such Distribution Date. The Trustee and
any director, officer, employee or agent of the Trustee shall be indemnified
by the Master Servicer and held harmless against any loss, liability or
expense (including reasonable attorney's fees and expenses) (i) incurred in
connection with any claim or legal action relating to (a) this Agreement, (b)
the Certificates or (c) in connection with the performance of any of the
Trustee's duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance
of any of the Trustee's duties hereunder or incurred by reason of any action
of the Trustee taken at the direction of the Certificateholders and (ii)
resulting from any error in any tax or information return prepared by the
Master Servicer. Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee hereunder. Without
limiting the foregoing, the Master Servicer covenants and agrees, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any such expense, disbursement or advance as may arise from the Trustee's
negligence, bad faith or willful misconduct, to pay or reimburse the Trustee,
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with
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the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that
the Trustee must engage such persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates. Except as otherwise provided in this Agreement, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties
as Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses.
SECTION 8.06. Eligibility Requirements for Trustee.
------------------------------------
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, subject to supervision
or examination by federal or state authority and with a credit rating which
would not cause either of the Rating Agencies to reduce or withdraw their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07. The entity serving as
Trustee may have normal banking and trust relationships with the Depositor and
its affiliates or the Master Servicer and its affiliates; provided, however,
that such entity cannot be an affiliate of the Master Servicer other than the
Trustee in its role as successor to the Master Servicer.
SECTION 8.07. Resignation and Removal of Trustee.
----------------------------------
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to Section 8.08, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time 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, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged as bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed
with respect to the Trust Fund by any state in which the Trustee or the Trust
Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor or the Master Servicer
may remove
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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 and one complete set to the successor so appointed.
Notice of any removal of the Trustee shall be given to each Rating Agency by
the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 8.08.
SECTION 8.08. Successor Trustee.
-----------------
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as
if originally named as trustee in this Agreement. The Depositor, the Master
Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06 and its appointment shall not
adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
----------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 8.06 without the execution or filing of any
paper or
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further act on the part of any of the parties hereto, anything in this
Agreement to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time
be located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of the Master Servicer, shall
be conferred or imposed upon and exercised or performed by the Trustee
and such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the applicable Trust Fund
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such
separate trustee or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
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(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.
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
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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 REMIC status of any REMIC;
(h) pay, from the sources specified in the last paragraph of this Section
8.11, the amount of any federal or state tax, including prohibited transaction
taxes as described below, imposed on any such REMIC prior to its termination
when and as the same shall be due and payable (but such obligation shall not
prevent the Trustee or any other appropriate Person from contesting any such
tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person as may
be required to sign such returns by the Code or state or local laws,
regulations or rules; (j) maintain records relating to any such REMIC,
including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined
at such intervals as may be required by the Code, as may be necessary to
prepare the foregoing returns, schedules, statements or information; and (k)
as and when necessary and appropriate, represent any such REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any such REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any such REMIC, and otherwise act on behalf of any such REMIC in
relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth in this
Agreement, the Depositor shall provide, or cause to be provided, to the
Trustee within ten (10) days after the Closing Date all information or data
that the Trustee requests in writing and determines to be relevant for tax
purposes to the valuations and offering prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flows of the Certificates and the Mortgage Loans. Thereafter, the Depositor
shall provide to the Trustee promptly upon written request therefor, any such
additional information or data that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth in this Agreement. The Depositor hereby indemnifies the Trustee for any
losses, liabilities, damages, claims or expenses of the Trustee arising from
any errors or miscalculations of the Trustee that result from any failure of
the Depositor to provide, or to cause to be provided, accurate information or
data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of any
REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c)
of the Code, on any contribution to any REMIC hereunder after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including, without limitation, any minimum tax imposed upon any REMIC
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hereunder pursuant to Sections 23153 and 24874 of the California Revenue and
Taxation Code, if not paid as otherwise provided for herein, such tax shall be
paid by (i) the Trustee, if any such other tax arises out of or results from a
breach by the Trustee of any of its obligations under this Agreement, (ii) the
Master Servicer, in the case of any such minimum tax, or if such tax arises
out of or results from a breach by the Master Servicer or a Seller of any of
their obligations under this Agreement, (iii) any Seller, if any such tax
arises out of or results from that Seller's obligation to repurchase a
Mortgage Loan pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or
in the event that the Trustee, the Master Servicer or any Seller fails to
honor its obligations under the preceding clauses (i),(ii) or (iii), any such
tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 3.08(b).
The Trustee shall treat the Carryover Shortfall Reserve Fund as an
outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
that is owned by the holders of the Notional Amount Certificates, and that is
not an asset of any REMIC created hereunder. The Trustee shall treat the
rights of the holders of the LIBOR Certificates and the Notional Amount
Certificates to receive payments from the Carryover Shortfall Reserve Fund as
rights in an interest rate corridor contract written by the Holders of the
Notional Amount Certificates in respect of any Carryover Shortfall Amounts
distributed in favor of the Holders of the LIBOR Certificates. Thus, the LIBOR
Certificates and the Notional Amount Certificates shall be treated as
representing ownership of not only a Master REMIC regular interest, but also
ownership of an interest in an interest rate corridor contract. For purposes
of determining the issue price of the Master REMIC regular interests, the
Trustee shall assume that the corridor contract entered into by each Class of
LIBOR Certificates has a value of $0.01/$1,000 principal balance of such
Certificates.
The Trustee shall treat the Corridor Contract Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that is
owned by Banc of America Securities LLC and that is not an asset of any REMIC
created hereunder. The Trustee shall treat the rights of the holders of the
Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1,
Class II-B-1 and Class II-B-2 Certificates to receive payments from the
Corridor Contract Reserve Fund as rights in an interest rate corridor contract
written by the Corridor Contract Counterparty. Thus, the Class 2-A-1, Class
2-A-2, Class 2-A-3, Class 4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1 and
Class II-B-2 Certificates shall be treated as representing ownership of not
only a Master REMIC regular interest, but also ownership of an interest in an
interest rate corridor contract. For purposes of determining the issue price
of the Master REMIC regular interests, the Trustee shall assume that the
Corridor Contracts related to the Class 2-A-1, Class 2-A-2, Class 2-A-3, Class
4-A-1, Class 4-A-2, Class II-M-1, Class II-B-1 and Class II-B-2 Certificates
have values of $1,028,000, $177,500, $638,500, $353,500, $250,500, $148,500,
$145,000 and $188,500, respectively.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Mortgage
Loans.
(1) 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 portion of the Trust Fund relating to an Aggregate Loan
Group shall terminate upon the earlier of: (a) the
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purchase by the Master Servicer of all Mortgage Loans (and REO Properties) in
that Aggregate Loan Group remaining in the Trust Fund at the price equal to
the sum of (i) 100% of the Stated Principal Balance of each Mortgage Loan in
that Aggregate Loan Group plus one month's accrued interest thereon at the
applicable Adjusted Mortgage Rate and (ii) the lesser of (x) the appraised
value of any REO Property related to that Aggregate Loan Group 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 in that Aggregate Loan
Group related to any REO Property and (iii) any remaining unpaid costs and
damages incurred by the Trust Fund with respect to that Aggregate Loan Group
that arises out of an actual violation of any predatory or abusive lending law
or regulation, in all cases plus accrued and unpaid interest thereon at the
applicable Adjusted Mortgage Rate; and (b) the later of (i) the maturity or
other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan in that Aggregate Loan Group remaining in the Trust Fund and the
disposition of all REO Property in that Aggregate Loan Group and (ii) the
distribution to the Holders of Certificates related to that Aggregate Loan
Group of all amounts required to be distributed to them pursuant to this
Agreement. In no event shall the trusts created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. James's, living on the date hereof and (ii) the Latest
Possible Maturity Date.
The Master Servicer shall have the right to purchase all Mortgage Loans
and REO Properties relating to an Aggregate Loan Group pursuant to clause (a)
in the preceding paragraph of this Section 9.01(1); provided, however, that in
no event shall the Master Servicer exercise its right to purchase all Mortgage
Loans and REO Properties relating to an Aggregate Loan Group pursuant to
clause (a) in the preceding paragraph of this Section 9.01(1) before the
related Optional Termination Date.
SECTION 9.02. Final Distribution on the Certificates.
--------------------------------------
If on any Determination Date, the Master Servicer determines that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust
Fund other than the funds in the Certificate Account, the Master Servicer
shall direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the related
portion of the Trust Fund pursuant to 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 cause a termination pursuant to Section 9.01, and of the
applicable repurchase price of the related Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund relating an Aggregate Loan
Group or the Trust Fund in its entirety, specifying the Distribution Date on
which related Certificateholders may surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to such 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 related Certificates will be made
upon presentation and surrender of such 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,
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distributions being made only upon presentation and surrender of such
Certificates at the office therein specified. The Master Servicer will give
such notice to each Rating Agency at the time such notice is given to the
related Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
related funds in the Certificate Account to be remitted to the Trustee for
deposit in the Distribution Account on or before the Business Day prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the related Classes of Certificates. Upon such final deposit with
respect to the related Mortgage Loans and REO Properties and the receipt by
the Trustee of a Request for Release therefor, the Trustee shall promptly
release to the Master Servicer the Mortgage Files for the related Mortgage
Loans.
Upon presentation and surrender of the related Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each related 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 holder of the Class A-R Certificates 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 or
options as provided in Section 9.01, the related Mortgage Loans and REO
Properties then remaining in the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee has been
supplied with an Opinion of Counsel, at the expense of the Master Servicer to
the effect that the failure to comply with the requirements of this Section
9.03 will not (i) result in the imposition of taxes on "prohibited
transactions" on any REMIC as defined in Section 860F of the Code, or (ii)
cause any REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
124
(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 of the
related Aggregate Loan Group(s) or the Trust Fund in its entirety 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
liquidation with respect to the related Aggregate Loan Group(s) or the
Trust Fund in its entirety, the Trustee shall sell the related assets of
the Trust Fund to the Master Servicer for cash in accordance with Section
9.01.
(b) The Trustee as agent for any REMIC created under this Agreement
hereby agrees to adopt and sign such a plan of liquidation with respect to the
related Aggregate Loan Group(s) or the Trust Fund in its entirety 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 liquidation with respect to the related Aggregate Loan Group(s) or the
Trust Fund in its entirety.
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 not be deemed
to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting
125
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 in the applicable Aggregate Certificate Group 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 adversely
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.
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.
126
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material
respect the interests of any Certificateholder or (B) the conclusion set forth
in the immediately preceding clause (A) is not required to be reached pursuant
to this Section 10.01.
SECTION 10.02. Recordation of Agreement; Counterparts.
--------------------------------------
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense, but only upon direction by the Trustee accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as in
this Agreement provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
SECTION 10.03. Governing Law.
-------------
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Intention of Parties.
--------------------
It is the express intent of the parties hereto that the conveyance of the
(i) of the Mortgage Loans by the Sellers to the Depositor and (ii) Trust Fund
by the Depositor to the Trustee each be, and be construed as, an absolute sale
thereof to the Trustee. It is, further, not the intention of the parties that
such conveyances be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of any Seller or the Depositor, as the case may be, or if for any
other reason this Agreement is held or deemed to create a security interest in
either such assets, then (i) this Agreement shall be deemed to be a security
agreement (within the meaning of the Uniform Commercial Code of the State of
New York) with respect to all such assets and security interests and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant pursuant to the terms of this Agreement (i) by each Seller to the
Depositor or (ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets that
constitute the Trust Fund, whether now owned or hereafter acquired.
127
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.
SECTION 10.05. Notices.
-------
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the Trustee
and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03;
5. The final payment to Certificateholders; and
6. Any rating action involving the long-term credit rating of
Countrywide, which notice shall be made by first class mail within two
Business Days after the Trustee gains actual knowledge of such a rating
action.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.16;
3. Each annual independent public accountants' servicing report described
in Section 3.17; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered by first class mail, by
courier or by facsimile transmission to (1) in the case of the Depositor,
CWALT, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number:
(000) 000-0000, Attention: Xxxxx X. Xxxxxxx, (2) in the case of Countrywide,
Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx or such other
address as may be hereafter furnished to the Depositor, the Guarantor and the
Trustee by Countrywide in writing, (3) in the case of Park Granada LLC, c/o
Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, facsimile number: (000) 000-0000, Attention: Xxxxx X.
128
Xxxxxxx or such other address as may be hereafter furnished to the Depositor,
the Guarantor and the Trustee by Park Granada in writing, (4) in the case of
Park Monaco Inc., c/o Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000, Attention:
Xxxxx X. Xxxxxxx or such other address as may be hereafter furnished to the
Depositor, the Guarantor and the Trustee by Park Monaco in writing, (5) in the
case of Park Sienna LLC, c/o Countrywide Financial Corporation, 0000 Xxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxxx X. Xxxxxxx or such other address as may be hereafter
furnished to the Depositor, the Guarantor and the Trustee by Park Sienna in
writing,(6) in the case of the Master Servicer, Countrywide Home Loans
Servicing LP, 000 Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx, facsimile number
(000) 000-0000, Attention: Xxxx Xxxx, or such other address as may be
hereafter furnished to the Depositor, the Guarantor and the Trustee by the
Master Servicer in writing, (7) in the case of the Trustee, The Bank of New
York, 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, facsimile number:
(000) 000-0000, Attention: Mortgage-Backed Securities Group, CWALT, Inc.
Series 2005-14, or such other address as the Trustee may hereafter furnish to
the Depositor or Master Servicer, and (8) in the case of the Rating Agencies,
the address specified therefor in the definition corresponding to the name of
such Rating Agency. Notices to Certificateholders shall be deemed given when
mailed, first class postage prepaid, to their respective addresses appearing
in the Certificate Register.
SECTION 10.06. Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders of the
Certificates.
SECTION 10.07. Assignment.
----------
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 6.02, this Agreement may not be assigned by the
Master Servicer without the prior written consent of the Trustee and
Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
------------------------------------------
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created by this Agreement, or otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided in
this Agreement) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything set forth in this Agreement or contained in the terms of the
Certificates be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any
129
liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision of this Agreement.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
provided in this Agreement, and unless the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates shall
also have made written request to the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner provided in this Agreement and for the common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 10.09. Inspection and Audit Rights.
---------------------------
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Subservicer to permit any representative of the
Depositor or the Trustee during the Master Servicer's normal business hours,
to examine all the books of account, records, reports and other papers of the
Master Servicer relating to the Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by the Depositor or the Trustee and to discuss its
affairs, finances and accounts relating to the Mortgage Loans with its
officers, employees and independent public accountants (and by this provision
the Master Servicer hereby authorizes said accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by the Depositor or the Trustee of any right under
this Section 10.09 shall be borne by the party requesting such inspection; all
other such expenses shall be borne by the Master Servicer or the related
Subservicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid.
-----------------------------------------
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof
by the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
130
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.
* * * * * *
131
IN WITNESS WHEREOF, the Depositor, the Trustee, the Sellers and the Master
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CWALT, INC.,
as Depositor
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.,
as a Seller
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
PARK GRANADA LLC,
as a Seller
By: COUNTRYWIDE FINANCIAL CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PARK MONACO INC.,
as a Seller
By: COUNTRYWIDE FINANCIAL CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PARK SIENNA LLC,
as a Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
Acknowledged solely with respect to its obligations
under Section 4.01(b)
THE BANK OF NEW YORK, in its individual capacity
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-14
Representations and Warranties of Countrywide
---------------------------------------------
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II-A to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule II-A shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Countrywide, as a seller, Park Granada LLC, as a seller, Park Monaco
Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank of
New York, as trustee.
(1) Countrywide is duly organized as a New York corporation and is
validly existing and in good standing under the laws of the State of New York
and is duly authorized and qualified to transact any and all business
contemplated by the Pooling and Servicing Agreement to be conducted by
Countrywide in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification and,
in any event, is in compliance with the doing business laws of any such state,
to the extent necessary to perform any of its obligations under the Pooling
and Servicing Agreement 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
S-II-A-1
governmental body having jurisdiction over Countrywide; and Countrywide is not
in breach or violation of any material indenture or other material agreement
or instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair
Countrywide's ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
(4) Countrywide is an approved servicer of conventional mortgage
loans for FNMA or FHLMC and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act.
(5) No litigation is pending or, to the best of Countrywide's
knowledge, threatened, against Countrywide that would materially and adversely
affect the execution, delivery or enforceability of the Pooling and Servicing
Agreement or the ability of Countrywide to sell the Countrywide Mortgage Loans
or to perform any of its other obligations under the Pooling and Servicing
Agreement in accordance with the terms thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide of, or compliance by Countrywide with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Countrywide has obtained the same.
(7) Countrywide intends to treat the transfer of the Countrywide
Mortgage Loans to the Depositor as a sale of the Countrywide Mortgage Loans
for all tax, accounting and regulatory purposes.
(8) Countrywide is a member of MERS in good standing, and will comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the MERS Mortgage Loans in the Trust Fund for as long as
such Mortgage Loans are registered with MERS
S-II-A-2
SCHEDULE II-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-14
Representations and Warranties of Park Granada
----------------------------------------------
Park Granada LLC ("Park Granada") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set
forth in this Schedule II-B to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule II-B shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among Park Granada, as a seller, Park
Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as depositor, and The Bank of New York, as trustee.
(1) Park Granada is a limited liability company duly formed and
validly existing and in good standing under the laws of the State of Delaware.
(2) Park Granada has the full corporate power and authority to sell
each Park Granada Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and 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
S-II-B-1
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.
(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.
Park Granada intends to treat the transfer of the Park Granada Mortgage
Loans to the Depositor as a sale of the Park Granada Mortgage Loans for all
tax, accounting and regulatory purposes.
S-II-B-2
SCHEDULE II-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-18CB
Representations and Warranties of Park Monaco
---------------------------------------------
Park Monaco Inc. ("Park Monaco") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set
forth in this Schedule II-C to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule II-C shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among Park Monaco, as a seller,
Countrywide, as a seller, Park Granada LLC, as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as depositor, and The Bank of New York, as trustee.
(1) Park Monaco is a corporation duly formed and validly existing and
in good standing under the laws of the State of Delaware.
(2) Park Monaco has the full corporate power and authority to sell
each Park Monaco Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and has duly authorized by all necessary corporate action
on the part of Park Monaco the execution, delivery and performance of the
Pooling and Servicing Agreement; and the Pooling and Servicing Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of Park
Monaco, enforceable against Park Monaco in accordance with its terms, except
that (a) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement
by Park Monaco, the sale of the Park Monaco Mortgage Loans by Park Monaco
under the Pooling and Servicing Agreement, the consummation of any other of
the transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Monaco and will not (A) result in a material breach of any
term or provision of the certificate of formation or the limited liability
company agreement 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.
(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
S-II-C-1
of the Pooling and Servicing Agreement or the ability of Park Monaco to sell
the Park Monaco Mortgage Loans or to perform any of its other obligations
under the Pooling and Servicing Agreement in accordance with the terms
thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Monaco of, or compliance by Park Monaco with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Monaco has obtained the same.
(6) Park Monaco intends to treat the transfer of the Park Monaco
Mortgage Loans to the Depositor as a sale of the Park Monaco Mortgage Loans
for all tax, accounting and regulatory purposes.
S-II-C-2
SCHEDULE II-D
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-18CB
Representations and Warranties of Park Sienna
---------------------------------------------
Park Sienna LLC ("Park Sienna") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set
forth in this Schedule II-D to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule II-D shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among Park Sienna, as a seller,
Countrywide, as a seller, Park Granada LLC, as a seller, Park Monaco Inc., as
a seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT,
Inc., as depositor, and The Bank of New York, as trustee.
(1) Park Sienna is a limited liability company duly formed and
validly existing and in good standing under the laws of the State of Delaware.
(2) Park Sienna has the full corporate power and authority to sell
each Park Sienna Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and 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.
(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
S-II-D-1
the Pooling and Servicing Agreement or the ability of Park Sienna to sell the
Park Sienna Mortgage Loans or to perform any of its other obligations under
the Pooling and Servicing Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Sienna of, or compliance by Park Sienna with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Sienna has obtained the same.
(6) Park Sienna intends to treat the transfer of the Park Sienna
Mortgage Loans to the Depositor as a sale of the Park Sienna Mortgage Loans
for all tax, accounting and regulatory purposes
S-II-D-2
SCHEDULE III-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-14
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 the
Countrywide Mortgage Loans as of the Closing Date, or if so specified herein,
as of the Cut-off Date. Capitalized terms used but not otherwise defined in
this Schedule III-A shall have the meanings ascribed thereto in the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") relating to
the above-referenced Series, among Countrywide, as a seller, Park Granada LLC,
as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller,
Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Mortgage Loan is true and correct in
all material respects as of the Closing Date.
(2) As of the Closing Date, all payments due with respect to each
Mortgage Loan prior to the Cut-off Date have been made; and as of the Cut-off
Date, no Mortgage Loan has been contractually delinquent for 30 or more days
more than once during the twelve months prior to the Cut-off Date.
(3) No Mortgage Loan had a Loan-to-Value Ratio at origination in
excess of 95.00%.
(4) Each Mortgage is a valid and enforceable first lien on the
Mortgaged Property subject only to (a) the lien of non delinquent current real
property taxes and assessments, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record being
acceptable to mortgage lending institutions generally or specifically
reflected in the appraisal made in connection with the origination of the
related Mortgage Loan, and (c) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(5) [Reserved].
(6) There is no delinquent tax or assessment lien against any
Mortgaged Property.
(7) There is no valid offset, defense or counterclaim to any Mortgage
Note or Mortgage, including the obligation of the Mortgagor to pay the unpaid
principal of or interest on such Mortgage Note.
S-III-A-1
(8) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien prior to,
or equal with, the lien of such Mortgage, except those which are insured
against by the title insurance policy referred to in item (12) below.
(9) As of the Closing Date, to the best of Countrywide's knowledge,
each Mortgaged Property is free of material damage and in good repair.
(10) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws, including, without
limitation, usury, equal credit opportunity, predatory and abusive lending
laws, real estate settlement procedures, truth-in-lending and disclosure laws,
and consummation of the transactions contemplated hereby will not involve the
violation of any such laws.
(11) As of the Closing Date, neither Countrywide nor any prior holder
of any Mortgage has modified the Mortgage in any material respect (except that
a Mortgage Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the interests
of the Certificateholders and the original or a copy of which has been
delivered to the Trustee); satisfied, cancelled or subordinated such Mortgage
in whole or in part; released the related Mortgaged Property in whole or in
part from the lien of such Mortgage; or executed any instrument of release,
cancellation, modification or satisfaction with respect thereto.
(12) A lender's policy of title insurance together with a condominium
endorsement, negative amortization endorsement and extended coverage
endorsement, if applicable, in an amount at least equal to the Cut-off Date
Stated Principal Balance of each such Mortgage Loan or a commitment (binder)
to issue the same was effective on the date of the origination of each
Mortgage Loan, each such policy is valid and remains in full force and effect,
and each such policy was issued by a title insurer qualified to do business in
the jurisdiction where the Mortgaged Property is located and acceptable to
FNMA or FHLMC and is in a form acceptable to FNMA or FHLMC, which policy
insures Countrywide and successor owners of indebtedness secured by the
insured Mortgage, as to the first priority lien of the Mortgage subject to the
exceptions set forth in paragraph (4) above and against any loss by reason of
the invalidity or the unenforceability of the lien resulting from the
provisions of the Mortgage providing for adjustment of the mortgage interest
rate and/or the monthly payment including any negative amortization
thereunder. To the best of Countrywide's knowledge, no claims have been made
under such mortgage title insurance policy and no prior holder of the related
Mortgage, including Countrywide, has done, by act or omission, anything which
would impair the coverage of such mortgage title insurance policy.
(13) With respect to each Mortgage Loan, all mortgage rate and
payment adjustments, if any, made on or prior to the Cut-off Date have been
made in accordance with the terms of the related Mortgage Note or subsequent
modifications, if any, and applicable law.
(14) Each Mortgage Loan was originated (within the meaning of Section
3(a)(41) of the Securities Exchange Act of 1934, as amended) by an entity that
satisfied
S-III-A-2
at the time of origination the requirements of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended.
(15) To the best of Countrywide's knowledge, all of the improvements
which were included for the purpose of determining the Appraised Value of the
Mortgaged Property lie wholly within the boundaries and building restriction
lines of such property, and no improvements on adjoining properties encroach
upon the Mortgaged Property.
(16) To the best of Countrywide's knowledge, no improvement located
on or being part of the Mortgaged Property is in violation of any applicable
zoning law or regulation. To the best of Countrywide's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made
or obtained from the appropriate authorities, unless the lack thereof would
not have a material adverse effect on the value of such Mortgaged Property,
and the Mortgaged Property is lawfully occupied under applicable law.
(17) Each Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law. To the best
of Countrywide's knowledge, all parties to the Mortgage Note and the Mortgage
had legal capacity to execute the Mortgage Note and the Mortgage and each
Mortgage Note and Mortgage have been duly and properly executed by such
parties.
(18) The proceeds of the Mortgage Loans have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements and as
to disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making, or closing or recording the
Mortgage Loans were paid.
(19) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including, (i) in the case of a Mortgage designated as a deed of
trust, by trustee's sale, and (ii) otherwise by judicial foreclosure.
(20) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such Mortgage, and
no fees or expenses are or will become payable by the Certificateholders to
the trustee under the deed of trust, except in connection with a trustee's
sale after default by the Mortgagor.
(21) Each Mortgage Note and each Mortgage is in substantially one of
the forms acceptable to FNMA or FHLMC, with such riders as have been
acceptable to FNMA or FHLMC, as the case may be.
(22) There exist no deficiencies with respect to escrow deposits and
payments, if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other
charges or payments due Countrywide have been capitalized under the Mortgage
or the related Mortgage Note.
S-III-A-3
(23) The origination, underwriting and collection practices used by
Countrywide with respect to each Mortgage Loan have been in all respects
legal, prudent and customary in the mortgage lending and servicing business.
(24) There is no pledged account or other security other than real
estate securing the Mortgagor's obligations.
(25) No Mortgage Loan has a shared appreciation feature, or other
contingent interest feature.
(26) Each Mortgage Loan contains a customary "due on sale" clause.
(27) As of the Closing Date, 4 of the Mortgage Loans in Loan Group 1,
1,405 of the Mortgage Loans in Loan Group 2, 571 of the Mortgage Loans in Loan
Group 3 and 440 of the Mortgage Loans in Loan Group 4 provide for a prepayment
penalty.
(28) Each Mortgage Loan that had a Loan-to-Value Ratio at origination
in excess of 80% is the subject of a Primary Insurance Policy that insures
that portion of the principal balance equal to a specified percentage times
the sum of the remaining principal balance of the related Mortgage Loan, the
accrued interest thereon and the related foreclosure expenses. The specified
coverage percentage for mortgage loans with terms to maturity between 25 and
30 years is 12% for Loan-to-Value Ratios between 80.01% and 85.00%, 25% for
Loan-to-Value Ratios between 85.01% and 90.00%, 30% for Loan-to-Value Ratios
between 90.01% and 95.00% and 35% for Loan-to-Value Ratios between 95.01% and
100%. The specified coverage percentage for mortgage loans with terms to
maturity of up to 20 years ranges from 6% to 12% for Loan-to-Value Ratios
between 80.01% to 85.00%, from 12% to 20% for Loan-to-Value Ratios between
85.01% to 90.00% and 20% to 25% for Loan-to-Value Ratios between 90.01% to
95.00%. Each such Primary Insurance Policy is issued by a Qualified Insurer.
All provisions of any such Primary Insurance Policy have been and are being
complied with, any such policy is in full force and effect, and all premiums
due thereunder have been paid. Any Mortgage subject to any such Primary
Insurance Policy obligates either the Mortgagor or the mortgagee thereunder to
maintain such insurance and to pay all premiums and charges in connection
therewith, subject, in each case, to the provisions of Section 3.09(b) of the
Pooling and Servicing Agreement. The Mortgage Rate for each Mortgage Loan is
net of any such insurance premium.
(29) As of the Closing Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with a
generally acceptable carrier that provides for fire and extended coverage and
coverage for such other hazards as are customary in the area where the
Mortgaged Property is located in an amount which is at least equal to the
lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan or (ii) the greater of (a) the outstanding principal balance of
the Mortgage Loan and (b) an amount such that the proceeds of such policy
shall be sufficient to prevent the Mortgagor and/or the mortgagee from
becoming a co-insurer. If the Mortgaged Property is a condominium unit, it is
included under the coverage afforded by a blanket policy for the condominium
unit. All such individual insurance policies and all flood policies referred
to in item (30) below contain a standard mortgagee clause naming Countrywide
or the original
S-III-A-4
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.
(30) If the Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy in a form meeting the requirements of
the current guidelines of the Flood Insurance Administration is in effect with
respect to such Mortgaged Property with a generally acceptable carrier in an
amount representing coverage not less than the least of (A) the original
outstanding principal balance of the Mortgage Loan, (B) the minimum amount
required to compensate for damage or loss on a replacement cost basis, or (C)
the maximum amount of insurance that is available under the Flood Disaster
Protection Act of 1973, as amended.
(31) To the best of Countrywide's knowledge, there is no proceeding
occurring, pending or threatened for the total or partial condemnation of the
Mortgaged Property.
(32) There is no material monetary default existing under any
Mortgage or the related Mortgage Note and, to the best of Countrywide's
knowledge, there is no material event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration under the Mortgage or the
related Mortgage Note; and Countrywide has not waived any default, breach,
violation or event of acceleration.
(33) Each Mortgaged Property is improved by a one- to four-family
residential dwelling including condominium units and dwelling units in PUDs,
which, to the best of Countrywide's knowledge, does not include cooperatives
or mobile homes and does not constitute other than real property under state
law.
(34) Each Mortgage Loan is being master serviced by the Master
Servicer.
(35) Any future advances made prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate and single repayment term reflected on the Mortgage Loan Schedule. The
consolidated principal amount does not exceed the original principal amount of
the Mortgage Loan. The Mortgage Note does not permit or obligate the Master
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
(36) All taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or an escrow of funds has been
established in an amount sufficient to pay for every such item which remains
unpaid and which has been assessed, but is not yet due and payable. Except for
(A) payments in the nature of escrow payments, and (B) interest accruing from
the date of the Mortgage Note or date of disbursement of the Mortgage
proceeds, whichever is later, to the day which precedes by one month the Due
Date of the first installment
S-III-A-5
of principal and interest, including without limitation, taxes and insurance
payments, the Master Servicer has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the
Mortgage.
(37) Each Mortgage Loan was underwritten in all material respects in
accordance with Countrywide's underwriting guidelines as set forth in the
Prospectus Supplement.
(38) Other than with respect to any Streamlined Documentation
Mortgage Loan as to which the loan-to-value ratio of the related Original
Mortgage Loan was less than 90% at the time of the origination of such
Original Mortgage Loan, prior to the approval of the Mortgage Loan
application, an appraisal of the related Mortgaged Property was obtained from
a qualified appraiser, duly appointed by the originator, who had no interest,
direct or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan; such appraisal is in a form acceptable to
FNMA and FHLMC.
(39) None of the Mortgage Loans is a graduated payment mortgage loan
or a growing equity mortgage loan, and none of the Mortgage Loans is subject
to a buydown or similar arrangement.
(40) Any leasehold estate securing a Mortgage Loan has a term of not
less than five years in excess of the term of the related Mortgage Loan.
(41) The Mortgage Loans were selected from among the outstanding
adjustable-rate one- to four-family mortgage loans in the portfolios of the
Sellers at the Closing Date as to which the representations and warranties
made as to the Mortgage Loans set forth in this Schedule III-A can be made.
Such selection was not made in a manner intended to adversely affect the
interests of Certificateholders.
(42) Except for 4 Mortgage Loans in Loan Group 1, 368 Mortgage Loans
in Loan Group 2, 53 Mortgage Loans in Loan Group 3 and 22 Mortgage Loans in
Loan Group 4, each Mortgage Loan has a payment date on or before the Due Date
in the month of the first Distribution Date.
(43) With respect to any Mortgage Loan as to which an affidavit has
been delivered to the Trustee certifying that the original Mortgage Note is a
Lost Mortgage Note, if such Mortgage Loan is subsequently in default, the
enforcement of such Mortgage Loan or of the related Mortgage by or on behalf
of the Trustee will not be materially adversely affected by the absence of the
original Mortgage Note. A "Lost Mortgage Note" is a Mortgage Note the original
of which was permanently lost or destroyed and has not been replaced.
(44) The Mortgage Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
(45) No Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act.
S-III-A-6
(46) None of the Mortgage Loans is a "high cost" loan as defined by
applicable predatory and abusive lending laws.
(47) None of the Mortgage Loans is covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA").
(48) 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.
(49) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and with respect to the foregoing, the terms "High Cost Loan" and
"Covered Loan" have the meaning assigned to them in the then current Standard
& Poor's LEVELS(R) Version 5.6b Glossary Revised, Appendix E which is attached
hereto as Exhibit Q (the "Glossary") where (x) a "High Cost Loan" is each loan
identified in the column "Category under applicable anti-predatory lending
law" of the table entitled "Standard & Poor's High Cost Loan Categorization"
in the Glossary as each such loan is defined in the applicable anti-predatory
lending law of the State or jurisdiction specified in such table and (y) a
"Covered Loan" is each loan identified in the column "Category under
applicable anti-predatory lending law" of the table entitled "Standard &
Poor's Covered Loan Categorization" in the Glossary as each such loan is
defined in the applicable anti-predatory lending law of the State or
jurisdiction specified in such table.
(50) 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.).
(51) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Mexico Home Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx.
xx.xx. 58-21A-1 et seq.).
S-III-A-7
SCHEDULE III-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-14
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, or if so specified herein,
as of the Cut-off Date. Capitalized terms used but not otherwise defined in
this Schedule III-B shall have the meanings ascribed thereto in the Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") relating to
the above-referenced Series, among Countrywide, as a seller, Park Granada LLC,
as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller,
Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Countrywide Mortgage Loan
to the Depositor, Countrywide had good title to, and was the sole owner of,
such Countrywide Mortgage Loan free and clear of any pledge, lien, encumbrance
or security interest and had full right and authority, subject to no interest
or participation of, or agreement with, any other party, to sell and assign
the same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE III-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-14
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 Monaco Mortgage Loans as of
the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule III-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 Monaco, as a seller,
Park Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The
Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Park 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-D-1
SCHEDULE III-D
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-18CB
Representations and Warranties of Park Monaco
---------------------------------------------
as to the Park Monaco Mortgage Loans
------------------------------------
Park Monaco Inc. ("Park Monaco") hereby makes the representations and
warranties set forth in this Schedule III-D to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Monaco Mortgage Loans as of
the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule III-D shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Monaco, as a seller,
Park Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The
Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Park Monaco Mortgage Loan
to the Depositor, Park Monaco had good title to, and was the sole owner of,
such Park Monaco Mortgage Loan free and clear of any pledge, lien, encumbrance
or security interest and had full right and authority, subject to no interest
or participation of, or agreement with, any other party, to sell and assign
the same pursuant to the Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE III-E
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-18CB
Representations and Warranties of Park Sienna
---------------------------------------------
as to the Park Sienna Mortgage Loans
------------------------------------
Park Sienna LLC ("Park Sienna") hereby makes the representations and
warranties set forth in this Schedule III-E to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Sienna Mortgage Loans as of
the Closing Date, or if so specified herein, as of the Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule III-E shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Countrywide Home Loans, Inc., as a seller, Park Sienna, as a seller,
Park Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home
Loans Servicing LP, as master servicer, CWALT, Inc., as depositor, and The
Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Park Sienna Mortgage Loan
to the Depositor, Park Sienna had good title to, and was the sole owner of,
such Park Sienna Mortgage Loan free and clear of any pledge, lien, encumbrance
or security interest and had full right and authority, subject to no interest
or participation of, or agreement with, any other party, to sell and assign
the same pursuant to the Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE IV
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-14
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 Sienna, as a seller, Park
Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank of
New York, as trustee.
(1) 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
S-IV-1
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any other
material agreement or instrument to which Countrywide Servicing is a party or
by which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to Countrywide Servicing of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Countrywide Servicing; and Countrywide Servicing is not in
breach or violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair the
ability of Countrywide Servicing to perform or meet any of its obligations
under the Pooling and Servicing Agreement.
(4) Countrywide Servicing is an approved servicer of conventional
mortgage loans for FNMA or FHLMC and is a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act.
(5) No litigation is pending or, to the best of Countrywide's
Servicing knowledge, threatened, against Countrywide Servicing that would
materially and adversely affect the execution, delivery or enforceability of
the Pooling and Servicing Agreement or the ability of Countrywide Servicing to
service the Mortgage Loans or to perform any of its other obligations under
the Pooling and Servicing Agreement in accordance with the terms thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide Servicing of, or compliance by Countrywide
Servicing with, the Pooling and Servicing Agreement or the consummation of the
transactions contemplated thereby, or if any such consent, approval,
authorization or order is required, Countrywide Servicing has obtained the
same.
(7) Countrywide Servicing is a member of MERS in good standing, and
will comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans are registered with MERS.
S-IV-2
SCHEDULE V
Principal Balance Schedules
*[Attached to Prospectus Supplement, if applicable.]
S-V-1
SCHEDULE VI
Form of Monthly Master Servicer Report
===============================================================================================================
LOAN LEVEL REPORTING SYSTEM
---------------------------------------------------------------------------------------------------------------
DATABASE STRUCTURE
---------------------------------------------------------------------------------------------------------------
[MONTH, YEAR]
--------------------------- ----------------------- -------------------- -------------------- -----------------
Field Number Field Name Field Type Field Width Dec
--------------------------- ----------------------- -------------------- -------------------- -----------------
1 INVNUM Numeric 4
--------------------------- ----------------------- -------------------- -------------------- -----------------
2 INVBLK Numeric 4
--------------------------- ----------------------- -------------------- -------------------- -----------------
3 INACNU Character 8
--------------------------- ----------------------- -------------------- -------------------- -----------------
4 BEGSCH Numeric 15 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
5 SCHPRN Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
6 TADPRN Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
7 LIQEPB Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
8 ACTCOD Numeric 11
--------------------------- ----------------------- -------------------- -------------------- -----------------
9 ACTDAT Numeric 4
--------------------------- ----------------------- -------------------- -------------------- -----------------
10 INTPMT Numeric 8
--------------------------- ----------------------- -------------------- -------------------- -----------------
11 PRNPMT Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
12 ENDSCH Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
13 SCHNOT Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
14 SCHPAS Numeric 7 3
--------------------------- ----------------------- -------------------- -------------------- -----------------
15 PRINPT Numeric 7 3
--------------------------- ----------------------- -------------------- -------------------- -----------------
16 PRIBAL Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
17 LPIDTE Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
18 DELPRN Numeric 7
--------------------------- ----------------------- -------------------- -------------------- -----------------
19 PPDPRN Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
20 DELPRN Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
21 NXTCHG Numeric 8
--------------------------- ----------------------- -------------------- -------------------- -----------------
22 ARMNOT Numeric 7 3
--------------------------- ----------------------- -------------------- -------------------- -----------------
23 ARMPAS Numeric 7 3
--------------------------- ----------------------- -------------------- -------------------- -----------------
24 ARMPMT Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
25 ZZTYPE Character 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
26 ISSUID Character 1
--------------------------- ----------------------- -------------------- -------------------- -----------------
27 KEYNAME Character 8
--------------------------- ----------------------- -------------------- -------------------- -----------------
TOTAL 240
--------------------------- ----------------------- -------------------- -------------------- -----------------
Suggested Format: DBASE file
Modem transmission
=========================== ======================= ==================== ==================== =================
S-VI-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").]
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO, OR TO A PERSON INVESTING ASSETS OF, AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that ________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balance
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage
A-2
Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park Granada"),
Park Monaco, Inc., as a seller ("Park Monaco"), and Park Sienna LLC, as a
seller ("Park Sienna" and, together with CHL, Park Granada and Park Monaco,
the "Sellers"), Countrywide Home Loans Servicing LP, as master servicer (the
"Master Servicer"), and The Bank of New York, as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code, and will not subject the Trustee or the Master
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund. Unless the transferee delivers the Opinion of
Counsel described above, such representation shall be deemed to have been made
to the Trustee by the Transferee's acceptance of a Certificate of this Class
and by a beneficial owner's acceptance of its interest in a Certificate of
this Class. Notwithstanding anything else to the contrary herein, until such
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to, or to a person investing
assets of, an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO
EFFECT THE TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
B-1
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.]
B-2
Certificate No.:
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that ________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balance
of all Certificates of the Class to which this Certificate
B-3
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by CWALT, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Countrywide Home Loans, Inc., as a seller ("CHL"), Park Granada
LLC, as a seller ("Park Granada"), Park Monaco, Inc., as a seller ("Park
Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and, together with
CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee
in writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial
issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Securities Act)
to the Trustee an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the Securities Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Sellers, the Master Servicer or the Depositor. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.]
[No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, (ii) if such certificate has been the subject of
an ERISA-Qualifying Underwriting and the transferee is an insurance company, a
representation that the transferee is purchasing such Certificate with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, or
(iii) in the case of any such Certificate presented for registration in the
name of an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions
B-4
of any subsequent enactments), a trustee of any such benefit plan or
arrangement or any other person acting on behalf of any such benefit plan or
arrangement, an Opinion of Counsel satisfactory to the Trustee to the effect
that the purchase and holding of such Certificate will not result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and will not subject the Trustee or the Master Servicer to any obligation in
addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Certificate of this Class to or on behalf of an employee benefit plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the Code
without the opinion of counsel satisfactory to the Trustee as described above
shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By_______________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
B-6
EXHIBIT C
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO
EFFECT THE TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class A-R
evidencing the distributions allocable to the Class A-R Certificates
with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that _________________ is the registered owner of the
Percentage Interest (obtained by dividing the Denomination of this Certificate
by the aggregate Initial Certificate Balance of all Certificates of the Class
to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting of the Mortgage Loans deposited by CWALT,
Inc. (the
C-2
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Countrywide Home Loans, Inc., as a seller ("CHL"), Park Granada
LLC, as a seller ("Park Granada"), Park Monaco, Inc., as a seller ("Park
Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and, together with
CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975 of the Code, or a person acting on behalf of or investing plan assets of
any such benefit plan or arrangement, which representation letter shall not be
an expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
certificate has been the subject of an ERISA-Qualifying Underwriting and the
transferee is an insurance company, a representation that the transferee is
purchasing such Certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief
under Sections I and III of PTCE 95-60, or (iii) in the case of any such
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result in a prohibited transaction under Section 406 of ERISA or Section 4975
of the Code, and will not subject the Trustee or the Master Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Master Servicer or the
Trust Fund. Notwithstanding anything else to the contrary herein, any
purported transfer of a Class A-R Certificate to or on behalf of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed
to be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
C-3
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
C-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-5
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTION IN RESPECT OF PRINCIPAL.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO, OR A PERSON INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975
OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
of all Certificates
of this Class : $
CUSIP :
Interest Rate : Interest Only
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties
CWALT, Inc., as Depositor
The Notional Amount of this certificate at any time, may be less than the
Notional Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amount of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was
created
D-2
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park Granada"),
Park Monaco, Inc., as a seller ("Park Monaco"), and Park Sienna LLC, as a
seller ("Park Sienna" and, together with CHL, Park Granada and Park Monaco,
the "Sellers"), Countrywide Home Loans Servicing LP, as master servicer (the
"Master Servicer"), and The Bank of New York, as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code, and will not subject the Trustee or the Master
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund. When the transferee delivers the Opinion of
Counsel described above, such representation shall be deemed to have been made
to the Trustee by the Transferee's acceptance of a Certificate of this Class
and by a beneficial owner's acceptance of its interest in a Certificate of
this Class. Notwithstanding anything else to the contrary herein, until such
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to, or a person investing
assets of, an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By______________________________
Countersigned:
By__________________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
D-4
EXHIBIT E
[FORM OF] REVERSE OF CERTIFICATES
CWALT, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as CWALT, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to
each Distribution Date is the last Business Day of the month next preceding
the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Master Servicer and the
E-1
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Sellers and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the Pool Stated Principal Balance is
less than or equal to 10% of the Cut-off Date Pool Principal Balance, the
Master Servicer will have the option, subject to the limitations set forth in
the Agreement, to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. In the event that no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the
E-2
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-3
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, ______________________________________________
______________________________________________________________________________
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number ________________________, or, if mailed by check, to __________
Applicable statements should be mailed to_____________________________________,
______________________________________________________________________________
______________________________________________________________________________.
This information is provided by _________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
E-4
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary public
in and for said State, personally appeared __________________________________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
_______________________________
Notary Public
[Notarial Seal]
E-5
EXHIBIT F
[FORM OF] INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Countrywide]
_____________________
_____________________
Re: Pooling and Servicing Agreement among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc. ("Countrywide"), as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a Seller, Park Sienna LLC, as a Seller, Countrywide Home
Loans Servicing LP, as Master Servicer, and The Bank of New
York, as Trustee, Mortgage Pass-Through
Certificates, Series 200_-_
---------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full
or listed on the attached schedule) it has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay
to the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from Countrywide stating that the
original Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability
F-1
or genuineness of any of the documents contained in each Mortgage File of any
of the Initial Mortgage Loans identified on the Mortgage Loan Schedule, or
(ii) the collectability, insurability, effectiveness or suitability of any
such Initial Mortgage Loan.
F-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:__________________________
Name:
Title:
F-3
EXHIBIT G
[FORM OF] DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Countrywide]
---------------------
---------------------
Re: Pooling and Servicing Agreement among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc. ("Countrywide"), as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a Seller, Park Sienna LLC, as a Seller, Countrywide Home
Loans Servicing LP, as Master Servicer, and The Bank of New
York, as Trustee, Mortgage Pass-Through
Certificates, Series 200_-_
---------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to the
above-referenced series, with the schedule of exceptions attached thereto (the
"Schedule A"), delivered by the undersigned, as Trustee, on the Closing Date
in accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"). The undersigned hereby
certifies that, as to each Delay Delivery Initial Mortgage Loan listed on
Schedule A attached hereto (other than any Initial Mortgage Loan paid in full
or listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by Countrywide or the
originator of such Mortgage Loan, without recourse in the following
form: "Pay to the order of _______________ without recourse", with
all intervening endorsements that show a complete chain of
endorsement from the originator to Countrywide, or, if the original
Mortgage Note has been lost or destroyed and not replaced, an
original lost note affidavit from Countrywide, stating that the
original Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(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
G-1
the MIN of the Initial Mortgage Loan and language indicating that
the Initial Mortgage Loan is a MOM Loan if the Initial Mortgage Loan
is a MOM Loan, with evidence of recording indicated thereon, or a
copy of the Mortgage certified by the public recording office in
which such Mortgage has been recorded];
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in the
case of each Initial Mortgage Loan with respect to property located
in the State of California that is not a MERS Mortgage Loan, a duly
executed assignment of the Mortgage in blank (each such assignment,
when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or, in
the event such original title policy has not been received from the
insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company, with the original policy of
title insurance to be delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan Countrywide cannot deliver the original recorded Mortgage or all
interim recorded assignments of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment or
assignments of the Mortgage, as applicable, each certified by Countrywide, the
applicable title company, escrow agent or attorney, or the originator of such
Initial Mortgage Loan, as the case may be, to be a true and complete copy of
the original Mortgage or assignment of Mortgage submitted for recording.
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
G-2
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Initial Mortgage Loans
identified on the [Mortgage Loan Schedule][Loan Number and Borrower
Identification Mortgage Loan Schedule] or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
G-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:__________________________________
Name:
Title:
G-4
EXHIBIT H
[FORM OF] FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Master Servicer]
[Countrywide]
_________________________
_________________________
Re: Pooling and Servicing Agreement among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc. ("Countrywide"), as
a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc.,
as a Seller, Park Sienna LLC, as a Seller, Countrywide Home
Loans Servicing LP, as Master Servicer, and The Bank of New
York, as Trustee, Mortgage Pass-Through
Certificates, Series 200_-_
---------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Initial Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full
or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by Countrywide or the
originator of such Mortgage Loan, without recourse in the following
form: "Pay to the order of _______________ without recourse", with
all intervening endorsements that show a complete chain of
endorsement from the originator to Countrywide, or, if the original
Mortgage Note has been lost or destroyed and not replaced, an
original lost note affidavit from Countrywide, stating that the
original Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Initial Mortgage Loan that is
H-1
a MERS Mortgage Loan, the original Mortgage, noting thereon the
presence of the MIN of the Mortgage Loan and language indicating
that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM
Loan, with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which such
Mortgage has been recorded];
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in the
case of each Initial Mortgage Loan with respect to property located
in the State of California that is not a MERS Mortgage Loan, a duly
executed assignment of the Mortgage in blank (each such assignment,
when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each Initial Mortgage
Loan that is a MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or, in
the event such original title policy has not been received from the
insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company, with the original policy of
title insurance to be delivered within one year of the Closing Date.
In the event that in connection with any Initial Mortgage Loan that is
not a MERS Mortgage Loan Countrywide cannot deliver the original recorded
Mortgage or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or
such assignment or assignments of the Mortgage, as applicable, each certified
by Countrywide, the applicable title company, escrow agent or attorney, or the
originator of such Initial Mortgage Loan, as the case may be, to be a true and
complete copy of the original Mortgage or assignment of Mortgage submitted for
recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the
H-2
"Mortgage Loan Schedule" in Article I of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Initial Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Initial
Mortgage Loan.
H-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Name:
Title:
H-4
EXHIBIT I
[FORM OF] TRANSFER AFFIDAVIT
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ________________, the proposed
Transferee of an Ownership Interest in a Class A-R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, (the
"Agreement"), relating to the above-referenced Series, by and among CWALT,
Inc., as depositor (the "Depositor"), Countrywide Home Loans, Inc., as a
Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as master
servicer and The Bank of New York, as Trustee. Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to
such terms in the Agreement. The Transferee has authorized the undersigned to
make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account or as the nominee,
trustee or agent of another Person, in which case the Transferee has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit
I-1
that such record holder is a Permitted Transferee and the pass-through entity
does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a
real estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives and, except as may be provided in Treasury
Regulations, persons holding interests in pass-through entities as a nominee
for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by the provisions of Section 5.02(c) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is __________________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee anticipates that it will, so long as it holders the
Class A-R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class A-R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class A-R Certificates that
the Transferee intends to pay taxes associated with holding such Class A-R
Certificates as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class A-R
Certificates. The Transferee has provided
I-2
financial statements or other financial information requested by the
Transferor in connection with the transfer of the Class A-R Certificates to
permit the Transferor to assess the financial capability of the Transferee to
pay such taxes. The Transferee is not an employee benefit plan that is subject
to ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of such a plan.
12. Either (i) the Transferee is not an employee benefit plan subject to
Section 406 of ERISA or a plan or arrangement subject to Section 4975 of the
Code, or a person acting on behalf of or investing the assets of any such
benefit plan or arrangement to effect such acquisition, or, (ii) the source of
funds for the purchase of such Class A-R Certificate is an "insurance company
general account" within the meaning of Prohibited Transaction Class Exemption
95-60 (PTCE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995), and the terms and
conditions of Sections I and III of PTCE 95-60 are applicable to the
acquisition and holding of such Class A-R Certificate.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ___ day of _______________, 20__.
________________________________________
PRINT NAME OF TRANSFEREE
By:_____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
________________________________
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me to
be the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged that he executed the same as his free act and
deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20___.
____________________________________
NOTARY PUBLIC
My Commission expires the
___ day of ________________, 20__
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) an "electing partnership" as
defined in Code Section 775, (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 or any political
subdivision thereof, 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 fiduciaries 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 Trustee based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Class A-R Certificate to such Person may cause
the Trust Fund to fail to qualify as a REMIC at any time that certain
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and with the exception of
the FHLMC, a majority of its board or directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture, bank,
joint stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
I-5
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-6
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in a Class
A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Class A-R Certificate unless, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been furnished with
an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class A-R Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Class A-R Certificate and (C)
not to Transfer its Ownership Interest in a Class A-R Certificate or to
cause the Transfer of an Ownership Interest in a Class A-R Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Class A-R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Class A-R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Class A-R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class A-R
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any
I-7
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.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Class A-R Certificate to any
Holder who is not a Permitted Transferee.
I-8
EXHIBIT J-1
[FORM OF] TRANSFEROR CERTIFICATE
(RESIDUAL)
_____________________
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re:CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
----------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that to the extent we are disposing of a Class A-R Certificate, we have no
knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
________________________________________
Print Name of Transferor
By:_____________________________________
Authorized Officer
J-1-1
EXHIBIT J-2
[FORM OF] TRANSFEROR CERTIFICATE
(PRIVATE)
_____________________
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re:CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
---------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we understand that the Certificates have not been registered under
the Securities Act of 1933, as amended (the "Act"), and are being disposed by
us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers
to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, in a manner that would be
deemed, or taken any other action which would result in, a violation of
Section 5 of the Act.
Very truly yours,
________________________________________
Print Name of Transferor
By:_____________________________________
Authorized Officer
J-2-1
EXHIBIT K
[FORM OF] INVESTMENT LETTER (NON-RULE 144A)
_____________________
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
or investing the assets of any such benefit plan or arrangement to effect such
acquisition or (ii) if the Certificates have been the subject of an
ERISA-Qualifying Underwriting and we are an insurance company, we are
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase and holding
of such Certificates satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60,
K-1
(e) we are acquiring the Certificates for investment for our own account and
not with a view to any distribution of such Certificates (but without
prejudice to our right at all times to sell or otherwise dispose of the
Certificates in accordance with clause (g) below), (f) we have not offered or
sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of
Section 5 of the Act, and (g) we will not sell, transfer or otherwise dispose
of any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act or is
exempt from such registration requirements, and if requested, we will at our
expense provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made pursuant
to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and Servicing Agreement.
Very truly yours,
________________________________________
Print Name of Transferor
By:_____________________________________
Authorized Officer
K-2
EXHIBIT L
[FORM OF] RULE 144A LETTER
_____________________
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
-----------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
or investing the assets of any such benefit plan or arrangement to effect such
acquisition or (ii) if the Certificates have been the subject of an
ERISA-Qualifying Underwriting and we are an insurance company, we are
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase and holding
of such Certificates satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting on
our behalf offered, transferred, pledged, sold or
L-1
otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Securities Act or that would render the disposition of
the Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
Very truly yours,
________________________________________
Print Name of Transferor
By:_____________________________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis either at least $100,000 in securities or,
if Buyer is a dealer, Buyer must own and/or invest on a discretionary basis at
least $10,000,000 in securities (except for the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached
hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
L-3
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part
of an unsold allotment to or subscription by the Buyer, if the Buyer is a
dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned,
L-4
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes
in the information and conclusions herein. Until such notice is given, the
Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after
they become available.
________________________________________
Print Name of Buyer
By:_____________________________________
Name:
Title:
Date:___________________________________
L-5
ANNEX 2 TO EXHIBIT L
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933, as amended ("Rule 144A") because Buyer
is part of a Family of Investment Companies (as defined below), is such
an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is
an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the
Buyer's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's
Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer's Family of Investment Companies
reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to
the cost of those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at market.
___ The Buyer owned $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_______ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or
because one investment adviser is a majority owned subsidiary of the
other).
L-6
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of
the Buyer's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of
the Certificates will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
________________________________________
Print Name of Buyer or Adviser
By:_____________________________________
Name:
Title:
IF AN ADVISER:
________________________________________
Print Name of Buyer
Date:___________________________________
L-7
EXHIBIT M
[FORM OF] REQUEST FOR RELEASE
(for Trustee)
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
Name of Mortgagor: _____________________________________________
Servicer Loan No.: _____________________________________________
Trustee
Name: _____________________________________________
Address: _____________________________________________
_____________________________________________
_____________________________________________
Trustee
Mortgage File No.: _____________________________________________
The undersigned Master Servicer hereby acknowledges that it has received
from The Bank of New York, as Trustee for the Holders of Mortgage Pass-Through
Certificates, of the above-referenced Series, the documents referred to below
(the "Documents"). All capitalized terms not otherwise defined in this Request
for Release shall have the meanings given them in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series among the Trustee, Countrywide Home Loans, Inc., as a
Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master
Servicer and CWALT, Inc., as Depositor.
( ) Mortgage Note dated _______________, 20__, in the original principal sum
of $___________, made by ____________________________, payable to, or
endorsed to the order of, the Trustee.
( ) Mortgage recorded on __________________ as instrument no.
______________________ in the County Recorder's Office of the County of
_________________________, State of _______________________ in
book/reel/docket _________________________ of official records at
page/image_____________________________.
M-1
( ) Deed of Trust recorded on ______________________ as instrument no.
___________ in the County Recorder's Office of the County of
__________________________, State of _____________________ in
book/reel/docket _________________________ of official records at
page/image ____________________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_____________________ as instrument no. __________________ in the County
Recorder's Office of the County of _____________________, State of
___________________ in book/reel/docket ________________ of official
records at page/image ________________________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) _________________________________________________________________
( ) _________________________________________________________________
( ) _________________________________________________________________
( ) _________________________________________________________________
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Servicer assert or seek to assert any claims or rights of
setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted
to the Certificate Account and except as expressly provided in the
Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master Servicer
shall at all times be earmarked for the account of the Trustee, and the
Master Servicer shall keep the Documents and any proceeds separate and
distinct from all other property in the Master Servicer's possession,
custody or control.
M-2
COUNTRYWIDE HOME LOANS
SERVICING LP
By__________________________________
Its_________________________________
Date:_________________, 20__
M-3
EXHIBIT N
[FORM OF] REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York Attn: Mortgage Custody
Services
Re: The Pooling & Servicing Agreement dated [month] 1, 200_, among
Countrywide Home Loans, Inc., as a Seller, Park Granada LLC, as a
Seller, Park Monaco, Inc., as a Seller, Park Sienna LLC, as a
Seller, Countrywide Home Loans Servicing LP, as Master Servicer,
CWALT, Inc. and The Bank of New York, as Trustee
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you
as Trustee for CWALT, Inc., we request the release of the Mortgage Loan File
for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
1. Mortgage Loan paid in full (Countrywide Home Loans, Inc. hereby
certifies that all amounts have been received).
2. Mortgage Loan Liquidated (Countrywide Home Loans, Inc. hereby
certifies that all proceeds of foreclosure, insurance, or other
liquidation have been finally received).
3. Mortgage Loan in Foreclosure.
4. Other (explain):
If item 1 or 2 above is checked, and if all or part of the Mortgage File
was previously released to us, please release to us our previous receipt on
file with you, as well as any additional documents in your possession relating
to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon return
of all of the above documents to you as Trustee, please acknowledge your
receipt by signing in the space indicated below, and returning this form.
N-1
COUNTRYWIDE HOME LOANS, INC.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
N-2
EXHIBIT O
[RESERVED]
O-1
EXHIBIT P
[RESERVED]
P-1
EXHIBIT Q
STANDARD & POOR'S LEVELS(R) VERSION 5.6b GLOSSARY REVISED, APPENDIX E
APPENDIX E - Standard & Poor's Anti-Predatory Lending Categorization
--------------------------------------------------------------------
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 Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. Code High Cost Home Loan
Xxx. xx.xx. 00-00-000 et seq.
Effective July 16, 2003
---------------------------------------------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code xx.xx. Covered Loan
757.01 et seq.
Effective June 2, 2003
---------------------------------------------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Stat. Xxx. xx.xx. Covered Loan
5-3.5-101 et seq.
Effective for covered loans offered or entered
into on or after January 1, 2003. Other
provisions of the Act took effect on June 7,
2002
---------------------------------------------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan Lending Practices High Cost Home Loan
Act, Conn. Gen. Stat. xx.xx. 36a-746 et seq.
Effective October 1, 2001
---------------------------------------------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Code xx.xx. Covered Loan
26-1151.01 et seq.
Effective for loans closed on or after January
28, 2003
---------------------------------------------------------------------------------------------------------------------
Q-1
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. 494.0078 High Cost Home Loan
et seq.
Effective October 2, 2002
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. High Cost Home Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
Georgia as amended (Mar. 7, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. High Cost Home Loan
- current) 7-6A-1 et seq.
Effective for loans closed on or after March 7,
2003
---------------------------------------------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity Protection Act of High Cost Loan
1994, 15 U.S.C. ss. 1639, 12 C.F.R. xx.xx.
226.32 and 226.34
Effective October 1, 1995, amendments October
1, 2002
---------------------------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. Comp. Stat. tit. High Risk Home Loan
815, xx.xx. 137/5 et seq.
Effective January 1, 2004 (prior to this date,
regulations under Residential Mortgage License
Act effective from May 14, 2001)
---------------------------------------------------------------------------------------------------------------------
Indiana Indiana Home Loan Practices Act, Ind. Code Xxx. High Cost Home Loan
xx.xx. 24-9-1-1 et seq.
Effective for loans originated on or after
January 1, 2005.
---------------------------------------------------------------------------------------------------------------------
Q-2
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. xx.xx. High Loan to Value Consumer
16a-1-101 et seq. Loan (id. ss. 16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 became
effective April 14, 1999; Section 16a-3-308a
became effective July 1, 1999
-------------------------------------
High APR Consumer Loan (id. ss.
16a-3-308a)
---------------------------------------------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. High Cost Home Loan
Rev. Stat. xx.xx. 360.100 et seq.
Effective June 24, 2003
---------------------------------------------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, ss. High Rate High Fee Mortgage
ss. 8-101 et seq.
Effective September 29, 1995 and as amended
from time to time
---------------------------------------------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. xx.xx. 32.00 et High Cost Home Loan
seq. and 209 C.M.R. xx.xx. 40.01 et seq.
Effective March 22, 2001 and amended from time
to time
---------------------------------------------------------------------------------------------------------------------
Massachusetts Predatory Home Loan Practices Act High Cost Home Mortgage Loan
Mass. Gen. Laws ch. 183C, xx.xx. 1 et seq.
Effective November 7, 2004
---------------------------------------------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. xx.xx. Home Loan
598D.010 et seq.
Effective October 1, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, High Cost Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-
---------------------------------------------------------------------------------------------------------------------
Q-3
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
22 et seq.
Effective for loans closed on or after November
27, 2003
---------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. xx.xx. High Cost Home Loan
58-21A-1 et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
---------------------------------------------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or after
April 1, 2003
---------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home High Cost Home Loan
Loans, N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
---------------------------------------------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various sections of the Covered Loan
Ohio Code), Ohio Rev. Code Xxx. xx.xx. 1349.25
et seq.
Effective May 24, 2002
---------------------------------------------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
---------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10
et seq.
Effective for loans taken on or after January
1, 2004
---------------------------------------------------------------------------------------------------------------------
West Virginia West Virginia Residential Mortgage Lender, West Virginia Mortgage Loan
Broker and Servicer Act, W. Va. Code Xxx. ss. Act Loan
ss. 31-17-1 et seq.
---------------------------------------------------------------------------------------------------------------------
Q-4
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Effective June 5, 2002
---------------------------------------------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
---------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. Covered Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Covered Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 et seq.
Effective November 27, 2003 - July 5, 2004
---------------------------------------------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. Home Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 et seq.
Effective for loans closed on or after November
27, 2003
---------------------------------------------------------------------------------------------------------------------
Q-5
Standard & Poor's Home Loan Categorization
------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. xx.xx. Home Loan
58-21A-1 et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
---------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Consumer Home Loan
Loans, N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
---------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after January
1, 2004
---------------------------------------------------------------------------------------------------------------------
Q-6
EXHIBIT R
[FORM OF] CORRIDOR CONTRACT
Delivered to the Trustee at closing and on file with the Trustee.
R-1
EXHIBIT S
[FORM OF] ASSIGNMENT AGREEMENT
Delivered to the Trustee at closing and on file with the Trustee.
S-1
EXHIBIT T
BENEFIT PLAN AFFIDAVIT
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
RE: Class 1-A-1 Certificates (the "Certificates") issued by Alternative Loan
Trust 2005-__ (the "Trust")
Under penalties of perjury, I, _____________________, declare that, to
the best of my knowledge and belief, the following representations are true,
correct and complete; and
1. That I am the _______________ of __________________ (the "Purchaser"),
whose taxpayer identification number is ___________, and on behalf of which I
have the authority to make this affidavit.
2. That the Purchaser is acquiring a Certificate representing an interest
in the assets of the Trust.
3. That the Purchaser satisfies the condition in the paragraph marked
below [xxxx one paragraph only]:
___ The Purchaser is not an employee benefit or other plan subject
to the prohibited transaction provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (a "Plan"), 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 within the meaning of the Department
of Labor ("DOL") regulation at 29 C.F.R. Section 2510.3-101.
___ The acquisition and holding of the Certificate are eligible for
the exemptive relief available under DOL Prohibited Transaction Class
Exemption 84-14, 91-38, 90-1, 95-60 or 96-23.
___ The Purchaser has delivered to CWALT and the Trustee a Benefit
Plan Opinion (as defined in Article I of the Pooling and Servicing
Agreement, dated as of March 1, 2005, among CWALT, Inc., as depositor,
Countrywide Home Loans, Inc., as a seller, Park Granada LLC, as a seller,
Park Monaco Inc., as a seller, Park Sienna LLC, as
T-1
a seller, Countrywide Home Loans Servicing LP, as master servicer and The
Bank of New York, as trustee thereunder, and relating to the Trust).
T-2
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly
executed on its behalf, by its duly authorized officer this _____ day of
__________________, 20__.
[Purchaser]
By:_____________________________
Its:
T-3
Personally appeared before me ______________________, known or proved to
me to be the same person who executed the foregoing instrument and to be a
________________ of the Purchaser, and acknowledged to me that (s)he executed
the same as his/her free act and deed and as the free act and deed of the
Purchaser.
SUBSCRIBED and SWORN to before me this day of ____________, 20__.
________________________________
Notary Public
T-4
