CWABS, INC., Depositor COUNTRYWIDE HOME LOANS, INC., Seller PARK MONACO INC., Seller PARK SIENNA LLC, Seller COUNTRYWIDE HOME LOANS SERVICING LP, Master Servicer THE BANK OF NEW YORK, Trustee and THE BANK OF NEW YORK TRUST COMPANY, N.A., Co-Trustee
CWABS,
INC.,
Depositor
COUNTRYWIDE
HOME LOANS, INC.,
Seller
PARK
MONACO INC.,
Seller
PARK
SIENNA LLC,
Seller
COUNTRYWIDE
HOME LOANS SERVICING LP,
Master
Servicer
THE
BANK
OF NEW YORK,
Trustee
and
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.,
Co-Trustee
Dated
as
of March 1, 2007
ASSET-BACKED
CERTIFICATES, SERIES 2007-5
Table
of Contents
Page
ARTICLE
I.
DEFINITIONS
|
Section
1.01
|
Defined
Terms.
|
8
|
|
Section
1.02
|
Certain
Interpretive Provisions.
|
53
|
|
ARTICLE
II.
|
||
|
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
|
||
|
Section
2.01
|
Conveyance
of Mortgage Loans.
|
53
|
|
Section
2.02
|
Acceptance
by Trustee of the Mortgage Loans.
|
61
|
|
Section
2.03
|
Representations,
Warranties and Covenants of the Master Servicer and the
Sellers.
|
66
|
|
Section
2.04
|
Representations
and Warranties of the Depositor.
|
86
|
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
88
|
|
Section
2.06
|
Authentication
and Delivery of Certificates.
|
88
|
|
Section
2.07
|
Covenants
of the Master Servicer.
|
89
|
|
ARTICLE
III.
|
||
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
||
|
Section
3.01
|
Master
Servicer to Service Mortgage Loans.
|
89
|
|
Section
3.02
|
Subservicing;
Enforcement of the Obligations of Master Servicer.
|
91
|
|
Section
3.03
|
Rights
of the Depositor, the Sellers, the Certificateholders, the NIM Insurer
and
the Trustee in Respect of the Master Servicer.
|
92
|
|
Section
3.04
|
Trustee
to Act as Master Servicer.
|
93
|
|
Section
3.05
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Pre-Funding Account; Capitalized Interest Account.
|
93
|
|
Section
3.06
|
Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
|
97
|
|
Section
3.07
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
97
|
|
Section
3.08
|
Permitted
Withdrawals from the Certificate Account, Distribution Account, Carryover
Reserve Fund and the Principal Reserve Fund.
|
98
|
|
Section
3.09
|
[Reserved].
|
101
|
|
Section
3.10
|
Maintenance
of Hazard Insurance.
|
101
|
|
Section
3.11
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
102
|
|
Section
3.12
|
Realization
Upon Defaulted Mortgage Loans; Determination of Excess Proceeds and
Realized Losses; Repurchase of Certain Mortgage Loans.
|
103
|
|
Section
3.13
|
Co-Trustee
to Cooperate; Release of Mortgage Files.
|
107
|
|
Section
3.14
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
the
Trustee.
|
108
|
|
Section
3.15
|
Servicing
Compensation.
|
108
|
i
|
Section
3.16
|
Access
to Certain Documentation.
|
109
|
|
Section
3.17
|
Annual
Statement as to Compliance.
|
109
|
|
Section
3.18
|
[Reserved].
|
110
|
|
Section
3.19
|
The
Corridor Contracts.
|
110
|
|
Section
3.20
|
Prepayment
Charges.
|
110
|
|
Section
3.21
|
Swap
Contract.
|
111
|
|
ARTICLE
IV.
|
||
|
DISTRIBUTIONS
AND ADVANCES BY THE MASTER SERVICER
|
||
|
Section
4.01
|
Advances;
Remittance Reports.
|
113
|
|
Section
4.02
|
Reduction
of Servicing Compensation in Connection with Prepayment Interest
Shortfalls.
|
115
|
|
Section
4.03
|
[Reserved].
|
115
|
|
Section
4.04
|
Distributions.
|
115
|
|
Section
4.05
|
Monthly
Statements to Certificateholders.
|
123
|
|
Section
4.06
|
Termination
of the Mortgage Insurance Policy.
|
124
|
|
Section
4.07
|
Carryover
Reserve Fund.
|
125
|
|
Section
4.08
|
[Reserved].
|
125
|
|
Section
4.09
|
Swap
Trust and Swap Account.
|
125
|
|
Section
4.10
|
Final
Maturity Reserve Trust and Final Maturity Reserve Fund.
|
126
|
|
ARTICLE
V.
|
||
|
THE
CERTIFICATES
|
||
|
Section
5.01
|
The
Certificates.
|
128
|
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
129
|
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
133
|
|
Section
5.04
|
Persons
Deemed Owners.
|
134
|
|
Section
5.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
134
|
|
Section
5.06
|
Book-Entry
Certificates.
|
134
|
|
Section
5.07
|
Notices
to Depository.
|
135
|
|
Section
5.08
|
Definitive
Certificates.
|
135
|
|
Section
5.09
|
Maintenance
of Office or Agency.
|
136
|
|
ARTICLE
VI.
|
||
|
THE
DEPOSITOR, THE MASTER SERVICER AND THE SELLERS
|
||
|
Section
6.01
|
Respective
Liabilities of the Depositor, the Master Servicer and the
Sellers.
|
136
|
|
Section
6.02
|
Merger
or Consolidation of the Depositor, the Master Servicer or the
Sellers.
|
136
|
|
Section
6.03
|
Limitation
on Liability of the Depositor, the Sellers, the Master Servicer,
the NIM
Insurer and Others.
|
137
|
|
Section
6.04
|
Limitation
on Resignation of Master Servicer.
|
138
|
|
Section
6.05
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
138
|
ii
|
ARTICLE
VII.
|
||
|
DEFAULT;
TERMINATION OF MASTER SERVICER
|
||
|
Section
7.01
|
Events
of Default.
|
139
|
|
Section
7.02
|
Trustee
to Act; Appointment of Successor.
|
141
|
|
Section
7.03
|
Notification
to Certificateholders.
|
142
|
|
ARTICLE
VIII.
|
||
|
CONCERNING
THE TRUSTEE AND THE CO-TRUSTEE
|
||
|
Section
8.01
|
Duties
of Trustee.
|
143
|
|
Section
8.02
|
Certain
Matters Affecting the Trustee.
|
144
|
|
Section
8.03
|
Trustee
Not Liable for Mortgage Loans.
|
146
|
|
Section
8.04
|
Trustee
May Own Certificates.
|
146
|
|
Section
8.05
|
Master
Servicer to Pay Trustee’s Fees and Expenses.
|
146
|
|
Section
8.06
|
Eligibility
Requirements for Trustee.
|
146
|
|
Section
8.07
|
Resignation
and Removal of Trustee.
|
147
|
|
Section
8.08
|
Successor
Trustee.
|
148
|
|
Section
8.09
|
Merger
or Consolidation of Trustee.
|
149
|
|
Section
8.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
149
|
|
Section
8.11
|
Tax
Matters.
|
150
|
|
Section
8.12
|
Co-Trustee.
|
154
|
|
Section
8.13
|
Access
to Records of the Trustee.
|
156
|
|
Section
8.14
|
Suits
for Enforcement.
|
157
|
|
ARTICLE
IX.
|
||
|
TERMINATION
|
||
|
Section
9.01
|
Termination
upon Liquidation or Repurchase of all Mortgage Loans.
|
157
|
|
Section
9.02
|
Final
Distribution on the Certificates.
|
158
|
|
Section
9.03
|
Additional
Termination Requirements.
|
160
|
|
Section
9.04
|
Auction
of the Mortgage Loans and REO Properties.
|
161
|
|
ARTICLE
X.
|
||
|
MISCELLANEOUS
PROVISIONS
|
||
|
Section
10.01
|
Amendment.
|
164
|
|
Section
10.02
|
Recordation
of Agreement; Counterparts.
|
166
|
|
Section
10.03
|
Governing
Law.
|
166
|
|
Section
10.04
|
Intention
of Parties.
|
167
|
|
Section
10.05
|
Notices.
|
168
|
|
Section
10.06
|
Severability
of Provisions.
|
170
|
|
Section
10.07
|
Assignment.
|
170
|
|
Section
10.08
|
Limitation
on Rights of Certificateholders.
|
170
|
|
Section
10.09
|
Inspection
and Audit Rights.
|
171
|
|
Section
10.10
|
Certificates
Nonassessable and Fully Paid.
|
171
|
|
Section
10.11
|
Rights
of NIM Insurer.
|
171
|
iii
|
Section
10.12
|
Protection
of Assets.
|
172
|
|
ARTICLE
XI.
|
||
|
EXCHANGE
ACT REPORTING
|
||
|
Section
11.01
|
Filing
Obligations.
|
173
|
|
Section
11.02
|
Form
10-D Filings.
|
173
|
|
Section
11.03
|
Form
8-K Filings.
|
174
|
|
Section
11.04
|
Form
10-K Filings.
|
174
|
|
Section
11.05
|
Xxxxxxxx-Xxxxx
Certification.
|
175
|
|
Section
11.06
|
Form
15 Filing.
|
175
|
|
Section
11.07
|
Report
on Assessment of Compliance and Attestation.
|
176
|
|
Section
11.08
|
Use
of Subservicers and Subcontractors.
|
177
|
|
Section
11.09
|
Amendments.
|
178
|
|
Section
11.10
|
Reconciliation
of Accounts.
|
178
|
|
Exhibits
|
|
|
EXHIBIT
A
|
Forms
of Certificates
|
|
EXHIBIT
A-1
|
Form
of Class 1-A Certificate
|
|
EXHIBIT
A-2
|
Form
of Class 2-A-1 Certificate
|
|
EXHIBIT
A-3
|
Form
of Class 2-A-2 Certificate
|
|
EXHIBIT
A-4
|
Form
of Class 2-A-3 Certificate
|
|
EXHIBIT
A-5
|
Form
of Class 2-A-4 Certificate
|
|
EXHIBIT
A-6
|
Form
of Class M-1 Certificate
|
|
EXHIBIT
A-7
|
Form
of Class M-2 Certificate
|
|
EXHIBIT
A-8
|
Form
of Class M-3 Certificate
|
|
EXHIBIT
A-9
|
Form
of Class M-4 Certificate
|
|
EXHIBIT
A-10
|
Form
of Class M-5 Certificate
|
|
EXHIBIT
A-11
|
Form
of Class M-6 Certificate
|
|
EXHIBIT
A-12
|
Form
of Class M-7 Certificate
|
|
EXHIBIT
A-13
|
Form
of Class M-8 Certificate
|
|
EXHIBIT
B
|
Form
of Class P Certificate
|
|
EXHIBIT
C
|
Form
of Class C Certificate
|
|
EXHIBIT
D
|
Form
of Class A-R Certificate
|
|
EXHIBIT
E
|
Form
of Tax Matters Person Certificate
|
|
EXHIBIT
F
|
Mortgage
Loan Schedule
|
|
EXHIBIT
F-1
|
List
of Mortgage Loans
|
|
EXHIBIT
F-2
|
Mortgage
Loans for which All or a Portion of a Related Mortgage File is not
Delivered to the Trustee on or prior to the Closing
Date
|
|
EXHIBIT
G
|
Forms
of Certification of Trustee
|
|
EXHIBIT
G-1
|
Form
of Initial Certification of Trustee (Initial Mortgage
Loans)
|
|
EXHIBIT
G-2
|
Form
of Interim Certification of Trustee
|
|
EXHIBIT
G-3
|
Form
of Delay Delivery Certification
|
|
EXHIBIT
G-4
|
Form
of Initial Certification of Trustee (Subsequent Mortgage
Loans)
|
|
EXHIBIT
H
|
Form
of Final Certification of Trustee
|
iv
|
EXHIBIT
I
|
Transfer
Affidavit for Class A-R Certificates
|
|
EXHIBIT
J-1
|
Form
of Transferor Certificate for Class A-R Certificates
|
|
EXHIBIT
J-2
|
Form
of Transferor Certificate for Private Certificates
|
|
EXHIBIT
K
|
Form
of Investment Letter (Non-Rule 144A)
|
|
EXHIBIT
L
|
Form
of Rule 144A Letter
|
|
EXHIBIT
M
|
Form
of Request for Document Release
|
|
EXHIBIT
N
|
Form
of Request for File Release
|
|
EXHIBIT
O
|
Copy
of Depository Agreement
|
|
EXHIBIT
P
|
Form
of Subsequent Transfer Agreement
|
|
EXHIBIT
Q-1
|
Form
of Class 1-A Corridor Contract
|
|
EXHIBIT
Q-2
|
Form
of Class 2-A Corridor Contract
|
|
EXHIBIT
Q-3
|
Form
of Subordinate Corridor Contract
|
|
EXHIBIT
R
|
[Reserved]
|
|
EXHIBIT
S-1
|
Form
of Corridor Contract Assignment Agreement
|
|
EXHIBIT
S-2
|
Form
of Corridor Contract Administration Agreement
|
|
EXHIBIT
T
|
Officer’s
Certificate with respect to Prepayments
|
|
EXHIBIT
U
|
Form
of Swap Contract
|
|
EXHIBIT
V-1
|
Form
of Swap Contract Assignment Agreement
|
|
EXHIBIT
V-2
|
Form
of Swap Contract Administration Agreement
|
|
EXHIBIT
W
|
Form
of Monthly Statement
|
|
EXHIBIT
X-1
|
Form
of Performance Certification (Subservicer)
|
|
EXHIBIT
X-2
|
Form
of Performance Certification (Trustee)
|
|
EXHIBIT
Y
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
|
EXHIBIT
Z
|
List
of Item 1119 Parties
|
|
EXHIBIT
AA
|
Form
of Xxxxxxxx-Xxxxx Certification (Replacement Master
Servicer)
|
|
SCHEDULE
I
|
Prepayment
Charge Schedule and Prepayment Charge Summary
|
|
SCHEDULE
II
|
Collateral
Schedule
|
|
SCHEDULE
III
|
40-Year
Target Schedule
|
v
POOLING
AND SERVICING AGREEMENT, dated as of March 1, 2007, by and among CWABS, INC.,
a
Delaware corporation, as depositor (the “Depositor”), COUNTRYWIDE HOME LOANS,
INC., a New York corporation, as seller (“CHL” or a “Seller”), PARK MONACO INC.,
a Delaware corporation, as a seller (“Park Monaco” or a “Seller”), PARK SIENNA
LLC, a Delaware limited liability company, as a seller (“Park Sienna” or a
“Seller”, and together with CHL and Park Monaco, the “Sellers”), COUNTRYWIDE
HOME LOANS SERVICING LP, a Texas limited partnership, as master servicer (the
“Master Servicer”), THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the “Trustee”), and THE BANK OF NEW YORK TRUST COMPANY, N.A., a
national banking association, as co-trustee (the “Co-Trustee”).
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. The Trust Fund (excluding the Carryover Reserve
Fund, the assets held in the Pre-Funding Account and the Capitalized Interest
Account and the Trust Fund’s rights with respect to payments received under the
Corridor Contracts) for federal income tax purposes will consist of three REMICs
(the “Swap-IO REMIC,” the “Strip REMIC” and the “Master REMIC”). 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 Swap-IO REMIC, the Strip REMIC and the Master
REMIC. The Master REMIC will hold as assets the several classes of
uncertificated Strip REMIC Interests (other than the STR-A-R
Interest). Each Strip REMIC Interest (other than the STR-A-R
Interest) is hereby designated as a regular interest in the Strip
REMIC. The Strip REMIC will hold as assets the several classes of
uncertificated Swap-IO REMIC Interests (other than the SWR-A-R Interest). Each
Swap-IO REMIC Interest (other than the SWR-A-R Interest) is hereby designated
as
a regular interest in the Swap-IO REMIC. The Swap-IO REMIC will hold
as assets all property of the Trust Fund (excluding the Carryover Reserve Fund,
the assets held in the Pre-Funding Account and the Capitalized Interest Account
and the Trust Fund’s rights with respect to payments received under the Corridor
Contracts). The latest possible maturity date of all REMIC regular
interests created in this Agreement shall be the Latest Possible Maturity
Date.
None
of
the REMICs described herein shall hold any interest in the Swap Trust, Swap
Contract, Swap Account or Final Maturity Reserve Trust.
SWAP-IO
REMIC:
The
Swap-IO REMIC Interests will have the principal balances and pass-through rates
as set forth below.
|
Swap-IO
REMIC Interest
|
Initial
Principal Balance(1)
|
Pass-Through
Rate
|
||
|
SWR-7A
|
$ 4,838,637.50
|
(2)
|
||
|
SWR-7B
|
4,838,637.50
|
(3)
|
||
|
SWR-8A
|
5,269,633.00
|
(2)
|
||
|
SWR-8B
|
5,269,633.00
|
(3)
|
||
|
SWR-9A
|
5,717,483.00
|
(2)
|
||
|
SWR-9B
|
5,717,483.00
|
(3)
|
||
|
SWR-10A
|
6,155,982.00
|
(2)
|
||
|
SWR-10B
|
6,155,982.00
|
(3)
|
||
|
SWR-11A
|
6,583,755.50
|
(2)
|
||
|
SWR-11B
|
6,583,755.50
|
(3)
|
||
|
SWR-12A
|
110,953,705.00
|
(2)
|
||
|
SWR-12B
|
110,953,705.00
|
(3)
|
||
|
SWR-13A
|
5,638,670.50
|
(2)
|
||
|
SWR-13B
|
5,638,670.50
|
(3)
|
||
|
SWR-14A
|
5,922,859.50
|
(2)
|
||
|
SWR-14B
|
5,922,859.50
|
(3)
|
||
|
SWR-15A
|
6,196,481.00
|
(2)
|
||
|
SWR-15B
|
6,196,481.00
|
(3)
|
||
|
SWR-16A
|
6,458,797.00
|
(2)
|
||
|
SWR-16B
|
6,458,797.00
|
(3)
|
||
|
SWR-17A
|
6,709,105.00
|
(2)
|
||
|
SWR-17B
|
6,709,105.00
|
(3)
|
||
|
SWR-18A
|
12,163,200.00
|
(2)
|
||
|
SWR-18B
|
12,163,200.00
|
(3)
|
||
|
SWR-19A
|
6,175,706.50
|
(2)
|
||
|
SWR-19B
|
6,175,706.50
|
(3)
|
||
|
SWR-20A
|
6,091,239.50
|
(2)
|
||
|
SWR-20B
|
6,091,239.50
|
(3)
|
||
|
SWR-21A
|
6,007,748.00
|
(2)
|
||
|
SWR-21B
|
6,007,748.00
|
(3)
|
||
|
SWR-22A
|
5,925,166.00
|
(2)
|
||
|
SWR-22B
|
5,925,166.00
|
(3)
|
||
|
SWR-23A
|
5,843,428.50
|
(2)
|
||
|
SWR-23B
|
5,843,428.50
|
(3)
|
||
|
SWR-24A
|
89,684,663.00
|
(2)
|
||
|
SWR-24B
|
89,684,663.00
|
(3)
|
||
|
SWR-25A
|
3,807,489.00
|
(2)
|
||
|
SWR-25B
|
3,807,489.00
|
(3)
|
||
|
SWR-26A
|
3,738,429.50
|
(2)
|
||
|
SWR-26B
|
3,738,429.50
|
(3)
|
||
|
SWR-27A
|
3,670,692.00
|
(2)
|
||
|
SWR-27B
|
3,670,692.00
|
(3)
|
||
|
SWR-28A
|
3,604,248.50
|
(2)
|
||
|
SWR-28B
|
3,604,248.50
|
(3)
|
||
|
SWR-29A
|
3,539,076.50
|
(2)
|
||
|
SWR-29B
|
3,539,076.50
|
(3)
|
||
|
SWR-30A
|
18,263,556.50
|
(2)
|
||
|
SWR-30B
|
18,263,556.50
|
(3)
|
||
|
SWR-31A
|
2,964,892.00
|
(2)
|
||
|
SWR-31B
|
2,964,892.00
|
(3)
|
||
|
SWR-32A
|
2,909,912.50
|
(2)
|
||
|
SWR-32B
|
2,909,912.50
|
(3)
|
||
|
SWR-33A
|
2,855,971.00
|
(2)
|
||
|
SWR-33B
|
2,855,971.00
|
(3)
|
||
|
SWR-34A
|
2,803,045.50
|
(2)
|
||
|
SWR-34B
|
2,803,045.50
|
(3)
|
||
|
SWR-35A
|
2,751,118.50
|
(2)
|
||
|
SWR-35B
|
2,751,118.50
|
(3)
|
||
|
SWR-36A
|
19,401,629.50
|
(2)
|
||
|
SWR-36B
|
19,401,629.50
|
(3)
|
||
|
SWR-37A
|
6,404,134.50
|
(2)
|
||
|
SWR-37B
|
6,404,134.50
|
(3)
|
||
|
SWR-38A
|
6,033,732.00
|
(2)
|
||
|
SWR-38B
|
6,033,732.00
|
(3)
|
||
|
SWR-39A
|
5,393,493.50
|
(2)
|
||
|
SWR-39B
|
5,393,493.50
|
(3)
|
||
|
SWR-40A
|
4,812,665.50
|
(2)
|
||
|
SWR-40B
|
4,812,665.50
|
(3)
|
||
|
SWR-41A
|
4,323,929.00
|
(2)
|
||
|
SWR-41B
|
4,323,929.00
|
(3)
|
||
|
SWR-42A
|
3,941,637.50
|
(2)
|
||
|
SWR-42B
|
3,941,637.50
|
(3)
|
||
|
SWR-43A
|
3,615,511.50
|
(2)
|
||
|
SWR-43B
|
3,615,511.50
|
(3)
|
||
|
SWR-44A
|
3,490,251.50
|
(2)
|
||
|
SWR-44B
|
3,490,251.50
|
(3)
|
||
|
SWR-45A
|
3,324,596.50
|
(2)
|
||
|
SWR-45B
|
3,324,596.50
|
(3)
|
||
|
SWR-46A
|
3,166,083.50
|
(2)
|
||
|
SWR-46B
|
3,166,083.50
|
(3)
|
||
|
SWR-47A
|
3,032,309.50
|
(2)
|
||
|
SWR-47B
|
3,032,309.50
|
(3)
|
||
|
SWR-48A
|
2,914,853.50
|
(2)
|
||
|
SWR-48B
|
2,914,853.50
|
(3)
|
||
|
SWR-49A
|
2,803,922.00
|
(2)
|
||
|
SWR-49B
|
2,803,922.00
|
(3)
|
||
|
SWR-50A
|
111,232,223.00
|
(2)
|
||
|
SWR-50B
|
111,232,223.00
|
(3)
|
||
|
SWR-Support
|
(4)
|
(5)
|
||
|
SWR-P
|
$ 100.00
|
(6)
|
||
|
SWR-40
Year Reserve
|
(7)
|
(7)
|
||
|
SW-A-R
|
(8)
|
(8)
|
1
|
(1)
|
Scheduled
principal, prepayments and Realized Losses will be allocated first,
to the
SWR-Support Interest and second, to the numbered classes sequentially
(from lowest to highest). Amounts so allocated to a numbered
class shall be further allocated between the “A” and “B” components of
such numbered class pro-rata until the entire class is reduced to
zero.
|
|
(2)
|
On
and after the 7th Distribution Date and on and until the 50th Distribution
Date, a rate equal to twice the Pool Tax Cap less 10.12% per
annum. Prior to the 7th Distribution Date and on and after the
51st Distribution Date, a rate equal to the Pool Tax Cap. The
“Pool Tax Cap” means the weighted average of the Adjusted Net Mortgage
Rates of all the Mortgage Loans. For this purpose, beginning on
the Distribution Date in April 2017 and ending on the Distribution
Date in
March 2037 (the “Last Scheduled Distribution Date”), the Adjusted Net
Mortgage Rate shall be determined by first reducing the interest
payable
on each 40-Year Mortgage Loan by the 40-Year Reserve
Rate.
|
|
(3)
|
On
and after the 7th Distribution Date and on and until the 50th Distribution
Date, a rate equal to the lesser of (i) 10.12% per annum and (ii)
twice
the Pool Tax Cap. Prior to the 7th Distribution Date and on and
after the 51st Distribution Date, a rate equal to the Pool Tax
Cap.
|
|
(4)
|
On
the Closing Date and on each Distribution Date, following the allocation
of Principal Amounts and Realized Losses, the principal balance in
respect
of the SWR-Support Interest will equal the excess of (a) the sum
of (i)
the principal balance of the Mortgage Loans (as of the end of the
related
Due Period, reduced by principal prepayments received after such
Due
Period that are to be distributed on such Distribution Date) and
(ii) the
amount, if any, on deposit in the Pre-Funding Account in respect
of the
Mortgage Loans over (b) the principal balance in respect of the remaining
Swap-IO REMIC Interests other than the SWR-P and the SWR-A-R
Interests.
|
|
(5)
|
A
rate equal to the Pool Tax Cap.
|
|
(6)
|
On
each Distribution Date the SWR-P Interest is entitled to all Prepayment
Charges collected with respect to the Mortgage Loans. It
pays no interest.
|
|
(7)
|
Beginning
on the Distribution Date in April 2017 and ending on the Last Scheduled
Distribution Date, the SW-40 Year Reserve Interest shall be entitled
to a
specific portion of the interest payable on each 40-Year Mortgage
Loan. Specifically, the SW-40 Year Reserve Interest shall be
entitled to a specific portion of the interest payable on the Stated
Principal Balance of each 40-Year Mortgage Loan as of the Due Date
in the
month preceding the month of that Distribution Date (after giving
effect
to principal prepayments in the Prepayment Period related to that
prior
Due Date) at a per annum rate equal to 0.80% (the “40-Year Reserve
Rate”).
|
|
(8)
|
The
SW-A-R Interest is the sole class of residual interest in the Swap-IO
REMIC. It has no principal and pays no principal or
interest.
|
On
each
Distribution Date, the Interest Funds and the Principal Distribution Amount
payable with respect to the Mortgage Loans shall be payable with respect to
the
Swap-IO REMIC Interests in the following manner:
(1) Interest. Interest
is to be distributed with respect to each Swap-IO REMIC Interest at the rate,
or
according to the formulas, described above.
2
(2) Principal. Principal
Distribution Amounts shall be allocated among the Swap-IO REMIC Interests as
described above.
(3) Prepayment
Penalties. All Prepayment Charges are allocated to the SWR-P
Interest.
STRIP
REMIC:
The
Strip
REMIC Regular Interests will have the principal balances, pass-through rates
and
Corresponding Classes of Certificates as set forth in the following
table:
|
Strip
REMIC Interest
|
Initial
Principal Balance
|
Pass-Through
Rate
|
Corresponding
Class of Certificates
|
|
STR-1-A
|
(1)
|
(2)
|
1-A
|
|
STR-2-A-1
|
(1)
|
(2)
|
2-A-1
|
|
STR-2-A-2
|
(1)
|
(2)
|
2-A-2
|
|
STR-2-A-3
|
(1)
|
(2)
|
2-A-3
|
|
STR-2-A-4
|
(1)
|
(2)
|
2-A-4
|
|
STR-M-1
|
(1)
|
(2)
|
M-1
|
|
STR-M-2
|
(1)
|
(2)
|
M-2
|
|
STR-M-3
|
(1)
|
(2)
|
M-3
|
|
STR-M-4
|
(1)
|
(2)
|
M-4
|
|
STR-M-5
|
(1)
|
(2)
|
M-5
|
|
STR-M-6
|
(1)
|
(2)
|
M-6
|
|
STR-M-7
|
(1)
|
(2)
|
M-7
|
|
STR-M-8
|
(1)
|
(2)
|
M-8
|
|
STR-$100
|
$100
|
(3)
|
A-R
|
|
STR-C-OC
|
(4)
|
(2)
|
N/A
|
|
STR-C-Swap-IO
|
(5)
|
(5)
|
N/A
|
|
STR-C-40
Year IO
|
(6)
|
(6)
|
N/A
|
|
STR-P
|
$100
|
(7)
|
P
|
|
STR-A-R
|
(8)
|
(8)
|
N/A
|
(1) This
Strip REMIC Interest has a principal balance that is initially equal to 100%
of
its Corresponding Certificate Class issued by the Master
REMIC. Principal payments, both scheduled and prepaid, Realized
Losses and Subsequent Recoveries attributable to the Swap-IO REMIC Interests
held by the Strip REMIC will be allocated to this class to maintain its size
relative to its Corresponding Certificate Class.
(2) On
each Distribution Date, the pass-through rate for this Strip REMIC Interest
will
be the “Strip REMIC Cap,” which will equal the weighted average of the
pass-through rates of the Swap-IO REMIC Interests (other than the SWR-P, SWR-40
Year Reserve and SWR-A-R Interests) treating each “B” Interest the cardinal
number of which (for example, XX-0X, XX-0X, XX-0X, etc.) is not less than the
ordinal number of the Distribution Date (seventh Distribution Date, eighth
Distribution Date, ninth Distribution Date, etc.) as capped at a rate equal
to
the product of (i) 2 and (ii) LIBOR.
3
(3) This
Strip REMIC Interest pays no interest.
(4) This
Strip REMIC Interest has a principal balance that is initially equal to 100%
of
the Overcollateralized Amount. Principal payments, both scheduled and
prepaid, Realized Losses and Subsequent Recoveries attributable to the Swap-IO
REMIC Interests held by the Strip REMIC will be allocated to this class to
maintain its size relative to the Overcollateralized Amount.
(5) For
each Distribution Date, the STR-C-Swap-IO Interest is entitled to receive from
each Swap REMIC “B” Interest the cardinal number of which (for example, XX-0X,
XX-0X, XX-0X, etc.) is not less than the ordinal number of the Distribution
Date
(seventh Distribution Date, eighth Distribution Date, ninth Distribution Date,
etc.) the interest accruing on such interest in excess of a per annum rate
equal
to the product of (i) 2 and (ii) LIBOR.
(6) The
STR-C-40 Year IO Interest is entitled to all amounts payable with respect to
the
SWR-40 Year Reserve Interest.
(7) The
STR-P Interest is entitled to all amounts payable with respect to the SWR-P
Interest. It pays no interest.
(8) The
STR-A-R Interest is the sole class of residual interest in the Strip
REMIC. It has no principal balance and pays no principal or
interest.
On
each
Distribution Date, the Interest Funds and the Principal Distribution Amount
payable with respect to the Swap-IO Interests shall be payable with respect
to
the Strip REMIC Interests in the following manner:
(1) Interest. Interest
is to be distributed with respect to each Strip REMIC Interest at the rate,
or
according to the formulas, described above.
(2) Principal. Principal
Distribution Amounts shall be allocated among the Strip
REMIC Interests as described above.
(3)
Prepayment Penalties. All Prepayment Charges are allocated to
the STR-P Interest.
MASTER
REMIC:
The
following table specifies the class designation, interest rate, and principal
amount for each class of Master REMIC Interest:
|
Class
|
Original
Certificate Principal Balance
|
Pass-Through
Rate
|
||||||
|
Class
1-A
|
$ |
372,609,000
|
(1 | ) | ||||
|
Class
2-A-1
|
$ |
267,062,000
|
(1 | ) | ||||
|
Class
2-A-2
|
$ |
93,961,000
|
(1 | ) | ||||
|
Class
2-A-3
|
$ |
153,352,000
|
(1 | ) | ||||
|
Class
2-A-4
|
$ |
44,541,000
|
(1 | ) | ||||
|
Class
M-1
|
$ |
57,620,000
|
(1 | ) | ||||
|
Class
M-2
|
$ |
55,819,000
|
(1 | ) | ||||
|
Class
M-3
|
$ |
18,006,000
|
(1 | ) | ||||
|
Class
M-4
|
$ |
24,008,000
|
(1 | ) | ||||
|
Class
M-5
|
$ |
19,807,000
|
(1 | ) | ||||
|
Class
M-6
|
$ |
13,805,000
|
(1 | ) | ||||
|
Class
M-7
|
$ |
15,005,000
|
(1 | ) | ||||
|
Class
M-8
|
$ |
14,405,000
|
(1 | ) | ||||
|
Class
C
|
(2 | ) | (3 | ) | ||||
|
Class
P
|
$ |
100.00
|
(4 | ) | ||||
|
Class
A-R
|
$ |
100.00
|
(5 | ) | ||||
4
|
(1)
|
The
Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement. For federal income tax purposes,
including the computation of the Class C Distributable Amount and
entitlement to Net Rate Carryover, the Pass-Through Rate in respect
of
each Class 1-A Certificate, Class 2-A Certificate and Class M Certificate
will be subject to a cap equal to the Strip REMIC Cap rather than
its
applicable Net Rate Cap.
|
|
(2)
|
For
federal income tax purposes, the Class C Certificates will be treated
as
having a Certificate Principal Balance equal to the Overcollateralized
Amount.
|
|
(3)
|
For
each Interest Accrual Period the Class C Certificates are entitled
to an
amount (the “Class C Distributable Amount”) equal to the sum of (a) the
interest payable on the STR-C-Swap-IO Interest, (b) the interest
payable
on the STR-C-OC Interest, (c) the interest payable on the STR-C-40
Year IO
Interest and (d) a specified portion of the interest payable on the
Strip
REMIC Regular Interests (other than the STR-$100, STR-C-OC, STR-C-Swap-IO,
STR-C-40 Year IO and STR-P Interests) equal to the excess of the
Strip
REMIC Cap over the weighted average interest rate of the Strip REMIC
Regular Interests (other than the STR-$100, STR-C-OC, STR-C-Swap-IO,
STR-C-40 Year IO and STR-P Interests) with each such Class subject
to a
cap equal to the Pass-Through Rate of the Corresponding Master REMIC
Class. The Pass-Through Rate of the Class C Certificates shall
be a rate sufficient to entitle it to an amount equal to all interest
accrued on the Mortgage Loans less the interest accrued on the other
interests issued by the Master REMIC. The Class C Distributable
Amount for any Distribution Date is payable from current interest
on the
Mortgage Loans and any related Overcollateralization Reduction Amount
for
that Distribution Date.
|
|
(4)
|
For
each Distribution Date the Class P Certificates are entitled to all
Prepayment Charges distributed with respect to the STR-P
Interest.
|
|
(5)
|
The
Class A-R Certificates represent the sole class of residual interest
in
each REMIC created hereunder. The Class A-R Certificates are
not entitled to distributions of
interest.
|
The
foregoing REMIC structure is intended to cause all of the cash from the Mortgage
Loans to flow through to the Master REMIC as cash flow on REMIC regular
interests, without creating any shortfall—actual or potential (other than for
credit losses)— to any REMIC regular interest. It is not intended that the Class
A-R Certificates be entitled to any cash flows pursuant to this Agreement except
as provided in Section 3.08(a) hereunder.
5
ARTICLE
I.
DEFINITIONS
|
|
Section
1.01
|
Defined
Terms.
|
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
40-Year
Target Schedule: Schedule III hereto.
40-Year
Mortgage Loan: A Mortgage Loan with an original term to maturity
of 40 years.
40-Year
Reserve Rate: As defined in the Preliminary
Statement.
Acceptable
Bid Amount: Either (i) a bid equal to or greater than the Minimum
Auction Amount or (ii) the highest bid submitted by a Qualified Bidder in an
auction if the Directing Certificateholder agrees to pay the related Auction
Supplement Amount.
Account: Any
Escrow Account, the Carryover Reserve Fund, the Certificate Account, the
Distribution Account, the Pre-Funding Account, the Capitalized Interest Account,
the Principal Reserve Fund, the Swap Account, the Final Maturity Reserve Fund
or
any other account related to the Trust Fund or the Mortgage Loans.
Accrual
Period: With respect to any Distribution Date and each Class of
Interest-Bearing Certificates, the period commencing on the immediately
preceding Distribution Date (or, in the case of the first Distribution Date,
the
Closing Date) and ending on the day immediately preceding such Distribution
Date. With respect to any Distribution Date and the Class C
Certificates, the calendar month preceding the month in which such Distribution
Date occurs. All calculations of interest on the Interest-Bearing
Certificates will be made on the basis of the actual number of days elapsed
in
the related Accrual Period and on a 360-day year. All calculations of
interest on the Class C Certificates will be made on the basis of a 360-day
year
consisting of twelve 30-day months.
Additional
Designated Information: As defined in Section 11.02.
Adjusted
Mortgage Rate: As to each Mortgage Loan, the related Mortgage
Rate less the related Servicing Fee Rate.
Adjusted
Net Mortgage Rate: As to each Mortgage Loan, the related Mortgage
Rate less the related Expense Fee Rate.
Adjusted
Replacement Upfront Amount: As defined in Section
3.21.
Adjustment
Date: As to each Mortgage Loan, each date on which the related
Mortgage Rate is subject to adjustment, as provided in the related Mortgage
Note.
6
Advance: The
aggregate of the advances required to be made by the Master Servicer with
respect to any Distribution Date pursuant to Section 4.01, the amount of any
such advances being equal to the aggregate of payments of principal of, and
interest on the Stated Principal Balance of, the Mortgage Loans (net of the
Servicing Fees) 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
including an amount equivalent to interest on the Stated Principal Balance
of
each Mortgage Loan as to which the related Mortgaged Property is an REO Property
or as to which the related Mortgaged Property has been liquidated but such
Mortgage Loan has not yet become a Liquidated Mortgage Loan; provided, however,
that the net monthly rental income (if any) from such REO Property deposited
in
the Certificate Account for such Distribution Date pursuant to Section 3.12
may
be used to offset such Advance for the related REO Property; provided, further,
that for the avoidance of doubt, no Advances shall be required to be made in
respect of any Liquidated Mortgage Loan.
Agreement: This
Pooling and Servicing Agreement and any and all amendments or supplements hereto
made in accordance with the terms herein.
Amount
Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on
the
immediately preceding Determination Date on account of (i) all Scheduled
Payments or portions thereof received in respect of the Mortgage Loans due
after
the related Due Date, (ii) Principal Prepayments received in respect of such
Mortgage Loans after the last day of the related Prepayment Period and (iii)
Liquidation Proceeds and Subsequent Recoveries received in respect of such
Mortgage Loans after the last day of the related Due Period.
Applied
Realized Loss Amount: With respect to any Distribution Date and
any Loan Group or Loan Groups, the amount, if any, by which, the aggregate
Certificate Principal Balance of the Class(es) of Certificates listed opposite
such Loan Group(s) in the following table (after all distributions of principal
on such Distribution Date) exceeds the sum of (x) the aggregate Stated Principal
Balance of the Mortgage Loans in such Loan Group(s) for such Distribution Date
and (y) the amount on deposit in the Pre-Funding Account in respect of such
Loan
Group(s); provided, however, that an Applied Realized Loss Amount will not
exist
for a Class of Class A Certificates unless the Certificate Principal Balances
of
the Subordinate Certificates have been reduced to zero.
|
Loan
Group(s)
|
Class(es)
of Certificates
|
|
1
and 2
|
Interest-Bearing
|
|
1
|
1-A
|
|
2
|
2-A
|
Appraised
Value: The appraised value of the Mortgaged Property based upon
the appraisal made for the originator of the related Mortgage Loan by an
independent fee appraiser at the time of the origination of the related Mortgage
Loan, or the sales price of the Mortgaged Property at the time of such
origination, whichever is less, or with respect to any Mortgage Loan originated
in connection with a refinancing, the appraised value of the Mortgaged Property
based upon the appraisal made at the time of such refinancing.
7
Auction
Supplement Amount: As defined in Section 9.04(c).
Bankruptcy
Code: Title 11 of the United States Code.
Bid
Determination Date: As defined in Section 9.04(b).
Book-Entry
Certificates: Any of the Certificates that shall be registered in
the name of the Depository or its nominee, the ownership of which is reflected
on the books of the Depository or on the books of a person maintaining an
account with the Depository (directly, as a “Depository Participant”, or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.06). As of the Closing Date,
each Class of Interest-Bearing Certificates constitutes a Class of Book-Entry
Certificates.
Business
Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of New York or California or the
city
in which the Corporate Trust Office of the Trustee is located are authorized
or
obligated by law or executive order to be closed.
Capitalized
Interest Account: The separate Eligible Account designated as such and
created and maintained by the Trustee pursuant to Section 3.05(e). The
Capitalized Interest Account shall be treated as an “outside reserve fund” under
applicable Treasury regulations and shall not be part of any
REMIC. Except as provided in Section 3.05(e), any investment earnings
on the amounts on deposit in the Capitalized Interest Account shall be treated
as owned by the Depositor and shall be taxable to the Depositor.
Capitalized
Interest Deposit: $737,465.04.
Capitalized
Interest Release Amount: With respect to any Subsequent Transfer
Date, an amount equal to the product of (1) the sum of (a) the Trustee Fee
Rate
and (b) the weighted average Adjusted Net Mortgage Rate of the Mortgage Loans
(excluding any Subsequent Mortgage Loans conveyed to the Trust Fund during
the
calendar month in which such Subsequent Transfer Date occurs) as of the first
day of the Due Period beginning in the month in which such Subsequent Transfer
Date occurs (after giving effect to Principal Prepayments received during the
Prepayment Period, if any, that ends during such Due Period), (2) the Subsequent
Transfer Date Transfer Amount for such Subsequent Transfer Date and (3) a
fraction, the numerator of which is the number of calendar months in the period
beginning with the calendar month in which such Subsequent Transfer Date occurs
and ending with the calendar month containing the latest date on which the
Funding Period could end, and the denominator of which is 12.
Capitalized
Interest Requirement: With respect to each Funding Period
Distribution Date, 1/12 of the product of (1) the sum of (a) the Trustee Fee
Rate and (b) the weighted average Adjusted Net Mortgage Rate of the Mortgage
Loans (excluding any Subsequent Mortgage Loans conveyed to the Trust Fund during
the calendar month preceding such Distribution Date) as of the first day of
the
related Due Period (after giving effect to Principal Prepayments received during
the Prepayment Period, if any, that ends during such Due Period) and (2) the
amount on deposit in the Pre-Funding Account as of the last day of the calendar
month preceding such Funding Period Distribution Date (or, if the Funding Period
ended during such calendar month, as of the last day of the Funding
Period).
8
Carryover
Reserve Fund: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 4.07 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 CWABS, Inc., Asset-Backed Certificates,
Series 2007-5”. Funds in the Carryover Reserve Fund shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement.
Certificate: Any
one of the certificates of any Class executed and authenticated by the Trustee
in substantially the forms attached hereto as Exhibits A-1 through X-00, Xxxxxxx
X, Xxxxxxx X, Xxxxxxx X and Exhibit E.
Certificate
Account: The separate Eligible Account created and initially
maintained by the Master Servicer pursuant to Section 3.05(b) with a depository
institution in the name of the Master Servicer for the benefit of the Trustee
on
behalf of the Certificateholders and designated “Countrywide Home Loans
Servicing LP in trust for registered Holders of CWABS, Inc., Asset-Backed
Certificates, Series 2007-5”. Funds in the Certificate Account shall
be held in trust for the Certificateholders for the uses and purposes set forth
in this Agreement.
Certificate
Owner: With respect to a Book-Entry Certificate, the person that
is the beneficial owner of such Book-Entry Certificate.
Certificate
Principal Balance: As to any Certificate (other than the Class C
Certificates) and as of any Distribution Date, the Initial Certificate Principal
Balance of such Certificate (A) less the sum of (i) all amounts distributed
with
respect to such Certificate in reduction of the Certificate Principal Balance
thereof on previous Distribution Dates pursuant to Section 4.04(b) and (ii)
any
Applied Realized Loss Amounts allocated to such Certificate on previous
Distribution Dates pursuant to Section 4.04(h), and (B) increased by any
Subsequent Recoveries allocated to such Certificate pursuant to Section 4.04(i)
on such Distribution Date. References herein to the Certificate
Principal Balance of a Class of Certificates shall mean the Certificate
Principal Balances of all Certificates in such Class. The Class C
Certificates do not have a Certificate Principal Balance. With
respect to any Certificate (other than the Class C Certificates) of a Class
and
any Distribution Date, the portion of the Certificate Principal Balance of
such
Class represented by such Certificate equal to the product of the Percentage
Interest evidenced by such Certificate and the Certificate Principal Balance
of
such Class.
Certificate
Register: The register maintained pursuant to Section 5.02
hereof.
Certificateholder
or Holder: The person in whose name a Certificate is registered
in the Certificate Register (initially, Cede & Co., as nominee for the
Depository, in the case of any Class of Book-Entry Certificates), 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 Voting Interest
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Voting Interests necessary to effect such consent has been
obtained; provided that if any such Person (including the Depositor) owns 100%
of the Voting Interests evidenced by a Class of Certificates, such Certificates
shall be deemed to be Outstanding for purposes of any provision hereof (other
than the second sentence of Section 10.01 hereof) that requires the consent
of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of
the
Depositor.
9
Certification
Party: As defined in Section 11.05.
Certifying
Person: As defined in Section 11.05.
CHL: Countrywide
Home Loans, Inc., a New York corporation, and its successors and
assigns.
CHL
Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which CHL is the applicable Seller.
Class: All
Certificates bearing the same Class designation as set forth in Section 5.01
hereof.
Class
1-A Certificate: Any Certificate designated as a “Class 1-A
Certificate” on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class
1-A Corridor Contract: With respect to the Class 1-A
Certificates, the transaction evidenced by the related Confirmation (as assigned
to the Corridor Contract Administrator pursuant to the Corridor Contract
Assignment Agreement), a form of which is attached hereto as Exhibit
Q-1.
Class
1-A Net Rate Cap: For any Distribution Date, the weighted average
Adjusted Net Mortgage Rate of the Mortgage Loans in Loan Group 1 as of the
first
day of the related Due Period (after giving effect to Principal Prepayments
received during the Prepayment Period that ends during such Due Period),
adjusted to an effective rate reflecting the calculation of interest on the
basis of the actual number of days elapsed during the related Accrual Period
and
a 360-day year, minus a fraction, expressed as a percentage, the numerator
of
which is (a) the product of (x) the sum of (1) the sum of the Net Swap Payment
payable to the Swap Counterparty with respect to such Distribution Date and
the
Final Maturity Reserve Deposit for such Distribution Date times a fraction,
the
numerator of which is 360 and the denominator of which is the actual number
of
days in the related Accrual Period and (2) any Swap Termination Payment payable
to the Swap Counterparty for such Distribution Date (other than a Swap
Termination Payment due to a Swap Counterparty Trigger Event) and (y) a
fraction, the numerator of which is the Interest Funds for Loan Group 1 for
such
Distribution Date, and the denominator of which is the Interest Funds for Loan
Group 1 and Loan Group 2 for such Distribution Date, and the denominator of
which is (b) the sum of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 1 as of the first day of the related Due Period (after
giving effect to Principal Prepayments received during the Prepayment Period
that ends during such Due Period) plus any amounts on deposit in the Pre-Funding
Account in respect of Loan Group 1 as of the first day of that Due
Period.
10
Class
1-A Principal Distribution Amount: With respect to any
Distribution Date, the product of (x) the Class A Principal Distribution Target
Amount and (y) a fraction, the numerator of which is the Class 1-A Principal
Distribution Target Amount and the denominator of which is the sum of the Class
1-A Principal Distribution Target Amount and the Class 2-A Principal
Distribution Target Amount.
Class
1-A Principal Distribution Target Amount: With respect to any
Distribution Date, the excess of (1) the Certificate Principal Balance of the
Class 1-A Certificates immediately prior to such Distribution Date, over (2)
the
lesser of (x) 55.20% of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 1 for such Distribution Date and (y) the aggregate Stated
Principal Balance of the Mortgage Loans in Loan Group 1 for such Distribution
Date minus 0.50% of the sum of the aggregate Cut-off Date Principal Balance
of
the Initial Mortgage Loans in Loan Group 1 and the original Group 1 Pre-Funded
Amount.
Class
2-A-1 Certificate: Any Certificate designated as a “Class 2-A-1
Certificate” on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to distributions as set forth herein.
Class
2-A-2 Certificate: Any Certificate designated as a “Class 2-A-2
Certificate” on the face thereof, in the form of Exhibit A-3 hereto,
representing the right to distributions as set forth herein.
Class
2-A-3 Certificate: Any Certificate designated as a “Class 2-A-3
Certificate” on the face thereof, in the form of Exhibit A-4 hereto,
representing the right to distributions as set forth herein.
Class
2-A-4 Certificate: Any Certificate designated as a “Class 2-A-4
Certificate” on the face thereof, in the form of Exhibit A-5 hereto,
representing the right to distributions as set forth herein.
Class
2-A Certificates: The Class 2-A-1, Class 2-A-2, Class 2-A-3 and
Class 2-A-4 Certificates collectively.
Class
2-A Corridor Contract: With respect to the Class 2-A
Certificates, the transaction evidenced by the related Confirmation (as assigned
to the Corridor Contract Administrator pursuant to the Corridor Contract
Assignment Agreement), a form of which is attached hereto as Exhibit
Q-2.
Class
2-A Net Rate Cap: For any Distribution Date, the weighted average
Adjusted Net Mortgage Rate of the Mortgage Loans in Loan Group 2 as of the
first
day of the related Due Period (after giving effect to Principal Prepayments
received during the Prepayment Period that ends during such Due Period),
adjusted to an effective rate reflecting the calculation of interest on the
basis of the actual number of days elapsed during the related Accrual Period
and
a 360-day year, minus a fraction, expressed as a percentage, the numerator
of
which is (a) the product of (x) the sum of (1) the sum of the Net Swap Payment
payable to the Swap Counterparty with respect to such Distribution Date and
the
Final Maturity Reserve Deposit for such Distribution Date times a fraction,
the
numerator of which is 360 and the denominator of which is the actual number
of
days in the related Accrual Period and (2) any Swap Termination Payment payable
to the Swap Counterparty for such Distribution Date (other than a Swap
Termination Payment due to a Swap Counterparty Trigger Event) and (y) a
fraction, the numerator of which is the Interest Funds for Loan Group 2 for
such
Distribution Date, and the denominator of which is the Interest Funds for Loan
Group 1 and Loan Group 2 for such Distribution Date, and the denominator of
which is (b) the sum of the aggregate Stated Principal Balance of the Mortgage
Loans in Loan Group 2 as of the first day of the related Due Period (after
giving effect to Principal Prepayments received during the Prepayment Period
that ends during such Due Period) plus any amounts on deposit in the Pre-Funding
Account in respect of Loan Group 2 as of the first day of that Due
Period.
11
Class
2-A Principal Distribution Amount: With respect to any
Distribution Date, the product of (x) the Class A Principal Distribution Target
Amount and (y) a fraction, the numerator of which is the Class 2-A Principal
Distribution Target Amount and the denominator of which is the sum of the Class
1-A Principal Distribution Target Amount and the Class 2-A Principal
Distribution Target Amount.
Class
2-A Principal Distribution Target Amount: With respect to any
Distribution Date, the excess of (1) the aggregate Certificate Principal Balance
of the Class 2-A Certificates immediately prior to such Distribution Date,
over
(2) the lesser of (i) 55.20% of the aggregate Stated Principal Balance of the
Mortgage Loans in Loan Group 2 for such Distribution Date and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans in Loan Group 2 for such
Distribution Date minus 0.50% of the sum of the aggregate Cut-off Date Principal
Balance of the Initial Mortgage Loans in Loan Group 2 and the original Group
2
Pre-Funded Amount.
Class
A-R Certificate: Any Certificate designated as a “Class A-R
Certificate” on the face thereof, in the form of Exhibit D hereto or, in the
case of the Tax Matters Person Certificate, Exhibit E hereto, in either case
representing the right to distributions as set forth herein.
Class
A Certificate: Any Class 1-A or Class 2-A
Certificate.
Class
A Principal Distribution Allocation Amount: With respect to any
Distribution Date (a) in the case of the Class 1-A Certificates, the Class
1-A
Principal Distribution Amount and (b) in the case of the Class 2-A Certificates,
the Class 2-A Principal Distribution Amount.
Class
A Principal Distribution Target Amount: With respect to any
Distribution Date, the excess of (1) the aggregate Certificate Principal Balance
of the Class A Certificates immediately prior to such Distribution Date, over
(2) the lesser of (x) 55.20% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date minus the OC
Floor.
12
Class
C Certificate: Any Certificate designated as a “Class C
Certificate” on the face thereof, in the form of Exhibit C hereto, representing
the right to distributions as set forth herein.
Class
C Distributable Amount: As defined in the Preliminary
Statement.
Class
M-1 Certificate: Any Certificate designated as a “Class M-1
Certificate” on the face thereof, in the form of Exhibit A-6 hereto,
representing the right to distributions as set forth herein.
Class
M-2 Certificate: Any Certificate designated as a “Class M-2
Certificate” on the face thereof, in the form of Exhibit A-7 hereto,
representing the right to distributions as set forth herein.
Class
M-3 Certificate: Any Certificate designated as a “Class M-3
Certificate” on the face thereof, in the form of Exhibit A-8 hereto,
representing the right to distributions as set forth herein.
Class
M-4 Certificate: Any Certificate designated as a “Class M-4
Certificate” on the face thereof, in the form of Exhibit A-9 hereto,
representing the right to distributions as set forth herein.
Class
M-5 Certificate: Any Certificate designated as a “Class M-5
Certificate” on the face thereof, in the form of Exhibit A-10 hereto,
representing the right to distributions as set forth herein.
Class
M-6 Certificate: Any Certificate designated as a “Class M-6
Certificate” on the face thereof, in the form of Exhibit A-11 hereto,
representing the right to distributions as set forth herein.
Class
M-7 Certificate: Any Certificate designated as a “Class M-7
Certificate” on the face thereof, in the form of Exhibit A-12 hereto,
representing the right to distributions as set forth herein.
Class
M-8 Certificate: Any Certificate designated as a “Class M-8
Certificate” on the face thereof, in the form of Exhibit A-13 hereto,
representing the right to distributions as set forth herein.
Class
P Certificate: Any Certificate designated as a “Class P Certificate” on the
face thereof, in the form of Exhibit B hereto, representing the right to
distributions as set forth herein.
Class
P Principal Distribution Date: The first Distribution Date that
occurs after the end of the latest Prepayment Charge Period for all Mortgage
Loans that have a Prepayment Charge Period.
Closing
Date: March 30, 2007.
13
Code: The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collateral
Schedule: Schedule II hereto.
Commission: The
U.S. Securities and Exchange Commission.
Compensating
Interest: With respect to each Loan Group and any Distribution
Date, an amount equal to the lesser of (x) one-half of the Servicing Fee for
the
Mortgage Loans in that Loan Group for the related Due Period and (y) the
aggregate Prepayment Interest Shortfalls for the Mortgage Loans in that Loan
Group for such Distribution Date.
Confirmation: The
confirmation, reference number Global Xx. X000000X / X000000X, with a trade
date
of March 23, 2007 evidencing a transaction between the Corridor Contract
Counterparty and CHL relating to the Class 1-A Corridor Contract, the
confirmation, reference number Global Xx. X000000X / X000000X, with a trade
date
of March 23, 2007 evidencing a transaction between the Corridor Contract
Counterparty and CHL relating to the Class 2-A Corridor Contract, the
confirmation, reference number Global Xx. X000000X / X000000X, with a trade
date
of March 23, 2007 evidencing a transaction between the Corridor Contract
Counterparty and CHL relating to the Subordinate Corridor Contract and the
confirmation, reference number Global No. N591937N, with a trade date of March
23, 2007 evidencing a transaction between the Swap Counterparty and CHL relating
to the Swap Contract, as applicable.
Corporate
Trust Office: The designated office of the Trustee in the State
of New York where at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the
execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx
Xxxx, Xxx Xxxx 00000 (Attention: Corporate Trust MBS Administration),
telephone: (000) 000-0000, facsimile: (000) 000-0000.
Corridor
Contract: The Class 1-A Corridor Contract, Class 2-A Corridor
Contract or Subordinate Corridor Contract, as applicable.
Corridor
Contract Administration Agreement: The corridor contract
administration agreement dated as of the Closing Date among CHL, the Trustee
and
the Corridor Contract Administrator, a form of which is attached hereto as
Exhibit S-2.
Corridor
Contract Administrator: The Bank of New York, in its capacity as
corridor contract administrator under the Corridor Contract Administration
Agreement.
Corridor
Contract Assignment Agreement: The Assignment Agreement dated as
of the Closing Date among CHL, the Corridor Contract Administrator and the
Corridor Contract Counterparty, a form of which is attached hereto as Exhibit
S-1.
Corridor
Contract Counterparty: Deutsche Bank AG, New York Branch and its
successors.
14
Corridor
Contract Termination Date: The Distribution Date occurring in
September 2007.
Co-Trustee: The
Bank of New York Trust Company, N.A., a national banking association, not in
its
individual capacity, but solely in its capacity as co-trustee for the benefit
of
the Certificateholders under this Agreement, and any successor thereto, and
any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a
party.
Covered
Mortgage Loan: A Mortgage Loan listed on the Mortgage Loan
Schedule as being covered by the Mortgage Insurance Policy.
Credit
Bureau Risk Score: A statistical credit score obtained by CHL in
connection with the origination of a Mortgage Loan.
Cumulative
Loss Trigger Event: With respect to a Distribution Date on or after the
Stepdown Date, a Cumulative Loss Trigger Event will be in effect if (x) the
aggregate amount of Realized Losses on the Mortgage Loans from the Cut-off
Date
for each such Mortgage Loan to (and including) the last day of the related
Due
Period (reduced by the aggregate amount of any Subsequent Recoveries received
through the last day of that Due Period) exceeds (y) the applicable percentage,
for such Distribution Date, of the sum of the aggregate Cut-off Date Principal
Balance of the Initial Mortgage Loans and the Pre-Funded Amount, as set forth
below:
|
Distribution
Date
|
Percentage
|
|
April
2009 — March 2010
|
1.70%
with respect to April 2009, plus an additional 1/12th of 2.10% for
each
month thereafter through March 2010
|
|
April
2010 — March 2011
|
3.80%
with respect to April 2010, plus an additional 1/12th of 2.15% for
each
month thereafter through March 2011
|
|
April
2011 — March 2012
|
5.95%
with respect to April 2011, plus an additional 1/12th of 1.75% for
each
month thereafter through March 2012
|
|
April
2012 — March 2013
|
7.70%
with respect to April 2012, plus an additional 1/12th of 0.85% for
each
month thereafter through March 2013
|
|
April
2013 and thereafter
|
8.55%
|
Current
Interest: With respect to each Class of Interest-Bearing
Certificates and each Distribution Date, the interest accrued at the applicable
Pass-Through Rate for the applicable Accrual Period on the Certificate Principal
Balance of such Class immediately prior to such Distribution Date.
15
Cut-off
Date: When used with respect to any Mortgage Loan the “Cut-off
Date” shall mean the Initial Cut-off Date or the related Subsequent Cut-off
Date, as the case may be.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date after
application of all payments of principal due on or prior to the Cut-off Date,
whether or not received, and all Principal Prepayments received on or prior
to
the Cut-off Date, but without giving effect to any installments of principal
received in respect of Due Dates after 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 other reduction that results in a permanent forgiveness of
principal.
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 such 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 that is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive
Certificates: As defined in Section 5.06.
Delay
Delivery Mortgage Loans: (i) The Initial Mortgage Loans
identified on the schedule of Mortgage Loans hereto set forth on Exhibit F-2
hereof for which all or a portion of a related Mortgage File is not delivered
to
the Co-Trustee on or prior to the Closing Date, and (ii) the Subsequent Mortgage
Loans identified on the schedule of Subsequent Mortgage Loans set forth in
Annex
A to each related Subsequent Transfer Agreement for which all or a portion
of
the related Mortgage File is not delivered to the Co-Trustee on or prior to
the
related Subsequent Transfer Date. The Depositor shall deliver (or
cause delivery of) the Mortgage Files to the Co-Trustee: (A) with
respect to at least 50% of the Initial Mortgage Loans in each Loan Group, not
later than the Closing Date and with respect to at least 10% of the Subsequent
Mortgage Loans in each Loan Group conveyed on a Subsequent Transfer Date, not
later than such Subsequent Transfer Date, (B) with respect to at least an
additional 40% of the Initial Mortgage Loans in each Loan Group, not later
than
20 days after the Closing Date, and not later than 20 days after the relevant
Subsequent Transfer Date with respect to the remaining Subsequent Mortgage
Loans
conveyed on such Subsequent Transfer Date, and (C) with respect to the remaining
Initial Mortgage Loans, not later than thirty days after the Closing
Date. To the extent that Countrywide Home Loans, Inc. shall be in
possession of any Mortgage Files with respect to any Delay Delivery Mortgage
Loan, until delivery of such Mortgage File to the Co-Trustee as provided in
Section 2.01, Countrywide Home Loans, Inc. shall hold such files as agent and
in
trust for the Co-Trustee.
16
Deleted
Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
Delinquency
Trigger Event: With respect to any Distribution Date on or after the
Stepdown Date, a Delinquency Trigger Event will be in effect if the Rolling
Sixty-Day Delinquency Rate for Outstanding Mortgage Loans equals or exceeds
the
product of (x) the Senior Enhancement Percentage for such Distribution Date
and
(y) the applicable percentage listed below for the most senior Class of
Interest-Bearing Certificates:
|
Class
|
Percentage
|
|
A
|
35.71%
|
|
M-1
|
45.45%
|
|
M-2
|
61.77%
|
|
M-3
|
69.86%
|
|
M-4
|
84.65%
|
|
M-5
|
102.55%
|
|
M-6
|
120.29%
|
|
M-7
|
148.13%
|
|
M-8
|
190.45%
|
Denomination: With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Certificate Balance of this Certificate” or, if not the foregoing, the
Percentage Interest appearing on the face thereof, as applicable.
Depositor: CWABS,
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., or any other organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository shall initially be 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
Agreement: With respect to the Book-Entry Certificates, the
agreement among the Depositor and the initial Depository, dated as of the
Closing Date, substantially in the form of Exhibit O.
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: With respect to any Distribution Date, the 15th day
of the month
of such Distribution Date or, if such 15th day is
not a
Business Day, the immediately preceding Business Day.
Directing
Certificateholder: As defined in Section 9.04(a).
17
Distribution
Account: The separate Eligible Account created and maintained by
the Trustee pursuant to Section 3.05(c) 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 CWABS, Inc., Asset-Backed Certificates, Series
2007-5”. 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, 1:00 p.m.
Pacific time on the Business Day immediately preceding such Distribution
Date.
Distribution
Date: The 25th day of each month, or if such day is not a
Business Day, the first Business Day thereafter, commencing in April
2007.
Due
Date: With respect to any Mortgage Loan and Due Period, the due
date for Scheduled Payments of interest and/or principal on that Mortgage Loan
occurring in such Due Period as provided in the related Mortgage
Note.
Due
Period: With respect to any Distribution Date, the period
beginning on the second day of the calendar month preceding the calendar month
in which such Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
XXXXX: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Eligible
Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations and 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, if Xxxxx’x is not a Rating Agency) are rated by each Rating
Agency in one of its two highest long-term and its highest short-term rating
categories respectively, at the time any amounts are held on deposit therein,
or
(ii) an account or accounts in a depository institution or trust company in
which such accounts are insured by the FDIC (to the limits established by the
FDIC) and the uninsured deposits in which accounts are otherwise secured such
that, as evidenced by an Opinion of Counsel delivered to the Trustee and to
each
Rating Agency, the Certificateholders have a claim with respect to the funds
in
such account or a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments) securing such
funds
that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which such account is maintained,
or
(iii) a trust account or accounts maintained with the corporate trust department
of a federal or state chartered depository institution or trust company having
capital and surplus of not less than $50,000,000, acting in its fiduciary
capacity or (iv) any other account acceptable to the Rating Agencies without
reduction or withdrawal of their then-current ratings of the Certificates as
evidenced by a letter from each Rating Agency to the
Trustee. 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 3.12(d)
hereof.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
18
ERISA-Qualifying
Underwriting: A best efforts or firm commitment underwriting or
private placement that meets the applicable requirements of the Underwriter’s
Exemption.
ERISA-Restricted
Certificates: The Class A-R Certificates, Class P Certificates,
Class C Certificates and Certificates of any Class that does not have or no
longer has a rating of BBB- or its equivalent, or better, from at least one
Rating Agency.
Escrow
Account: As defined in Section 3.06 hereof.
Event
of Default: As defined in Section 7.01 hereof.
Excess
Cashflow: With respect to any Distribution Date the sum of (i)
the amount remaining after the distribution of interest to Certificateholders
for such Distribution Date pursuant to Section 4.04(a)(v)(b), (ii) the amount
remaining after the distribution of principal to Certificateholders for such
Distribution Date, pursuant to Section 4.04(b)(1)(B)(ii) or 4.04(b)(2)(C) and
(iii) the Overcollateralization Reduction Amount for such Distribution
Date.
Excess
Deposit: As defined in Section 8.11 hereof.
Excess
Overcollateralization Amount: With respect to any Distribution Date, the
excess, if any, of the Overcollateralized Amount for such Distribution Date
over
the Overcollateralization Target Amount for such Distribution Date.
Excess
Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds and Subsequent
Recoveries are in excess of the sum of (i) the unpaid principal balance of
such
Liquidated Mortgage Loan as of the date of liquidation of such Liquidated
Mortgage Loan plus (ii) interest at the Mortgage Rate from the Due Date as
to
which interest was last paid or advanced to Certificateholders (and not
reimbursed to the Master Servicer) 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 outstanding during each Due Period
as
to which such interest was not paid or advanced.
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange
Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under
the
Exchange Act.
Expense
Fee Rate: With respect to any Mortgage Loan, the sum of (i) the
related Servicing Fee Rate, (ii) the Trustee Fee Rate, (iii) with respect to
a
Covered Mortgage Loan, the applicable Mortgage Insurance Premium Rate and (iv)
with respect to any Mortgage Loan covered by a lender paid mortgage insurance
policy (other than the Mortgage Insurance Policy), the related mortgage
insurance premium rate.
Extra
Principal Distribution Amount: With respect to any Distribution
Date and each of Loan Group 1 and Loan Group 2, the lesser of (1) the
Overcollateralization Deficiency Amount and (2) the Excess Cashflow available
for payment thereof, to be allocated between Loan Group 1 and Loan Group 2,
pro
rata, based on the Principal Remittance Amount for each such Loan Group for
such
Distribution Date.
19
Xxxxxx
Xxx: The Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor
thereto.
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Maturity Funding Cap: For any Distribution Date beginning with
the Distribution Date in April 2017, the least of (i) the aggregate Certificate
Principal Balance of the Interest-Bearing Certificates immediately prior to
that
Distribution Date, (ii) the aggregate Stated Principal Balance of all
outstanding 40-Year Mortgage Loans as of the first day of the related Due Period
(after giving effect to Principal Prepayments received during the Prepayment
Period that ends during such Due Period) and (iii) $22,963,821.
Final
Maturity OC Trigger: With respect to any Distribution Date on or after the
Distribution Date in April 2027, the Final Maturity OC Trigger will be in effect
if and for so long as the sum of (x) the amount on deposit in the Final Maturity
Reserve Fund on that Distribution Date (including any Final Maturity Reserve
Deposit made on the Distribution Date) and (y) the Overcollateralized Amount
for
that Distribution Date (calculated after giving effect to all distributions
to
be made prior to the time of determination) is less than the outstanding Stated
Principal Balance of all 40-Year Mortgage Loans as of the Due Date occurring
in
the month of that Distribution Date (after giving effect to Principal
Prepayments received during the Prepayment Period ending in the same month
as
the Distribution Date).
Final
Maturity Required Deposit Trigger: With respect to any
Distribution Date on or after the Distribution Date in April 2017 up to and
including the Distribution Date in March 2037, the Final Maturity Required
Deposit Trigger shall be in effect with respect to such Distribution Date if
the
aggregate Stated Principal Balance of the 40-Year Mortgage Loans as of the
Due
Date occurring in the month preceding the month of that Distribution Date (after
giving effect to Principal Prepayments in the Prepayment Period related to
that
prior Due Date) is greater than the “40-Year Target” specified on the 40-Year
Target Schedule for such Distribution Date.
Final
Maturity Reserve Deposit: For any Distribution Date on which the
Final Maturity Required Deposit Trigger is not in effect, $0. For any
Distribution Date on which the Final Maturity Required Deposit Trigger is in
effect, an amount equal to the lesser of (a) one-twelfth of the product of
(i)
0.80% and (ii) the aggregate Stated Principal Balance of the 40-Year Mortgage
Loans as of the Due Date occurring in the month preceding the month of that
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date) and (b) the excess of (i)
the
Final Maturity Funding Cap for such Distribution Date over (ii) the amount
on
deposit in the Final Maturity Reserve Fund immediately prior to such
Distribution Date.
20
Final
Maturity Reserve Fund: The separate Eligible Account created and
initially maintained by the Trustee pursuant to Section 4.10 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 CWABS, Inc., Asset-Backed
Certificates, Series 2007-5”. Funds in the Final Maturity Reserve
Fund shall be held in trust by the Final Maturity Reserve Trustee for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Final
Maturity Reserve Trust: The trust fund established by Section
4.10.
Final
Maturity Reserve Trustee: The Bank of New York, a New York
banking corporation, not in its individual capacity, but solely in its capacity
as final maturity reserve trustee for the benefit of the Holders of the
Certificates under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor final maturity reserve trustee as may from time to time be serving
as
successor final maturity reserve trustee hereunder.
Five-Year
Hybrid Mortgage Loan: A Mortgage Loan having a Mortgage Rate that
is fixed for 60 months after origination thereof before such Mortgage Rate
becomes subject to adjustment.
Form
10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending against such Person, or against
any of the Trust Fund, the Depositor, the Trustee, any co-trustee, the Master
Servicer or any Subservicer, if such Person has actual knowledge
thereof.
Form
10-K Disclosure Item: With respect to any Person, (a) Form 10-D
Disclosure Item, and (b) any affiliations or relationships between such Person
and any Item 1119 Party.
Xxxxxxx
Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Funding
Period: The period from the Closing Date to and including the
earlier to occur of (x) the date the amount in the Pre-Funding Account is less
than $175,000 and (y) May 24, 2007.
Funding
Period Distribution Date: Each Distribution Date during the
Funding Period and, if the Funding Period ends on or after the Distribution
Date
in a month, the immediately succeeding Distribution Date.
Gross
Margin: The percentage set forth in the related Mortgage Note to
be added to the Index for use in determining the Mortgage Rate for each Mortgage
Loan on each of its Adjustment Dates.
21
Group
1 Mortgage Loans: The group of Mortgage Loans identified in the
related Mortgage Loan Schedule as “Group 1 Mortgage Loans”, including in each
case any Mortgage Loans delivered in replacement thereof.
Group
1 Overcollateralization Reduction Amount: With respect to any Distribution
Date, the Overcollateralization Reduction Amount for such Distribution Date
multiplied by a fraction, the numerator of which is (x) the Principal Remittance
Amount for Loan Group 1 for such Distribution Date, and the denominator of
which
is (y) the aggregate Principal Remittance Amount for Loan Group 1 and Loan
Group
2 for such Distribution Date.
Group
1 Pre-Funded Amount: The portion of the Pre-Funded Amount
allocable for purchase of Subsequent Mortgage Loans as Group 1 Mortgage Loans
on
the Closing Date, which shall equal $1,131,566.53.
Group
2 Mortgage Loans: The group of Mortgage Loans identified in the
related Mortgage Loan Schedule as “Group 2 Mortgage Loans”, including in each
case any Mortgage Loans delivered in replacement thereof.
Group
2 Overcollateralization Reduction Amount: With respect to any Distribution
Date, the Overcollateralization Reduction Amount for such Distribution Date
multiplied by a fraction, the numerator of which is the Principal Remittance
Amount for Loan Group 2 for such Distribution Date, and the denominator of
which
is the aggregate Principal Remittance Amount for Loan Group 1 and Loan Group
2
for such Distribution Date.
Group
2 Pre-Funded Amount: The portion of the Pre-Funded Amount
allocable for purchase of Subsequent Mortgage Loans as Group 2 Mortgage Loans
on
the Closing Date, which shall equal $54,535,020.92.
Index: As
to any Mortgage Loan on any Adjustment Date related thereto, the index for
the
adjustment of the Mortgage Rate set forth as such in the related Mortgage Note,
or, if the Index in the Mortgage Note ceases to be published or becomes
unavailable for any reason, then the Index shall be a new index selected by
the
Master Servicer, based on comparable information and in accordance with the
Mortgage Note and applicable law.
Initial
Adjustment Date: As to any Mortgage Loan, the first Adjustment
Date following the origination of such Mortgage Loan.
Initial
Certificate Account Deposit: An amount equal to the aggregate of
all amounts in respect of (i) principal of the Initial Mortgage Loans due after
the Initial Cut-off Date and received by the Master Servicer before the Closing
Date and not applied in computing the Cut-off Date Principal Balance thereof
and
(ii) interest on the Initial Mortgage Loans due after the Initial Cut-off Date
and received by the Master Servicer before the Closing Date.
Initial
Certificate Principal Balance: With respect to any Certificate
(other than the Class C Certificates) the Certificate Principal Balance of
such
Certificate or any predecessor Certificate on the Closing Date.
22
Initial
Cut-off Date: In the case of any Initial Mortgage Loan, the later
of (x) March 1, 2007 and (y) the date of origination of such Initial Mortgage
Loan.
Initial
Mortgage Loan: A Mortgage Loan conveyed to the Trustee on the
Closing Date pursuant to this Agreement as identified on the Mortgage Loan
Schedule delivered to the Trustee on the Closing Date.
Initial
Mortgage Rate: As to each Mortgage Loan, the Mortgage Rate in
effect prior to the Initial Adjustment Date.
Initial
Periodic Rate Cap: With respect to each Mortgage Loan, the
percentage specified in the related Mortgage Note that limits the permissible
increase or decrease in the Mortgage Rate on its initial Adjustment
Date.
Institutional
Accredited Investor or IAI: An “accredited investor” as defined
in any of paragraphs (1), (2), (3)and (7) of Rule 501(a) under the Securities
Act or any entity in which all of the equity owners come within such
paragraphs.
Insurance
Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including the Mortgage Insurance Policy and all
riders and endorsements to the Mortgage Insurance Policy in effect with respect
to such Mortgage Loan, including any replacement policy or policies for any
Insurance Policy.
Insurance
Proceeds: Proceeds paid in respect of the Mortgage Loans pursuant
to any Insurance Policy or any other insurance policy covering a Mortgage Loan,
to the extent such proceeds are payable to the mortgagee under the Mortgage,
the
Master Servicer or the trustee under the deed of trust and are not applied
to
the restoration of the related Mortgaged Property or released to the Mortgagor
in accordance with the procedures that the Master Servicer would follow in
servicing mortgage loans held for its own account, in each case other than
any
amount included in such Insurance Proceeds in respect of Insured Expenses and
received either prior to or in connection with such Mortgage Loan becoming
a
Liquidated Mortgage Loan.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest-Bearing
Certificates: The Class A Certificates and the Subordinate
Certificates.
Interest
Carry Forward Amount: With respect to each Class of
Interest-Bearing Certificates and each Distribution Date, the excess of (i)
the
Current Interest for such Class with respect to prior Distribution Dates over
(ii) the amount actually distributed to such Class with respect to interest
on
such prior Distribution Dates.
Interest
Determination Date: With respect to the first Accrual Period for
the Interest-Bearing Certificates, March 28, 2007. With respect to
any Accrual Period for the Interest-Bearing Certificates thereafter, the second
LIBOR Business Day preceding the commencement of such Accrual
Period.
23
Interest
Funds: With respect to any Distribution Date and Loan Group, the
Interest Remittance Amount for such Loan Group and Distribution Date, less
the
portion of the Trustee Fee for such Distribution Date allocable to such Loan
Group, plus the Adjusted Replacement Upfront Amount, if any, allocable to that
Loan Group, less the Mortgage Insurance Premiums for the Covered Mortgage Loans
in that Loan Group for such Distribution Date.
Interest
Remittance Amount: With respect to the Mortgage Loans in each
Loan Group and any Distribution Date, (x) the sum, without duplication, of
(i)
all scheduled interest collected during the related Due Period with respect
to
the related Mortgage Loans less the related Servicing Fee, (ii) all interest
on
prepayments received during the related Prepayment Period with respect to such
Mortgage Loans, other than Prepayment Interest Excess, (iii) all related
Advances relating to interest with respect to such Mortgage Loans, (iv) all
related Compensating Interest with respect to such Mortgage Loans, (v)
Liquidation Proceeds with respect to such Mortgage Loans collected during the
related Due Period (to the extent such Liquidation Proceeds relate to interest),
(vi) in the case of the first Distribution Date, any Seller Interest Shortfall
Payments with respect to the Initial Mortgage Loans in such Loan Group, and
in
the case of each Distribution Date occurring in a calendar month following
any
Subsequent Transfer Date, any Seller Interest Shortfall Payments for the
Subsequent Mortgage Loans in such Loan Group conveyed on such Subsequent
Transfer Date, and (vii) in the case of each Funding Period Distribution Date,
the portion of the Capitalized Interest Requirement for such Distribution Date
allocable to such Loan Group, if any, less (y) all reimbursements to the Master
Servicer during the related Due Period for Advances of interest previously
made
allocable to such Loan Group.
Investment
Letter: As defined in Section 5.02(b).
ISDA
Master Agreement: The 1992 ISDA Master Agreement (Multicurrency –
Cross Border), including the Schedule and Credit Support Annex thereto,
dated
March 30, 2007, 2007, between the Swap Counterparty, the Swap Contract
Administrator and the Corridor Contract Administrator.
Item
1119 Party: The Depositor, any Seller, the Master Servicer, the
Trustee, any Subservicer, any originator identified in the Prospectus
Supplement, the Corridor Contract Counterparty, the Swap Counterparty and any
other material transaction party, as identified in Exhibit Z hereto, as updated
pursuant to Section 11.04.
Latest
Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
LIBOR
Business Day: Any day on which banks in the City of London,
England and New York City, U.S.A. are open and conducting transactions in
foreign currency and exchange.
Limited
Exchange Act Reporting Obligations: The obligations of the Master
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with respect
to
notice and information to be provided to the Depositor and Article XI (except
Section 11.07(a)(1) and (2)).
24
Liquidated
Mortgage Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan that has been liquidated through deed-in-lieu of foreclosure,
foreclosure sale, trustee’s sale or other realization as provided by applicable
law governing the real property subject to the related Mortgage and any security
agreements and as to which the Master Servicer has certified in the related
Prepayment Period that it has received all amounts it expects to receive in
connection with such liquidation.
Liquidation
Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of 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 received in
connection with or prior to such Mortgage Loan becoming a Liquidated Mortgage
Loan (other than the amount of such net proceeds representing any profit
realized by the Master Servicer in connection with the disposition of any such
properties), less the sum of related unreimbursed Advances, Servicing Fees
and
Servicing Advances.
Loan
Group: Either of Loan Group 1 or Loan Group 2.
Loan
Group 1: The Group 1 Mortgage Loans.
Loan
Group 2: The Group 2 Mortgage Loans.
Loan-to-Value
Ratio: As to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the original principal balance of such
Mortgage Loan and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Majority
Holder: The Holders of Certificates evidencing at least 51% of
the Voting Rights allocated to such Class of Certificates.
Master
REMIC: As defined in the Preliminary Statement.
Master
Servicer: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as master servicer
hereunder.
Master
Servicer Advance Date: As to any Distribution Date, the Business
Day immediately preceding such Distribution Date.
Master
Servicer Prepayment Charge Payment Amount: The amounts (i)
payable by the Master Servicer in respect of any Prepayment Charges waived
other
than in accordance with the standard set forth in the first sentence of Section
3.20(a), or (ii) collected from the Master Servicer in respect of a remedy
for
the breach of the representation made by CHL set forth in Section
3.20(c).
Maximum
Mortgage Rate: With respect to each Mortgage Loan, the maximum
rate of interest set forth as such in the related Mortgage Note.
MERS: Mortgage
Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor thereto.
25
MERS
Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS® System.
MERS®
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
Mortgage Identification Number for any MERS Mortgage Loan.
Minimum
Auction Amount: With respect to any auction of the Mortgage Loans
and any REO Properties pursuant to Section 9.04, the sum of (i) the Termination
Price that would be payable by the NIM Insurer if the Optional Termination
were
exercised in the following calendar month pursuant to Section 9.01 and (ii)
all
reasonable fees and expenses incurred by the Trustee in connection with any
auction conducted pursuant to Section 9.04.
Minimum
Mortgage Rate: With respect to each Mortgage Loan, the minimum
rate of interest set forth as such in the related Mortgage Note.
Modified
Mortgage Loan: As defined in Section 3.12(a).
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 4.05.
Moody’s: Xxxxx’x
Investors Service, Inc. and its successors.
Mortgage: The
mortgage, deed of trust or other instrument creating a first lien on or first
priority ownership interest in an estate in fee simple in real property securing
a Mortgage Note.
Mortgage
File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Insurance Policy: The Mortgage Insurance Policy issued by United
Guaranty Mortgage Indemnity Company with respect to certain Mortgage Loans
identified in the Mortgage Loan Schedule.
Mortgage
Insurance Premium: The premium payable on the Mortgage Insurance
Policy issued by United Guaranty Mortgage Indemnity Company on each Distribution
Date and amounts due for premium taxes with respect to West Virginia, Kentucky
or other applicable state taxes relating to such premium.
Mortgage
Insurance Premium Rate: With respect to a Covered Mortgage Loan, the per
annum rate set forth for such Covered Mortgage Loan on the Mortgage Loan
Schedule.
26
Mortgage
Insurer: United Guaranty Mortgage Indemnity Company or any
replacement Mortgage Insurer, as applicable.
Mortgage
Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the deletion of Liquidated Mortgage
Loans and Deleted Mortgage Loans and the addition of (x) Replacement Mortgage
Loans pursuant to the provisions of this Agreement and (y) Subsequent Mortgage
Loans pursuant to the provisions of this Agreement and any Subsequent Transfer
Agreement) transferred to the Trustee as part of the Trust Fund and from time
to
time subject to this Agreement, attached hereto as Exhibit F-1, setting forth
in
the following information with respect to each Mortgage Loan:
|
|
(i)
|
the
loan number;
|
|
|
(ii)
|
the
Loan Group;
|
|
|
(iii)
|
the
Appraised Value;
|
|
|
(iv)
|
the
Initial Mortgage Rate;
|
|
|
(v)
|
the
maturity date;
|
|
|
(vi)
|
the
original principal balance;
|
|
|
(vii)
|
the
Cut-off Date Principal Balance;
|
|
|
(viii)
|
the
first payment date of the Mortgage
Loan;
|
|
|
(ix)
|
the
Scheduled Payment in effect as of the Cut-off
Date;
|
|
|
(x)
|
the
Loan-to-Value Ratio at origination;
|
|
|
(xi)
|
a
code indicating whether the residential dwelling at the time of
origination was represented to be
owner-occupied;
|
|
|
(xii)
|
a
code indicating whether the residential dwelling is either (a) a
detached
single-family dwelling, (b) a two-family residential property, (c)
a
three-family residential property, (d) a four-family residential
property,
(e) planned unit development, (f) a low-rise condominium unit, (g)
a
high-rise condominium unit or (h) manufactured
housing;
|
|
|
(xiii)
|
[Reserved];
|
|
|
(xiv)
|
the
purpose of the Mortgage Loan;
|
|
|
(xv)
|
with
respect to each Mortgage Loan:
|
(a) the
frequency of each Adjustment Date;
27
(b) the
next Adjustment Date;
(c) the
Maximum Mortgage Rate;
(d) the
Minimum Mortgage Rate;
(e) the
Mortgage Rate as of the Cut-off Date;
(f) the
related Initial Periodic Rate Cap and Subsequent Periodic Rate Cap;
and
(g) the
Gross Margin;
|
|
(xvi)
|
a
code indicating whether the Mortgage Loan is a CHL Mortgage Loan,
a Park
Monaco Mortgage Loan or a Park Sienna Mortgage
Loan;
|
|
|
(xvii)
|
the
premium rate for any lender-paid mortgage insurance, if
applicable;
|
|
|
(xviii)
|
[Reserved];
|
|
|
(xix)
|
a
code indicating if such Mortgage Loan is a Covered Mortgage Loan
and the
applicable Mortgage Insurance Premium Rate as set forth in the Mortgage
Insurance Policy; and
|
|
|
(xx)
|
the
Servicing Fee Rate for the Mortgage Loan as of the applicable Cut-off
Date
and, if the Servicing Fee Rate is subject to increase following the
initial Adjustment Date for the Mortgage Loan, the Servicing Fee
Rate for
the Mortgage Loan following the initial Adjustment
Date.
|
Such
schedule shall also set forth the total of the amounts described under (vii)
above for all of the Mortgage Loans and for each Loan Group. The
Mortgage Loan Schedule shall be deemed to include each supplement thereto
delivered pursuant to Section 2.01(f) and all the related Subsequent Mortgage
Loans and Subsequent Mortgage Loan information included therein.
Mortgage
Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to the provisions hereof and any Subsequent Transfer Agreement
as from time to time are held as 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. Any mortgage loan that was intended by
the parties hereto to be transferred to the Trust Fund as indicated by such
Mortgage Loan Schedule which is in fact not so transferred for any reason,
including a breach of the representation contained in Section 2.02 hereof,
shall
continue to be a Mortgage Loan hereunder until the Purchase Price with respect
thereto has been paid to the Trust Fund.
28
Mortgage
Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
Mortgage
Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
Mortgage
Rate: The annual rate of interest borne by a Mortgage Note from
time to time.
Mortgaged
Property: The underlying property securing a Mortgage
Loan.
Mortgagor: The
obligors on a Mortgage Note.
Net
Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the related Servicing Fee
Rate.
Net
Rate Cap: With respect to any Distribution Date and (i) the Class
1-A Certificates, the Class 1-A Net Rate Cap, (ii) each Class of Class 2-A
Certificates, the Class 2-A Net Rate Cap and (iii) each Class of Subordinate
Certificates, the Subordinate Net Rate Cap.
Net
Rate Carryover: With respect to any Class of Interest-Bearing
Certificates and any Distribution Date, the sum of (A) the excess of (i) the
amount of interest that such Class would otherwise have accrued for such
Distribution Date had the Pass-Through Rate for such Class and the related
Accrual Period not been determined based on the applicable Net Rate Cap, over
(ii) the amount of interest accrued on such Class at the applicable Net Rate
Cap
for such Distribution Date and (B) the Net Rate Carryover for such Class for
all
previous Distribution Dates not previously paid pursuant to Section 4.04,
together with interest thereon at the then-applicable Pass-Through Rate for
such
Class, without giving effect to the applicable Net Rate Cap.
Net
Swap Payment: With respect to any Distribution Date and payment
by the Swap Contract Administrator to the Swap Counterparty, the excess, if
any,
of the “Fixed Amount” (as defined in the Swap Contract) with respect to such
Distribution Date over the “Floating Amount” (as defined in the Swap Contract)
with respect to such Distribution Date. With respect to any
Distribution Date and payment by the Swap Counterparty to the Swap Contract
Administrator, the excess, if any, of the “Floating Amount” (as defined in the
Swap Contract) with respect to such Distribution Date over the “Fixed Amount”
(as defined in the Swap Contract) with respect to such Distribution
Date
NIM
Insurer: Any insurer guarantying at the request of CHL certain payments
under notes backed or secured by the Class C or Class P
Certificates.
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 or, in the case of a current delinquency, would not, be
ultimately recoverable by the Master Servicer from the related Mortgagor,
related Liquidation Proceeds or otherwise.
29
Non-United
States Person: A Person that is not a citizen or resident of the
United States, a corporation, partnership, or other entity (treated as a
corporation or a partnership for federal income tax purposes) created or
organized in or under the laws of the United States, any state thereof or the
District of Columbia, an estate whose income from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or a trust if a court within the United States is
able
to exercise primary supervision over the administration of the trust and one
or
more United States persons have authority to control all substantial decisions
of the trustor.
OC
Floor: An amount equal to 0.50% of the sum of the aggregate
Cut-off Date Principal Balance of the Initial Mortgage Loans and the Pre-Funded
Amount.
Officer’s
Certificate: A certificate (i) in the case of the Depositor, signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a Managing
Director, a Vice President (however denominated), an Assistant Vice President,
the Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor, (ii) in the case of the Master Servicer, signed
by
the President, an Executive Vice President, a Vice President, an Assistant
Vice
President, the Treasurer, or one of the Assistant Treasurers or Assistant
Secretaries of Countrywide GP, Inc., its general partner, (iii) if provided
for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required
by
this Agreement, or (iv) in the case of any other Person, signed by an authorized
officer of such Person.
One-Month
LIBOR: With respect to any Accrual Period for the
Interest-Bearing Certificates, the rate determined by the Trustee on the related
Interest Determination Date on the basis of the rate for U.S. dollar deposits
for one month as quoted on the Bloomberg Terminal on such Interest Determination
Date; provided that the parties hereto acknowledge that One-Month LIBOR
calculated for the first Accrual Period for the Interest-Bearing Certificates
shall equal 5.32000% per annum. If such rate is not quoted on
the Bloomberg Terminal (or if such service is no longer offered, such other
service for displaying One-Month LIBOR or comparable rates as may be reasonably
selected by the Trustee), One-Month LIBOR for the applicable Accrual Period
for
the Interest-Bearing Certificates will be the Reference Bank Rate. If
no such quotations can be obtained by the Trustee and no Reference Bank Rate
is
available, One-Month LIBOR will be One-Month LIBOR applicable to the preceding
Accrual Period for the Interest-Bearing Certificates.
Opinion
of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or the Master Servicer, reasonably acceptable to each addressee
of
such opinion; provided that with respect to Section 6.04 or 10.01, or the
interpretation or application of the REMIC Provisions, such counsel must (i)
in
fact be independent of the Depositor and the Master Servicer, (ii) not have
any
direct financial interest in the Depositor or the Master Servicer or in any
affiliate of either and (iii) not be connected with the Depositor or the Master
Servicer as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
30
Optional
Termination: The termination of the Trust Fund pursuant to clause
(a) of the first sentence of Section 9.01.
Optional
Termination Date: The first Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than or equal
to 10% of the sum of the aggregate Cut-off Date Principal Balance of the Initial
Mortgage Loans and the Pre-Funded Amount.
Original
Value: The value of the property underlying a Mortgage Loan
based, in the case of the purchase of the underlying Mortgaged Property, on
the
lower of an appraisal satisfactory to the Master Servicer or the sales price
of
such property or, in the case of a refinancing, on an appraisal satisfactory
to
the Master Servicer.
OTS: The
Office of Thrift Supervision.
Outstanding: With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Trustee pursuant to this Agreement.
Outstanding
Mortgage Loan: As of any Distribution Date, a Mortgage Loan with
a Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in full, and that did not become a Liquidated Mortgage
Loan, prior to the end of the related Prepayment Period.
Overcollateralization
Deficiency Amount: With respect to any Distribution Date, the
amount, if any, by which the Overcollateralization Target Amount exceeds the
Overcollateralized Amount on such Distribution Date (after giving effect to
distribution of the Principal Distribution Amount (other than the portion
thereof consisting of the Extra Principal Distribution Amount) on such
Distribution Date).
Overcollateralization
Reduction Amount: With respect to any Distribution Date, an amount equal to
the lesser of (i) the Excess Overcollateralization Amount for such Distribution
Date and (ii) the aggregate Principal Remittance Amount for Loan Group 1 and
Loan Group 2 for such Distribution Date.
Overcollateralization
Target Amount: With respect to any Distribution Date (a) prior to
the Stepdown Date, an amount equal to 4.20% of the sum of the aggregate Cut-off
Date Principal Balance of the Initial Mortgage Loans and the Pre-Funded Amount
and (b) on or after the Stepdown Date, the greater of (i) an amount equal to
8.40% of the aggregate Stated Principal Balance of the Mortgage Loans for the
current Distribution Date and (ii) the OC Floor; provided, however, that if
a
Trigger Event is in effect on any Distribution Date, the Overcollateralization
Target Amount will be the Overcollateralization Target Amount as in effect
for
the prior Distribution Date.
31
Overcollateralized
Amount: With respect to any Distribution Date, the amount, if
any, by which (x) the sum of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and any amount on deposit in the
Pre-Funding Account exceeds (y) the aggregate Certificate Principal Balance
of
the Interest-Bearing Certificates as of such Distribution Date (after giving
effect to distribution of the Principal Remittance Amounts to be made on such
Distribution Date and, in the case of the Distribution Date immediately
following the end of the Funding Period, any amounts to be released from the
Pre-Funding Account).
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.
Park
Monaco: Park Monaco Inc., a Delaware corporation, and its
successors and assigns.
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.
Park
Sienna Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Sienna is the applicable
Seller.
Pass-Through
Margin: With respect to any Accrual Period and Class of
Interest-Bearing Certificates, the per annum rate indicated in the following
table:
|
Class
|
Pass-Through
Margin (1)
|
Pass-Through
Margin (2)
|
|
Class
1-A
|
0.200%
|
0.400%
|
|
Class
2-A-1
|
0.100%
|
0.200%
|
|
Class
2-A-2
|
0.170%
|
0.340%
|
|
Class
2-A-3
|
0.220%
|
0.440%
|
|
Class
2-A-4
|
0.320%
|
0.640%
|
|
Class
M-1
|
0.420%
|
0.630%
|
|
Class
M-2
|
0.480%
|
0.720%
|
|
Class
M-3
|
0.660%
|
0.990%
|
|
Class
M-4
|
1.150%
|
1.725%
|
|
Class
M-5
|
1.300%
|
1.950%
|
|
Class
M-6
|
1.700%
|
2.550%
|
|
Class
M-7
|
2.000%
|
3.000%
|
|
Class
M-8
|
2.000%
|
3.000%
|
32
|
(1)
|
For
any Accrual Period relating to any Distribution Date occurring on
or prior
to the Optional Termination Date.
|
|
(2)
|
For
any Accrual Period relating to any Distribution Date occurring after
the
Optional Termination Date.
|
Pass-Through
Rate: With respect to any Accrual Period and each Class of
Interest-Bearing Certificates the lesser of (x) One-Month LIBOR for such Accrual
Period plus the Pass-Through Margin for such Class and Accrual Period and (y)
the applicable Net Rate Cap for such Class and the related Distribution
Date.
Percentage
Interest: With respect to any Interest-Bearing Certificate, a
fraction, expressed as a percentage, the numerator of which is the Certificate
Principal Balance represented by such Certificate and the denominator of which
is the aggregate Certificate Principal Balance of the related
Class. With respect to the Class C, Class P and Class A-R
Certificates, the portion of the Class evidenced thereby, expressed as a
percentage, as stated on the face of such Certificate.
Performance
Certification: As defined in Section 11.05.
Permitted
Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations
of the United States or any agency thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as each Rating Agency has confirmed in
writing is sufficient for the ratings originally assigned to the Certificates
by
such 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
each
Rating Agency has confirmed in writing is sufficient for the ratings originally
assigned to the Certificates by such Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial paper
and/or long term unsecured debt obligations of such depository institution
or
trust company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx’x is not a Rating Agency)
are then rated one of the two highest long-term and the highest short-term
ratings of each such Rating Agency for such securities, or such lower ratings
as
each Rating Agency has confirmed in writing is sufficient for the ratings
originally assigned to the Certificates by such Rating Agency;
33
(v) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(vi) securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold
at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment, have one
of
the two highest long term ratings of each Rating Agency (except (x) if the
Rating Agency is Moody’s, such rating shall be the highest commercial paper
rating of S&P for any such securities) and (y), or such lower rating as each
Rating Agency has confirmed in writing is sufficient for the ratings originally
assigned to the Certificates by such Rating Agency;
(vii) interests
in any money market fund which at the date of acquisition of the interests
in
such fund and throughout the time such interests are held in such fund has
the
highest applicable long term rating by each Rating Agency or such lower rating
as each Rating Agency has confirmed in writing is sufficient for the ratings
originally assigned to the Certificates by such Rating Agency;
(viii) short
term investment funds sponsored by any trust company or national banking
association incorporated under the laws of the United States or any state
thereof which on the date of acquisition has been rated by each Rating Agency
in
their respective highest applicable rating category or such lower rating as
each
Rating Agency has confirmed in writing is sufficient for the ratings originally
assigned to the Certificates by such Rating Agency; and
(ix) such
other relatively risk free investments having a specified stated maturity and
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 any Rating Agency, as evidenced by a signed writing delivered
by
each Rating Agency, and reasonably acceptable to the NIM Insurer, as evidenced
by a signed writing delivered by the NIM Insurer;
provided,
that no such instrument shall be a Permitted Investment if such instrument
(i)
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument, (ii) is purchased at a premium or (iii)
is purchased at a deep discount; provided further that no such instrument shall
be a Permitted Investment (A) if such instrument evidences principal and
interest payments derived from obligations underlying such instrument and the
interest payments with respect to such instrument provide a yield to maturity
of
greater than 120% of the yield to maturity at par of such underlying
obligations, or (B) if it may be redeemed at a price below the purchase price
(the foregoing clause (B) not to apply to investments in units of money market
funds pursuant to clause (vii) above); provided further that no amount
beneficially owned by any REMIC (including, without limitation, any amounts
collected by the Master Servicer but not yet deposited in the Certificate
Account) may be invested in investments (other than money market funds) treated
as equity interests for Federal income tax purposes, unless the Master Servicer
shall receive an Opinion of Counsel, at the expense of Master Servicer, to
the
effect that such investment will not adversely affect the status of any such
REMIC as a REMIC under the Code or result in imposition of a tax on any such
REMIC. Permitted Investments that are subject to prepayment or call
may not be purchased at a price in excess of par.
34
Permitted
Transferee: Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any
of the foregoing, (ii) a foreign government, International Organization or
any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of
a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration
of
the trust and one or more United States Persons have authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon
an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause any REMIC formed hereunder to fail to
qualify as a REMIC at any time that any Certificates are
Outstanding. The terms “United States,” “State” and “International
Organization” shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with
the exception of the Federal Home Loan Mortgage Corporation, a majority of
its
board of directors is not selected by such government unit.
Person: Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Plan: An
“employee benefit plan” as defined in section 3(3)of ERISA that is subject to
Title I of ERISA, a “plan” as defined in section 4975 of the Code that is
subject to section 4975 of the Code, or any Person investing on behalf of or
with plan assets (as defined in 29 CFR §2510.3-101 or otherwise under ERISA) of
such an employee benefit plan or plan.
Pool
Tax Cap: As defined in the Preliminary Statement.
Pool
Stated Principal Balance: The aggregate of the Stated Principal
Balances of the Mortgage Loans which were Outstanding Mortgage
Loans.
35
Pre-Funded
Amount: The amount deposited in the Pre-Funding Account on the
Closing Date, which shall equal $55,666,587.45.
Pre-Funding
Account: The separate Eligible Account created and maintained by
the Trustee pursuant to Section 3.05 in the name of the Trustee for the benefit
of the Certificateholders and designated “The Bank of New York, in trust for
registered holders of CWABS, Inc., Asset-Backed Certificates, Series
2007-5.” Funds in the Pre-Funding Account shall be held in trust for
the Certificateholders for the uses and purposes set forth in this Agreement
and
shall not be a part of any REMIC created hereunder, provided, however, that
any
investment income earned from Permitted Investments made with funds in the
Pre-Funding Account will be for the account of CHL.
Prepayment
Assumption: The applicable rate of prepayment, as described in
the Prospectus Supplement relating to the Certificates.
Prepayment
Charge: With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of such
Mortgage Loan within the related Prepayment Charge Period in accordance with
the
terms thereof (other than any Master Servicer Prepayment Charge Payment
Amount).
Prepayment
Charge Period: With respect to any Mortgage Loan, the period of
time during which a Prepayment Charge may be imposed.
Prepayment
Charge Schedule: As of the Initial Cut-off Date with respect to
each Initial Mortgage Loan and as of the Subsequent Cut-off Date with respect
to
each Subsequent Mortgage Loan, a list attached hereto as Schedule I (including
the Prepayment Charge Summary attached thereto), setting forth the following
information with respect to each Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code indicating the type of Prepayment Charge;
(iii) the
state of origination of the related Mortgage Loan;
(iv) the
date on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term of the related Prepayment Charge; and
(vi) the
principal balance of the related Mortgage Loan as of the Cut-off
Date.
As
of the
Closing Date, the Prepayment Charge Schedule shall contain the necessary
information for each Initial Mortgage Loan. The Prepayment Charge
Schedule shall be amended by the Master Servicer upon the sale of any Subsequent
Mortgage Loans to the Trust Fund. In addition, the Prepayment Charge
Schedule shall be amended from time to time by the Master Servicer in accordance
with the provisions of this Agreement and a copy of each related amendment
shall
be furnished by the Master Servicer to the Class P and Class C
Certificateholders and the NIM Insurer.
36
Prepayment
Interest Excess: With respect to any Distribution Date, for each
Mortgage Loan that was the subject of a Principal Prepayment during the period
from the related Due Date to the end of the related Prepayment Period, any
payment of interest received in connection therewith (net of any applicable
Servicing Fee) representing interest accrued for any portion of such month
of
receipt.
Prepayment
Interest Shortfall: With respect to any Distribution Date, for
each Mortgage Loan that was the subject of a partial Principal Prepayment or
a
Principal Prepayment in full during the period from the beginning of the related
Prepayment Period to the Due Date in such Prepayment Period (other than a
Principal Prepayment in full resulting from the purchase of a Mortgage Loan
pursuant to Section 2.02, 2.03, 2.04, 3.12 or 9.01 hereof) and for each Mortgage
Loan that became a Liquidated Mortgage Loan during the related Due Period,
the
amount, if any, by which (i) one month’s interest at the applicable Net Mortgage
Rate on the Stated Principal Balance of such Mortgage Loan immediately prior
to
such prepayment (or liquidation) or in the case of a partial Principal
Prepayment on the amount of such prepayment (or Liquidation Proceeds) exceeds
(ii) the amount of interest paid or collected in connection with such Principal
Prepayment or such Liquidation Proceeds.
Prepayment
Period: As to any Distribution Date and related Due Date, the
period beginning with the opening of business on the sixteenth day of the
calendar month preceding the month in which such Distribution Date occurs (or,
with respect to the first Distribution Date, the period beginning with the
opening of business on March 2, 2007) and ending on the close of business on
the
fifteenth day of the month in which such Distribution Date occurs.
Prime
Rate: The prime commercial lending rate of The Bank of New York, as publicly
announced to be in effect from time to time. The Prime Rate shall be
adjusted automatically, without notice, on the effective date of any change
in
such prime commercial lending rate. The Prime Rate is not necessarily
The Bank of New York’s lowest rate of interest.
Principal
Distribution Amount: With respect to each Distribution Date and a
Loan Group, the sum of (i) the Principal Remittance Amount for such Loan Group
for such Distribution Date less any portion of such amount used to cover any
payment due to the Swap Counterparty with respect to such Distribution Date
pursuant to Section 4.09, (ii) the Extra Principal Distribution Amount for
such
Loan Group for such Distribution Date, and (iii) with respect to the
Distribution Date immediately following the end of the Funding Period, the
amount, if any, remaining in the Pre-Funding Account at the end of the Funding
Period (net of any investment income therefrom) allocable to such Loan Group,
minus (iv) (a) the amount of any Group 1 Overcollateralization Reduction Amount,
in the case of Loan Group 1 and (b) the amount of any Group 2
Overcollateralization Reduction Amount, in the case of Loan Group
2.
Principal
Prepayment: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including loans
purchased or repurchased under Sections 2.02, 2.03, 2.04, 3.12 and 9.01 hereof)
that is received in advance of its scheduled Due Date to the extent it is not
accompanied by an amount as to interest 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.
37
Principal
Remittance Amount: With respect to the Mortgage Loans in each
Loan Group and any Distribution Date, (a) the sum, without duplication, of:
(i) the scheduled principal collected with respect to the Mortgage Loans during
the related Due Period or advanced with respect to such Distribution Date,
(ii)
Principal Prepayments collected in the related Prepayment Period, with respect
to the Mortgage Loans, (iii) the Stated Principal Balance of each Mortgage
Loan
that was repurchased by a Seller or purchased by the Master Servicer with
respect to such Distribution Date, (iv) the amount, if any, by which the
aggregate unpaid principal balance of any Replacement Mortgage Loans delivered
by the Sellers in connection with a substitution of a Mortgage Loan is less
than
the aggregate unpaid principal balance of any Deleted Mortgage Loans and (v)
all
Liquidation Proceeds (to the extent such Liquidation Proceeds related to
principal) and Subsequent Recoveries collected during the related Due Period;
less (b) all Advances relating to principal and certain expenses reimbursable
pursuant to Section 6.03 and reimbursed during the related Due Period, in each
case with respect to such Loan Group.
Principal
Reserve Fund: The separate Eligible Account created and initially
maintained by the Trustee pursuant to Section 3.08 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 CWABS, Inc., Asset-Backed Certificates,
Series 2007-5”. Funds in the Principal Reserve Fund shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement.
Private
Certificates: The Class C and Class P Certificates.
Prospectus: The
prospectus dated November 27, 2006, relating to asset-backed securities to
be
sold by the Depositor.
Prospectus
Supplement: The prospectus supplement dated March 29, 2007,
relating to the public offering of the certain Classes of Certificates offered
thereby.
PTCE
95-60: As defined in Section 5.02(b).
PUD: A
Planned Unit Development.
Purchase
Price: With respect to any Mortgage Loan (x) required to be (1)
repurchased by a Seller or purchased by the Master Servicer, as applicable,
pursuant to Section 2.02, 2.03 or 3.12 hereof or (2) repurchased by the
Depositor pursuant to Section 2.04 hereof, or (y) that the Master Servicer
has a
right to purchase pursuant to Section 3.12 hereof, an amount equal to the sum
of
(i) 100% of the unpaid principal balance (or, if such purchase is effected
by
the Master Servicer, the Stated Principal Balance) of the Mortgage Loan as
of
the date of such purchase, (ii) accrued interest thereon at the applicable
Mortgage Rate (or, if such purchase is effected by the Master Servicer, at
the
Net Mortgage Rate) from (a) the date through which interest was last paid by
the
Mortgagor (or, if such purchase is effected by the Master Servicer, the date
through which interest was last advanced and not reimbursed by the Master
Servicer) to (b) the Due Date in the month in which the Purchase Price is to
be
distributed to Certificateholders and (iii) any costs, expenses and damages
incurred by the Trust Fund resulting from any violation of any predatory or
abusive lending law in connection with such Mortgage Loan.
38
Qualified
Bidder: With respect to any auction pursuant to Section 9.04, any
institution that is a regular purchaser and/or seller in the secondary market
of
residential mortgage loans as determined by the Trustee (or any advisor on
its
behalf), in its sole discretion, and any holder of an interest in the Class
C
Certificates; provided, however, that neither CHL nor any of its affiliates
shall constitute a Qualified Bidder.
Qualified
Institutional Buyer or QIB: A “qualified institutional
buyer” within the meaning of Rule 144A.
Rating
Agency: Each of Moody’s and S&P. If any such
organization or its successor is no longer in existence, “Rating Agency” shall
be a nationally recognized statistical rating organization, or other comparable
Person, identified as a “Rating Agency” in the Underwriter’s Exemption and
designated by the Depositor, notice of which designation shall be given to
the
Trustee. References herein to a given rating category of a Rating
Agency shall mean such rating category without giving effect to any
modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of such Liquidated Mortgage Loan as of the date of such liquidation,
minus (ii) the Liquidation Proceeds, if any, received in connection with such
liquidation during the month in which such liquidation occurs, to the extent
applied as recoveries of principal of the Liquidated Mortgage
Loan. With respect to each Mortgage Loan that has become the subject
of a Deficient Valuation, (i) if the value of the related Mortgaged Property
was
reduced below the principal balance of the related Mortgage Note, the amount
by
which the value of the Mortgaged Property was reduced below the principal
balance of the related Mortgage Note, and (ii) 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.
Record
Date: With respect to any Distribution Date and the
Interest-Bearing Certificates, the Business Day immediately preceding such
Distribution Date, or if any such Certificates are no longer Book-Entry
Certificates, the Record Date with respect to such Certificates shall be the
last Business Day of the month preceding the month of such Distribution
Date. With respect to any Distribution Date and the Class A-R, Class
C and Class P Certificates, the last Business Day of the month preceding the
month of such Distribution Date.
Reference
Bank Rate: With respect to any Accrual Period, the arithmetic
mean (rounded upwards, if necessary, to the nearest whole multiple of 0.03125%)
of the offered rates for United States dollar deposits for one month that are
quoted by the Reference Banks as of 11:00 a.m., New York City time, on the
related Interest Determination Date to prime banks in the London interbank
market for a period of one month in amounts approximately equal to the
outstanding aggregate Certificate Principal Balance of the Interest-Bearing
Certificates on such Interest Determination Date, provided that at least two
such Reference Banks provide such rate. If fewer than two offered
rates appear, the Reference Bank Rate will be the arithmetic
mean (rounded upwards, if necessary, to the nearest whole multiple of
0.03125%) of the rates quoted by one or more major banks in New York City,
selected by the Trustee, as of 11:00 a.m., New York City time, on such date
for
loans in U.S. dollars to leading European banks for a period of one month in
amounts approximately equal to the aggregate Certificate Principal Balance
of
the Interest-Bearing Certificates on such Interest Determination
Date.
39
Reference
Banks: Barclays Bank PLC, Deutsche Bank and NatWest, N.A.,
provided that if any of the foregoing banks are not suitable to serve as a
Reference Bank, then any leading banks selected by the Trustee which are engaged
in transactions in Eurodollar deposits in the international Eurocurrency market
(i) with an established place of business in London, England, (ii) not
controlling, under the control of or under common control with the Depositor,
CHL or the Master Servicer and (iii) which have been designated as such by
the
Trustee.
Refinancing
Mortgage Loan: Any Mortgage Loan originated in connection with
the refinancing of an existing mortgage loan.
Regular
Certificate: Any Certificate other than the Class A-R
Certificates.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time and publicly available.
Relief
Act: The Servicemembers Civil Relief Act.
REMIC
Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits which appear at section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance
Report: A report prepared by the Master Servicer and delivered to
the Trustee and the NIM Insurer in accordance with Section 4.04.
REO
Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement
Mortgage Loan: A Mortgage Loan substituted by a Seller for a
Deleted Mortgage Loan which must, on the date of such substitution, as confirmed
in a Request for File Release, (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 less than 90% of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) (a) have a Maximum Mortgage Rate
no
more than 1% per annum higher or lower than the Maximum Mortgage Rate of the
Deleted Mortgage Loan; (b) have a Minimum Mortgage Rate no more than 1% per
annum higher or lower than the Minimum Mortgage Rate of the Deleted Mortgage
Loan; (c) have the same Index and intervals between Adjustment Dates as that
of
the Deleted Mortgage Loan; (d) have a Gross Margin not more than 1% per annum
higher or lower than that of the Deleted Mortgage Loan; and (e) have an Initial
Periodic Rate Cap and a Subsequent Periodic Rate Cap each not more than 1%
lower
than that of the Deleted Mortgage Loan; (iii) have the same or higher credit
quality characteristics than that of the Deleted Mortgage Loan; (iv) be accruing
interest at a rate not more than 1% per annum higher or lower than that of
the
Deleted Mortgage Loan; (v) have a Loan-to-Value Ratio no higher than that of
the
Deleted Mortgage Loan; (vi) have a remaining term to maturity not greater than
(and not more than one year less than) that of the Deleted Mortgage Loan; (vii)
not permit conversion of the Mortgage Rate from a variable rate to a fixed
rate;
(viii) provide for a Prepayment Charge on terms substantially similar to those
of the Prepayment Charge, if any, of the Deleted Mortgage Loan; (ix) have the
same occupancy type and lien priority as the Deleted Mortgage Loan; (x) be
covered by the Mortgage Insurance Policy if the Deleted Mortgage Loan was
covered by the Mortgage Insurance Policy and (xi) comply with each
representation and warranty set forth in Section 2.03 as of the date of
substitution; provided, however, that notwithstanding the foregoing, to the
extent that compliance with clause (xi) of this definition would cause a
proposed Replacement Mortgage Loan to fail to comply with one or more of clauses
(i), (ii), (iv), (viii) and/or (ix) of this definition, then such proposed
Replacement Mortgage Loan must comply with clause (xi) and need not comply
with
one or more of clauses (i), (ii), (iv), (viii) and/or (ix), to the extent,
and
only to the extent, necessary to assure that the Replacement Mortgage Loan
otherwise complies with clause (xi).
40
Reportable
Event: Any event required to be reported on Form 8-K, and in any
event, the following:
(a) entry
into a definitive agreement related to the Trust Fund, the Certificates or
the
Mortgage Loans, or an amendment to a Transaction Document, even if the Depositor
is not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3)of Regulation AB);
(b) termination
of a Transaction Document (other than by expiration of the agreement on its
stated termination date or as a result of all parties completing their
obligations under such agreement), even if the Depositor is not a party to
such
agreement (e.g., a servicing agreement with a servicer contemplated by Item
1108(a)(3)of Regulation AB);
(c) with
respect to the Master Servicer only, if the Master Servicer becomes aware of
any
bankruptcy or receivership with respect to CHL, the Depositor, the Master
Servicer, any Subservicer, the Trustee, the Corridor Contract Counterparty,
the
Swap Counterparty, any enhancement or support provider contemplated by Items
1114(b) or 1115 of Regulation AB, or any other material party contemplated
by
Item 1101(d)(1) of Regulation AB;
(d) with
respect to the Trustee, the Master Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) any
amendment to this Agreement;
41
(f) the
resignation, removal, replacement, substitution of the Master Servicer, any
Subservicer, the Trustee or any co-trustee;
(g) with
respect to the Master Servicer only, if the Master Servicer becomes aware that
(i) any material enhancement or support specified in Item 1114(a)(1) through
(3)of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more classes of the Certificates has terminated other than
by
expiration of the contract on its stated termination date or as a result of
all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3)of Regulation AB or Item
1115 of Regulation AB has been added with respect to one or more classes of
the
Certificates; or (iii) any existing material enhancement or support specified
in
Item 1114(a)(1) through (3)of Regulation AB or Item 1115 of Regulation AB with
respect to one or more classes of the Certificates has been materially amended
or modified; and
(h) with
respect to the Trustee, the Master Servicer and the Depositor only, a required
distribution to Holders of the Certificates is not made as of the required
Distribution Date under this Agreement.
Reporting
Subcontractor: With respect to the Master Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to Section
11.08(b) to be “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB. References to a Reporting Subcontractor
shall refer only to the Subcontractor of such Person and shall not refer to
Subcontractors generally.
Representing
Party: As defined in Section 2.03(e).
Request
for Document Release: A Request for Document Release submitted by
the Master Servicer to the Co-Trustee, substantially in the form of Exhibit
M.
Request
for File Release: A Request for File Release submitted by the
Master Servicer to the Co-Trustee, substantially in the form of Exhibit
N.
Required
Carryover Reserve Fund Deposit: With respect to any Distribution
Date, an amount equal to the excess of (i) $1,000 over (ii) the amount of funds
on deposit in the Carryover Reserve Fund after all other deposits and
withdrawals from such account on such Distribution Date.
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, including the Mortgage Insurance Policy with respect to a Covered
Mortgage Loan.
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.
42
Rolling
Sixty-Day Delinquency Rate: With respect to any Distribution Date
on or after the Stepdown Date and any Loan Group or Loan Groups, the average
of
the Sixty-Day Delinquency Rates for such Loan Group or Loan Groups and such
Distribution Date and the two immediately preceding Distribution
Dates.
Rule
144A: Rule 144A under the Securities Act.
Rule
144A Letter: As defined in Section 5.02(b).
S&P: Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and
its successors.
Xxxxxxxx-Xxxxx
Certification: As defined in Section 11.05.
Scheduled
Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and/or interest due on any Due Date on such Mortgage Loan
which is payable by the related Mortgagor from time to time under the related
Mortgage Note, determined: (a) after giving effect to (i) any Deficient
Valuation and/or Debt Service Reduction with respect to such Mortgage Loan
and
(ii) any reduction in the amount of interest collectible from the related
Mortgagor pursuant to the Relief Act or any similar state or local law; (b)
without giving effect to any extension granted or agreed to by the Master
Servicer pursuant to Section 3.05(a); and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when due.
Securities
Act: The Securities Act of 1933, as amended.
Seller
Interest Shortfall Payment: With respect to any Initial Mortgage
Loan that does not have a first payment date on or before the Due Date in the
month of the first Distribution Date or any Subsequent Mortgage Loan that does
not have a first payment date on or before the Due Date in the month immediately
following the related Subsequent Transfer Date, an amount equal to one month’s
interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal
Balance of that Mortgage Loan.
Sellers: CHL,
in its capacity as seller of the CHL Mortgage Loans to the Depositor, Park
Monaco, in its capacity as seller of the Park Monaco Mortgage Loans to the
Depositor and Park Sienna, in its capacity as seller of the Park Sienna Mortgage
Loans to the Depositor.
Senior
Certificates: The Class A and Class A-R
Certificates.
Senior
Enhancement Percentage: With respect to a Distribution Date on or
after the Stepdown Date, the fraction (expressed as a percentage) (1) the
numerator of which is the excess of (a) the aggregate Stated Principal Balance
of the Mortgage Loans for the preceding Distribution Date over (b) (i) before
the Certificate Principal Balances of the Senior Certificates have been reduced
to zero, the sum of the Certificate Principal Balances of the Senior
Certificates, or (ii) after the Certificate Principal Balances of the Senior
Certificates have been reduced to zero, the Certificate Principal Balance of
the
most senior Class of Subordinate Certificates outstanding, as of the related
Master Servicer Advance Date, and (2) the denominator of which is the aggregate
Stated Principal Balance of the Mortgage Loans for the preceding Distribution
Date.
43
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 hereunder, including, but not limited to, the cost of
(i)
the preservation, restoration and protection of a Mortgaged Property, (ii)
any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.10.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB.
Servicing
Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month’s interest at the related Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan for the preceding Distribution
Date or, in the event of any payment of interest that accompanies a Principal
Prepayment in full made by the Mortgagor, interest at the related Servicing
Fee
Rate on the Stated Principal Balance of such Mortgage Loan for the period
covered by such payment of interest.
Servicing
Fee Rate: With respect to each Mortgage Loan, the per annum rate
set forth on the Mortgage Loan Schedule for such Mortgage Loan.
Servicing
Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Sixty-Day
Delinquency Rate: With respect to any Distribution Date on or
after the Stepdown Date, a fraction, expressed as a percentage, the numerator
of
which is the aggregate Stated Principal Balance for such Distribution Date
of
all Mortgage Loans 60 or more days delinquent as of the close of business on
the
last day of the calendar month preceding such Distribution Date (including
Mortgage Loans in foreclosure, bankruptcy and REO Properties) and the
denominator of which is the aggregate Stated Principal Balance for such
Distribution Date of all Mortgage Loans.
Stated
Principal Balance: With respect to any Mortgage Loan or related
REO Property (i) as of the Cut-off Date, the unpaid principal balance of the
Mortgage Loan as of such date (before any adjustment to the amortization
schedule for any moratorium or similar waiver or grace period), after giving
effect to any partial prepayments or Liquidation Proceeds received prior to
such
date and to the payment of principal due on or prior to such date and
irrespective any delinquency in payment by the related Mortgagor, and (ii)
as of
any other Distribution Date, the Stated Principal Balance of the Mortgage Loan
as of its Cut-off Date, minus the sum of (a) the principal portion of the
Scheduled Payments (x) due with respect to such Mortgage Loan during each Due
Period ending prior to such Distribution Date and (y) that were received by
the
Master Servicer as of the close of business on the Determination Date related
to
such Distribution Date or with respect to which Advances were made as of the
Master Servicer Advance Date related to such Distribution Date, (b) all
Principal Prepayments with respect to such Mortgage Loan received by the Master
Servicer during each Prepayment Period ending prior to such Distribution Date,
(c) all Liquidation Proceeds collected with respect to such Mortgage Loan during
each Due Period ending prior to such Distribution Date, to the extent applied
by
the Master Servicer as recoveries of principal in accordance with Section 3.12
and (d) any Realized Loss previously incurred in connection with a Deficient
Valuation. The Stated Principal Balance of any Mortgage Loan that
becomes a Liquidated Mortgage Loan will be zero on each date following the
Due
Period in which such Mortgage Loan becomes a Liquidated Mortgage
Loan. References herein to the Stated Principal Balance of the
Mortgage Loans at any time shall mean the aggregate Stated Principal Balance
of
all Mortgage Loans in the Trust Fund as of such time, and references herein
to
the Stated Principal Balance of a Loan Group at any time shall mean the
aggregate Stated Principal Balance of all Mortgage Loans in such Loan Group
at
such time.
44
Stepdown
Date: The earlier to occur of (a) the Distribution Date following
the Distribution Date on which the aggregate Certificate Principal Balance
of
the Senior Certificates is reduced to zero, and (b) the later to occur of (x)
the Distribution Date in April 2010 and (y) the first Distribution Date on
which
the aggregate Certificate Principal Balance of the Senior Certificates (after
calculating anticipated distributions on such Distribution Date) is less than
or
equal to 55.20% of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date.
Stepdown
Target Subordination Percentage: For each Class of Subordinate
Certificates, the respective percentage indicated in the following
table:
|
Stepdown
Target Subordination Percentage
|
|
|
Class
M-1
|
35.20%
|
|
Class
M-2
|
25.90%
|
|
Class
M-3
|
22.90%
|
|
Class
M-4
|
18.90%
|
|
Class
M-5
|
15.60%
|
|
Class
M-6
|
13.30%
|
|
Class
M-7
|
10.80%
|
|
Class
M-8
|
8.40%
|
Strip
REMIC: As defined in the Preliminary Statement.
Strip
REMIC Cap: As defined in the Preliminary Statement.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
the Mortgage Loans under the direction or authority of the Master Servicer
or a
Subservicer or the Trustee, as the case may be.
45
Subordinate
Certificates: The Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates.
Subordinate
Class Principal Distribution Amount: With respect to any
Distribution Date and any Class of Subordinate Certificates, the excess of
(1)
the sum of (a) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account distribution of the Class 1-A Principal
Distribution Amount and the Class 2-A Principal Distribution Amount for such
Distribution Date), (b) the aggregate Certificate Principal Balance of any
Classes of Subordinate Certificates that are senior to the subject Class (in
each case, after taking into account distribution of the Subordinate Class
Principal Distribution Amount(s) for such senior Class(es) of Certificates
for
such Distribution Date) and (c) the Certificate Principal Balance of the subject
Class of Subordinate Certificates immediately prior to such Distribution Date
over (2) the lesser of (a) the product of (x) 100% minus the Stepdown Target
Subordination Percentage for the subject Class of Certificates and (y) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date and (b) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date minus the OC Floor; provided, however, that if such
Class
of Subordinate Certificates is the only Class of Subordinate Certificates
outstanding on such Distribution Date, that Class will be entitled to receive
the entire remaining Principal Distribution Amount for Loan Group 1 and Loan
Group 2 until the Certificate Principal Balance thereof is reduced to
zero.
Subordinate
Corridor Contract: With respect to the Subordinate Certificates,
the transaction evidenced by the related Confirmation (as assigned to the
Corridor Contract Administrator pursuant to the Corridor Contract Assignment
Agreement), a form of which is attached hereto as Exhibit Q-3.
Subordinate
Net Rate Cap: With respect to any Distribution Date and each
Class of Subordinate Certificates, the weighted average of the Class 1-A Net
Rate Cap and the Class 2-A Net Rate Cap for such Distribution Date, weighted
on
the basis of the excess (if any) of the sum of the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group as of the first day
of
the related Due Period (after giving effect to Principal Prepayments received
during the Prepayment Period that ends during such Due Period) and the amount
on
deposit in the Pre-Funding Account in respect of that Loan Group as of the
first
day of such Due Period over the aggregate Certificate Principal Balance of
the
related Senior Certificates immediately prior to such Distribution
Date.
Subsequent
Certificate Account Deposit: With respect to any Subsequent
Transfer Date, an amount equal to the aggregate of all amounts in respect of
(i)
principal of the related Subsequent Mortgage Loans due after the related
Subsequent Cut-off Date and received by the Master Servicer on or before such
Subsequent Transfer Date and not applied in computing the Cut-off Date Principal
Balance thereof and (ii) interest on such Subsequent Mortgage Loans due after
such Subsequent Cut-off Date and received by the Master Servicer on or before
the Subsequent Transfer Date.
Subsequent
Cut-off Date: In the case of any Subsequent Mortgage Loan, the
later of (x) the first day of the month of the related Subsequent Transfer
Date
and (y) the date of origination of such Subsequent Mortgage Loan.
46
Subsequent
Mortgage Loan: Any Mortgage Loan conveyed to the Trustee on a
Subsequent Transfer Date, and listed on the related supplement to the Mortgage
Loan Schedule delivered pursuant to Section 2.01(f). When used with
respect to a single Subsequent Transfer Date, “Subsequent Mortgage Loan”
shall mean a Subsequent Mortgage Loan conveyed to the Trustee on such
Subsequent
Transfer Date.
Subsequent
Periodic Rate Cap: With respect to each Mortgage Loan, the
percentage specified in the related Mortgage Note that limits permissible
increases and decreases in the Mortgage Rate on any Adjustment Date (other
than
the initial Adjustment Date).
Subsequent
Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the Master Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.08 and 3.12)
specifically related to such Liquidated Mortgage Loan after the classification
of such Mortgage Loan as a Liquidated Mortgage Loan.
Subsequent
Transfer Agreement: A Subsequent Transfer Agreement substantially
in the form of Exhibit P hereto, executed and delivered by the Sellers, the
Depositor and the Trustee as provided in Section 2.01(d).
Subsequent
Transfer Date: For any Subsequent Transfer Agreement, the
“Subsequent Transfer Date” identified in such Subsequent Transfer Agreement;
provided, however, the Subsequent Transfer Date for any Subsequent Transfer
Agreement must be a Business Day and may not be a date earlier than the date
on
which the Subsequent Transfer Agreement is executed and delivered by the parties
thereto pursuant to Section 2.01(d).
Subsequent
Transfer Date Purchase Amount: With respect to any Subsequent
Transfer Date, the “Subsequent Transfer Date Purchase Amount” identified in the
related Subsequent Transfer Agreement which shall be an estimate of the
aggregate Stated Principal Balances of the Subsequent Mortgage Loans identified
in such Subsequent Transfer Agreement.
Subsequent
Transfer Date Transfer Amount: With respect to any Subsequent
Transfer Date, an amount equal to the lesser of (i) the aggregate Stated
Principal Balances as of the related Subsequent Cut-off Dates of the Subsequent
Mortgage Loans conveyed on such Subsequent Transfer Date, as listed on the
related supplement to the Mortgage Loan Schedule delivered pursuant to Section
2.01(f) and (ii) the amount on deposit in the Pre-Funding Account.
Subservicer: As
defined in Section 3.02(a).
Subservicing
Agreement: As defined in Section 3.02(a).
Substitution
Adjustment Amount: The meaning ascribed to such term pursuant to
Section 2.03(e).
Substitution
Amount: With respect to any Mortgage Loan substituted pursuant to
Section 2.03(e), the excess of (x) the principal balance of the Mortgage Loan
that is substituted for, over (y) the principal balance of the related
substitute Mortgage Loan, each balance being determined as of the date of
substitution.
47
Successful
Auction: An auction held pursuant to Section 9.04 at which at
least three Qualified Bidders submitted bids and at least one of those bids
was
an Acceptable Bid Amount.
Swap
Account: The separate Eligible Account created and initially
maintained by the Swap Trustee pursuant to Section 4.09.
Swap
Contract: The transaction evidenced by the Confirmation (as
assigned to the Swap Contract Administrator pursuant to the Swap Contract
Assignment Agreement), a form of which is attached hereto as Exhibit
U.
Swap
Contract Administration Agreement: The swap contract
administration agreement dated as of the Closing Date among CHL, the Trustee
and
the Swap Contract Administrator, a form of which is attached hereto as Exhibit
V-2.
Swap
Contract Administrator: The Bank of New York, in its capacity as
swap contract administrator under the Swap Contract Administration Agreement
and
its successors and assigns.
Swap
Contract Assignment Agreement: The Assignment Agreement dated as
of the Closing Date among CHL, the Swap Contract Administrator and the Swap
Counterparty, a form of which is attached hereto as Exhibit V-1.
Swap
Contract Termination Date: The Distribution Date in May
2011.
Swap
Counterparty: Deutsche Bank AG, New York Branch and its
successors.
Swap
Counterparty Trigger Event: Either (i) an “Event of Default”
under the ISDA Master Agreement with respect to which the Swap Counterparty
is
the sole “Defaulting Party” (as defined in the ISDA Master Agreement) or (ii) a
“Termination Event” (other than an Illegality or a Tax Event (as such terms are
defined in the ISDA Master Agreement)) or “Additional Termination Event” under
the ISDA Master Agreement with respect to which the Swap Counterparty is the
sole “Affected Party” (as defined in the ISDA Master Agreement).
Swap-IO
REMIC: As defined in the Preliminary Statement.
Swap
Termination Payment: The payment payable to either party under
the ISDA Master Agreement due to an early termination of the ISDA Master
Agreement.
Swap
Trust: The trust fund established by Section 4.09.
Swap
Trustee: The Bank of New York, a New York banking
corporation, not in its individual capacity, but solely in its capacity as
swap
trustee for the benefit of the Holders of the Interest-Bearing Certificates
under this Agreement, and any successor thereto, and any corporation or national
banking association resulting from or surviving any consolidation or merger
to
which it or its successors may be a party and any successor swap trustee as
may
from time to time be serving as successor swap trustee hereunder.
48
Tax
Matters Person: The person designated as “tax matters person” in
the manner provided under Treasury regulation § 1.860F-4(d) and Treasury
regulation § 301.6231(a)(7)-1. Initially, this person shall be the
Trustee.
Tax
Matters Person Certificate: With respect to the Master REMIC, the
Strip REMIC and the Swap-IO REMIC, the Class A-R Certificate with a Denomination
of $0.05 and in the form of Exhibit E hereto.
Termination
Price: As defined in Section 9.01.
Terminator: As
defined in Section 9.01.
Three-Year
Hybrid Mortgage Loan: A Mortgage Loan having a Mortgage Rate that
is fixed for 36 months after origination thereof before such Mortgage Rate
becomes subject to adjustment.
Transaction
Documents: This Agreement, the Corridor Contracts, the Corridor
Contract Assignment Agreement, the Corridor Contract Administration Agreement,
the Swap Contract, the Swap Contract Assignment Agreement, the Swap Contract
Administration Agreement, the Mortgage Insurance Policy and any other document
or agreement entered into in connection with the Trust Fund, the Certificates
or
the Mortgage Loans.
Transfer: Any
direct or indirect transfer or sale of any Ownership Interest in a
Certificate.
Transfer
Affidavit: As defined in Section 5.02(c).
Transferor
Certificate: As defined in Section 5.02(b).
Trigger
Event: With respect to any Distribution Date on or after the
Stepdown Date, either a Delinquency Trigger Event with respect to that
Distribution Date or a Cumulative Loss Trigger Event with respect to that
Distribution Date.
Trust
Fund: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loans and all interest and principal received on or with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance thereof, exclusive of interest not required
to be
deposited in the Certificate Account pursuant to Section 3.05(b)(2); (ii) the
Certificate Account, the Distribution Account, the Principal Reserve Fund,
the
Carryover Reserve Fund, the Pre-Funding Account, the Capitalized Interest
Account and all amounts deposited therein pursuant to the applicable provisions
of this Agreement; (iii) the rights to receive certain proceeds of the Corridor
Contracts as provided in the Corridor Contract Administration Agreement; (iv)
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed
in lieu of foreclosure or otherwise; (v) the mortgagee’s rights under the
Insurance Policies with respect to the Mortgage Loan; and (vi) all proceeds
of
the conversion, voluntary or involuntary, of any of the foregoing into cash
or
other liquid property.
Trustee: The
Bank of New York, a New York banking corporation, not in its individual
capacity, but solely in its capacity as trustee for the benefit of the
Certificateholders under this Agreement, and any successor thereto, and any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
49
Trustee
Advance Notice: As defined in Section 4.01(d).
Trustee
Advance Rate: With respect to any Advance made by the Trustee pursuant to
Section 4.01(d), a per annum rate of interest determined as of the date of
such
Advance equal to the Prime Rate in effect on such date plus 5.00%.
Trustee
Fee: As to any Distribution Date, an amount equal to one-twelfth
of the Trustee Fee Rate multiplied by the sum of (i) the Pool Stated Principal
Balance and (ii) any amounts remaining in the Pre-Funding Account (excluding
any
investment earnings thereon) with respect to such Distribution
Date.
Trustee
Fee Rate: With respect to each Mortgage Loan, the per annum rate
agreed upon in writing on or prior to the Closing Date by the Trustee and the
Depositor, which is 0.009% per annum.
Two-Year
Hybrid Mortgage Loan: A Mortgage Loan having a Mortgage Rate that
is fixed for 24 months after origination thereof before such Mortgage Rate
becomes subject to adjustment.
Underwriter’s
Exemption: Prohibited Transaction Exemption 2007-5, 72 Fed. Reg.
13130 (2007), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of
Labor.
Underwriters: Countrywide
Securities Corporation and Greenwich Capital Markets, Inc.
Unpaid
Realized Loss Amount: For any Class of Certificates and any
Distribution Date, (x) the portion of the aggregate Applied Realized Loss Amount
previously allocated to that Class remaining unpaid from prior Distribution
Dates minus (y) any increase in the Certificate Principal Balance of
that Class due to the allocation of Subsequent Recoveries to the Certificate
Principal Balance of that Class pursuant to Section 4.04(i).
Voting
Rights: The voting rights of all the Certificates that are
allocated to any Certificates for purposes of the voting provisions
hereunder. Voting Rights allocated to each Class of Certificates
shall be allocated 97% to the Certificates other than the Class A-R, Class
C and
Class P Certificates (with the allocation among the Certificates to be in
proportion to the Certificate Principal Balance of each Class relative to the
Certificate Principal Balance of all other such Classes), and 1% to each of
the
Class A-R, Class C and Class P Certificates. Voting Rights will be
allocated among the Certificates of each such Class in accordance with their
respective Percentage Interests.
Winning
Bidder: With respect to a Successful Auction, the Qualified
Bidder that bids the highest price.
50
|
|
Section
1.02
|
Certain
Interpretive Provisions.
|
All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate, agreement or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (b) the words “hereof,” “herein” and “hereunder” and words of
similar import refer to this Agreement (or the certificate, agreement or other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate, agreement or document); (c) references
to any Section, Schedule or Exhibit are references to Sections, Schedules and
Exhibits in or to this Agreement, and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term “including” means “including without limitation”; (e)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (f) references
to
any agreement refer to that agreement as amended from time to time; (g)
references to any Person include that Person’s permitted successors and assigns;
and (h) a Mortgage Loan is “30 days delinquent” if a Scheduled Payment has not
been received by the close of business on the Due Date on which the next
Scheduled Payment is due. Similarly for “60 days delinquent,” “90
days delinquent” and so on.
ARTICLE
II.
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
|
|
Section
2.01
|
Conveyance
of Mortgage Loans.
|
(a) Each
Seller hereby sells, transfers, assigns, sets over and otherwise conveys to
the
Depositor, without recourse, all the right, title and interest of such Seller
in
and to the applicable Initial Mortgage Loans, including all interest and
principal received and receivable by such Seller on or with respect to
applicable Initial Mortgage Loans after the Initial Cut-off Date (to the extent
not applied in computing the Cut-off Date Principal Balance thereof) or
deposited into the Certificate Account by the Master Servicer on behalf of
such
Seller as part of the Initial Certificate Account Deposit as provided in this
Agreement, other than principal due on the applicable Initial Mortgage Loans
on
or prior to the Initial Cut-off Date and interest accruing prior to the Initial
Cut-off Date. The Master Servicer confirms that, on behalf of the
Sellers, concurrently with the transfer and assignment, it has deposited into
the Certificate Account the Initial Certificate Account Deposit.
Immediately
upon the conveyance of the Initial Mortgage Loans referred to in the preceding
paragraph, the Depositor sells, transfers, assigns, sets over and otherwise
conveys to the Trustee for benefit of the Certificateholders, without recourse,
all right, title and interest in and to the Initial Mortgage Loans.
00
XXX
further agrees (x) to cause The Bank of New York to enter into the Corridor
Contract Administration Agreement as Corridor Contract Administrator and (y)
to
assign all of its right, title and interest in and to the interest rate corridor
transactions evidenced by the related Confirmations, and to cause all of its
obligations in respect of such transaction to be assumed by, the Corridor
Contract Administrator, on the terms and conditions set forth in the Corridor
Contract Assignment Agreement.
CHL
further agrees (x) to cause The Bank of New York to enter into the Swap Contract
Administration Agreement as Swap Contract Administrator and (y) to assign all
of
its right, title and interest in and to the interest rate swap transaction
evidenced by the related Confirmation, and to cause all of its obligations
in
respect of such transaction to be assumed by, the Swap Contract Administrator,
on the terms and conditions set forth in the Swap Contract Assignment
Agreement.
(b) Subject
to the execution and delivery of the related Subsequent Transfer Agreement
as
provided by Section 2.01(d) and the terms and conditions of this Agreement,
each
Seller sells, transfers, assigns, sets over and otherwise conveys to the
Depositor, without recourse, on each Subsequent Transfer Date, all the right,
title and interest of such Seller in and to the related Subsequent Mortgage
Loans, including all interest and principal received and receivable by such
Seller on or with respect to such Subsequent Mortgage Loans after the related
Subsequent Cut-off Date (to the extent not applied in computing the Cut-off
Date
Principal Balance thereof) or deposited into the Certificate Account by the
Master Servicer on behalf of such Seller as part of any related Subsequent
Certificate Account Deposit as provided in this Agreement, other than principal
due on such Subsequent Mortgage Loans on or prior to the related Subsequent
Cut-off Date and interest accruing prior to the related Subsequent Cut-off
Date.
Immediately
upon the conveyance of the Subsequent Mortgage Loans referred to in the
preceding paragraph, the Depositor sells, transfers, assigns, sets over and
otherwise conveys to the Trustee for benefit of the Certificateholders, without
recourse, all right, title and interest in the Subsequent Mortgage
Loans.
(c) Each
Seller has entered into this Agreement in consideration for the purchase of
the
Mortgage Loans by the Depositor and has agreed to take the actions specified
herein. The Depositor, concurrently with the execution and delivery
of this Agreement, hereby sells, transfers, assigns and otherwise conveys to
the
Trustee for the use and benefit of the Certificateholders, without recourse,
all
right, title and interest in the portion of the Trust Fund not otherwise
conveyed to the Trustee pursuant to Section 2.01(a) or (b).
(d) On
any Business Day during the Funding Period designated by CHL to the Trustee,
the
Sellers, the Depositor and the Trustee shall complete, execute and deliver
a
Subsequent Transfer Agreement. After the execution and delivery of
such Subsequent Transfer Agreement, on the Subsequent Transfer Date, the Trustee
shall set aside in the Pre-Funding Account an amount equal to the related
Subsequent Transfer Date Purchase Amount.
(e) The
transfer of Subsequent Mortgage Loans on the Subsequent Transfer Date is subject
to the satisfaction of each of the following conditions:
52
(1) the
Trustee and the Underwriters will be provided Opinions of Counsel addressed
to
the Rating Agencies as with respect to the sale of the Subsequent Mortgage
Loans
conveyed on such Subsequent Transfer Date (such opinions being substantially
similar to the opinions delivered on the Closing Date to the Rating Agencies
with respect to the sale of the Initial Mortgage Loans on the Closing Date),
to
be delivered as provided in Section 2.01(f);
(2) the
execution and delivery of such Subsequent Transfer Agreement or conveyance
of
the related Subsequent Mortgage Loans does not result in a reduction or
withdrawal of any ratings assigned to the Certificates by the Rating
Agencies;
(3) the
Depositor shall deliver to the Trustee an Officer’s Certificate confirming the
satisfaction of each of the conditions set forth in this Section 2.01(e)
required to be satisfied by such Subsequent Transfer Date;
(4) each
Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies
the
representations and warranties applicable to it under this Agreement, provided,
however, that with respect to a breach of a representation and warranty with
respect to a Subsequent Mortgage Loan set forth in this clause (4), the
obligation under Section 2.03(e) of this Agreement of the applicable Seller,
to
cure, repurchase or replace such Subsequent Mortgage Loan shall constitute
the
sole remedy against such Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee;
(5) the
Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were
selected in a manner reasonably believed not to be adverse to the interests
of
the Certificateholders;
(6) no
Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was 30 or
more days delinquent as of the related Cut-off Date;
(7) following
the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer
Date, the characteristics of each Loan Group will not vary by more than the
amount specified below (other than (i) the percentage of Mortgage Loans secured
by Mortgaged Properties located in the State of California, which will not
exceed 50% of the Mortgage Loans in each Loan Group and (ii) the percentage
of
Mortgage Loans in the Credit Grade Categories of “C” or below, which will not
exceed 15% of the Mortgage Loans in each Loan Group) from the characteristics
listed below; provided that for the purpose of making such calculations, the
characteristics for any Initial Mortgage Loan made will be taken as of the
Initial Cut-off Date and the characteristics for any Subsequent Mortgage Loans
will be taken as of the Subsequent Cut-off Date:
|
Loan
Group 1
|
||||
|
Characteristic
|
Value
|
Permitted
Variance
|
||
|
Weighted
Average Mortgage Rate
|
8.047%
|
±0.10%
|
||
|
Weighted
Average Original Loan-to-Value Ratio
|
83.28%
|
±3.00%
|
||
|
Weighted
Average Credit Bureau Risk Score
|
606
points
|
±5
points
|
||
|
Percentage
Originated under CHL’s Full Documentation Program
|
66.56%
|
±3.00%
|
||
|
Weighted
Average Gross Margin
|
6.570%
|
±0.10%
|
||
53
|
Loan
Group 2
|
||||
|
Characteristic
|
Value
|
Permitted
Variance
|
||
|
Weighted
Average Mortgage Rate
|
8.440%
|
±0.10%
|
||
|
Weighted
Average Original Loan-to-Value Ratio
|
81.08%
|
±3.00%
|
||
|
Weighted
Average Credit Bureau Risk Score
|
614
points
|
±5
points
|
||
|
Percentage
Originated under CHL’s Full Documentation Program
|
46.58%
|
±3.00%
|
||
|
Weighted
Average Gross Margin
|
6.238%
|
±0.10%
|
||
(8) none
of the Sellers or the Depositor is insolvent and neither of the Sellers nor
the
Depositor will be rendered insolvent by the conveyance of Subsequent Mortgage
Loans on such Subsequent Transfer Date; and
(9) the
Trustee and the Underwriters will be provided with 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 purchase of
Subsequent Mortgage Loans 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 formed hereunder to fail to qualify as a REMIC, such
opinion to be delivered as provided in Section 2.01(f).
The
Trustee shall not be required to investigate or otherwise verify compliance
with
these conditions, except for its own receipt of documents specified above,
and
shall be entitled to rely on the required Officer’s Certificate.
(f) Within
six Business Days after each Subsequent Transfer Date, upon (1) delivery to
the
Trustee by the Depositor of the Opinions of Counsel referred to in Section
2.01(e)(1) and (e)(9), (2) delivery to the Trustee by CHL (on behalf of each
Seller) of a supplement to the Mortgage Loan Schedule reflecting the Subsequent
Mortgage Loans conveyed on such Subsequent Transfer Date and the Loan Group
into
which each Subsequent Mortgage Loan was conveyed, (3) deposit in the Certificate
Account by the Master Servicer on behalf of the Sellers of the applicable
Subsequent Certificate Account Deposit, and (4) delivery to the Trustee by
the
Depositor of an Officer’s Certificate confirming the satisfaction of each of the
conditions precedent set forth in this Section 2.01(f) (which such Officer’s
Certificate shall set forth the Subsequent Transfer Date Transfer Amount and
Capitalized Interest Release Amount, if any, for such Subsequent Transfer Date),
the Trustee shall remit to CHL (on behalf of CHL and the other Sellers) the
Subsequent Transfer Date Transfer Amount from such funds that were set aside
in
the Pre-Funding Account pursuant to Section 2.01(d) and shall distribute any
Capitalized Interest Release Amount for such Subsequent Transfer Date to the
order of CHL. The positive difference, if any, between the Subsequent
Transfer Date Transfer Amount and the Subsequent Transfer Date Purchase Amount
shall be re-invested by the Trustee in the Pre-Funding Account.
54
The
Trustee shall not be required to investigate or otherwise verify compliance
with
the conditions set forth in the preceding paragraph, except for its own receipt
of documents specified above, and shall be entitled to rely on the required
Officer’s Certificate.
Within
thirty days after each Subsequent Transfer Date, the Depositor shall deliver
to
the Trustee a letter of a nationally recognized firm of independent public
accountants stating whether or not the Subsequent Mortgage Loans conveyed on
such Subsequent Transfer Date conform to the characteristics described in
Section 2.01(e)(6) and (7).
(g) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered to, and deposited with, the Co-Trustee (or, in the case of the
Delay Delivery Mortgage Loans, will deliver to, and deposit with, the Co-Trustee
within the time periods specified in the definition of Delay Delivery Mortgage
Loans) (except as provided in clause (vi) below) for the benefit of the
Certificateholders, the following documents or instruments with respect to
each
such Mortgage Loan so assigned (with respect to each Mortgage Loan, clause
(i)
through (vi) below, together, the “Mortgage File” for each such Mortgage
Loan):
(i) 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 that show 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, if the original Mortgage Note has been lost or destroyed
and
not replaced, an original lost note affidavit, stating that the original
Mortgage Note was lost or destroyed, together with a copy of the related
Mortgage Note and all such intervening endorsements;
(ii) in
the case of each Mortgage Loan that is not a MERS Mortgage Loan, the original
recorded Mortgage or a copy of such Mortgage, with recording information, and
in
the case of each MERS Mortgage Loan, the original Mortgage or a copy of such
Mortgage, with recording information, noting the presence of the MIN of the
Mortgage 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 Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage to “Asset-Backed Certificates, Series 2007-5, CWABS,
Inc., by The Bank of New York, a New York banking corporation, as trustee under
the Pooling and Servicing Agreement dated as of March 1, 2007, without recourse”
or a copy of such assignment, with recording information, (each such assignment,
when duly and validly completed, to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which such assignment relates);
55
(iv) the
original recorded assignment or assignments of the Mortgage or a copy of such
assignments, with recording information, together with all interim recorded
assignments of such Mortgage or a copy of such assignments, with recording
information (in each case 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; and
(vi) the
original or duplicate original lender’s title policy or a copy of 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,
such original or duplicate original lender’s title policy and all riders thereto
shall be delivered within one year of the Closing Date.
In
addition, in connection with the assignment of any MERS Mortgage Loan, each
Seller agrees that it will cause, at such Seller’s own expense, the MERS® System
to indicate (and provide evidence to the Trustee that it has done so) that
such
Mortgage Loans have been assigned by such 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 (a) the code “[IDENTIFY TRUSTEE SPECIFIC
CODE]” in the field “[IDENTIFY THE FIELD NAME FOR TRUSTEE]” which identifies the
Trustee and (b) the code “[IDENTIFY SERIES SPECIFIC CODE NUMBER]” in the field
“Pool Field” which identifies the series of the Certificates issued in
connection with such Mortgage Loans. The Sellers further agree that
they will not, and will not permit the Master Servicer to, and the Master
Servicer agrees that it will not, alter the codes referenced in this paragraph
with respect to any Mortgage Loan 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
a Seller cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii)
or
(iv) concurrently with the execution and delivery hereof, such Seller shall
deliver or cause to be delivered to the Co-Trustee a true copy of such Mortgage
and of each such undelivered interim assignment of the Mortgage each certified
by such Seller, the applicable title company, escrow agent or attorney, or
the
originator of such Mortgage, as the case may be, to be a true and complete
copy
of the original Mortgage or assignment of Mortgage submitted for
recording. For any such Mortgage Loan that is not a MERS Mortgage
Loan each Seller shall promptly deliver or cause to be delivered to the
Co-Trustee such original Mortgage and such assignment or assignments with
evidence of recording indicated thereon upon receipt thereof from the public
recording official, or a copy thereof, certified, if appropriate, by the
relevant recording office, but in no event shall any such delivery be made
later
than 270 days following the Closing Date; provided that in the event that by
such date such Seller is unable to deliver or cause to be delivered each such
Mortgage and each 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 interim assignment, because the related Mortgage has not been
returned by the appropriate recording office, such Seller shall deliver or
cause
to be delivered such documents to the Co-Trustee as promptly as possible upon
receipt thereof. If the public recording office in which a Mortgage
or interim assignment thereof is recorded retains the original of such Mortgage
or assignment, a copy of the original Mortgage or assignment so retained, with
evidence of recording thereon, certified to be true and complete by such
recording office, shall satisfy a Seller’s obligations in Section
2.01. If any document submitted for recording pursuant to this
Agreement is (x) lost prior to recording or rejected by the applicable recording
office, the applicable Seller shall immediately prepare or cause to be prepared
a substitute and submit it for recording, and shall deliver copies and originals
thereof in accordance with the foregoing or (y) lost after recording, the
applicable Seller shall deliver to the Co-Trustee a copy of such document
certified by the applicable public recording office to be a true and complete
copy of the original recorded document. Each Seller shall promptly
forward or cause to be forwarded to the Co-Trustee (x) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (y) any other documents required to be delivered by the
Depositor or the Master Servicer to the Co-Trustee within the time periods
specified in this Section 2.01.
56
With
respect to each Mortgage Loan other than a MERS Mortgage Loan as to which the
related Mortgaged Property and Mortgage File are located in any jurisdiction
under the laws of which the recordation of the assignment specified in clause
(iii) above is not necessary to protect the Trustee’s and the
Certificateholders’ interest in the related Mortgage Loan, as evidenced by an
Opinion of Counsel delivered by CHL to the Trustee within 90 days of the Closing
Date (which opinion may be in the form of a “survey” opinion and is not required
to be delivered by counsel admitted to practice law in the jurisdiction as
to
which such opinion applies), in lieu of recording the assignment specified
in
clause (iii) above, the applicable Seller may deliver an unrecorded assignment
in blank, in form otherwise suitable for recording to the Co-Trustee; provided
that if the related Mortgage has not been returned from the applicable public
recording office, such assignment, or any copy thereof, of the Mortgage may
exclude the information to be provided by the recording office. As to
any Mortgage Loan other than a MERS Mortgage Loan, the procedures of the
preceding sentence shall be applicable only so long as the related Mortgage
File
is maintained in the possession of the Co-Trustee in the State or jurisdiction
described in such sentence. In the event that with respect to
Mortgage Loans other than MERS Mortgage Loans (I) any Seller, the Depositor,
the
Master Servicer or the NIM Insurer gives written notice to the Trustee that
recording is required to protect the right, title and interest of the Trustee
on
behalf of the Certificateholders in and to any Mortgage Loan, (II) a court
recharacterizes any sale of the Mortgage Loans as a financing, or (III) as
a
result of any change in or amendment to the laws of the State or jurisdiction
described in the first sentence of this paragraph or any applicable political
subdivision thereof, or any change in official position regarding application
or
interpretation of such laws, including a holding by a court of competent
jurisdiction, such recording is so required, the Co-Trustee shall complete
the
assignment in the manner specified in clause (iii) above and CHL shall submit
or
cause to be submitted for recording as specified above or, should CHL fail
to
perform such obligations, the Trustee shall cause the Master Servicer, at the
Master Servicer’s expense, to cause each such previously unrecorded assignment
to be submitted for recording as specified above. In the event a
Mortgage File is released to the Master Servicer as a result of the Master
Servicer’s having completed a Request for Document Release, the Trustee shall
complete the assignment of the related Mortgage in the manner specified in
clause (iii) above.
57
So
long
as the Co-Trustee or its agent maintains an office in the State of California,
the Co-Trustee or its agent shall maintain possession of and not remove or
attempt to remove from the State of California any of the Mortgage Files as
to
which the related Mortgaged Property is located in such State. In the
event that a Seller fails to record an assignment of a Mortgage Loan as herein
provided within 90 days of notice of an event set forth in clause (I), (II)
or
(III) of the preceding paragraph, the Master Servicer shall prepare and, if
required hereunder, file such assignments for recordation in the appropriate
real property or other records office. Each Seller hereby appoints
the Master Servicer (and any successor servicer hereunder) as its
attorney-in-fact with full power and authority acting in its stead for the
purpose of such preparation, execution and filing.
In
the
case of Mortgage Loans that become the subject of a Principal Prepayment between
the Closing Date (in the case of Initial Mortgage Loans) or related Subsequent
Transfer Date (in the case of Subsequent Mortgage Loans) and the Cut-off Date,
CHL shall deposit or cause to be deposited in the Certificate Account the amount
required to be deposited therein with respect to such payment pursuant to
Section 3.05 hereof.
Notwithstanding
anything to the contrary in this Agreement, within thirty days after the Closing
Date (in the case of Initial Mortgage Loans) or within twenty days after the
related Subsequent Transfer Date (in the case of Subsequent Mortgage Loans),
CHL
(on behalf of each Seller) shall either (i) deliver to the Co-Trustee the
Mortgage File as required pursuant to this Section 2.01 for each Delay Delivery
Mortgage Loan or (ii) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Delay Delivery Mortgage Loan for a Replacement Mortgage Loan,
which repurchase or substitution shall be accomplished in the manner and subject
to the conditions set forth in Section 2.03, provided that if CHL fails to
deliver a Mortgage File for any Delay Delivery Mortgage Loan within the period
provided in the prior sentence, 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 CHL shall have five (5) Business
Days to cure such failure to deliver. CHL shall promptly provide each
Rating Agency with written notice of any cure, repurchase or substitution made
pursuant to the proviso of the preceding sentence. On or before the thirtieth
(30th) day (or if such thirtieth day is not a Business Day, the succeeding
Business Day) after the Closing Date (in the case of Initial Mortgage Loans)
or
within twenty days after the related Subsequent Transfer Date (in the case
of
Subsequent Mortgage Loans), the Trustee shall, in accordance with the provisions
of Section 2.02, send a Delay Delivery Certification substantially in the form
annexed hereto as Exhibit G-3 (with any applicable exceptions noted thereon)
for
all Delay Delivery Mortgage Loans delivered within thirty (30) days after such
date. The Trustee will promptly send a copy of such Delay Delivery
Certification to each Rating Agency.
Each
Seller has entered into this Agreement in consideration for the purchase of
the
Mortgage Loans sold by such Seller to the Depositor and has agreed to take
the
actions specified herein. The Depositor, concurrently with the
execution and delivery of this Agreement, hereby sells, transfers, assigns
and
otherwise conveys to the Trustee for the use and benefit of the
Certificateholders, without recourse, all right, title and interest in the
portion of the Trust Fund not otherwise conveyed to the Trustee pursuant to
Sections 2.01(a) or (b).
58
|
|
Section
2.02
|
Acceptance
by Trustee of the Mortgage
Loans.
|
(a) The
Co-Trustee acknowledges receipt, subject to the limitations contained in and
any
exceptions noted in the Initial Certification in the form annexed hereto as
Exhibit G-1 and in the list of exceptions attached thereto, of the documents
referred to in clauses (i) and (iii) of Section 2.01(g) above with respect
to
the Initial Mortgage Loans and all other assets included in the Trust Fund
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 included in the Trust Fund, in trust for the exclusive use
and
benefit of all present and future Certificateholders.
The
Trustee agrees to execute and deliver on the Closing Date to the Depositor,
the
Master Servicer and CHL (on behalf of each Seller) an Initial Certification
substantially in the form annexed hereto as Exhibit G-1 to the effect that,
as
to each Initial Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Initial Mortgage Loan paid in full or any Initial Mortgage Loan specifically
identified in such certification as not covered by such certification), the
documents described in Section 2.01(g)(i) and, in the case of each Initial
Mortgage Loan that is not a MERS Mortgage Loan, the documents described in
Section 2.01(g)(iii) with respect to such Initial Mortgage Loans as are in
the
Co-Trustee’s possession and based on its review and examination and only as to
the foregoing documents, such documents appear regular on their face and relate
to such Initial Mortgage Loan. The Trustee agrees to execute and
deliver within 30 days after the Closing Date to the Depositor, the Master
Servicer and CHL (on behalf of each Seller) an Interim Certification
substantially in the form annexed hereto as Exhibit G-2 to the effect that,
as
to each Initial Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Initial Mortgage Loan paid in full or any Initial Mortgage Loan specifically
identified in such certification as not covered by such certification) all
documents required to be delivered to the Co-Trustee pursuant to the Agreement
with respect to such Initial Mortgage Loans are in its possession (except those
documents described in Section 2.01(g)(vi)) and based on its review and
examination and only as to the foregoing documents, (i) such documents appear
regular on their face and relate to such Initial Mortgage Loan, and (ii) the
information set forth in items (i), (iv), (v), (vi), (viii), (ix) and (xv)
of
the definition of the “Mortgage Loan Schedule” accurately reflects information
set forth in the Mortgage File. On or before the thirtieth (30th) day
after the Closing Date (or if such thirtieth day is not a Business Day, the
succeeding Business Day), the Trustee shall deliver to the Depositor, the Master
Servicer and CHL (on behalf of each Seller) a Delay Delivery Certification
with
respect to the Initial Mortgage Loans substantially in the form annexed hereto
as Exhibit G-3, with any applicable exceptions noted thereon. The
Trustee or the Co-Trustee, as applicable, shall be under no duty or obligation
to inspect, review or examine such 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.
Not
later
than 180 days after the Closing Date, the Trustee shall deliver to the
Depositor, the Master Servicer, CHL (on behalf of each Seller) and any
Certificateholder that so requests, a Final Certification with respect to the
Initial Mortgage Loans substantially in the form annexed hereto as Exhibit
H,
with any applicable exceptions noted thereon.
59
In
connection with the Trustee’s completion and delivery of such Final
Certification, the Co-Trustee, at the direction of the Trustee, shall review
each Mortgage File with respect to the Initial Mortgage Loans to determine
that
such Mortgage File contains the following documents:
(i) 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 that show 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, if the original Mortgage Note has been lost or destroyed
and
not replaced, an original lost note affidavit, stating that the original
Mortgage Note was lost or destroyed, together with a copy of the related
Mortgage Note and all such intervening endorsements;
(ii) in
the case of each Initial Mortgage Loan that is not a MERS Mortgage Loan, the
original recorded Mortgage or a copy of such Mortgage, with recording
information, and in the case of each Initial Mortgage Loan that is a MERS
Mortgage Loan, the original Mortgage or a copy of such Mortgage, with recording
information, noting the presence of the MIN of the Initial Mortgage Loan and
language indicating that the 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 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 or a copy thereof with recording
information, in either case in the form permitted by Section 2.01;
(iv) the
original recorded assignment or assignments of the Mortgage or a copy of such
assignments, with recording information, together with all interim recorded
assignments of such Mortgage or a copy of such assignments, with recording
information (in each case 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; and
(vi) the
original or duplicate original lender’s title policy or a copy of lender’s title
policy or a printout of the electronic equivalent and all riders
thereto.
If,
in
the course of such review, the Co-Trustee finds any document or documents
constituting a part of such Mortgage File that do not meet the requirements
of
clauses (i)-(iv) and (vi) above, the Trustee shall include such exceptions
in
such Final Certification (and the Trustee shall state in such Final
Certification whether any Mortgage File does not then include the original
or
duplicate original lender’s title policy or a printout of the electronic
equivalent and all riders thereto). If the public recording office in
which a Mortgage or assignment thereof is recorded retains the original of
such
Mortgage or assignment, a copy of the original Mortgage or assignment so
retained, with evidence of recording thereon, certified to be true and complete
by such recording office, shall be deemed to satisfy the requirements of clause
(ii), (iii) or (iv) above, as applicable. CHL shall promptly correct
or cure such defect referred to above within 90 days from the date it was so
notified of such defect and, if CHL does not correct or cure such defect within
such period, CHL shall either (A) if the time to cure such defect expires prior
to the end of the second anniversary of the Closing Date, substitute for the
related Initial Mortgage Loan a Replacement Mortgage Loan, which substitution
shall be accomplished in the manner and subject to the conditions set forth
in
Section 2.03, or (B) purchase such Initial Mortgage Loan from the Trust Fund
within 90 days from the date CHL was notified of such defect in writing at
the
Purchase Price of such Initial Mortgage Loan; provided that any such
substitution pursuant to (A) above or repurchase pursuant to (B) above shall
not
be effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05 hereof and any substitution pursuant to (A) above
shall
not be effected prior to the additional delivery to the Co-Trustee of a Request
for File Release. No substitution will be made in any calendar month
after the Determination Date for such month. The Purchase Price for
any such Initial Mortgage Loan shall be deposited by CHL in the Certificate
Account and, upon receipt of such deposit and Request for File Release with
respect thereto, the Co-Trustee shall release the related Mortgage File to
CHL
and shall execute and deliver at CHL’s request such instruments of transfer or
assignment as CHL has prepared, in each case without recourse, as shall be
necessary to vest in CHL, or a designee, the Trustee’s interest in any Initial
Mortgage Loan released pursuant hereto. If pursuant to the foregoing
provisions CHL repurchases an Initial Mortgage Loan that is a MERS Mortgage
Loan, the Master Servicer shall cause MERS to execute and deliver an assignment
of the Mortgage in recordable form to transfer the Mortgage from MERS to CHL
and
shall cause such Mortgage to be removed from registration on the MERS® System in
accordance with MERS’ rules and regulations.
60
The
Co-Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth
herein. Each Seller shall promptly deliver to the Co-Trustee, upon
the execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File that come into the possession of
such
Seller from time to time.
It
is
understood and agreed that the obligation of CHL to substitute for or to
purchase any Mortgage Loan that does not meet the requirements of Section
2.02(a) above shall constitute the sole remedy respecting such defect available
to the Trustee, the Co-Trustee, the Depositor and any Certificateholder against
any Seller.
It
is
understood and agreed that the obligation of CHL to substitute for or to
purchase, pursuant to Section 2.02(a), any Initial Mortgage Loan whose Mortgage
File contains any document or documents that does not meet the requirements
of
clauses (i)-(iv) and (vi) above and which defect is not corrected or cured
by
CHL within 90 days from the date it was notified of such defect, shall
constitute the sole remedy respecting such defect available to the Trustee,
the
Co-Trustee, the Depositor and any Certificateholder against any
Seller.
(b) The
Trustee agrees to execute and deliver on the Subsequent Transfer Date to the
Depositor, the Master Servicer and CHL (on behalf of each Seller) an Initial
Certification substantially in the form annexed hereto as Exhibit G-4 to the
effect that, as to each Subsequent Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Subsequent Mortgage Loan paid in full or any Subsequent
Mortgage Loan specifically identified in such certification as not covered
by
such certification), the documents described in Section 2.01(g)(i) and, in
the
case of each Subsequent Mortgage Loan that is not a MERS Mortgage Loan, the
documents described in Section 2.01(g)(iii), with respect to such Subsequent
Mortgage Loan are in its possession, and based on its review and examination
and
only as to the foregoing documents, such documents appear regular on their
face
and relate to such Subsequent Mortgage Loan.
The
Trustee agrees to execute and deliver within 30 days after the Subsequent
Transfer Date to the Depositor, the Master Servicer and CHL (on behalf of each
Seller) an Interim Certification substantially in the form annexed hereto as
Exhibit G-2 to the effect that, as to each Subsequent Mortgage Loan listed
in
the Mortgage Loan Schedule (other than any Subsequent Mortgage Loan paid in
full
or any Subsequent Mortgage Loan specifically identified in such certification
as
not covered by such certification), all documents required to be delivered
to it
pursuant to this Agreement with respect to such Subsequent Mortgage Loan are
in
its possession (except those described in Section 2.01(g)(vi)) and based on
its
review and examination and only as to the foregoing documents, (i) such
documents appear regular on their face and relate to such Subsequent Mortgage
Loan, and (ii) the information set forth in items (i), (iv), (v), (vi), (viii),
(ix) and (xv) of the definition of the “Mortgage Loan Schedule” accurately
reflects information set forth in the Mortgage File. On or before the
thirtieth (30th) day after the Subsequent Transfer Date (or if such thirtieth
day is not a Business Day, the succeeding Business Day), the Trustee shall
deliver to the Depositor, the Master Servicer and CHL (on behalf of each Seller)
a Delay Delivery Certification with respect to the Subsequent Mortgage Loans
substantially in the form annexed hereto as Exhibit G-3, with any applicable
exceptions noted thereon, together with a Subsequent Certification substantially
in the form annexed hereto as Exhibit G-4. The Trustee shall be under
no duty or obligation to inspect, review or examine such 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.
Not
later
than 180 days after the Subsequent Transfer Date, the Trustee shall deliver
to
the Depositor, the Master Servicer, CHL (on behalf of each Seller) and to any
Certificateholder that so requests a Final Certification with respect to the
Subsequent Mortgage Loans substantially in the form annexed hereto as Exhibit
H,
with any applicable exceptions noted thereon.
In
connection with the Trustee’s completion and delivery of such Final
Certification, the Co-Trustee shall review each Mortgage File with respect
to
the Subsequent Mortgage Loans to determine that such Mortgage File contains
the
following documents:
(i) 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 that show 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, if the original Mortgage Note has been lost or destroyed
and
not replaced, an original lost note affidavit, stating that the original
Mortgage Note was lost or destroyed, together with a copy of the related
Mortgage Note and all such intervening endorsements;
61
(ii) in
the case of each Subsequent Mortgage Loan that is not a MERS Mortgage Loan,
the
original recorded Mortgage or a copy of such Mortgage, with recording
information, and in the case of each Subsequent Mortgage Loan that is a MERS
Mortgage Loan, the original Mortgage or a copy of such Mortgage, with recording
information, noting the presence of the MIN of the Subsequent Mortgage Loan
and
language indicating that the Subsequent Mortgage Loan is a MOM Loan if the
Subsequent 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 Mortgage has been recorded;
(iii) in
the case of each Subsequent Mortgage Loan that is not a MERS Mortgage Loan,
a
duly executed assignment of the Mortgage or a copy thereof with recording
information, in either case in the form permitted by Section 2.01;
(iv) the
original recorded assignment or assignments of the Mortgage or a copy of such
assignments, with recording information, together with all interim recorded
assignments of such Mortgage or a copy of such assignments, with recording
information (in each case 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; and
(vi) the
original or duplicate original lender’s title policy or a copy of lender’s title
policy or a printout of the electronic equivalent and all riders
thereto.
If,
in
the course of such review, the Trustee finds any document or documents
constituting a part of such Mortgage File that do not meet the requirements
of
clauses (i)-(iv) and (vi) above, the Trustee shall include such exceptions
in
such Final Certification (and the Trustee shall state in such Final
Certification whether any Mortgage File does not then include the original
or
duplicate original lender’s title policy or a printout of the electronic
equivalent and all riders thereto). If the public recording office in
which a Mortgage or assignment thereof is recorded retains the original of
such
Mortgage or assignment, a copy of the original Mortgage or assignment so
retained, with evidence of recording thereon, certified to be true and complete
by such recording office, shall be deemed to satisfy the requirements of clause
(ii), (iii) or (iv) above, as applicable. CHL shall promptly correct
or cure such defect referred to above within 90 days from the date it was so
notified of such defect and, if CHL does not correct or cure such defect within
such period, CHL shall either (A) if the time to cure such defect expires prior
to the end of the second anniversary of the Closing Date, substitute for the
related Subsequent Mortgage Loan a Replacement Mortgage Loan, which substitution
shall be accomplished in the manner and subject to the conditions set forth
in
Section 2.03, or (B) purchase such Subsequent Mortgage Loan from the Trust
Fund
within 90 days from the date CHL was notified of such defect in writing at
the
Purchase Price of such Subsequent Mortgage Loan; provided that any such
substitution pursuant to (A) above or repurchase pursuant to (B) above shall
not
be effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05 hereof and any substitution pursuant to (A) above
shall
not be effected prior to the additional delivery to the Trustee of a Request
for
File Release. No substitution will be made in any calendar month
after the Determination Date for such month. The Purchase Price for
any such Subsequent Mortgage Loan shall be deposited by CHL in the Certificate
Account and, upon receipt of such deposit and Request for File Release with
respect thereto, the Trustee shall release the related Mortgage File to CHL
and
shall execute and deliver at CHL’s request such instruments of transfer or
assignment as CHL has prepared, in each case without recourse, as shall be
necessary to vest in CHL, or a designee, the Trustee’s interest in any
Subsequent Mortgage Loan released pursuant hereto. If pursuant to the
foregoing provisions CHL repurchases a Subsequent Mortgage Loan that is a MERS
Mortgage Loan, the Master Servicer shall cause MERS to execute and deliver
an
assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS
to CHL and shall cause such Mortgage to be removed from registration on the
MERS® System in accordance with MERS’ rules and regulations.
62
The
Co-Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth
herein. Each Seller shall promptly deliver to the Co-Trustee, upon
the execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File that come into the possession of
such
Seller from time to time.
It
is
understood and agreed that the obligation of the Sellers to substitute for
or to
purchase, pursuant to Section 2.02(b), any Subsequent Mortgage Loan whose
Mortgage File contains any document or documents that does not meet the
requirements of clauses (i)-(iv) and (vi) above and which defect is not
corrected or cured by such Seller within 90 days from the date it was notified
of such defect, shall constitute the sole remedy respecting such defect
available to the Trustee, the Co-Trustee, the Depositor and any
Certificateholder against the Sellers.
|
|
Section
2.03
|
Representations,
Warranties and Covenants of the Master Servicer and the
Sellers.
|
(a) The
Master Servicer hereby represents and warrants to the Depositor and the Trustee
as follows, as of the date hereof with respect to the Initial Mortgage Loans,
and the related Subsequent Transfer Date with respect to the Subsequent Mortgage
Loans:
(1) The
Master Servicer is duly organized as a Texas 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 this
Agreement to be conducted by the Master Servicer 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 ensure its ability
to enforce each Mortgage Loan, to service the Mortgage Loans in accordance
with
the terms of this Agreement and to perform any of its other obligations under
this Agreement in accordance with the terms hereof.
63
(2) The
Master Servicer has the full partnership power and authority to sell and service
each Mortgage Loan, and to execute, deliver and perform, and to enter into
and
consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary partnership action on the part of the Master
Servicer the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery hereof by
the
other parties hereto, constitutes a legal, valid and binding obligation of
the
Master Servicer, enforceable against the Master Servicer in accordance with
its
terms, except that (a) the enforceability hereof 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 this Agreement by the Master Servicer, the servicing
of the Mortgage Loans by the Master Servicer under this Agreement, the
consummation of any other of the transactions contemplated by this Agreement,
and the fulfillment of or compliance with the terms hereof are in the ordinary
course of business of the Master Servicer 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 the Master Servicer
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 the Master Servicer is a party or
by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to the Master Servicer of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Master Servicer; and the Master Servicer 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 Master Servicer’s ability to perform or meet
any of its obligations under this Agreement.
(4) The
Master Servicer is an approved servicer of conventional mortgage loans for
Xxxxxx Xxx and Xxxxxxx Mac 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 the Master Servicer’s knowledge,
threatened, against the Master Servicer that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or the
ability of the Master Servicer to service the Mortgage Loans or to perform
any
of its other obligations under this Agreement or any Subsequent Transfer
Agreement in accordance with the terms hereof or thereof.
64
(6) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, the Master Servicer has obtained
the same.
(7) The
Master Servicer 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 Mortgage Loans for as long as such Mortgage Loans are
registered with MERS.
(8) The
Master Servicer has fully furnished and will fully furnish, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower credit
files to Equifax, Experian, and Trans Union Credit Information Company (three
of
the credit repositories), on a monthly basis for the Mortgage Loans in Loan
Group 1.
(b) CHL
hereby represents and warrants to the Depositor and the Trustee as follows,
as
of the Initial Cut-off Date in the case of the Initial Mortgage Loans and as
of
the related Subsequent Cut-off Date in the case of the Subsequent Mortgage
Loans
(unless otherwise indicated or the context otherwise requires, percentages
with
respect to the Initial Mortgage Loans in the Trust Fund or in a Loan Group
or
Loan Groups are measured by the Cut-off Date Principal Balance of the Initial
Mortgage Loans in the Trust Fund or of the Initial Mortgage Loans in the related
Loan Group or Loan Groups, as applicable):
(1) CHL
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 this Agreement and
each Subsequent Transfer Agreement to be conducted by CHL 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 ensure its
ability to enforce each Mortgage Loan, to sell the CHL Mortgage Loans in
accordance with the terms of this Agreement and each Subsequent Transfer
Agreement and to perform any of its other obligations under this Agreement
and
each Subsequent Transfer Agreement in accordance with the terms hereof and
thereof.
(2) CHL
has the full corporate power and authority to sell each CHL Mortgage Loan,
and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and each Subsequent Transfer
Agreement and has duly authorized by all necessary corporate action on the
part
of CHL the execution, delivery and performance of this Agreement and each
Subsequent Transfer Agreement; and this Agreement and each Subsequent Transfer
Agreement, assuming the due authorization, execution and delivery hereof by
the
other parties hereto, constitutes a legal, valid and binding obligation of
CHL,
enforceable against CHL in accordance with its terms, except that (a) the
enforceability hereof 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.
65
(3) The
execution and delivery of this Agreement and each Subsequent Transfer Agreement
by CHL, the sale of the CHL Mortgage Loans by CHL under this Agreement and
each
Subsequent Transfer Agreement, the consummation of any other of the transactions
contemplated by this Agreement and each Subsequent Transfer Agreement, and
the
fulfillment of or compliance with the terms hereof and thereof are in the
ordinary course of business of CHL and will not (A) result in a material breach
of any term or provision of the charter or by-laws of CHL 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 CHL is a party or by which it may be bound, or (C)
constitute a material violation of any statute, order or regulation applicable
to CHL of any court, regulatory body, administrative agency or governmental
body
having jurisdiction over CHL; and CHL 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 CHL’s ability to perform or meet any of its
obligations under this Agreement and each Subsequent Transfer
Agreement.
(4) CHL
is an approved seller of conventional mortgage loans for Xxxxxx Mae and Xxxxxxx
Mac 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 CHL’s knowledge, threatened, against
CHL that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or any Subsequent Transfer Agreement or the
ability of CHL to sell the CHL Mortgage Loans or to perform any of its other
obligations under this Agreement or any Subsequent Transfer Agreement in
accordance with the terms hereof or 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 CHL of, or
compliance by CHL with, this Agreement or any Subsequent Transfer Agreement
or
the consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, CHL has obtained the
same.
(7) The
information set forth on Exhibit F-1 hereto with respect to each Initial
Mortgage Loan is true and correct in all material respects as of the Closing
Date.
(8) CHL
will treat the transfer of the CHL Mortgage Loans to the Depositor as a sale
of
the CHL Mortgage Loans for all tax, accounting and regulatory
purposes.
66
(9) None
of the Mortgage Loans is 30 days or more delinquent.
(10) No
Mortgage Loan had a Loan-to-Value Ratio at origination in excess of
100.00%.
(11) Each
Mortgage Loan is secured by a valid and enforceable first lien on the related
Mortgaged Property subject only to (1) the lien of non-delinquent current real
property taxes and assessments, (2) 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 (3)other matters to which like properties are commonly subject that do
not
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
(12) Immediately
prior to the assignment of each CHL Mortgage Loan to the Depositor, CHL had
good
title to, and was the sole owner of, such CHL 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 this
Agreement.
(13) There
is no delinquent tax or assessment lien against any Mortgaged
Property.
(14) There
is no valid offset, claim, 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.
(15) There
are no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property that are or may be a lien prior to, or equal with, the lien
of such Mortgage, except those that are insured against by the title insurance
policy referred to in item (18) below.
(16) As
of the Closing Date in the case of the Initial Mortgage Loans and as of the
related Subsequent Transfer Date in the case of the Subsequent Mortgage Loans,
to the best of CHL’s knowledge, each Mortgaged Property is free of material
damage and is in good repair.
(17) As
of the Closing Date in the case of the Initial Mortgage Loans and as of the
related Subsequent Transfer Date in the case of the Subsequent Mortgage Loans,
neither CHL 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 that 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 (except as expressly permitted
above) or satisfaction with respect thereto.
67
(18) A
lender’s policy of title insurance together with a condominium endorsement and
extended coverage endorsement, if applicable, in an amount at least equal to
the
Cut-off Date 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
Xxxxxx Xxx and Xxxxxxx Mac and is in a form acceptable to Xxxxxx Mae and Xxxxxxx
Mac, which policy insures the Sellers 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 (11) above; to the best of
CHL’s knowledge, no claims have been made under such mortgage title insurance
policy and no prior holder of the related Mortgage, including any Seller, has
done, by act or omission, anything that would impair the coverage of such
mortgage title insurance policy.
(19) No
Initial Mortgage Loan was the subject of a Principal Prepayment in full between
the Initial Cut-off Date and the Closing Date. No Subsequent Mortgage
Loan was the subject of a Principal Prepayment in full between the Subsequent
Cut-off Date and the Subsequent Transfer Date.
(20) To
the best of CHL’s knowledge, all of the improvements that 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.
(21) To
the best of CHL’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 CHL’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.
(22) The
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, 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. To the best of CHL’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.
68
(23) The
proceeds of the Mortgage Loan 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 Loan were
paid.
(24) The
related Mortgage contains customary and enforceable provisions that 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.
(25) 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.
(26) Each
Mortgage Note and each Mortgage is acceptable in form to Xxxxxx Mae and Xxxxxxx
Mac.
(27) 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 the
Sellers have been capitalized under the Mortgage or the related Mortgage
Note.
(28) The
origination, underwriting, servicing and collection practices with respect
to
each Mortgage Loan have been in all respects legal, proper, prudent and
customary in the mortgage lending and servicing business, as conducted by
prudent lending institutions which service mortgage loans of the same type
in
the jurisdiction in which the Mortgaged Property is located.
(29) There
is no pledged account or other security other than real estate securing the
Mortgagor’s obligations.
(30) No
Mortgage Loan has a shared appreciation feature, or other contingent interest
feature.
(31) Each
Mortgage Loan contains a customary “due on sale” clause.
(32) No
less than approximately the percentage specified in the Collateral Schedule
of
the Initial Mortgage Loans in Loan Group 1 and Loan Group 2 are secured by
single family detached dwellings. No more than approximately the
percentage specified in the Collateral Schedule of the Initial Mortgage Loans
in
Loan Group 1 and Loan Group 2 are secured by two- to four-family
dwellings. No more than approximately the percentage specified in the
Collateral Schedule of the Initial Mortgage Loans in Loan Group 1 and Loan
Group
2 are secured by low-rise condominium units. No more than
approximately the percentage specified in the Collateral Schedule of the Initial
Mortgage Loans in Loan Group 1 and Loan Group 2 are secured by high-rise
condominium units. No more than approximately the percentage
specified in the Collateral Schedule of the Initial Mortgage Loans in Loan
Group
1 and Loan Group 2 are secured by manufactured housing. No more than
approximately the percentage specified in the Collateral Schedule of the Initial
Mortgage Loans in Loan Group 1 and Loan Group 2 are secured by
PUDs.
69
(33) Each
Initial Mortgage Loan in Loan Group 1 and Loan Group 2 was originated on or
after the date specified in the Collateral Schedule.
(34) Each
Initial Mortgage Loan other than a Two-Year Hybrid Mortgage Loan, a Three-Year
Hybrid Mortgage Loan or a Five-Year Hybrid Mortgage Loan, had an initial
Adjustment Date no later than the applicable date specified on the Collateral
Schedule; each Initial Mortgage Loan that is a Two-Year Hybrid Mortgage Loan
had
an initial Adjustment Date no later than the applicable date specified on the
Collateral Schedule; each Initial Mortgage Loan that is a Three-Year Hybrid
Mortgage Loan had an initial Adjustment Date no later than the applicable date
specified on the Collateral Schedule; and each Initial Mortgage Loan that is
a
Five-Year Hybrid Mortgage Loan had an initial Adjustment Date no later than
the
applicable date specified on the Collateral Schedule.
(35) Approximately
the percentage specified in the Collateral Schedule of the Initial Mortgage
Loans in Loan Group 1 and Loan Group 2 provide for a Prepayment
Charge.
(36) On
the basis of representations made by the Mortgagors in their loan applications,
no more than approximately the percentage specified in the Collateral Schedule
of the Initial Mortgage Loans in Loan Group 1 and Loan Group 2, respectively,
are secured by investor properties, and no less than approximately the
percentage specified in the Collateral Schedule of the Initial Mortgage Loans
in
Loan Group 1 and Loan Group 2 respectively, are secured by owner-occupied
Mortgaged Properties that are primary residences.
(37) At
the Cut-off 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 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 (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 (38) below contain a
standard mortgagee clause naming the applicable Seller or the original
mortgagee, and its successors in interest, as mortgagee, and the applicable
Seller 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.
70
(38) 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.
(39) To
the best of CHL’s knowledge, there is no proceeding occurring, pending or
threatened for the total or partial condemnation of the Mortgaged
Property.
(40) There
is no material monetary default existing under any Mortgage or the related
Mortgage Note and, to the best of CHL’s knowledge, there is no material event
that, 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 no Seller
has
waived any default, breach, violation or event of acceleration.
(41) Each
Mortgaged Property is improved by a one- to four-family residential dwelling,
including condominium units and dwelling units in PUDs. To the best
of CHL’s knowledge, no improvement to a Mortgaged Property includes a
cooperative or a mobile home or constitutes other than real property under
state
law.
(42) Each
Mortgage Loan is being serviced by the Master Servicer.
(43) 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.
(44) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents that 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 that remains unpaid and that 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 that precedes by one month the Due Date of the first
installment of principal and interest, including without limitation, taxes
and
insurance payments, the Master Servicer has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other than
the
Mortgagor, directly or indirectly, for the payment of any amount required by
the
Mortgage.
71
(45) The
Mortgage Loans originated by CHL were underwritten in all material respects
in
accordance with CHL’s underwriting guidelines for credit blemished quality
mortgage loans or, with respect to Mortgage Loans purchased by CHL were
underwritten in all material respects in accordance with customary and prudent
underwriting guidelines generally used by originators of credit blemished
quality mortgage loans.
(46) 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 Xxxxxx Xxx and Xxxxxxx Mac.
(47) None
of the Mortgage Loans is a graduated payment mortgage loan or a growing equity
mortgage loan, and no Mortgage Loan is subject to a buydown or similar
arrangement.
(48) The
Mortgage Rates borne by the Initial Mortgage Loans in Loan Group 1 and Loan
Group 2 as of the Cut-off Date ranged between the approximate per annum
percentages specified on the Collateral Schedule and the weighted average
Mortgage Rate as of the Cut-off Date was approximately the per annum rate
specified on the Collateral Schedule.
(49) The
Mortgage Loans were selected from among the outstanding one- to four-family
mortgage loans in the applicable Seller’s portfolio at the Closing Date as to
which the representations and warranties made as to the Mortgage Loans set
forth
in this Section 2.03(b) and Sections 2.03(c) and 2.03(d) can be
made. No selection was made in a manner that would adversely affect
the interests of Certificateholders.
(50) The
Gross Margins on the Initial Mortgage Loans in Loan Group 1 and Loan Group
2
range between the approximate percentages specified on the Collateral Schedule,
and the weighted average Gross Margin was approximately the percentage specified
in the Collateral Schedule.
(51) Each
of the Initial Mortgage Loans in the Mortgage Pool has a Due Date on or before
the date specified in the Collateral Schedule.
(52) The
Mortgage Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
72
(53) There
is no obligation on the part of any Seller under the terms of the Mortgage
or
related Mortgage Note to make payments in addition to those made by the
Mortgagor.
(54) 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.
(55) Each
Mortgage Loan represents a “qualified mortgage” within the meaning of Section
860(a)(3)of the Code (but without regard to the rule in Treasury Regulation
§
1.860G-2(f)(2) that treats a defective obligation as a qualified mortgage,
or
any substantially similar successor provision) and applicable Treasury
regulations promulgated thereunder.
(56) No
Mortgage Loan was either a “consumer credit contract” or a “purchase money loan”
as such terms are defined in 16 C.F.R. § 433 nor is any Mortgage Loan a
“mortgage” as defined in 15 U.S.C. § 1602(aa).
(57) To
the extent required under applicable law, each originator and subsequent
mortgagee or servicer of the Mortgage Loan complied with all licensing
requirements and was authorized to transact and do business in the jurisdiction
in which the related Mortgaged Property is located at all times when it held
or
serviced the Mortgage Loan. Any and all requirements of any federal,
state or local laws or regulations, including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
anti-predatory lending, fair credit reporting, unfair collection practice,
equal
credit opportunity, fair housing and disclosure laws and regulations, applicable
to the solicitation, origination, collection and servicing of such Mortgage
Loan
have been complied with in all material respects; and any obligations of the
holder of the Mortgage Note, Mortgage and other loan documents have been
complied with in all material respects; servicing of each Mortgage Loan has
been
in accordance with prudent mortgage servicing standards, any applicable laws,
rules and regulations and in accordance with the terms of the Mortgage Notes,
Mortgage and other loan documents, whether such origination and servicing was
done by the applicable Seller, its affiliates, or any third party which
originated the Mortgage Loan on behalf of, or sold the Mortgage Loan to, any
of
them, or any servicing agent of any of the foregoing.
(58) The
methodology used in underwriting the extension of credit for the Mortgage Loan
employs objective mathematical principles which relate the borrower’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the borrower’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability to make timely
payments on the Mortgage Loan.
(59) No
borrower was required to purchase any credit life, disability, accident or
health insurance product as a condition of obtaining the extension of
credit. No borrower obtained a prepaid single-premium credit life,
disability, accident or health insurance policy in connection with
the origination of the Mortgage Loan.
73
(60) If
the Mortgage Loan provides that the interest rate on the principal balance
of
the related Mortgage Loan may be adjusted, all of the terms of the related
Mortgage pertaining to interest rate adjustments, payment adjustments and
adjustments of the outstanding principal balance have been made in accordance
with the terms of the related Mortgage Note and applicable law and are
enforceable and such adjustments will not affect the priority of the Mortgage
lien.
(61) The
Mortgaged Property complies with all applicable laws, rules and regulations
relating to environmental matters, including but not limited to those relating
to radon, asbestos and lead paint and no Seller nor, to the best of CHL’s
knowledge, the Mortgagor, has received any notice of any violation or potential
violation of such law.
(62) There
is no action, suit or proceeding pending, or to the best of CHL’s knowledge,
threatened or likely to be asserted with respect to the Mortgage Loan against
or
affecting any Seller before or by any court, administrative agency, arbitrator
or governmental body.
(63) No
action, inaction, or event has occurred and no state of fact exists or has
existed that has resulted or will result in the exclusion from, denial of,
or
defense to coverage under any applicable hazard insurance policy, irrespective
of the cause of such failure of coverage. In connection with the
placement of any such insurance, no commission, fee, or other compensation
has
been or will be received by CHL or any designee of CHL or any corporation in
which CHL or any officer, director, or employee had a financial interest at
the
time of placement of such insurance.
(64) Each
Mortgage Loan has a fully assignable life of loan tax service contract which
may
be assigned without the payment of any fee.
(65) No
Mortgagor has notified CHL or the Master Servicer on CHL’s behalf, and CHL has
no knowledge, of any relief requested or allowed to a Mortgagor under the Relief
Act or any similar state or local law.
(66) Each
Mortgage Loan was originated by a savings and loan association, savings bank,
commercial bank, credit union, insurance company, or mortgage banking company
which is supervised and examined by a federal or state authority, or by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
Sections 2.03 and 2.11 of the National Housing Act.
(67) Each
Mortgage Loan was (A) originated no earlier than six months prior to the time
the applicable Seller purchased such Mortgage Loan pursuant to a mortgage loan
purchase agreement or other similar agreement and (B) underwritten or
reunderwritten by the applicable Seller in accordance with the applicable
Seller’s underwriting guidelines in effect at the time the loan was underwritten
or reunderwritten, as applicable.
74
(68) Each
Mortgage Loan, at the time it was originated and as of the Closing Date or
the
related Subsequent Transfer Date, as applicable, complied in all material
respects with applicable local, state and federal laws, including, but not
limited to, all predatory and abusive lending laws.
(69) None
of the Mortgage Loans is a “high cost” mortgage loan as defined by applicable
federal, state and local predatory and abusive lending laws.
(70) Each
Prepayment Charge is enforceable and was originated in compliance with all
applicable federal, state and local laws.
(71) None
of the Mortgage Loans that are secured by property located in the State of
Illinois are in violation of the provisions of the Illinois Interest Act; 815
Ill. Comp. Stat. 205/0.01 (2004).
(72) There
is no Mortgage Loan in the Trust Fund that was originated on or after March
7,
2003, which is a “high cost home loan” as defined under the Georgia Fair Lending
Act.
(73) No
Mortgage Loan in the Trust Fund is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current Standard & Poor’s
LEVELS® Glossary) and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
(74) Each
Mortgage Loan is secured by a “single family residence” within the meaning of
Section 25(e)(10) of the Code. The fair market value of the
manufactured home securing each Mortgage Loan was at least equal to 80% of
the
adjusted issue price of the contract at either (i) the time the contract was
originated (determined pursuant to the REMIC Provisions) or (ii) the time the
contract is transferred to the purchaser.
(75) No
Mortgage Loan in the Trust Fund is a “high cost home,” “covered” (excluding home
loans defined as “covered home loans” in the New Jersey Home Ownership Security
Act of 2002 that were originated between November 26, 2003 and July 7, 2004),
“high risk home” or “predatory” loan under any applicable state, federal or
local law (or a similarly classified loan using different terminology under
a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees).
(76) There
is no Mortgage Loan in the Trust Fund that was originated on or after October
1,
2002 and before March 7, 2003, which is secured by property located in the
State
of Georgia.
(77) Representations
and Warranties relating to the Mortgage Loans in Loan Group 1:
(i) Each
Mortgage Loan in Loan Group 1 at the time it was made complied in all material
respects with applicable local, state, and federal laws, including, but not
limited to, all applicable predatory, abusive and fair lending
laws;
75
(ii) No
Mortgage Loan in Loan Group 1 is covered by the Home Ownership and Equity
Protection Act of 1994 (“HOEPA”);
(iii) As
part of the due diligence process relating to the Certificates, CHL reviewed
a
statistically significant sampling of 200 mortgage loans proposed for inclusion
in Loan Group 1 and confirmed the following: Nine (9) of the mortgage
loans sampled exceeded the thresholds set by HOEPA and its implementing
regulations, including 12 CFR § 226.32(a)(1)(i). Such loans that exceeded these
thresholds were not included in Loan Group 1. CHL confirms that (a)
the mortgage loans sampled include refinance and purchase money mortgage loans;
(b) the sampling was done using methodology ordinarily and customarily used
by
underwriters of residential mortgage-backed securities to diligence pools of
residential mortgage loans, and (c) it is not aware of any mortgage loans that
were not sampled that exceed the thresholds set by HOEPA;
(iv) There
is no Mortgage Loan in Loan Group 1 that was originated on or after October
1,
2002 and before March 7, 2003 which is secured by property located in the State
of Georgia;
(v) No
Mortgage Loan in Loan Group 1 is a “high cost home,” “covered” (excluding home
loans defined as “covered home loans” in the New Jersey Home Ownership Security
Act of 2002 that were originated between November 26, 2003 and July 7, 2004),
“high risk home” or “predatory” loan under any applicable state, federal or
local law (or a similarly classified loan using different terminology under
a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees);
(vi) No
borrower with respect to a Mortgage Loan in Loan Group 1 obtained a prepaid
single-premium credit life, credit disability, credit unemployment or credit
property insurance policy in connection with the origination of the Mortgage
Loan;
(vii) With
respect to any Mortgage Loan in Loan Group 1 that contains a provision
permitting imposition of a penalty upon a prepayment prior to maturity: (a)
the
Mortgage Loan provides some benefit to the borrower (e.g., a rate or fee
reduction) in exchange for accepting such prepayment penalty; (b) prior to
the
Mortgage Loan’s origination, the borrower was offered the option of obtaining a
mortgage loan that did not require payment of such a penalty; (c) the prepayment
penalty was adequately disclosed to the borrower pursuant to applicable state
and federal law; (d) no such Mortgage Loan originated on or after October 1,
2002 will provide for prepayment penalties for a term in excess of three years,
and any such Mortgage Loan originated prior to such date will not provide for
prepayment penalties in excess of five years; in each case unless the loan
was
modified to reduce the prepayment period to no more than three years from the
date of the note and the borrower was notified in writing of such reduction
in
prepayment period; and (e) such prepayment penalty shall not be imposed in
any
instance where the Mortgage Loan is accelerated or paid off in connection with
the workout of a delinquent mortgage or due to the borrower’s default,
notwithstanding that the terms of the Mortgage Loan or state or federal law
might permit the imposition of such penalty;
76
(viii) With
respect to each Mortgage Loan in Loan Group 1, the borrower was not encouraged
or required to select a mortgage loan product offered by the Mortgage Loan’s
originator which is a higher cost product designed for less creditworthy
borrowers, taking into account such facts as, without limitation, the Mortgage
Loan’s requirements and the borrower’s credit history, income, assets and
liabilities;
(ix) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
in Loan Group 1 did not rely solely on the extent of the borrower’s equity in
the collateral as the principal determining factor in approving such extension
of credit. The methodology employed objective criteria such as the
borrower’s income, assets and liabilities, to the proposed mortgage payment and,
based on such methodology, the Mortgage Loan’s originator made a reasonable
determination that at the time of origination the borrower had the ability
to
make timely payments on the Mortgage Loan;
(x) No
borrower under a Mortgage Loan in Loan Group 1 was charged “points and fees” in
an amount greater than (a) $1,000 or (b) 5% of the principal amount
of such mortgage loan, whichever is greater. For purposes of this
representation, “points and fees” (x) include origination, underwriting, broker
and finder’s fees and charges that the lender imposed as a condition of making
the mortgage loan, whether they are paid to the lender or a third party; and
(y)
exclude bona fide discount points, fees paid for actual services rendered in
connection with the origination of the mortgage (such as attorneys’ fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections); the cost of mortgage insurance or credit-risk price adjustments;
the costs of title, hazard, and flood insurance policies; state and local
transfer taxes or fees; escrow deposits for the future payment of taxes and
insurance premiums; and other miscellaneous fees and charges, which
miscellaneous fees and charges, in total, do not exceed 0.25 percent of the
loan
amount;
(xi) With
respect to any Mortgage Loan in Loan Group 1 originated on or after August
1,
2004, neither the related mortgage nor the related mortgage note requires the
borrower to submit to arbitration to resolve any dispute arising out of or
relating in any way to the mortgage loan transaction; and
77
(xii) Each
Mortgage Loan in Loan Group 1 had an original principal balance that conforms
to
Xxxxxxx Mac guidelines concerning original principal balance limits at the
time
of the origination of such mortgage loan.
(78) The
representations in Section 2.03(c)(1)-(6) and 2.03(d)(1)-(6) are true and
correct.
(c) Park
Monaco hereby represents and warrants to the Depositor and the Trustee as
follows, as of the Cut-off Date:
(1) Park
Monaco is duly organized as a Delaware corporation and is validly existing
and
in good standing under the laws of the State of Delaware and is duly authorized
and qualified to transact any and all business contemplated by this Agreement
and each Subsequent Transfer Agreement to be conducted by Park Monaco in any
state in which a Mortgaged Property securing a Park Monaco Mortgage Loan 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 ensure its ability to enforce
each
Park Monaco Mortgage Loan, to sell the Park Monaco Mortgage Loans in accordance
with the terms of this Agreement and each Subsequent Transfer Agreement and
to
perform any of its other obligations under this Agreement in accordance with
the
terms hereof.
(2) Park
Monaco has the full company 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 this Agreement and each Subsequent
Transfer Agreement and has duly authorized by all necessary corporate action
on
the part of Park Monaco the execution, delivery and performance of this
Agreement and each Subsequent Transfer Agreement; and this Agreement and each
Subsequent Transfer Agreement, assuming the due authorization, execution and
delivery hereof by the other parties hereto, constitutes a legal, valid and
binding obligation of Park Monaco, enforceable against Park Monaco in accordance
with its terms, except that (a) the enforceability hereof 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 this Agreement and each Subsequent Transfer Agreement
by Park Monaco, the sale of the Park Monaco Mortgage Loans by Park Monaco under
this Agreement and each Subsequent Transfer Agreement, the consummation of
any
other of the transactions contemplated by this Agreement and each Subsequent
Transfer Agreement, and the fulfillment of or compliance with the terms hereof
are in the ordinary course of business of Park Monaco and will not (A) result
in
a material breach of any term or provision of the certificate of incorporation
or by-laws of Park Monaco or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default under,
the
terms of any other material agreement or instrument to which Park Monaco is
a
party or by which it may be bound, or (C) constitute a material violation of
any
statute, order or regulation applicable to Park Monaco of any court, regulatory
body, administrative agency or governmental body having jurisdiction over Park
Monaco; and Park Monaco is not in breach or violation of any material indenture
or other material agreement or instrument, or in violation of any statute,
order
or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation may
materially impair Park Monaco’s ability to perform or meet any of its
obligations under this Agreement.
78
(4) No
litigation is pending or, to the best of Park Monaco’s knowledge, threatened,
against Park Monaco that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or any Subsequent Transfer
Agreement or the ability of Park Monaco to sell the Park Monaco Mortgage Loans
or to perform any of its other obligations under this Agreement or any
Subsequent Transfer Agreement in accordance with the terms hereof or
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, this Agreement or any Subsequent Transfer
Agreement or the consummation of the transactions contemplated hereby, or if
any
such consent, approval, authorization or order is required, Park Monaco has
obtained the same.
(6) Park
Monaco will 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.
(7) 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 this
Agreement.
(d) Park
Sienna hereby represents and warrants to the Depositor and the Trustee as
follows, as of the Cut-off Date:
(1) Park
Sienna is duly organized as a Delaware limited liability company and is validly
existing and in good standing under the laws of the State of Delaware and is
duly authorized and qualified to transact any and all business contemplated
by
this Agreement and each Subsequent Transfer Agreement to be conducted by Park
Sienna in any state in which a Mortgaged Property securing a Park Sienna
Mortgage Loan 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 ensure its ability
to enforce each Park Sienna Mortgage Loan, to sell the Park Sienna Mortgage
Loans in accordance with the terms of this Agreement and each Subsequent
Transfer Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
79
(2) Park
Sienna has the full company 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 this Agreement and each Subsequent
Transfer Agreement and has duly authorized by all necessary company action
on
the part of Park Sienna the execution, delivery and performance of this
Agreement and each Subsequent Transfer Agreement; and this Agreement and each
Subsequent Transfer Agreement, assuming the due authorization, execution and
delivery hereof by the other parties hereto, constitutes a legal, valid and
binding obligation of Park Sienna, enforceable against Park Sienna in accordance
with its terms, except that (a) the enforceability hereof 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 this Agreement and each Subsequent Transfer Agreement
by Park Sienna, the sale of the Park Sienna Mortgage Loans by Park Sienna under
this Agreement and each Subsequent Transfer Agreement, the consummation of
any
other of the transactions contemplated by this Agreement and each Subsequent
Transfer Agreement and the fulfillment of or compliance with the terms hereof
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
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 this 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 this Agreement or any Subsequent Transfer
Agreement or the ability of Park Sienna to sell the Park Sienna Mortgage Loans
or to perform any of its other obligations under this Agreement or any
Subsequent Transfer Agreement in accordance with the terms hereof or
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, this Agreement or any Subsequent Transfer
Agreement or the consummation of the transactions contemplated hereby, or if
any
such consent, approval, authorization or order is required, Park Sienna has
obtained the same.
80
(6) Park
Sienna will 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.
(7) 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 the 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 this Agreement.
(e) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty set forth in Section 2.03(a) through (d) that materially and adversely
affects the interests of the Certificateholders in any Mortgage Loan, the party
discovering such breach shall give prompt notice thereof to the other parties
and the NIM Insurer. Each of the Master Servicer and the Sellers
(each, a “Representing Party”) hereby covenants with respect to the
representations and warranties set forth in Sections 2.03(a) through (d) that
within 90 days of the earlier of the discovery by such Representing Party or
receipt of written notice by such Representing Party from any party of a breach
of any representation or warranty set forth herein made that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
it shall cure such breach in all material respects and, if such breach is not
so
cured, shall, (i) if such 90-day period expires prior to the second anniversary
of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage Loan”) from
the Trust Fund and substitute in its place a Replacement 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 that (a) any such
substitution pursuant to (i) above or repurchase pursuant to (ii) above shall
not be effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05 hereof, (b) any such substitution pursuant to (i)
above
shall not be effected prior to the additional delivery to the Trustee of a
Request for File Release and (c) any such substitution pursuant to (i) above
shall include a payment by the applicable Representing Party of any amount
as
calculated under item (iii) of the definition of “Purchase
Price”. Any Representing Party liable for a breach under this Section
2.03 shall promptly reimburse the Master Servicer or the Trustee for any
expenses reasonably incurred by the Master Servicer or the Trustee in respect
of
enforcing the remedies for such breach. To enable the Master Servicer
to amend the Mortgage Loan Schedule, any Representing Party liable for a breach
under this Section 2.03 shall, unless it cures such breach in a timely fashion
pursuant to this Section 2.03, promptly notify the Master Servicer whether
such
Representing Party intends either to repurchase, or to substitute for, the
Mortgage Loan affected by such breach. With respect to the
representations and warranties described in this Section that are made to the
best of the Representing Party’s knowledge, if it is discovered by any of the
Depositor, the Master Servicer, the Sellers 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, notwithstanding
the Representing Party’s lack of knowledge with respect to the substance of such
representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty. Any breach of any
representation set forth in Section 2.03(a)(8) or Section 2.03(b)(77) may be
deemed to materially and adversely affect the Certificateholders if (i) Xxxxxxx
Mac is a Certificate Owner, (ii) Xxxxxxx Mac is the party asserting the
existence of the breach and (iii) Xxxxxxx Mac and the Sellers so
agree.
81
With
respect to any Replacement Mortgage Loan or Loans, the applicable Seller
delivering such Replacement Mortgage Loan shall deliver to the Trustee for
the
benefit of the Certificateholders the related Mortgage Note, Mortgage and
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 will be made in
any calendar month after the Determination Date for such
month. Scheduled Payments due with respect to Replacement Mortgage
Loans in the Due Period related to the Distribution Date on which such proceeds
are to be distributed shall not be part of the Trust Fund and will be retained
by the applicable Seller delivering such Replacement Mortgage Loan on such
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the Scheduled Payment due on any Deleted
Mortgage Loan for the related Due Period and thereafter the applicable 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 Replacement Mortgage
Loan
or Loans and the Master Servicer shall deliver the amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, the Replacement
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the applicable Seller delivering such Replacement Mortgage Loan
shall be deemed to have made with respect to such Replacement Mortgage Loan
or
Loans, as of the date of substitution, the representations and warranties set
forth in Section 2.03(b), (c) or (d) 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 Co-Trustee shall
release to the Representing Party the Mortgage File relating to such Deleted
Mortgage Loan and held for the benefit of the Certificateholders and shall
execute and deliver at the Master Servicer’s direction such instruments of
transfer or assignment as have been prepared by the Master Servicer, in each
case without recourse, as shall be necessary to vest in the applicable Seller,
or its respective designee, title to the Trustee’s interest in any Deleted
Mortgage Loan substituted for pursuant to this Section 2.03.
For
any
month in which any Seller substitutes one or more Replacement Mortgage Loans
for
one or more Deleted Mortgage Loans, the Master Servicer will determine the
amount (if any) by which the aggregate principal balance of all such Replacement
Mortgage Loans as of the date of substitution is less than the Stated Principal
Balance (after application of the principal portion of the Scheduled Payment
due
in the month of substitution) of all such Deleted Mortgage Loans. An
amount equal to the aggregate of the deficiencies described in the preceding
sentence (such amount, the “Substitution Adjustment Amount”) shall be forwarded
by the applicable Seller to the Master Servicer and deposited by the Master
Servicer into the Certificate Account not later than the Determination Date
for
the Distribution Date relating to the Prepayment Period during which the related
Mortgage Loan became required to be purchased or replaced
hereunder.
82
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 the Determination Date for the Distribution Date in the month following
the
month during which such Seller became obligated 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, if any, and the receipt of a
Request for File Release, the Co-Trustee shall release the related Mortgage
File
held for the benefit of the Certificateholders to such Seller, and the Trustee
shall execute and deliver at such Person’s direction the related instruments of
transfer or assignment prepared by such Seller, in each case without recourse,
as shall be necessary to transfer title from the Trustee for the benefit of
the
Certificateholders and transfer the Trustee’s interest to such Seller to any
Mortgage Loan purchased pursuant to this Section 2.03. It is
understood and agreed that the obligation under this Agreement of the Sellers
to
cure, repurchase or replace any Mortgage Loan as to which a breach has occurred
and is continuing shall constitute the sole remedy against the Sellers
respecting such breach available to Certificateholders, the Depositor or the
Trustee.
(f) The
representations and warranties set forth in this Section 2.03 shall survive
delivery of the respective Mortgage Files to the Co-Trustee for the benefit
of
the Certificateholders with respect to each Mortgage Loan.
|
|
Section
2.04
|
Representations
and Warranties of the
Depositor.
|
The
Depositor hereby represents and warrants to the Master Servicer and the Trustee
as follows, as of the date hereof and as of each Subsequent Transfer
Date:
(1) The
Depositor is duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has full power and
authority (corporate and other) necessary to own or hold its properties and
to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement and each Subsequent Transfer
Agreement.
(2) The
Depositor has the full corporate power and authority to execute, deliver and
perform, and to enter into and consummate the transactions contemplated by,
this
Agreement and each Subsequent Transfer Agreement and has duly authorized, by
all
necessary corporate action on its part, the execution, delivery and performance
of this Agreement and each Subsequent Transfer Agreement; and this Agreement
and
each Subsequent Transfer Agreement, assuming the due authorization, execution
and delivery hereof by the other parties hereto, constitutes a legal, valid
and
binding obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, subject, as to enforceability, to (i) bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors’ rights generally and (ii) general principles of equity, regardless of
whether enforcement is sought in a proceeding in equity or at law.
(3) The
execution and delivery of this Agreement and each Subsequent Transfer Agreement
by the Depositor, the consummation of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof are in
the
ordinary course of business of the Depositor and will not (A) result in a
material breach of any term or provision of the charter or by-laws of the
Depositor 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 the Depositor is a party
or by which it may be bound or (C) constitute a material violation of any
statute, order or regulation applicable to the Depositor of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Depositor; and the Depositor 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 Depositor’s ability to perform or meet any
of its obligations under this Agreement.
83
(4) No
litigation is pending, or, to the best of the Depositor’s knowledge, threatened,
against the Depositor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or any Subsequent Transfer
Agreement or the ability of the Depositor to perform its obligations under
this
Agreement or any Subsequent Transfer Agreement in accordance with the terms
hereof or 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 the Depositor
of, or compliance by the Depositor with, this Agreement or any Subsequent
Transfer Agreement or the consummation of the transactions contemplated hereby,
or if any such consent, approval, authorization or order is required, the
Depositor has obtained the same.
The
Depositor hereby represents and warrants to the Trustee with respect to each
Mortgage Loan, as of the Closing Date or the related Subsequent Transfer Date,
as applicable, following the transfer of such Mortgage Loan to it by the
Sellers, the Depositor had good title to the Initial Mortgage Loans or related
Subsequent Mortgage Loans, as applicable, and the related Mortgage Notes were
subject to no offsets, claims, defenses or counterclaims.
It
is
understood and agreed that the representations and warranties set forth in
the
two immediately preceding paragraphs shall survive delivery of the Mortgage
Files to the Co-Trustee. Upon discovery by the Depositor or the
Trustee, of a breach of any of the foregoing representations and warranties
set
forth in the immediately preceding paragraph (referred to herein as a “breach”),
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency and the NIM
Insurer. The Depositor hereby covenants with respect to the
representations and warranties made by it in this Section 2.04 that within
90
days of the earlier of the discovery by it or receipt of written notice by
it
from any party of a breach of any representation or warranty set forth herein
made that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects and, if such breach is not so cured, shall repurchase or
replace the affected Mortgage Loan or Loans in accordance with the procedure
set
forth in Section 2.03(e).
84
|
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
(a) Notwithstanding
any contrary provision of this Agreement, with respect to any Mortgage Loan
that
is not in default or as to which default is not imminent, no repurchase or
substitution pursuant to Sections 2.02, 2.03 or 2.04 shall be made unless the
Representing Party making such repurchase or substitution delivers to the
Trustee an Opinion of Counsel (which such Representing Party shall use
reasonable efforts to obtain), addressed to the Trustee to the effect that
such
repurchase or substitution would not (i) result in the imposition of the tax
on
“prohibited transactions” of the Trust Fund or contributions after the Closing
Date, as defined in sections 860F(a)(2) and 860G(d) of the Code, respectively
or
(ii) cause any REMIC formed hereunder to fail to qualify as a REMIC at any
time
that any Certificates are outstanding. Any Mortgage Loan as to which
repurchase or substitution was delayed pursuant to this paragraph shall be
repurchased or the substitution therefor shall occur (subject to compliance
with
Sections 2.02, 2.03 or 2.04) upon the earlier of (a) the occurrence of a default
or imminent default with respect to such loan and (b) receipt by the Trustee
of
an Opinion of Counsel to the effect that such repurchase or substitution, as
applicable, will not result in the events described in clause (i) or clause
(ii)
of the preceding sentence.
(b) Upon
discovery by the Depositor, any 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 Business Days of discovery) give written notice
thereof to the other parties and the NIM Insurer. In connection
therewith, the Trustee shall require CHL, at CHL’s option, to either (i)
substitute, if the conditions in Section 2.03(e) with respect to substitutions
are satisfied, a Replacement 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 contained in Section 2.03. The Trustee shall reconvey to CHL
the Mortgage Loan to be released pursuant hereto in the same manner, and on
the
same terms and conditions, as it would a Mortgage Loan repurchased for breach
of
a representation or warranty contained in Section 2.03.
|
|
Section
2.06
|
Authentication
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, authenticated
and
delivered, to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing 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.
85
|
|
Section
2.07
|
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 the information, certificate, statement or report not
misleading.
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 customary and usual standards
of practice of prudent mortgage loan lenders in the respective states in which
the Mortgaged Properties are located, including taking all required and
appropriate actions under each Required Insurance Policy and taking all required
and appropriate actions under the Mortgage Insurance Policy on behalf of the
Co-Trustee, other than the payment of each Mortgage Insurance Premium and
obtaining the approval of the Mortgage Insurer with respect to the appointment
of a successor servicer. In connection with such servicing and
administration, the Master Servicer shall have full power and authority, acting
alone and/or through subservicers as provided in Section 3.02 hereof, subject
to
the terms hereof (i) to execute and deliver, on behalf of the Certificateholders
and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the manner
provided in this Agreement), (iii) to collect any Insurance Proceeds, other
Liquidation Proceeds and Subsequent Recoveries, and (iv) subject to Section
3.12(b), to effectuate foreclosure or other conversion of the ownership of
the
Mortgaged Property securing any Mortgage Loan; provided that the Master Servicer
shall take no action that is inconsistent with or prejudices the interests
of
the Trustee or the Certificateholders in any Mortgage Loan or the rights and
interests of the Depositor and the Trustee under this Agreement. The
Master Servicer shall represent and protect the interest of the Trustee in
the
same manner as it currently protects its own interest 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 term
of any Mortgage Loan which would (i) cause any REMIC formed hereunder to fail
to
qualify as a REMIC, (ii) result in the imposition of any tax under section
860(a) or 860(d) of the Code or (iii) cause any Covered Mortgage Loan to not
be
covered by the Mortgage Insurance Policy, but in any case the Master Servicer
shall not act in any manner that is a lesser standard than that provided in
the
first sentence of this Section 3.01. 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 any or all of them as are necessary or appropriate to enable the Master
Servicer to service and administer the Mortgage Loans. Upon receipt
of such documents, the Depositor and/or the Trustee shall execute such documents
and deliver them to the Master Servicer. The Master Servicer further
is authorized and empowered by the Trustee, on behalf of the Certificateholders
and the Trustee, in its own name or in the name of the Subservicer, when the
Master Servicer or the Subservicer, as the case may be, believes it appropriate
in its best judgment to register any Mortgage Loan on the MERS® System, or cause
the removal from the registration of any Mortgage Loan on the MERS® System, to
execute and deliver, on behalf of the Trustee and the Certificateholders or
any
of them, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name of
MERS, solely as nominee for the Trustee and its successors and
assigns.
86
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. All 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 Balance under the related Mortgage Loans, notwithstanding
that
the terms of such Mortgage Loans so permit.
The
Master Servicer shall deliver a list of Servicing Officers to the Trustee by
the
Closing Date.
In
addition, the Master Servicer shall administer the Mortgage Insurance Policy
on
behalf of itself, the Sellers, the Depositor and the Trustee for the benefit
of
the Certificateholders, when it is necessary to make claims and receive payments
under the Mortgage Insurance Policy. 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 the Certificateholders, claims
to the insurer under any primary insurance policies and, in this regard, to
take
any reasonable action 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.
The
Master Servicer shall take whatever action is appropriate to maximize the
amounts payable under the Mortgage Insurance Policy and to service the Covered
Mortgage Loans in the manner required by the Mortgage Insurance Policy. The
Master Servicer shall prepare and submit all claims eligible for submission
under the Mortgage Insurance Policy and shall, except as otherwise specified
in
this Agreement, perform all of the obligations of the insured under the Mortgage
Insurance Policy. If the Mortgage Insurance Policy is terminated for
any reason other than the exhaustion of its coverage, or if the financial
strength rating of the Mortgage Insurer is reduced to below investment grade,
the Master Servicer will use its best efforts to obtain a comparable policy
from
an insurer that is acceptable to the Rating Agencies. The replacement policy,
if
available, shall provide coverage equal to the then remaining coverage of the
Mortgage Insurance Policy. However, if the premium cost of a
replacement policy exceeds the premium cost of the Mortgage Insurance Policy,
the coverage amount of the replacement policy will be reduced so that its
premium cost will not exceed the premium cost of the Mortgage Insurance
Policy.
87
In
the
event that a shortfall in any collection on or liability with respect to any
Mortgage Loan results from or is attributable to adjustments to Mortgage Rates,
Scheduled Payments or Stated Principal Balances that were made by the Master
Servicer in a manner not consistent with the terms of the related Mortgage
Note
and this Agreement, the Master Servicer, upon discovery or receipt of notice
thereof, immediately shall deliver to the Trustee for deposit in the
Distribution Account from its own funds the amount of any such shortfall and
shall indemnify and hold harmless the Trust Fund, the Trustee, the Depositor
and
any successor master servicer in respect of any such liability. Such
indemnities shall survive the termination or discharge of this
Agreement. Notwithstanding the foregoing, this Section 3.01 shall not
limit the ability of the Master Servicer to seek recovery of any such amounts
from the related Mortgagor under the terms of the related Mortgage Note, as
permitted by law and shall not be an expense of the Trust.
|
|
Section
3.02
|
Subservicing;
Enforcement of the Obligations of Master
Servicer.
|
(a) The
Master Servicer may arrange for the subservicing of any Mortgage Loan by a
subservicer (each, a “Subservicer”) pursuant to a subservicing agreement (each,
a “Subservicing Agreement”); provided that (i) such subservicing arrangement and
the terms of the related subservicing agreement must provide for the servicing
of such Mortgage Loans in a manner consistent with the servicing arrangements
contemplated hereunder, (ii) that such subservicing agreements would not result
in a withdrawal or a downgrading by any Rating Agency of the ratings on any
Class of Certificates, as evidenced by a letter to that effect delivered by
each
Rating Agency to the Depositor and the NIM Insurer and (iii) the NIM Insurer
shall have consented to such subservicing agreements (which consent shall not
be
unreasonably withheld) with Subservicers, for the servicing and administration
of the Mortgage Loans. The Master Servicer shall deliver to the
Trustee copies of all Sub-Servicing Agreements, and any amendments or
modifications thereof, promptly upon the Master Servicer’s execution and
delivery of such instruments. The Master Servicer, with the written consent
of
the NIM Insurer (which consent shall not be unreasonably withheld), shall be
entitled to terminate any Subservicing Agreement and the rights and obligations
of any Subservicer pursuant to any Subservicing Agreement in accordance with
the
terms and conditions of such Subservicing Agreement. Notwithstanding
the provisions of any subservicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer
or
a subservicer or reference to actions taken through a Master Servicer 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. Every subservicing agreement entered into by the Master
Servicer shall contain a provision giving the successor Master Servicer the
option to terminate such agreement without cost in the event a successor Master
Servicer is appointed. 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.
88
(b) For
purposes of this Agreement, the Master Servicer shall be deemed to have received
any collections, recoveries or payments with respect to the Mortgage Loans
that
are received by a subservicer regardless of whether such payments are remitted
by the subservicer to the Master Servicer.
|
|
Section
3.03
|
Rights
of the Depositor, the Sellers, the Certificateholders, the NIM Insurer
and
the Trustee in Respect of the Master
Servicer.
|
None
of
the Trustee, the Sellers, the Certificateholders, the NIM Insurer or the
Depositor shall have any responsibility or liability for any action or failure
to act by the Master Servicer, and none of them is obligated to supervise the
performance of the Master Servicer hereunder or otherwise. The Master
Servicer shall afford (and any Subservicing Agreement shall provide that each
Subservicer shall afford) the Depositor, the NIM Insurer and the Trustee, upon
reasonable notice, during normal business hours, access to all records
maintained by the Master Servicer (and any such Subservicer) in respect of
the
Master Servicer’s rights and obligations hereunder and access to officers of the
Master Servicer (and those of any such Subservicer) responsible for such
obligations. Upon request, the Master Servicer shall furnish to the
Depositor, the NIM Insurer and the Trustee its (and any such Subservicer’s) most
recent financial statements and such other information relating to the Master
Servicer’s capacity to perform its obligations under this Agreement that it
possesses. To the extent such information is not otherwise available
to the public, the Depositor, the NIM Insurer and the Trustee shall not
disseminate any information obtained pursuant to the preceding two sentences
without the Masters Servicer’s (or any such Subservicer’s) written consent,
except as required pursuant to this Agreement or to the extent that it is
necessary to do so (i) in working with legal counsel, auditors, taxing
authorities or other governmental agencies, rating agencies or reinsurers or
(ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction
or
decree of any court or governmental authority having jurisdiction over the
Depositor, the Trustee, the NIM Insurer or the Trust Fund, and in either case,
the Depositor, the NIM Insurer or the Trustee, as the case may be, shall use
its
reasonable best efforts to assure the confidentiality of any such disseminated
non-public information. 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 or exercise the rights
of
the Master Servicer under this Agreement; provided by virtue of such performance
by the Depositor of its designee. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer and is not obligated to supervise the performance of the Master
Servicer under this Agreement or otherwise.
89
|
|
Section
3.04
|
Trustee
to Act as Master Servicer.
|
In
the
event that the Master Servicer shall for any reason no longer be the Master
Servicer hereunder (including by reason of an Event of Default or termination
by
the Depositor), the Trustee or its designee shall thereupon assume all of the
rights and obligations of the Master Servicer hereunder arising thereafter
(except that the Trustee shall not be (i) liable for losses of the Master
Servicer pursuant to Section 3.10 hereof or any acts or omissions of the
predecessor Master Servicer hereunder, (ii) obligated to make Advances if it
is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including pursuant
to
Section 2.02 or 2.03 hereof, (iv) responsible for expenses of the Master
Servicer pursuant to Section 2.03 or (v) deemed to have made any representations
and warranties hereunder, including pursuant to Section 2.03 or the first
paragraph of Section 6.02 hereof). If the Master Servicer shall for
any reason no longer be the Master Servicer (including by reason of any Event
of
Default or termination by the Depositor), the Trustee (or any other successor
servicer) may, at its option, succeed to any rights and obligations of the
Master Servicer under any subservicing agreement in accordance with the terms
thereof; provided that the Trustee (or any other successor servicer) shall
not
incur any liability or have any obligations in its capacity as servicer under
a
subservicing agreement arising prior to the date of such succession unless
it
expressly elects to succeed to the rights and obligations of the Master Servicer
thereunder; and the Master Servicer shall not thereby be relieved of any
liability or obligations under the subservicing agreement arising prior to
the
date of such succession.
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 and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected held by it and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the subservicing agreement to the assuming party.
|
|
Section
3.05
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Pre-Funding Account; Capitalized Interest
Account.
|
(a) The
Master Servicer shall make reasonable efforts in accordance with customary
and
usual standards of practice of prudent mortgage lenders in the respective states
in which the Mortgaged Properties are located to collect all payments called
for
under the terms and provisions of the Mortgage Loans to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any related Required Insurance Policy. Consistent with the
foregoing, the Master Servicer may in its discretion (i) waive any late payment
charge or, subject to Section 3.20, any Prepayment Charge or penalty interest
in
connection with the prepayment of a Mortgage Loan and (ii) extend the due dates
for payments due on a Mortgage Note for a period not greater than 270
days. In the event of any such arrangement, the Master Servicer shall
make Advances on the related Mortgage Loan during the scheduled period in
accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements. In addition, the
NIM Insurer’s prior written consent shall be required for any waiver of
Prepayment Charges or for the extension of the due dates for payments due on
a
Mortgage Note, if the aggregate number of outstanding Mortgage Loans that have
been granted such waivers or extensions exceeds 5% of the aggregate number
of
Initial Mortgage Loans and Subsequent Mortgage Loans. The Master
Servicer shall not be required to institute or join in litigation with respect
to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which such payment is required
is prohibited by applicable law.
90
(b) The
Master Servicer shall establish and maintain a Certificate Account into which
the Master Servicer shall deposit or cause to be deposited on a daily basis
within two Business Days of receipt, except as otherwise specifically provided
herein, the following payments and collections remitted by Subservicers or
received by it in respect of Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans
on or
before the Cut-off Date) and the following amounts required to be deposited
hereunder:
(1) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(2) all
payments on account of interest on the Mortgage Loans (net of the related
Servicing Fee and Prepayment Interest Excess permitted under Section 3.15 hereof
to the extent not previously paid to or withheld by the Master
Servicer);
(3) all
Insurance Proceeds;
(4) all
Liquidation Proceeds and Subsequent Recoveries, other than proceeds to be
applied to the restoration or repair of the Mortgaged Property or released
to
the Mortgagor in accordance with the Master Servicer’s normal servicing
procedures;
(5) all
Compensating Interest;
(6) any
amount required to be deposited by the Master Servicer pursuant to Section
3.05(f) in connection with any losses on Permitted Investments;
(7) any
amounts required to be deposited by the Master Servicer pursuant to Section
3.10
hereof;
(8) the
Purchase Price and any Substitution Adjustment Amount;
(9) all
Advances made by the Master Servicer or the Trustee pursuant to Section 4.01
hereof;
(10) all
Prepayment Charges and Master Servicer Prepayment Charge Payment Amounts;
and
(11) any
other amounts required to be deposited hereunder.
The
foregoing requirements for remittance by the Master Servicer into the
Certificate Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of
late
payment charges or assumption fees, if collected, need not be remitted by the
Master Servicer. In the event that the Master Servicer shall remit
any amount not required to be remitted and not otherwise subject to withdrawal
pursuant to Section 3.08 hereof, it may at any time withdraw or direct the
institution maintaining the Certificate Account, to withdraw such amount from
the Certificate Account, any provision herein to the contrary
notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the institution maintaining the Certificate
Account, that 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.
91
No
later
than 1:00 p.m. Pacific time on the Master Servicer Advance Date in the month
of
the first Distribution Date and in the month immediately following any
Subsequent Transfer Date, CHL shall remit to the Master Servicer, and the Master
Servicer shall deposit in the Certificate Account, the Seller Interest Shortfall
Payments (if any) for the related Distribution Date.
(c) The
Trustee shall establish and maintain, on behalf of the Certificateholders,
the
Distribution Account. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain therein the
following:
(1) the
aggregate amount remitted by the Master Servicer pursuant to the second
paragraph of Section 3.08(a); and
(2) any
amount required to be deposited by the Master Servicer pursuant to Section
3.05(f) in connection with any losses on Permitted Investments.
The
foregoing requirements for remittance by the Master Servicer and deposit by
the
Trustee into the Distribution Account shall be exclusive. In the
event that the Master Servicer shall remit any amount not required to be
remitted and not otherwise subject to withdrawal pursuant to Section 3.08
hereof, it may at any time direct the Trustee to withdraw such amount from
the
Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering a
written notice to the Trustee that 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.
(d) If
the Pre-Funded Amount is greater than zero, the Trustee shall establish and
maintain, on behalf of the Certificateholders, the Pre-Funding Account, and
on
the Closing Date, CHL shall remit the Pre-Funded Amount to the Trustee for
deposit in the Pre-Funding Account.
On
the
Business Day before the Distribution Date following the end of the Funding
Period, the Trustee shall (i) withdraw the amount on deposit in the Pre-Funding
Account (net of investment income), (ii) promptly deposit such amount in the
Distribution Account, and (iii) distribute each amount to the Certificates
on
the Distribution Date pursuant to Section 4.04.
92
(e) If
the Capitalized Interest Deposit is greater than zero, the Trustee shall
establish and maintain, on behalf of the Certificateholders, the Capitalized
Interest Account. On the Closing Date, CHL shall remit the
Capitalized Interest Deposit to the Trustee for deposit in the Capitalized
Interest Account. On each Distribution Account Deposit Date related
to a Funding Period Distribution Date, the Trustee shall transfer from the
Capitalized Interest Account to the Distribution Account an amount equal to
the
Capitalized Interest Requirement (which, to the extent required, may include
investment earnings on amounts on deposit therein) for the related Distribution
Date.
On
each
Subsequent Transfer Date, upon satisfaction of the conditions for such
Subsequent Transfer Date set forth in Section 2.01(e), the Trustee shall
withdraw from the Capitalized Interest Account the Capitalized Interest Release
Amount for such Subsequent Transfer Date and distribute such amount to the
order
of CHL.
If
any
funds remain in the Capitalized Interest Account at the end of the Distribution
Account Deposit Date for the last Funding Period Distribution Date, the Trustee
shall distribute any such remaining funds to the order of CHL on the last
Funding Period Distribution Date.
(f) Each
institution that maintains the Certificate Account, the Distribution Account,
the Pre-Funding Account or the Capitalized Interest Account shall invest the
funds in each such account, as directed by the Master Servicer, in Permitted
Investments, which shall mature not later than (x) 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 Certificate Account, then
such Permitted Investment shall mature not later than the Business Day next
preceding such Distribution Account Deposit Date) and (y) in the case of the
Distribution Account, the Pre-Funding Account and the Capitalized Interest
Account, 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 such Distribution Account,
Pre-Funding Account or Capitalized Interest Account, then such Permitted
Investment shall mature not later than such Distribution Date), 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. In the case of (i) the Certificate Account
and the Distribution Account, all income and gain net of any losses realized
from any such investment shall be for the benefit of the Master Servicer as
servicing compensation and shall be remitted to it monthly as provided herein,
(ii) the Pre-Funding Account, all income and gain net of any losses realized
from any such investment shall be for the benefit of the Depositor and shall
be
remitted to the Depositor as provided herein and (iii) the Capitalized Interest
Account, all income and gain net of any losses realized from any such investment
on deposit therein shall be credited thereto. The amount of any
losses incurred in the Certificate Account or the Distribution Account in
respect of any such investments shall be deposited by the Master Servicer in
the
Certificate Account or paid to the Trustee for deposit into the Distribution
Account out of the Master Servicer’s own funds immediately as
realized. The amount of any losses incurred in the Pre-Funding
Account or the Capitalized Interest Account in respect of any such investments
shall be paid by CHL to the Trustee for deposit into the Pre-Funding Account
or
the Capitalized Interest Account, as applicable, out of CHL’s own funds
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 Certificate Account, the Distribution Account, the
Pre-Funding Account or the Capitalized Interest Account and made in accordance
with this Section 3.05.
93
(g) The
Master Servicer shall give at least 30 days’ advance notice to the Trustee, each
Seller, each Rating Agency and the Depositor of any proposed change of location
of the Certificate Account prior to any change thereof. The Trustee
shall give at least 30 days’ advance notice to the Master Servicer, each Seller,
each Rating Agency and the Depositor of any proposed change of the location
of
the Distribution Account, the Pre-Funding Account, the Capitalized Interest
Account or the Carryover Reserve Fund prior to any change thereof.
(h) Except
as otherwise expressly provided in this Agreement, if any default occurs under
any Permitted Investment, the Trustee may and, subject to Sections 8.01 and
8.02(a)(4), at the request of the Holders of Certificates representing more
than
50% of the Voting Rights or the NIM Insurer, shall take any action appropriate
to enforce payment or performance, including the institution and prosecution
of
appropriate proceedings.
|
|
Section
3.06
|
Collection
of Taxes, Assessments and Similar Items; Escrow
Accounts.
|
To
the
extent required by the related Mortgage Note, the Master Servicer shall
establish and maintain one or more accounts (each, an “Escrow Account”) and
deposit and retain therein all collections from the Mortgagors (or advances
by
the Master Servicer) for the payment of taxes, assessments, hazard insurance
premiums or comparable items for the account of the
Mortgagors. Nothing herein shall require the Master Servicer to
compel a Mortgagor to establish an Escrow Account in violation of applicable
law.
Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse the Master Servicer
out
of related collections for any payments made pursuant to Sections 3.01 hereof
(with respect to taxes and assessments and insurance premiums) and 3.10 hereof
(with respect to hazard insurance), to refund to any Mortgagors any sums as
may
be 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 hereof. The Escrow
Accounts shall not be a part of the Trust Fund.
|
|
Section
3.07
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
The
Master Servicer shall afford the Depositor, the NIM Insurer and the Trustee
reasonable access to all records and documentation regarding the Mortgage Loans
and all accounts, insurance policies 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 offices of the Master Servicer
designated by it. Upon request, the Master Servicer shall furnish to
the Trustee and the NIM Insurer its most recent publicly available financial
statements and any other information relating to its capacity to perform its
obligations under this Agreement reasonably requested by the NIM
Insurer.
94
Upon
reasonable advance notice in writing if required by federal regulation, the
Master Servicer will provide to each Certificateholder or Certificate Owner
that
is a savings and loan association, bank or insurance company certain reports
and
reasonable access to information and documentation regarding the Mortgage Loans
sufficient to permit such Certificateholder 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 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, Distribution Account, Carryover
Reserve Fund and the Principal Reserve
Fund.
|
(a) The
Master Servicer may from time to time make withdrawals from the Certificate
Account for the following purposes:
(i) to
pay to the Master Servicer (to the extent not previously paid to or withheld
by
the Master Servicer), as servicing compensation in accordance with Section
3.15,
that portion of any payment of interest that equals the Servicing Fee for the
period with respect to which such interest payment was made, and, as additional
servicing compensation to the Master Servicer, those other amounts set forth
in
Section 3.15;
(ii) to
reimburse each of the Master Servicer and the Trustee for Advances made by
it
with respect to the Mortgage Loans, such right of reimbursement pursuant to
this
subclause (ii) being limited to amounts received on particular Mortgage Loan(s)
(including, for this purpose, Liquidation Proceeds, Insurance Proceeds and
Subsequent Recoveries) that represent late recoveries of payments of principal
and/or interest on such particular Mortgage Loan(s) in respect of which any
such
Advance was made;
(iii) [Reserved];
(iv) to
reimburse each of the Master Servicer and the Trustee for any Nonrecoverable
Advance previously made;
(v) to
reimburse the Master Servicer from Insurance Proceeds for Insured Expenses
covered by the related Insurance Policy;
(vi) to
pay the Master Servicer any unpaid Servicing Fees and to reimburse it for any
unreimbursed Servicing Advances, the Master Servicer’s right to reimbursement of
Servicing Advances pursuant to this subclause (vi) with respect to any Mortgage
Loan being limited to amounts received on particular Mortgage Loan(s)
(including, for this purpose, Liquidation Proceeds, Insurance Proceeds and
Subsequent Recoveries and purchase and repurchase proceeds) that represent
late
recoveries of the payments for which such advances were made pursuant to Section
3.01 or Section 3.06;
95
(vii) to
pay to the applicable Seller, the Depositor or the Master Servicer, as
applicable, with respect to each Mortgage Loan or property acquired in respect
thereof that has been purchased pursuant to Section 2.02, 2.03, 2.04 or 3.12,
all amounts received thereon and not taken into account in determining the
related Purchase Price of such repurchased Mortgage Loan;
(viii) to
reimburse the applicable Seller, the Master Servicer, the NIM Insurer or the
Depositor for expenses incurred by any of them in connection with the Mortgage
Loans or Certificates and reimbursable pursuant to Section 6.03 hereof; provided
that such amount shall only be withdrawn following the withdrawal from the
Certificate Account for deposit into the Distribution Account pursuant to the
following paragraph;
(ix) to
pay any lender-paid primary mortgage insurance premiums;
(x) to
withdraw any amount deposited in the Certificate Account and not required to
be
deposited therein; and
(xi) to
clear and terminate the Certificate Account upon termination of this Agreement
pursuant to Section 9.01 hereof.
In
addition, no later than 1:00 p.m. Pacific time on the Distribution Account
Deposit Date, the Master Servicer shall withdraw from the Certificate Account
and remit to the Trustee the Interest Remittance Amount, Principal Remittance
Amount, Prepayment Charges collected and the Master Servicer Prepayment Charge
Payment Amount for each Loan Group, and the Trustee shall deposit such amount
in
the Distribution Account.
The
Trustee shall establish and maintain, on behalf of the Certificateholders,
a
Principal Reserve Fund in the name of the Trustee. On the Closing
Date, CHL shall deposit into the Principal Reserve Fund
$200.00. Funds on deposit in the Principal Reserve Fund shall not be
invested. The Principal Reserve Fund shall be treated as an “outside
reserve fund” under applicable Treasury regulations and shall not be part of any
REMIC created under this Agreement.
On
the
Business Day before the first Distribution Date, the Trustee shall transfer
$100.00 from the Principal Reserve Fund to the Distribution Account, and on
the
first Distribution Date, the Trustee shall withdraw $100 and distribute such
amount to the Class A-R Certificates in reduction of the Certificate Principal
Balance thereof.
On
the
Business Day before the Class P Principal Distribution Date, the Trustee shall
transfer $100.00 from the Principal Reserve Fund to the Distribution Account
and
shall distribute such amount to the Class P Certificates on the Class P
Principal Distribution Date. Following the distribution to be made in
accordance with the preceding sentence, the Trustee shall then terminate the
Principal Reserve Fund.
96
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 subclauses (i), (ii), (iv), (v), (vi), (vii),
(viii) and (ix) above. Prior to making any withdrawal from the
Certificate Account pursuant to subclause (iv), 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 Loan(s),
and
their respective portions of such Nonrecoverable Advance.
(b) The
Trustee shall withdraw funds from the Distribution Account for distribution
to
the Certificateholders and remittance to the Final Maturity Reserve Fund and
the
Swap Account 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 retain
pursuant to the third paragraph of Section 8.11). In addition, the
Trustee may from time to time make withdrawals from the Distribution Account
for
the following purposes:
(i) to
pay the Trustee the Trustee Fee on each Distribution Date;
(ii) to
pay to the Master Servicer, as additional servicing compensation, earnings
on or
investment income with respect to funds in or credited to the Distribution
Account;
(iii) to
withdraw pursuant to Section 3.05 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(d) 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(d) 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)(iv) hereof;
(vi) to
pay to the Co-Trustee, for payment to the Mortgage Insurer as provided below,
the Mortgage Insurance Premium; and
(vii) to
clear and terminate the Distribution Account upon termination of the Agreement
pursuant to Section 9.01 hereof.
The
Co-Trustee shall pay the Mortgage Insurance Premium to the Mortgage Insurer
in
accordance with the following wiring instructions:
97
United
Guaranty Mortgage Indemnity Company, Account #2035650940583, Wachovia Bank,
000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, ABA #000000000,
Txt: Attention: Xxxx Xxxxx, CWABS 2007-5 Pool, Bulk Deal
84.
(c) The
Trustee shall withdraw funds from the Carryover Reserve Fund for distribution
to
the 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 retain pursuant to the third paragraph of Section
8.11). In addition, the Trustee may from time to time make
withdrawals from the Carryover Reserve Fund for the following
purposes:
(1) to
withdraw any amount deposited in the Carryover Reserve Fund and not required
to
be deposited therein; and
(2) to
clear and terminate the Carryover Reserve Fund upon termination of the Agreement
pursuant to Section 9.01 hereof.
|
|
Section
3.09
|
[Reserved].
|
|
|
Section
3.10
|
Maintenance
of Hazard Insurance.
|
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 and (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 related Mortgagor and/or 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. The Master Servicer shall also cause flood insurance to be
maintained on property acquired upon foreclosure or deed in lieu of foreclosure
of any Mortgage Loan, to the extent described below. Pursuant to
Section 3.05 hereof, 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 property thus acquired 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
hereof. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property is
located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in the
national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such
flood insurance shall be in an amount equal to the lesser of (i) the original
principal balance of the related Mortgage Loan, (ii) the replacement value
of
the improvements that are part of such Mortgaged Property, or (iii) the maximum
amount of such insurance available for the related Mortgaged Property under
the
Flood Disaster Protection Act of 1973, as amended. If the hazard
policy contains a deductible clause, the Master Servicer will be required to
deposit from its own funds into the Certificate Account the amounts that would
have been deposited therein but for the deductible clause.
98
|
|
Section
3.11
|
Enforcement
of Due-On-Sale Clauses; Assumption
Agreements.
|
(a) Except
as otherwise provided in this Section 3.11(a), when any property subject to
a
Mortgage has been or is about to be 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
3.11(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 3.11(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. The Master Servicer shall notify the Trustee that any such
substitution, modification or assumption agreement has been completed by
forwarding to the Co-Trustee the executed original of such substitution or
assumption agreement, which document 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.
(b) Subject
to the Master Servicer’s duty to enforce any due-on-sale clause to the extent
set forth in Section 3.11(a) hereof, in any case in which a Mortgaged Property
has been conveyed to a Person by a Mortgagor, and such Person is to enter into
an assumption agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if an instrument
of release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Master Servicer shall prepare and deliver
or
cause to be prepared and delivered to the Trustee for signature and shall
direct, in writing, the Trustee to execute the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed and such modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments
as
are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws 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
(including, but not limited to, the Mortgage Rate, the amount of the Scheduled
Payment, the Maximum Mortgage Rate, the Minimum Mortgage Rate, the Gross Margin,
the Initial Periodic Rate Cap, the Subsequent Periodic Rate Cap, the
Adjustment Date and any other term affecting the amount or timing of payment
on
the Mortgage Loan) 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. 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.
99
|
|
Section
3.12
|
Realization
Upon Defaulted Mortgage Loans; Determination of Excess Proceeds and
Realized Losses; Repurchase of Certain Mortgage
Loans.
|
(a) Notwithstanding
the first sentence of Section 3.01, the Master Servicer may agree to any
modification of any Mortgage Loan (the “Modified Mortgage Loan”) if (i) CHL
purchases the Modified Mortgage Loan from the Trust Fund immediately following
the modification as described below and (ii) the Stated Principal Balance of
such Mortgage Loan, when taken together with the aggregate of the Stated
Principal Balances of all other Mortgage Loans that have been so modified since
the Closing Date at the time of those modifications, does not exceed an amount
equal to 5% of the aggregate initial Certificate Principal Balance of the
Certificates. 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 CHL 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 CHL. 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. CHL shall remit the
Purchase Price to the Master Servicer for deposit into the Certificate Account
pursuant to Section 3.05 within one Business Day after the purchase of the
Modified Mortgage Loan. Upon receipt by the Trustee of written
notification of any such deposit signed by a Servicing Officer, the Trustee
shall release to CHL or its designee 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 CHL any Modified Mortgage Loan
previously transferred and assigned pursuant hereto. CHL 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 (a), any holding of a
Modified Mortgage Loan by the Trust Fund or any purchase of a Modified Mortgage
Loan by CHL (but such obligation shall not prevent CHL or any other appropriate
Person from in good faith contesting any such tax in appropriate proceedings
and
shall not prevent CHL from withholding payment of such tax, if permitted by
law,
pending the outcome of such proceedings). CHL 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
CHL. If the Master Servicer agrees to a modification of any Mortgage
Loan pursuant to this Section 3.12(a), and if such Mortgage Loan carries a
Prepayment Charge provision, CHL shall deliver to the Trustee the amount of
the
Prepayment Charge, if any, that would have been due had such Mortgage Loan
been
prepaid at the time of such modification, for deposit into the Certificate
Account (not later than 1:00 p.m. Pacific time on the Master Servicer Advance
Date immediately succeeding the date of such modification) for distribution
in
accordance with the terms of this Agreement.
100
(b) 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
the requirements of the insurer under any Required Insurance Policy; provided
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 (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account pursuant to Section 3.08
hereof). The Master Servicer shall be responsible for all other costs
and expenses incurred by it in any such proceedings; provided that it shall
be
entitled to reimbursement thereof from the proceeds of liquidation of the
related Mortgaged Property and any related Subsequent Recoveries, as
contemplated in Section 3.08 hereof. If the Master Servicer has
knowledge that a Mortgaged Property that 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 with environmental or hazardous waste risks known
to
the Master Servicer, the Master Servicer will, prior to acquiring the Mortgaged
Property, consider such risks and only take action in accordance with its
established environmental review procedures.
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders (or the
Trustee’s 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 this 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 Master Servicer and
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 management and 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 related to
foreclosures, abandonments and cancellation of indebtedness income as specified
by Sections 1445, 6050J and 6050P of the Code by preparing and filing such
tax
and information returns, as may be required.
101
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, but in no
event
later than three years after its acquisition by the Trust Fund or, at the
expense of the Trust Fund, the Master Servicer shall request, more than 60
days
prior to the day on which such three-year period would otherwise expire, an
extension of the three-year grace period. In the event the Trustee
shall have been supplied with an Opinion of Counsel (such opinion not to be
an
expense of the Trustee) to the effect that the holding by the Trust Fund of
such
Mortgaged Property subsequent to such three-year period will not result in
the
imposition of taxes on “prohibited transactions” of the Trust Fund as defined in
section 860F of the Code or cause any REMIC formed hereunder to fail to qualify
as a REMIC at any time that any Certificates are outstanding, and 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 the Trust
Fund 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.
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 Mortgaged
Properties acquired through foreclosure or other judicial proceeding, 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 Servicing Fees, Advances, Servicing Advances and any management
fee
paid or to be paid with respect to the management of such Mortgaged Property,
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 income received during a Prepayment Period
is in excess of the amount attributable to amortizing principal and accrued
interest at the related Mortgage Rate on the related Mortgage Loan, such excess
shall be considered to be a partial Principal Prepayment for all purposes
hereof.
102
The
Liquidation Proceeds from any liquidation of a Mortgage Loan and any Subsequent
Recoveries, net of any payment to the Master Servicer as provided above, shall
be deposited in the Certificate Account as provided in Section 3.05 for
distribution on the related Distribution Date, except that any Excess Proceeds
shall be retained by the Master Servicer as additional servicing
compensation.
The
proceeds of any Liquidated Mortgage Loan, as well as any recovery resulting
from
a partial collection of Liquidation Proceeds or any income from an REO Property,
will be applied in the following order: first, to reimburse the Master Servicer
for any related unreimbursed Servicing Advances and Servicing Fees, pursuant
to
Section 3.08(a)(vi) or this Section 3.12; second, to reimburse the Master
Servicer for any unreimbursed Advances, pursuant to Section 3.08(a)(ii) or
this
Section 3.12; third, to accrued and unpaid interest (to the extent no Advance
has been made for such amount) on the Mortgage Loan or related REO Property,
at
the Net Mortgage Rate to the Due Date occurring in the month in which such
amounts are required to be distributed; and fourth, as a recovery of principal
of the Mortgage Loan.
(c) [Reserved].
(d) The
Master Servicer, in its sole discretion, shall have the right to elect (by
written notice sent to the Trustee) to purchase for its own account from the
Trust Fund any Mortgage Loan that is 150 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 last day of the calendar month in
which such Mortgage Loan became 150 days delinquent (such month, the “Eligible
Repurchase Month”); provided further, that any such Mortgage Loan which becomes
current but thereafter becomes delinquent may be purchased by the Master
Servicer pursuant to this Section in any ensuing Eligible Repurchase
Month. The Purchase Price for any Mortgage Loan purchased hereunder
shall be deposited in the Certificate Account. Any purchase of a
Mortgage Loan pursuant to this Section 3.12(d) shall be accomplished by
remittance to the Master Servicer for deposit in the Certificate Account of
the
Purchase Price. The Trustee, upon receipt of certification from the
Master Servicer of such deposit and a Request for File Release from the Master
Servicer, 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.
103
|
|
Section
3.13
|
Co-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 promptly notify the Co-Trustee by
delivering a Request for File Release. Upon receipt of such request,
the Co-Trustee shall promptly release the related Mortgage File to the Master
Servicer, and the Co-Trustee shall at the Master Servicer’s direction execute
and deliver to the Master Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Mortgage in each case provided by the Master Servicer, together
with the Mortgage Note with written evidence of cancellation
thereon. The Master Servicer is authorized to cause the removal from
the registration on the MERS® System of such Mortgage and to execute and
deliver, on behalf of the Trust Fund and the Certificateholders or any of them,
any and all instruments of satisfaction or cancellation or of partial or full
release. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account, the Distribution Account, the Carryover Reserve Fund or the related
subservicing account. 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 Co-Trustee shall, upon delivery to the
Co-Trustee of a Request for Document Release or a Request for File Release,
as
applicable, release the documents specified in such request or the Mortgage
File, as the case may be, 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 Co-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 Co-Trustee a Request
for
File Release for any remaining documents in the Mortgage File not in the
possession of the Master Servicer.
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. Notwithstanding the foregoing, the Master Servicer shall
cause possession of any Mortgage File or of the documents therein that shall
have been released by the Co-Trustee to be returned to the Co-Trustee within
21
calendar days after possession thereof shall have been released by the
Co-Trustee unless (i) the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Certificate
Account, and the Master Servicer shall have delivered to the Co-Trustee a
Request for File Release or (ii) the Mortgage File or document shall have been
delivered to an attorney or to a public trustee or other public official as
required by law for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property and the Master
Servicer shall have delivered to the Trustee an Officer’s Certificate of a
Servicing Officer certifying as to the name and address of the Person to which
the Mortgage File or the documents therein were delivered and the purpose or
purposes of such delivery.
104
|
|
Section
3.14
|
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 Co-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 that 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 or Subsequent Recoveries including but not limited to,
any
funds on deposit in the Certificate Account, shall be held by the Master
Servicer for and on behalf of the Trust Fund and shall be and remain the sole
and exclusive property of the Trust Fund, 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, the Distribution Account, the Carryover Reserve Fund
or
in any Escrow Account (as defined in Section 3.06), 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 set off 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
3.15
|
Servicing
Compensation.
|
As
compensation for its activities hereunder, the Master Servicer shall be entitled
to retain or withdraw from the Certificate Account out of each payment of
interest on a Mortgage Loan included in the Trust Fund an amount equal to
interest at the related Servicing Fee Rate on the Stated Principal Balance
of
the related Mortgage Loan for the period covered by such interest
payment.
Additional
servicing compensation in the form of any Excess Proceeds, assumption fees,
late
payment charges, Prepayment Interest Excess, 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 or 3.12(b) hereof. The Master Servicer shall
be required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including payment of any premiums for hazard insurance,
as
required by Section 3.10 hereof and maintenance of the other forms of insurance
coverage required by Section 3.10 hereof) and shall not be entitled to
reimbursement therefor except as specifically provided in Sections 3.08 and
3.12
hereof.
105
|
|
Section
3.16
|
Access
to Certain Documentation.
|
The
Master Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of the Certificates and 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 of the Master
Servicer designated by it. Nothing in this Section shall limit the
obligation of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of the Master
Servicer to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section.
|
|
Section
3.17
|
Annual
Statement as to Compliance.
|
(a) The
Master Servicer shall deliver to the Depositor and the Trustee on or before
March 15 of each year, commencing with its 2008 fiscal year, an Officer’s
Certificate stating, as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer under
this Agreement, has been made under such officer’s supervision and (ii) to the
best of such officer’s knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement, in all material respects
throughout such year (or applicable portion thereof), or, if there has been
a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status thereof and (iii)
to the best of such officer’s knowledge, each Subservicer has fulfilled all its
obligations under its Subservicing Agreement in all material respects throughout
such year, or, if there has been a failure to fulfill any such obligation in
any
material respect specifying each such failure known to such officer and the
nature and status thereof.
(b) The
Master Servicer shall cause each Subservicer to deliver to the Depositor and
the
Trustee on or before March 15 of each year, commencing with its 2008 fiscal
year, an Officer’s Certificate stating, as to the signer thereof, that (i) a
review of the activities of such Subservicer during the preceding calendar
year
(or applicable portion thereof) and of the performance of the Subservicer under
the applicable Subservicing Agreement or primary servicing agreement, has been
made under such officer’s supervision and (ii) to the best of such officer’s
knowledge, based on such review, such Subservicer has fulfilled all its
obligations under the applicable Subservicing Agreement or primary servicing
agreement, in all material respects throughout such year (or applicable portion
thereof), or, if there has been a failure to fulfill any such obligation in
any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
(c) The
Trustee shall forward a copy of each such statement to each Rating
Agency. Copies of such statement shall be provided by the Trustee to
any Certificateholder or Certificate Owner upon request at the Master Servicer’s
expense, provided such statement is delivered by the Master Servicer to the
Trustee.
106
|
|
Section
3.18
|
[Reserved].
|
|
|
Section
3.19
|
The
Corridor Contracts.
|
CHL
shall
cause The Bank of New York to enter into the Corridor Contract Administration
Agreement and shall assign all of its right, title and interest in and to the
interest rate corridor transactions evidenced by the Corridor Contracts to,
and
shall cause all of its obligations in respect of such transactions to be assumed
by, the Corridor Contract Administrator, on the terms and conditions set forth
in the Corridor Contract Assignment Agreement. The Trustee’s rights
to receive certain proceeds of the Corridor Contracts as provided in the
Corridor Contract Administration Agreement will be an asset of the Trust Fund
but will not be an asset of any REMIC. The Trustee shall deposit any
amounts received from time to time with respect to any Corridor Contract into
the Carryover Reserve Fund. The Master Servicer shall deposit any
amounts received on behalf of the Trustee from time to time with respect to
any
Corridor Contract into the Carryover Reserve Fund.
No
later
than two Business Days following each Distribution Date, the Trustee shall
provide the Corridor Contract Administrator with information regarding the
aggregate Certificate Principal Balance of the Class(es) of Certificates related
to each Corridor Contract after all distributions on such Distribution
Date.
The
Trustee shall direct the Corridor Contract Administrator to terminate a Corridor
Contract 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 Corridor Contract
Administrator an amount in respect of such termination, and the portion of
such
amount that is distributable to the Trust Fund pursuant to the Corridor Contract
Administration Agreement and received by the Trustee or the Master Servicer
for
the benefit of the Trust Fund, as the case may be, in respect of such
termination shall be deposited and held in the Carryover Reserve Fund to pay
Net
Rate Carryover for the applicable Classes of Certificates as provided in Section
4.04(d) on the Distribution Dates following such termination to and including
the Corridor Contract Termination Date, but shall not be available for
distribution to the Class C Certificates pursuant to Section 4.07 until such
Corridor Contract Termination Date. On the Corridor Contract
Termination Date, after all other distributions on such date, if any such
amounts in respect of early termination of the related Corridor Contract remain
in the Carryover Reserve Fund, such amounts shall be distributed by the Trustee
to the Class C Certificates.
|
|
Section
3.20
|
Prepayment
Charges.
|
(a) Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Master Servicer may not
waive any Prepayment Charge or portion thereof required by the terms of the
related Mortgage Note unless (i) such Mortgage Loan is in default or the Master
Servicer believes that such a default is imminent, and the Master Servicer
determines that such waiver would maximize recovery of Liquidation Proceeds
for
such Mortgage Loan, taking into account the value of such Prepayment Charge,
or
(ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership, or other similar law relating to creditors’ rights
generally or (2) due to acceleration in connection with a foreclosure or other
involuntary payment, or (B) the enforceability is otherwise limited or
prohibited by applicable law. In the event of a Principal Prepayment
in full or in part with respect to any Mortgage Loan, the Master Servicer shall
deliver to the Trustee an Officer’s Certificate substantially in the form of
Exhibit T no later than the third Business Day following the immediately
succeeding Determination Date with a copy to the Class P
Certificateholders. If the Master Servicer has waived or does not
collect all or a portion of a Prepayment Charge relating to a Principal
Prepayment in full or in part due to any action or omission of the Master
Servicer, other than as provided above, the Master Servicer shall deliver to
the
Trustee, together with the Principal Prepayment in full or in part, the amount
of such Prepayment Charge (or such portion thereof as had been waived) for
deposit into the Certificate Account (not later than 1:00 p.m. Pacific time
on
the immediately succeeding Master Servicer Advance Date, in the case of such
Prepayment Charge) for distribution in accordance with the terms of this
Agreement.
107
(b) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee of
a
breach of the foregoing subsection (a), the party discovering the breach shall
give prompt written notice to the other parties.
(c) CHL
represents and warrants to the Depositor and the Trustee, as of the Closing
Date
and each Subsequent Transfer Date, that the information in the Prepayment Charge
Schedule (including the attached prepayment charge summary) is complete and
accurate in all material respects at the dates as of which the information
is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms under applicable state law, except as the
enforceability thereof is limited due to acceleration in connection with a
foreclosure or other involuntary payment.
(d) Upon
discovery by the Master Servicer or a Responsible Officer of the Trustee of
a
breach of the foregoing clause (c) that materially and adversely affects right
of the Holders of the Class P Certificates to any Prepayment Charge, the party
discovering the breach shall give prompt written notice to the other parties.
Within 60 days of the earlier of discovery by the Master Servicer or receipt
of
notice by the Master Servicer of breach, the Master Servicer shall cure the
breach in all material respects or shall pay into the Certificate Account the
amount of the Prepayment Charge that would otherwise be due from the Mortgagor,
less any amount representing such Prepayment Charge previously collected and
paid by the Master Servicer into the Certificate Account.
|
|
Section
3.21
|
Swap
Contract.
|
CHL
shall
cause The Bank of New York to enter into the Swap Contract Administration
Agreement and shall assign all of its right, title and interest in and to the
interest rate swap transaction evidenced by the Swap Contract to, and shall
cause all of its obligations in respect of such transaction to be assumed by,
the Swap Contract Administrator, on the terms and conditions set forth in the
Swap Contract Assignment Agreement. The Trustee’s rights to receive
certain proceeds of the Swap Contract as provided in the Swap Contract
Administration Agreement shall be rights of the Trustee as Swap Trustee
hereunder, shall be an asset of the Swap Trust and shall not be an asset of
the
Trust Fund nor of any REMIC. The Swap Trustee shall deposit any
amounts received from time to time from the Swap Contract Administrator with
respect to the Swap Contract into the Swap Account. The Master
Servicer shall deposit any amounts received on behalf of the Swap Trustee from
time to time with respect to the Swap Contract into the Swap
Account.
108
On
the
Business Day preceding each Distribution Date, the Swap Trustee shall notify
the
Swap Contract Administrator of any amounts distributable to the Interest-Bearing
Certificates pursuant to Section 4.04(e)(3) through (8) that will remain unpaid
following all distributions to be made on such Distribution Date pursuant to
Section 4.04(a) through (d).
No
later
than two Business Days following each Distribution Date, the Trustee shall
provide the Swap Contract Administrator with information regarding the aggregate
Certificate Principal Balance of the Interest-Bearing Certificates after all
distributions on such Distribution Date.
Upon
the
Swap Contract Administrator obtaining actual knowledge of the rating of the
Swap
Counterparty falling below the Approved Ratings Threshold (as defined in the
ISDA Master Agreement) or upon the Swap Contract Administrator obtaining actual
knowledge of the rating of the Swap Counterparty falling below the Required
Ratings Threshold (as defined in the ISDA Master Agreement), the Swap Trustee
shall direct the Swap Contract Administrator to (i) demand payment of the
Delivery Amount (as defined in the ISDA Master Agreement) from the Swap
Counterparty on each Valuation Date (as defined in the ISDA Master Agreement)
and perform its other obligations in accordance with the ISDA Master Agreement
and (ii) take such other action required under the ISDA Master
Agreement. If a Delivery Amount is demanded, the Swap Contract
Administrator, in accordance with the Swap Contract Administration Agreement,
shall establish an account to hold cash and other eligible investments pledged
under the ISDA Master Agreement. Any cash or other Eligible
Collateral (as defined in the ISDA Master Agreement) pledged under the ISDA
Master Agreement shall not be part of the Distribution Account or the Swap
Account unless remitted to such accounts by the Swap Contract Administrator
in
accordance with the Swap Contract Administration Agreement. If
Eligible Collateral with a value equal to the Delivery Amount is not delivered
to the Swap Contract Administrator by the Swap Counterparty, the Swap Trustee
shall direct the Swap Contract Administrator to notify the Swap Counterparty
of
such failure.
Upon
the
Swap Trustee obtaining actual knowledge of an Event of Default (as defined
in
the ISDA Master Agreement) or Termination Event (as defined in the ISDA Master
Agreement) for which the Swap Contract Administrator has the right to designate
an Early Termination Date (as defined in the ISDA Master Agreement), the Swap
Trustee shall act at the written direction of the Depositor as to whether to
direct the Swap Contract Administrator to designate an Early Termination Date;
provided, however, that the Swap Trustee shall provide written notice to each
Rating Agency following the Event of Default or Termination
Event. Upon the termination of the Swap Contract under the
circumstances contemplated by this Section 3.21, the Swap Trustee shall use
its
reasonable best efforts to enforce the rights of the Swap Contract Administrator
as may be permitted by the terms of the ISDA Master Agreement and consistent
with the terms hereof and CHL shall assist the Swap Contract Administrator
in
procuring a replacement swap contract with terms approximating those of the
original Swap Contract.
109
Any
Swap
Termination Payment received from the Swap Counterparty shall be used to pay
any
upfront amount required under any replacement swap contract and any excess
shall
be distributed to CHL and will not be available to make distributions in respect
of any Class of Certificates. In the event that a replacement swap
contract cannot be procured, any Swap Termination Payment received from the
Swap
Counterparty in respect of the termination of the original Swap Contract shall,
in accordance with the Swap Contract Administration Agreement, be retained
by
the Swap Contract Administrator and remitted to the Swap Trustee on subsequent
Distribution Dates up to and including the Swap Contract Termination Date to
pay
any amounts distributable to the Interest-Bearing Certificates pursuant to
Section 4.04(e)(3) through (8) that will remain unpaid following all
distributions to be made on such Distribution Date pursuant to Section 4.04(a)
through (d). Any portion of such upfront amount remaining after the
Swap Contract Termination Date shall be distributed to CHL and will not be
available to make distributions in respect of any Class of
Certificates.
In
the
event that the swap counterparty in respect of a replacement swap contract
pays
any upfront amount to the Swap Contract Administrator in connection with
entering into the replacement swap contract and such upfront amount is received
by the Swap Contract Administrator prior to the Distribution Date on which
any
Swap Termination Payment will be payable to the Swap Counterparty in respect
of
the original Swap Contract, a portion of that upfront amount equal to the lesser
of (x) that upfront amount and (y) the amount of the Swap Termination Payment
due to the Swap Counterparty in respect of the original Swap
Contract (the “Adjusted Replacement Upfront Amount”) shall be
included in Interest Funds for Loan Group 1 and Loan Group 2 for that
Distribution Date, pro rata, based upon their respective Interest Funds for
that
Distribution Date, and any upfront amount in excess of the Adjusted Replacement
Upfront Amount shall be distributed to CHL and will not be available to make
distributions in respect of any Class of Certificates. If any upfront
amount is paid to the Swap Contract Administrator by the swap counterparty
in
respect of a replacement swap contract after the Distribution Date on which
any
Swap Termination Payment will be payable to the Swap Counterparty in respect
of
the original Swap Contract, such upfront amount shall, in accordance with the
Swap Contract Administration Agreement, be retained by the Swap Contract
Administrator and remitted to the Swap Trustee on subsequent Distribution Dates
up to and including the Swap Contract Termination Date to pay any amounts
distributable to the Interest-Bearing Certificates pursuant to Section
4.04(e)(3) through (8) that will remain unpaid following all distributions
to be
made on such Distribution Date pursuant to Section 4.04(a) through
(d).
The
Swap
Counterparty shall be an express third party beneficiary of this Agreement
for
the purpose of enforcing the provisions hereof to the extent of the Swap
Counterparty’s rights explicitly specified herein as if a party
hereto.
ARTICLE
IV.
DISTRIBUTIONS
AND ADVANCES BY THE MASTER SERVICER
|
|
Section
4.01
|
Advances;
Remittance Reports.
|
(a) Within
two Business Days after each Determination Date, the Master Servicer shall
deliver to the Trustee by facsimile or electronic mail (or by such other means
as the Master Servicer and the Trustee, as the case may be, may agree from
time
to time) a Remittance Report with respect to the related Distribution
Date. The Trustee shall not be responsible to recompute, recalculate
or verify any information provided to it by the Master Servicer.
110
(b) Subject
to the conditions of this Article IV, the Master Servicer, as required below,
shall make an Advance and deposit such Advance in the Certificate
Account. Each such Advance shall be remitted to the Certificate
Account no later than 1:00 p.m. Pacific time on the Master Servicer Advance
Date
in immediately available funds. The Trustee will provide notice to
the Master Servicer by facsimile by the close of business on any Master Servicer
Advance Date in the event that the amount remitted by the Master Servicer to
the
Trustee on the Distribution Account Deposit Date is less than the Advances
required to be made by the Master Servicer for such Distribution
Date. The Master Servicer shall be obligated to make any such Advance
only to the extent that such advance would not be a Nonrecoverable
Advance. If the Master Servicer shall have determined that it has
made a Nonrecoverable Advance or that a proposed Advance or a lesser portion
of
such Advance would constitute a Nonrecoverable Advance, the Master Servicer
shall deliver (i) to the Trustee for the benefit of the Certificateholders
funds
constituting the remaining portion of such Advance, if applicable, and (ii)
to
the Depositor, each Rating Agency and the Trustee an Officer’s Certificate
setting forth the basis for such determination.
(c) In
lieu of making all or a portion of such Advance from its own funds, the Master
Servicer may (i) cause to be made an appropriate entry in its records relating
to the Certificate Account that any Amount Held for Future Distributions has
been used by the Master Servicer in discharge of its obligation to make any
such
Advance and (ii) transfer such funds from the Certificate Account to the
Distribution Account. Any funds so applied and transferred shall be
replaced by the Master Servicer by deposit in the Certificate Account no later
than the close of business on the Business Day immediately preceding the
Distribution Date on which such funds are required to be distributed pursuant
to
this Agreement. 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 until such
Mortgage Loan is paid in full or becomes a Liquidated Mortgage Loan or until
the
purchase or repurchase thereof (or substitution therefor) from the Trustee
pursuant to any applicable provision of this Agreement, except as otherwise
provided in this Section 4.01.
(d) If
the Master Servicer determines that it will be unable to comply with its
obligation to make the Advances as and when described in paragraphs (b) and
(c)
immediately above, 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 facsimile), 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(d) 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(d) together with accrued interest, not later than 6:00 p.m. (New
York time) on the Business Day following the related Distribution
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 (i) terminate all of the rights and obligations of
the
Master Servicer under this Agreement in accordance with Section 7.01 and (ii)
subject to the limitations set forth in Section 3.04, assume all of the rights
and obligations of the Master Servicer hereunder.
111
(e) The
Master Servicer shall, not later than the close of business on the second
Business Day immediately preceding each Distribution Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the Trustee)
that indicates (i) the Mortgage Loans with respect to which the Master Servicer
has determined that the related Scheduled Payments should be advanced and (ii)
the amount of the related Scheduled Payments. The Master Servicer
shall deliver to the Trustee on the related Master Servicer Advance Date an
Officer’s Certificate of a Servicing Officer indicating the amount of any
proposed Advance determined by the Master Servicer to be a Nonrecoverable
Advance.
|
|
Section
4.02
|
Reduction
of Servicing Compensation in Connection with Prepayment Interest
Shortfalls.
|
In
the
event that any Mortgage Loan is the subject of a Prepayment Interest Shortfall,
the Master Servicer shall remit any related Compensating Interest as part of
the
related Interest Remittance Amount as provided in this Agreement. The Master
Servicer shall not be entitled to any recovery or reimbursement for Compensating
Interest from the Depositor, the Trustee, any Seller, the Trust Fund or the
Certificateholders.
|
|
Section
4.03
|
[Reserved].
|
|
|
Section
4.04
|
Distributions.
|
(a) On
each Distribution Date, the Interest Funds for such Distribution Date shall
be
distributed by the Trustee from the Distribution Account in the following
order:
(i) from
the Interest Funds for Loan Group 1 and Loan Group 2, pro rata based on the
Interest Funds for each such Loan Group, to the Final Maturity Reserve Fund,
the
Final Maturity Reserve Deposit with respect to such Distribution
Date;
(ii) from
the Interest Funds for Loan Group 1 and Loan Group 2, pro rata based on the
Interest Funds for each such Loan Group, to the Swap Account, the amount of
any
Net Swap Payment and any Swap Termination Payment (other than a Swap Termination
Payment due to a Swap Counterparty Trigger Event) payable to the Swap
Counterparty with respect to such Distribution Date;
112
(iii) concurrently:
(a) from
Interest Funds for Loan Group 1, to the Class 1-A Certificates, the Current
Interest and Interest Carry Forward Amount for such Class and such Distribution
Date,
(b) from
Interest Funds for Loan Group 2, concurrently to each Class of Class 2-A
Certificates, the Current Interest and Interest Carry Forward Amount for each
such Class and such Distribution Date, pro rata, based on their respective
entitlements;
(iv) from
the remaining Interest Funds for Loan Group 1 and Loan Group 2, concurrently,
to
each Class of Class A Certificates, any remaining Current Interest and Interest
Carry Forward Amount not paid pursuant to clause (iii)(a) and (iii)(b), pro
rata, based on the Certificate Principal Balances thereof, to the extent needed
to pay any Current Interest and Interest Carry Forward Amount for each such
Class; provided that Interest Funds remaining after such allocation to pay
any
Current Interest and Interest Carry Forward Amount based on the Certificate
Principal Balances of the Certificates will be distributed to each Class of
Class A Certificates with respect to which there remains any unpaid Current
Interest and Interest Carry Forward Amount (after the distribution based on
Certificate Principal Balances), pro rata, based on the amount of such remaining
unpaid Current Interest and Interest Carry Forward Amount; and
(v) from
the remaining Interest Funds for Loan Group 1 and Loan Group 2,
sequentially:
(a) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, the Current Interest for each
such Class, and
(b) any
remainder as part of the Excess Cashflow.
113
(b) On
each Distribution Date, the Principal Distribution Amount for such Distribution
Date with respect to Loan Group 1 and Loan Group 2 shall be distributed by
the
Trustee from the Distribution Account in the following order:
(1) with
respect to any Distribution Date prior to the Stepdown Date or on which a
Trigger Event is in effect, sequentially:
(A) concurrently:
(i) from
the Principal Distribution Amount for Loan Group 1, sequentially:
(a) to
the Class 1-A Certificates, until the Certificate Principal Balance thereof
is
reduced to zero; and
(b) to
the Classes of Class 2-A Certificates (after the distribution of the Principal
Distribution Amount from Loan Group 2 as provided in clause (ii)(a) below),
in
the order set forth in clause (3) below, until the Certificate Principal
Balances thereof are reduced to zero;
(ii) from
the Principal Distribution Amount for Loan Group 2, sequentially:
(a) to
the Classes of Class 2-A Certificates, in the order set forth in clause (3)
below, until the Certificate Principal Balances thereof are reduced to
zero; and
(b) to
the Class 1-A Certificates (after the distribution of the Principal Distribution
Amount from Loan Group 1 as provided in clause (i)(a) above), until the
Certificate Principal Balance thereof is reduced to zero;
(B) from
the remaining Principal Distribution Amounts for Loan Group 1 and Loan Group
2,
sequentially:
(i) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, in each case until the
Certificate Principal Balance thereof is reduced to zero; and
(ii) any
remainder as part of the Excess Cashflow.
(2) with
respect to any Distribution Date on or after the Stepdown Date and so long
as a
Trigger Event is not in effect, sequentially:
114
(A) in
an amount up to the Class A Principal Distribution Target Amount, pro rata
based
on the related Class A Principal Distribution Allocation Amount for the Class
1-A and Class 2-A Certificates, concurrently: (i) to the Class 1-A Certificates,
in an amount up to the Class 1-A Principal Distribution Amount, until the
Certificate Principal Balance thereof is reduced to zero; and (ii) to the
Classes of Class 2-A Certificates in an amount up to the Class 2-A Principal
Distribution Amount, allocated in the amounts and order of priority set forth
in
clause (3) below, until the Certificate Principal Balances thereof are reduced
to zero; provided, however, that if (a) the Certificate Principal Balance of
the
Class 1-A Certificates and/or (b) the aggregate Certificate Principal Balance
of
the Class 2-A Certificates is reduced to zero, then any remaining unpaid Class
A
Principal Distribution Target Amount will be distributed to the remaining
classes of Senior Certificates after distributions from clauses (i) and (ii)
above (and, in the case of the Class 2-A Certificates, in the amounts and order
of priority described in clause (3) below), until the Certificate Principal
Balance(s) thereof is/are reduced to zero;
(B) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, the Subordinate Class Principal
Distribution Amount for each such Class, in each case until the Certificate
Principal Balance thereof is reduced to zero; and
(C) any
remainder as part of the Excess Cashflow.
(3) On
each Distribution Date on which any principal amounts are to be distributed
to
the Class 2-A Certificates, such amounts shall be distributed sequentially,
to
the Class 2-A-1, Class 2-A-2, Class 2-A-3 and Class 2-A-4 Certificates, in
that
order, in each case until their respective Certificate Principal Balances are
reduced to zero.
(c) With
respect to any Distribution Date, any Excess Cashflow shall be distributed
in
the following order:
(1) to
the Class or Classes of Interest-Bearing Certificates then entitled to receive
distributions in respect of principal, in an aggregate amount equal to the
Extra
Principal Distribution Amount for each Loan Group, payable as part of the
Principal Distribution Amount for Loan Group 1 and Loan Group 2 pursuant to
Section 4.04(b) above;
(2) concurrently,
to each Class of Class A Certificates, pro rata based on the Unpaid Realized
Loss Amount for each such Class, in an amount equal to the Unpaid Realized
Loss
Amount for each such Class;
(3) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, in each case first in an amount
equal to any Interest Carry Forward Amount for such Class and then in an amount
equal to the Unpaid Realized Loss Amount for such Class;
(4) to
the Carryover Reserve Fund and from the Carryover Reserve Fund to each Class
of
Interest-Bearing Certificates (in each case after application of amounts
allocated to the Trust Fund in respect of the applicable Corridor Contract
to
cover Net Rate Carryover), pro rata based on the Certificate Principal Balances
thereof, to the extent needed to pay any Net Rate Carryover for each such Class;
provided that any Excess Cashflow remaining after such allocation to pay Net
Rate Carryover based on the Certificate Principal Balances of those Classes
shall be distributed to each Class of Interest-Bearing Certificates with respect
to which there remains any unpaid Net Rate Carryover (after the distribution
based on the Certificate Principal Balances), pro rata, based on the amount
of
such unpaid Net Rate Carryover;
115
(5) to
the Carryover Reserve Fund, in an amount equal to the Required Carryover Reserve
Fund Deposit (after giving effect to other deposits and withdrawals therefrom
on
such Distribution Date);
(6) if
and for so long as the Final Maturity OC Trigger is in effect, sequentially,
in
the following order:
(i) to
the Classes of Class A Certificates, pro rata, based on the Class 1-A Principal
Distribution Amount (in the case of clause (x)) and the Class 2-A Principal
Distribution Amount (in the case of clause (y)), concurrently: (x) to the Class
1-A Certificates, until the Certificate Principal Balance thereof is reduced
to
zero, and (y) sequentially, to the Class 2-A-1, Class 2-A-2, Class 2-A-3 and
Class 2-A-4 Certificates, in that order, until their respective Certificate
Principal Balances are reduced to zero; provided, however, that any amounts
remaining after such allocation based on the Class 1-A Principal Distribution
Amount and the Class 2-A Principal Distribution Amount will be distributed
to
the outstanding Class 1-A Certificates or the outstanding Classes of Class
2-A
Certificates, as the case may be, pursuant to clause (x) or clause (y), as
the
case may be; and
(ii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, in each case until the
Certificate Principal Balance thereof is reduced to zero;
(7) to
the Swap Account, in an amount equal to any Swap Termination Payment due to
the
Swap Counterparty as a result of a Swap Counterparty Trigger Event;
(8) to
the Class C Certificates, the Class C Distributable Amount for such Distribution
Date; and
(9) to
the Class A-R Certificates, any remaining amount.
(d) On
each Distribution Date on or prior to the Corridor Contract Termination Date,
amounts received by the Trustee in respect of each Corridor Contract for such
Distribution Date shall be withdrawn from the Carryover Reserve Fund and
distributed to the related Class(es) of Certificates prior to the application
of
Excess Cashflow pursuant to Section 4.04(c), to the extent needed to pay any
related Net Rate Carryover as follows:
(1) in
the case of any such amounts received on the Class 1-A Corridor Contract, to
the
Class 1-A Certificates, to the extent needed to pay any Net Rate Carryover
for
such Class;
116
(2) in
the case of any such amounts received on the Class 2-A Corridor Contract,
concurrently to each Class of Class 2-A Certificates, pro rata, based on the
Certificate Principal Balances thereof, to the extent needed to pay any Net
Rate
Carryover for each such Class; and then, any amounts remaining after such
allocation to pay Net Rate Carryover based on the Certificate Principal Balances
of the Class 2-A Certificates shall be distributed to each Class of Class 2-A
Certificates to the extent needed to pay any remaining unpaid Net Rate
Carryover, pro rata, based on the amount of such remaining unpaid Net Rate
Carryover;
(3) in
the case of any such amounts received on the Subordinate Corridor Contract,
concurrently to each Class of Subordinate Certificates, pro rata, based on
the
Certificate Principal Balances thereof, to the extent needed to pay any Net
Rate
Carryover for each such Class; and then, any amounts remaining after such
allocation to pay Net Rate Carryover based on the Certificate Principal Balances
of the Subordinate Certificates shall be distributed to each Class of
Subordinate Certificates to the extent needed to pay any remaining unpaid Net
Rate Carryover, pro rata, based on the amount of such remaining unpaid Net
Rate
Carryover; and
(4) any
remaining amounts to the Holders of the Class C Certificates.
(e) On
each Distribution Date on or prior to the Swap Contract Termination Date,
following the deposits to the Swap Account pursuant to Section 4.04(a)(ii)
and
Section 4.09 and the distributions described under Section 4.04(c), the Swap
Trustee shall distribute amounts on deposit in the Swap Account in the following
amounts and order:
(1) to
the Swap Contract Administrator for payment to the Swap Counterparty, any Net
Swap Payment payable to the Swap Counterparty with respect to such Distribution
Date;
(2) to
the Swap Contract Administrator for payment to the Swap Counterparty, any Swap
Termination Payment (other than a Swap Termination Payment due to a Swap
Counterparty Trigger Event) payable to the Swap Counterparty with respect to
such Distribution Date;
(3) concurrently,
to each Class of Class A Certificates, any remaining Current Interest and
Interest Carry Forward Amount, pro rata based on their respective
entitlements;
(4) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, in each case in an amount equal
to any remaining Current Interest and Interest Carry Forward Amount for such
Class;
(5) to
the Class or Classes of Interest-Bearing Certificates then entitled to receive
distributions in respect of principal, in an aggregate amount equal to the
Overcollateralization Deficiency Amount remaining unpaid following the
distributions described under Section 4.04(c), payable in the same manner in
which the Extra Principal Distribution Amount in respect of Loan Group 1 and
Loan Group 2 would be distributed to such Classes as described under Section
4.04(c);
117
(6) concurrently,
to each Class of Interest-Bearing Certificates, to the extent needed to pay
any
remaining Net Rate Carryover for each such Class, pro rata, based on the amount
of such remaining Net Rate Carryover;
(7) concurrently,
to each Class of Class A Certificates, pro rata, based on the remaining Unpaid
Realized Loss Amount for each such Class, in an amount equal to the remaining
Unpaid Realized Loss Amount for each such Class;
(8) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, in each case in an amount equal
to the remaining Unpaid Realized Loss Amount for each such Class;
and
(9) to
the Swap Contract Administrator for payment to the Swap Counterparty, any Swap
Termination Payment due to a Swap Counterparty Trigger Event payable to the
Swap
Counterparty with respect to such Distribution Date.
(f) To
the extent that a Class of Interest-Bearing Certificates receives interest
in
excess of the applicable Net Rate Cap, if such interest is paid pursuant to
Section 4.04(c) or Section 4.04(d), then it shall be deemed to have been paid
to
the Carryover Reserve Fund and then paid by the Carryover Reserve Fund to those
Certificateholders, and if such interest is paid pursuant to Section 4.04(e),
then such interest shall be deemed to have been paid to the Swap Account and
then paid by the Swap Account to those Certificateholders. For
purposes of the Code, amounts deemed deposited in the Carryover Reserve Fund
shall be deemed to have first been distributed to the Class C
Certificates.
(g) On
each Distribution Date, all Prepayment Charges and Master Servicer Prepayment
Charge Payment Amounts shall be distributed to the Class P
Certificates.
(h) On
each Distribution Date, the Trustee shall allocate any Applied Realized Loss
Amount to reduce the Certificate Principal Balances of the Class M-8, Class
M-7,
Class M-6, Class M-5, Class M-4, Class M-3, Class M-2 and Class M-1
Certificates, sequentially, in that order, in each case until the Certificate
Principal Balance thereof is reduced to zero. After the Certificate
Principal Balances of the Subordinate Certificates have been reduced to zero,
(i) the Trustee shall allocate any Applied Realized Loss Amount with respect
to
Loan Group 1 to reduce the Certificate Principal Balance of the Class 1-A
Certificates, until the Certificate Principal Balance of such Class has been
reduced to zero, and (ii) the Trustee shall allocate any Applied Realized Loss
Amount with respect to Loan Group 2 to reduce the Certificate Principal Balances
of each Class of Class 2-A Certificates, on a pro rata basis according to their
respective Certificate Principal Balances, until the Certificate Principal
Balances of such Classes have been reduced to zero.
(i) On
each Distribution Date, the Trustee shall allocate the amount of the Subsequent
Recoveries with respect to either Loan Group, if any, first to increase the
Certificate Principal Balance of the Class 1-A Certificates (in the case of
any
Subsequent Recoveries with respect to Loan Group 1) or the Certificate Principal
Balances of the Classes of Class 2-A Certificates (in the case of any Subsequent
Recoveries with respect to Loan Group 2) to which Applied Realized Loss Amounts
have been previously allocated (such increases, in the case of Subsequent
Recoveries with respect to Loan Group 2, to be made among the Classes of Class
2-A Certificates on a pro rata basis according to their respective Certificate
Principal Balances), in each case by not more than the amount of the Unpaid
Realized Loss Amount of such Class, and then to increase the Certificate
Principal Balance of the Subordinate Certificates to which Applied Realized
Loss
Amounts have been previously allocated, sequentially, to the Class X-0, Xxxxx
X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, in each case by not more than the amount of the
Unpaid Realized Loss Amount of such Class.
118
Holders
of Certificates to which any Subsequent Recoveries have been allocated shall
not
be entitled to any payment in respect of Current Interest on the amount of
such
increases for any Accrual Period preceding the Distribution Date on which such
increase occurs.
Subject
to Section 9.02 hereof respecting the final distribution, on each Distribution
Date the Trustee shall make distributions to each Certificateholder of record
on
the preceding Record Date either 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 Regular Certificates with an aggregate initial Certificate Principal
Balance of not less than $1,000,000 or evidencing a Percentage Interest
aggregating 10% or more with respect to such Class or, if not, by check mailed
by first class mail to such Certificateholder at the address of such Holder
appearing in the Certificate Register. Notwithstanding the foregoing,
but subject to Section 9.02 hereof respecting the final distribution,
distributions with respect to Certificates registered in the name of a
Depository shall be made to such Depository in immediately available
funds.
On
or
before 5:00 p.m. Pacific time on the fifth Business Day following each
Determination Date (but in no event later than 5:00 p.m. Pacific time on the
third Business Day before the related Distribution Date), the Master Servicer
shall deliver a report to the Trustee (in the form of a computer readable
magnetic tape or by such other means as the Master Servicer and the Trustee
may
agree from time to time) containing such data and information as agreed to
by
the Master Servicer and the Trustee such as to permit the Trustee to prepare
the
Monthly Statement and make the required distributions for the related
Distribution Date (the “Remittance Report”). The Trustee shall not be
responsible to recompute, recalculate or verify information provided to it
by
the Master Servicer and shall be permitted to conclusively rely on any
information provided to it by the Master Servicer.
(j) On
the earlier of (i) the Distribution Date in March 2037 and (ii) the termination
of this Agreement pursuant to Section 9.01, after giving effect to the
distribution of all available funds, all amounts on deposit in the Final
Maturity Reserve Fund will be distributed in the following order:
(1) to
the Classes of Class A Certificates, pro rata, based on the Class 1-A Principal
Distribution Amount (in the case of clause (x)) and the Class 2-A Principal
Distribution Amount (in the case of clause (y)), concurrently: (x) to the Class
1-A Certificates, until the Certificate Principal Balance thereof is reduced
to
zero, and (y) sequentially, to the Class 2-A-1, Class 2-A-2, Class 2-A-3 and
Class 2-A-4 Certificates, in that order, in each case, until the Certificate
Principal Balance thereof is reduced to zero; provided, however, that any
amounts remaining after such allocation based on the Class 1-A Principal
Distribution Amount and the Class 2-A Principal Distribution Amount will be
distributed to the outstanding Class 1-A Certificates or the outstanding Classes
of Class 2-A Certificates, as the case may be, pursuant to clause (x) or clause
(y), as the case may be; and
119
(2) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, until the Certificate Principal
Balances thereof are reduced to zero; and
(3) to
the Class C Certificates, all remaining amounts.
|
|
Section
4.05
|
Monthly
Statements to
Certificateholders.
|
(a) Concurrently
with each distribution on a Distribution Date, the Trustee will forward by
mail
to each Rating Agency and make available to Certificateholders on the Trustee’s
website (xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting
forth the information contained in Exhibit W.
(b) The
Trustee’s responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy
of
the information derived from the Master Servicer. The Trustee shall
send a copy of each statement provided pursuant to this Section 4.05 to each
Rating Agency and the NIM Insurer. The Trustee may make the above
information available to Certificateholders via the Trustee’s website at
xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx.
(c) 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 regarding
(i) the amount of distributions to that Certificateholder allocable to
principal, separately identifying (A) the aggregate amount of any Principal
Prepayments included therein and (B) the aggregate of all scheduled payments
of
principal included therein, (ii) the amount of distributions to that
Certificateholder allocable to interest and (iii) the related amount of the
Servicing Fees paid to or retained by the Master Servicer, in each case
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.
120
(d) Upon
filing with the Internal Revenue Service, the Trustee shall furnish to the
Holders of the Class A-R Certificates the Form 1066 and each Form 1066Q and
shall respond promptly to written requests made not more frequently than
quarterly by any Holder of Class A-R Certificates with respect to the following
matters:
(1) The
original projected principal and interest cash flows on the Closing Date on
each
related Class of regular and residual interests created hereunder and on the
Mortgage Loans, based on the Prepayment Assumption;
(2) The
projected remaining principal and interest cash flows as of the end of any
calendar quarter with respect to each related Class of regular and residual
interests created hereunder and the Mortgage Loans, based on the Prepayment
Assumption;
(3) The
applicable Prepayment Assumption and any interest rate assumptions used in
determining the projected principal and interest cash flows described
above;
(4) The
original issue discount (or, in the case of the Mortgage Loans, market discount)
or premium accrued or amortized through the end of such calendar quarter with
respect to each related Class of regular or residual interests created hereunder
and to the Mortgage Loans, together with each constant yield to maturity used
in
computing the same;
(5) The
treatment of losses realized with respect to the Mortgage Loans or the regular
interests created hereunder, including the timing and amount of any cancellation
of indebtedness income of the related REMIC with respect to such regular
interests or bad debt deductions claimed with respect to the Mortgage
Loans;
(6) The
amount and timing of any non-interest expenses of the related REMIC;
and
(7) Any
taxes (including penalties and interest) imposed on the related REMIC,
including, without limitation, taxes on “prohibited transactions,”
“contributions” or “net income from foreclosure property” or state or local
income or franchise taxes.
The
information pursuant to clauses (1), (2), (3)and (4) above shall be provided
by
the Depositor pursuant to Section 8.11.
|
|
Section
4.06
|
Termination
of the Mortgage Insurance
Policy.
|
If
during
the period which the Depositor is required to file Exchange Act Reports with
respect to the Trust Fund, United Guaranty Mortgage Indemnity Company shall
fail
to provide to CHL any information reasonably requested by CHL for the purposes
of compliance with Item 1114 of Regulation AB, then the Co-Trustee shall act
at
the written direction of the Depositor as to whether to terminate the Mortgage
Insurance Policy; provided, however, that the Co-Trustee shall provide written
notice to each Rating Agency of any such termination. Upon the
termination of the Mortgage Insurance Policy under the circumstances
contemplated by this paragraph, CHL shall assist the Co-Trustee in procuring
a
replacement mortgage insurance policy that meets the criteria for a replacement
mortgage insurance policy specified in the preceding paragraph.
121
|
|
Section
4.07
|
Carryover
Reserve Fund.
|
(a) On
the Closing Date, the Trustee shall establish and maintain in its name, in
trust
for the benefit of the Holders of the Certificates, the Carryover Reserve Fund
and shall deposit $1,000 therein. The Carryover Reserve Fund shall be
an Eligible Account, and funds on deposit therein shall be held separate and
apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trustee pursuant to this
Agreement.
(b) On
each Distribution Date, the Trustee shall deposit all amounts received in
respect of the Corridor Contracts in the Carryover Reserve Fund. The
Trustee shall make withdrawals from the Carryover Reserve Fund to make
distributions in respect of Net Rate Carryover as to the extent required by
Section 4.04.
(c) Any
amounts received in respect of the Class 1-A Corridor Contract, Class 2-A
Corridor Contract and Subordinate Corridor Contract with respect to a
Distribution Date and remaining after the distributions required pursuant to
Section 4.04(d) shall be distributed to the Class C Certificates; provided,
however, that if any Corridor Contract is subject to early termination, early
termination payments received in respect of such Corridor Contract shall be
deposited by the Trustee in the Carryover Reserve Fund and withdrawn from the
Carryover Reserve Fund to pay any Net Rate Carryover for the applicable Classes
of Certificates as provided in Section 4.04(d) on the Distribution Dates
following such termination to and including the Corridor Contract Termination
Date, but such early termination payments shall not be available for
distribution to the Class C Certificates on future Distribution Dates until
the
Corridor Contract Termination Date.
(d) The
Carryover Reserve Fund shall not constitute an asset of any REMIC created
hereunder. The Class C Certificates shall evidence ownership of the
Carryover Reserve Fund for federal tax purposes.
(e) Funds
in the Carryover Reserve Fund shall be invested by the Trustee in The Bank
of
New York cash reserves. All investments shall be made in the name of
the Trustee, for the benefit of the Holders of the Interest-Bearing
Certificates. Any net investment earnings on such amounts shall be
retained therein until withdrawn as provided in Section 3.08.
|
|
Section
4.08
|
[Reserved].
|
|
|
Section
4.09
|
Swap
Trust and Swap Account.
|
On
the
Closing Date, there is hereby established a separate trust (the “Swap Trust”),
the assets of which shall consist of the Trustee’s rights and obligations under
the Swap Contract Administration Agreement. The Swap Trust shall be
maintained by the Swap Trustee, who initially, shall be the
Trustee. The Swap Trustee shall hold the assets of the Swap Trust in
trust for the benefit of the Holders of the Interest-Bearing Certificates and
the Swap Counterparty. No later than the Closing Date, the Swap
Trustee shall establish and maintain a separate, segregated trust account to
be
held in the Swap Trust, titled, “Swap Account, The Bank of New York, as Swap
Trustee, in trust for the Swap Counterparty and the registered holders of CWABS,
Inc., Asset-Backed Certificates, Series 2007-5.” Such account shall
be an Eligible Account and funds on deposit therein shall be held separate
and
apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Trustee held pursuant to this Agreement.
Amounts therein shall be held uninvested. Funds on deposit in the
Swap Account shall be distributed in the amounts and in the order described
under Section 4.04(e). For federal income tax purposes, the Swap
Trust, including the Swap Account, shall be owned by the Class C
Certificates.
122
On
each
Distribution Date, the Trustee shall make a deposit to the Swap Account pursuant
to Section 4.04(a)(ii), and to the extent that the amount of such deposit is
insufficient to pay any Net Swap Payment and/or Swap Termination Payment (other
than a Swap Termination Payment due to a Swap Counterparty Trigger Event) due
to
the Swap Counterparty with respect to such Distribution Date, the Trustee shall
withdraw, out of amounts on deposit in the Distribution Account in respect
of
the Principal Remittance Amount for Loan Group 1 and Loan Group 2, pro rata
on
the basis of those respective Principal Remittance Amounts, such additional
amount as is necessary to cover the remaining portion of any such Net Swap
Payment and/or Swap Termination Payment (other than a Swap Termination Payment
due to a Swap Counterparty Trigger Event) due to the Swap Counterparty with
respect to such Distribution Date.
|
|
Section
4.10
|
Final
Maturity Reserve Trust and Final Maturity Reserve
Fund.
|
(a) On
the Closing Date, there is hereby established a separate trust (the “Final
Maturity Reserve Trust”), the assets of which shall consist of the Final
Maturity Reserve Fund.
(b) On
the Closing Date, the Final Maturity Reserve Trustee shall establish and
maintain in its name, in trust for the benefit of the Holders of the
Interest-Bearing Certificates, the Final Maturity Reserve Fund and shall deposit
$1,000 therein upon receipt from or on behalf of the Depositor of such
amount. The Final Maturity Reserve Fund shall be an Eligible Account,
and funds on deposit therein shall be held separate and apart from, and shall
not be commingled with, any other moneys, including without limitation, other
moneys held by the Trustee pursuant to this Agreement. The Final
Maturity Reserve Fund shall not constitute an asset of the Trust Fund or any
REMIC created hereunder.
The
Final
Maturity Reserve Trustee shall make deposits to and withdrawals from the Final
Maturity Reserve Fund as specified in Section 4.04.
Funds
in
the Final Maturity Reserve Fund may be invested in Permitted Investments at
the
direction of the Holders of the Class C Certificates, which Permitted
Investments shall mature not later than the Business Day immediately preceding
the first Distribution Date that follows the date of such investment (except
that if such Permitted Investment is an obligation of the institution that
maintains the Final Maturity 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 Final Maturity Reserve Trustee, for the benefit of the Holders
of the Certificates. In the absence of such written direction, all funds in
the
Final Maturity Reserve Fund shall be invested by the Final Maturity Reserve
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 Final Maturity Reserve
Fund in respect of any such investments shall be charged against amounts on
deposit in the Final Maturity Reserve Fund (or such investments) immediately
as
realized. The Final Maturity Reserve 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 Final Maturity Reserve Fund and made in
accordance with this Section 4.10.
The
Final
Maturity Reserve Trustee may withhold from the amounts withdrawn from the Final
Maturity Reserve Fund pursuant to Section 4.04 the amount of any taxes that
it
is authorized to retain pursuant to the third paragraph of Section
8.11. In addition, the Final Maturity Reserve Trustee may from time
to time make withdrawals from the Final Maturity Reserve Fund for the following
purposes:
(i) to
withdraw any amount deposited in the Final Maturity Reserve Fund and not
required to be deposited therein; and
(ii) to
clear and terminate the Final Maturity Reserve Fund upon the termination of
this
Agreement pursuant to Section 9.01.
123
ARTICLE
V.
THE
CERTIFICATES
|
|
Section
5.01
|
The
Certificates.
|
The
Certificates shall be substantially in the forms attached hereto as Exhibits
A-1
through X-00, Xxxxxxx X, Xxxxxxx X, Xxxxxxx X and Exhibit E. The
Certificates shall be issuable in registered form, in the minimum dollar
denominations, integral dollar multiples in excess thereof and aggregate dollar
denominations as set forth in the following table:
|
Class
|
Minimum
Denomination
|
Integral
Multiples in Excess of Minimum
|
Original
Certificate Principal Balance
|
|
1-A
|
$20,000
|
$1
|
$372,609,000
|
|
2-A-1
|
$20,000
|
$1
|
$267,062,000
|
|
2-A-2
|
$20,000
|
$1
|
$93,961,000
|
|
2-A-3
|
$20,000
|
$1
|
$153,352,000
|
|
2-A-4
|
$20,000
|
$1
|
$44,541,000
|
|
M-1
|
$20,000
|
$1
|
$57,620,000
|
|
M-2
|
$20,000
|
$1
|
$55,819,000
|
|
M-3
|
$20,000
|
$1
|
$18,006,000
|
|
M-4
|
$20,000
|
$1
|
$24,008,000
|
|
M-5
|
$20,000
|
$1
|
$19,807,000
|
|
M-6
|
$20,000
|
$1
|
$13,805,000
|
|
M-7
|
$20,000
|
$1
|
$15,005,000
|
|
M-8
|
$20,000
|
$1
|
$14,405,000
|
|
A-R
|
$99.95(1)
|
N/A
|
$100
|
|
C
|
N/A
|
N/A
|
N/A
|
|
P
|
N/A
|
N/A
|
$100
|
|
(1)
|
The
Tax Matters Person Certificate may be issued in a denomination of
$0.05.
|
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 authentication and delivery of such Certificates
or
did not hold such offices at the date of such authentication and
delivery. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form set forth as attached
hereto executed by the Trustee by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication. On the Closing Date, the Trustee shall authenticate
the Certificates to be issued at the written direction of the Depositor, or
any
affiliate thereof.
The
Depositor shall provide, or cause to be provided, to the Trustee on a continuous
basis, an adequate inventory of Certificates to facilitate
transfers.
124
|
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
(a) The
Trustee shall maintain a Certificate Register for the Trust Fund in which,
subject to the provisions of subsections (b) and (c) below and to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of Transfers and exchanges of Certificates
as
herein provided. Upon surrender for registration of Transfer of any
Certificate, the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and of like aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that 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
canceled 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 the Securities 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 state securities laws, in order to assure compliance with the
Securities Act and such state securities laws, the Certificateholder desiring
to
effect such Transfer and such Certificateholder’s prospective transferee shall
(except in connection with any transfer of a Private Certificate to an affiliate
of the Depositor (either directly or through a nominee) in connection with
the
initial issuance of the Certificates) each certify to the Trustee in writing
the
facts surrounding the Transfer in substantially the form set forth in Exhibit
J-2 (a “Transferor Certificate”) and (i) deliver a letter in substantially the
form of either Exhibit K (in the case of the Class P and Class C Certificates)
(the “Investment Letter”) or Exhibit L (in the case of any Private Certificate)
(the “Rule 144A Letter”) or (ii) there shall be delivered to the Trustee at the
expense of the Certificateholder desiring to effect such transfer an Opinion
of
Counsel that such Transfer may be made pursuant to an exemption from the
Securities Act; provided, however, that in the case of the
delivery of an Investment Letter in connection with the transfer of any Class
C
or Class P Certificate to a transferee that is formed with the purpose of
issuing notes backed by such Class C or Class P Certificate, as the case may
be,
clause (b) and (c) of the form of Investment Letter shall not be applicable
and
shall be deleted by such transferee. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferee designated
by
any such Holder, information regarding the related Certificates and the Mortgage
Loans and such other information as shall be necessary to satisfy the condition
to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Co-Trustee, 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 Co-Trustee, the
Trustee, the Depositor, the Trust Fund, each Seller, the Master Servicer and
the
NIM Insurer 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.
125
No
Transfer of an ERISA-Restricted Certificate (other than a transfer of an
ERISA-Restricted Certificate to an affiliate of the Depositor (either directly
or through a nominee) in connection with the initial issuance of the
Certificates) shall be made unless the Trustee shall have received either (i)
a
written representation from the transferee of such Certificate acceptable to
and
in form and substance satisfactory to the Trustee (in the event such Certificate
is a Private Certificate, such requirement is satisfied only by the Trustee’s
receipt of a representation letter from the transferee substantially in the
form
of Exhibit K or Exhibit L, or in the event such Certificate is a Residual
Certificate, such requirement is satisfied only by the Trustee’s receipt of a
representation letter from the transferee substantially in the form of Exhibit
I), to the effect that (x) such transferee is not a Plan, or (y) in the case
of
an ERISA-Restricted Certificate that has been the subject of an ERISA-Qualifying
Underwriting, a representation that the transferee is an insurance company
which
is purchasing such Certificate with funds contained in an “insurance company
general account” (as such term is defined in section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60 or (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 of any such plan or arrangement or any other person acting on behalf
of
any such plan or arrangement, an Opinion of Counsel satisfactory to the Trustee,
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 ERISA or the Code and will not subject
the Trustee or the Master Servicer to any obligation in addition to those
expressly undertaken in this Agreement, which Opinion of Counsel shall not
be an
expense of the Trustee, the Master Servicer, or the Trust Fund. For
purposes of the preceding sentence, one of such representations, as appropriate,
shall be deemed to have been made to the Trustee by the transferee’s acceptance
of an ERISA-Restricted Certificate (or the acceptance by a Certificate Owner
of
the beneficial interest in any such Class of ERISA-Restricted Certificates)
unless the Trustee shall have received from the transferee an Opinion of Counsel
as described in clause (ii) or a written representation acceptable in form
and
substance to the Trustee. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA-Restricted Certificate
to or
on behalf of an employee benefit plan subject to Section 406 of ERISA or a
plan
subject to Section 4975 of the Code without the delivery to the Trustee of
an
Opinion of Counsel satisfactory to the Trustee meeting the requirements of
clause (i) of the first sentence of this paragraph as described above shall
be
void and of no effect. 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
Trustee, with respect to the transfer of such Classes of Certificates, required
delivery of such certificates and other documentation or evidence as are
expressly required by the terms of this Agreement and examined such certificates
and other documentation or evidence to determine compliance as to form with
the
express requirements hereof. The Trustee shall be entitled, but not
obligated, to recover from any Holder of any ERISA-Restricted Certificate that
was in fact 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 at the time it became a Holder
or, at such subsequent time as it became such a plan or arrangement or Person
acting on behalf of such a plan or arrangement, all payments made on such
ERISA-Restricted 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 Holder of such Certificate that is not such a plan or
arrangement or Person acting on behalf of a plan or arrangement.
126
Until
the
Swap Trust and the Final Maturity Reserve Fund terminate, no transfer of an
Interest-Bearing Certificate that is not an ERISA-Restricted Certificate (other
than a transfer of an Interest-Bearing Certificate to an affiliate of the
Depositor (either directly or through a nominee) in connection with the initial
issuance of the Certificates) shall be made unless the Trustee shall have
received either (i) a written representation from the transferee of such
Interest-Bearing Certificate acceptable to and in form and substance
satisfactory to the Trustee to the effect that such transferee is not a Plan,
or
(ii) a written representation that the purchase and holding of the
Interest-Bearing Certificate satisfy the requirements for exemptive relief
under
XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23, the service provider
exemption provided under Section 408(b)(17) of ERISA and Section 4975(d)(20)
of
the Code or a similar exemption. In the event that
such representation is not delivered, one of the foregoing
representations, as appropriate, shall be deemed to have been made by the
transferee’s (including an initial acquiror’s) acceptance of the
Interest-Bearing Certificate. In the event that such representation
is violated, such transfer or acquisition shall be void and of no
effect.
Each
Plan
that acquires a Private Certificate (or any beneficial interest therein) that
is
not an ERISA-Restricted Certificate will be required to deliver to the Trustee
or its transferor a representation that it is an “accredited investor” as
defined in Rule 501(a)(1) under the Securities Act, and each investor that
acquires a Private Certificate (or any beneficial interest therein) that is
not
an ERISA-Restricted Certificate will be required to deliver to the Trustee
or
its transferor an agreement to obtain from its transferee such a representation
and agreement. For purposes of the preceding sentence, any investor
acquiring a Private Certificate (or any beneficial interest therein) that is
not
an ERISA-Restricted Certificate shall be deemed to have made to the Trustee
or
its transferor the representation and agreement set forth in the preceding
sentence by the transferee’s acceptance of such Certificate (or beneficial
interest therein).
127
(c) Each
Person who has or who acquires any Ownership Interest in a Class A-R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Class A-R Certificate are expressly
subject to the following provisions:
(1) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(2) Except
in connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Class A-R Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the Certificates,
no Ownership Interest in a Class A-R Certificate may be registered or
transferred, and the Trustee shall not register the Transfer of any Class A-R
Certificate, unless the Trustee shall have been furnished with a certificate
(a
“Transferor Certificate”) of the transferor in the form attached hereto as
Exhibit J-1 and an affidavit (a “Transfer Affidavit”) of the initial owner or
the proposed transferee in the form attached hereto as Exhibit I.
(3) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Class A-R
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Class A-R Certificate and (C) not to Transfer its Ownership Interest in a
Class A-R Certificate, or to cause the Transfer of an Ownership Interest in
a
Class A-R Certificate to any other Person, if it has actual knowledge that
such
Person is not a Permitted Transferee or that such Transfer Affidavit is
false.
(4) Any
attempted or purported Transfer of any Ownership Interest in a Class A-R
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Class A-R Certificate in violation of the provisions of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all rights
as
Holder thereof retroactive to the date of registration of Transfer of such
Class
A-R Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Class A-R Certificate that is
in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the Transfer was registered after receipt of the related Transfer
Affidavit and Transferor Certificate. The Trustee shall be entitled
but not obligated to recover from any Holder of a Class A-R Certificate that
was
in fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all payments
made on such Class A-R Certificate at and after either such time. Any
such payments so recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Permitted Transferee of such
Certificate.
128
(5) The
Master Servicer shall use its best efforts to make available, upon receipt
of
written request from the Trustee, all information necessary to compute any
tax
imposed under section 860E(e) of the Code as a result of a Transfer of an
Ownership Interest in a Class A-R Certificate to any Holder who is not a
Permitted Transferee.
The
restrictions on Transfers of a Class A-R Certificate set forth in this Section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Class A-R Certificate may be deleted) with respect to Transfers occurring after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trustee, any Seller or the Master Servicer, to the
effect that the elimination of such restrictions will not cause any REMIC formed
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Class A-R Certificate, by acceptance of its
Ownership Interest, shall be deemed to consent to any amendment of this
Agreement that, based on an Opinion of Counsel furnished to the Trustee, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class A-R Certificate is not transferred, directly
or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Class A-R Certificate that is held
by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The
preparation and delivery of all affidavits, certifications and opinions referred
to above in this Section 5.02 shall not be an expense of the Trust Fund, the
Trustee, the Depositor, any Seller or the Master Servicer.
|
|
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 of the ownership thereof 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, authenticate 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 in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. All Certificates surrendered to the
Trustee under the terms of this Section 5.03 shall be canceled and destroyed
by
the Trustee in accordance with its standard procedures without liability on
its
part.
129
|
|
Section
5.04
|
Persons
Deemed Owners.
|
The
Master Servicer, the Trustee, the NIM Insurer and any agent of the Master
Servicer, the Trustee or the NIM Insurer 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 none of the Master Servicer, the Trustee, the NIM Insurer or
any
agent of the Master Servicer, the Trustee or the NIM Insurer 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 or Certificate Owners (a) request such information
in
writing from the Trustee, (b) state that such Certificateholders or Certificate
Owners desire to communicate with other Certificateholders or Certificate Owners
with respect to their rights under this Agreement or under the Certificates
and
(c) provide a copy of the communication that such Certificateholders 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, provide
the
Depositor, the Master Servicer or such Certificateholders or Certificate Owners
at such recipients’ expense the most recent list of the Certificateholders of
the Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder or Certificate Owner, by receiving and holding a Certificate,
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 hereunder,
regardless of the source from which such information was derived.
|
|
Section
5.06
|
Book-Entry
Certificates.
|
The
Book-Entry Certificates, upon original issuance, shall be issued in the form
of
one typewritten Certificate (or more than one, if required by the Depository)
for each Class of such Certificates, to be delivered to the Depository by or
on
behalf of the Depositor. Such Certificates shall initially be
registered on the Certificate Register in the name of the Depository or its
nominee, and no Certificate Owner of such Certificates will receive a definitive
certificate representing such Certificate Owner’s interest in such Certificates,
except as provided in Section 5.08. Unless and until definitive,
fully registered Certificates (“Definitive Certificates”) have been issued to
the Certificate Owners of such Certificates pursuant to Section
5.08:
(a) the
provisions of this Section shall be in full force and effect;
(b) the
Depositor, the Sellers, the Master Servicer and the Trustee may deal with the
Depository and the Depository Participants for all purposes (including the
making of distributions) as the authorized representative of the respective
Certificate Owners of such Certificates;
(c) registration
of the Book-Entry Certificates may not be transferred by the Trustee except
to
another Depository;
(d) the
rights of the respective Certificate Owners of such Certificates shall be
exercised only through the Depository and the Depository Participants and shall
be limited to those established by law and agreements between the Owners of
such
Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository
will
make book-entry transfers among the Depository Participants and receive and
transmit distributions of principal and interest on the related Certificates
to
such Depository Participants;
130
(e) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants;
(f) the
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository
Participants; and
(g) to
the extent the provisions of this Section conflict with any other provisions
of
this Agreement, the provisions of this Section shall control.
For
purposes of any provision of this Agreement requiring or permitting actions
with
the consent of, or at the direction of, Certificateholders evidencing a
specified percentage of the aggregate unpaid principal amount of any Class
of
Certificates, such direction or consent may be given by Certificate Owners
(acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
|
|
Section
5.07
|
Notices
to Depository.
|
Whenever
any notice or other communication is required to be given to Certificateholders
of any Class with respect to which Book-Entry Certificates have been issued,
unless and until Definitive Certificates shall have been issued to the related
Certificate Owners, the Trustee shall give all such notices and communications
to the Depository.
|
|
Section
5.08
|
Definitive
Certificates.
|
If,
after
Book-Entry Certificates have been issued with respect to any Certificates,
(a)
the Depositor advises the Trustee that the Depository is no longer willing
or
able to discharge properly its responsibilities under the Depository Agreement
with respect to such Certificates and the Trustee or the Depositor is unable
to
locate a qualified successor or (b) after the occurrence and continuation of
an
Event of Default, Certificate Owners of such Book-Entry Certificates having
not
less than 51% of the Voting Rights evidenced by any Class of Book-Entry
Certificates advise the Trustee and the Depository in writing through the
Depository Participants that the continuation of a book-entry system with
respect to Certificates of such Class through the Depository (or its successor)
is no longer in the best interests of the Certificate Owners of such Class,
then
the Trustee shall notify all Certificate Owners of such Certificates, through
the Depository, of the occurrence of any such event and of the availability
of
Definitive Certificates to Certificate Owners of such Class requesting the
same. The Depositor shall provide the Trustee with an adequate
inventory of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon surrender to the Trustee of any such Certificates
by the Depository, accompanied by registration instructions from the Depository
for registration, the Trustee shall authenticate and deliver such Definitive
Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and each may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the
issuance of such Definitive Certificates, all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be imposed
upon and performed by the Trustee, to the extent applicable with respect to
such
Definitive Certificates and the Trustee shall recognize the Holders of such
Definitive Certificates as Certificateholders hereunder.
131
|
|
Section
5.09
|
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 offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust MBS Administration, as offices 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.
ARTICLE
VI.
THE
DEPOSITOR, THE MASTER SERVICER AND THE SELLERS
|
|
Section
6.01
|
Respective
Liabilities of the Depositor, the Master Servicer and the
Sellers.
|
The
Depositor, the Master Servicer and each Seller shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
|
|
Section
6.02
|
Merger
or Consolidation of the Depositor, the Master Servicer or the
Sellers.
|
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 each 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, the Master Servicer or any Seller may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor, the Master Servicer or any Seller shall be a party, or
any
person succeeding to the business of the Depositor, the Master Servicer or
any
Seller, shall be the successor of the Depositor, the Master Servicer or such
Seller, as the case may be, hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided that the successor or surviving
Person to the Master Servicer shall be qualified to service mortgage loans
on
behalf of Xxxxxx Mae and Xxxxxxx Mac.
132
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Master Servicer, the Master Servicer shall provide (x) written notice to the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Master
Servicer.
|
|
Section
6.03
|
Limitation
on Liability of the Depositor, the Sellers, the Master Servicer,
the NIM
Insurer and Others.
|
None
of
the Depositor, the Sellers, the NIM Insurer or the Master Servicer or any of
the
directors, officers, employees or agents of the Depositor, the Sellers, the
NIM
Insurer or the Master Servicer shall be under any liability to the Trustee
(except as provided in Section 8.05), the Trust Fund or 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 that
this
provision shall not protect the Depositor, the Sellers, the Master Servicer
or
any such Person against any breach of representations or warranties made by
it
herein or protect the Depositor, the Sellers, the Master Servicer or any such
Person from any liability that 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 Sellers, the NIM Insurer, the Master Servicer and any director,
officer, employee or agent of the Depositor, the Sellers, the NIM Insurer or
the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Sellers, the NIM Insurer, the Master
Servicer and any director, officer, employee or agent of the Depositor, the
Sellers, the NIM Insurer or the Master Servicer 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 Sellers, the NIM Insurer or the Master Servicer shall be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and that in its opinion may
involve it in any expense or liability; provided that any of the Depositor,
the
Sellers, the NIM Insurer or the Master Servicer 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 Sellers, the NIM Insurer and the Master Servicer shall be entitled to be
reimbursed therefor out of the Certificate Account as provided by Section 3.08
hereof.
133
|
|
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 (i) upon determination that its duties hereunder are no longer
permissible under applicable law or (ii) upon appointment of a successor
servicer that is reasonably acceptable to the Trustee and the NIM Insurer and
the written confirmation from each Rating Agency (which confirmation shall
be
furnished to the Depositor, the Trustee and the NIM Insurer) that such
resignation will not cause such Rating Agency to reduce the then-current rating
of the Certificates. Any such determination pursuant to clause (i) of
the preceding sentence permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No resignation of the Master Servicer shall become effective
until the Trustee shall have assumed the Master Servicer’s responsibilities,
duties, liabilities (other than those liabilities arising prior to the
appointment of such successor) and obligations under this Agreement and the
Depositor shall have received the information described in the following
sentence. As a condition to the effectiveness of any such
resignation, at least 15 calendar days prior to the effective date of such
resignation, the Master Servicer shall provide (x) written notice to the
Depositor of any successor pursuant to this Section and (y) in writing and
in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to the resignation of the
Master Servicer.
|
|
Section
6.05
|
Errors
and Omissions Insurance; Fidelity
Bonds.
|
The
Master Servicer shall, for so long as it acts as 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 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 Xxxxxx Xxx and Xxxxxxx Mac for
persons performing servicing for mortgage loans purchased by Xxxxxx Mae and
Xxxxxxx Mac. In the event that any such policy or bond ceases to be
in effect, the Master Servicer shall use its reasonable best efforts to 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.
The
Master Servicer shall provide the Trustee and the NIM Insurer (upon such party’s
reasonable request) with copies of any such insurance policies and fidelity
bond. The Master Servicer shall be deemed to have complied with this
provision if an Affiliate of the Master Servicer has such errors and omissions
and fidelity bond coverage and, by the terms of such insurance policy or
fidelity bond, the coverage afforded thereunder extends to the Master
Servicer.
134
ARTICLE
VII.
DEFAULT;
TERMINATION OF MASTER SERVICER
|
|
Section
7.01
|
Events
of Default.
|
“Event
of
Default,” wherever used herein, means any one of the following
events:
(1) any
failure by the Master Servicer to deposit in the Certificate Account or the
Distribution Account or remit to the Trustee any payment (excluding a payment
required to be made under Section 4.01 hereof) required to be made under the
terms of this Agreement, which failure shall continue unremedied for five
calendar days and, with respect to a payment required to be made under Section
4.01(b) or (c) hereof, for one Business Day, after the date on which written
notice of such failure shall have been given to the Master Servicer by the
Trustee, the NIM Insurer or the Depositor, or to the Trustee, the NIM Insurer
and the Master Servicer by the Holders of Certificates evidencing not less
than
25% of the Voting Rights; or
(2) any
failure by the Master Servicer to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Master Servicer
contained in this Agreement (except with respect to a failure related to a
Limited Exchange Act Reporting Obligation) or any representation or warranty
shall prove to be untrue, which failure or breach shall continue unremedied
for
a period of 60 days after the date on which written notice of such failure
shall
have been given to the Master Servicer by the Trustee, the NIM Insurer or the
Depositor, or to the Trustee by the Holders of Certificates evidencing not
less
than 25% of the Voting Rights; provided, that the sixty-day cure period shall
not apply to the initial delivery of the Mortgage File for Delay Delivery
Mortgage Loans or the failure to repurchase or substitute in lieu thereof;
or
(3) 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
(4) 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
(5) 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
135
(6) the
Master Servicer shall fail to reimburse in full the Trustee not later than
6:00
p.m. (New York time) on the Business Day following the related Distribution
Date
for any Advance made by the Trustee pursuant to Section 4.01(d) together with
accrued and unpaid interest.
If
an
Event of Default shall occur, then, and in each and every such case, so long
as
such Event of Default shall not have been remedied, the Trustee shall, but
only
at the direction of either the NIM Insurer or the Holders of Certificates
evidencing not less than 25% of the Voting Rights, by notice in writing to
the
Master Servicer (with a copy to each Rating Agency and the Depositor), terminate
all of the rights and obligations of the Master Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof, other than its rights
as a Certificateholder hereunder. In addition, if during the period
that the Depositor is required to file Exchange Act Reports with respect to
the
Trust Fund, the Master Servicer shall fail to observe or perform any of the
obligations that constitute a Limited Exchange Act Reporting Obligation or
the
obligations set forth in Section 3.17(a) or Section 11.07(a)(1) and (2), and
such failure continues for the lesser of 10 calendar days or such period in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions), so long as such failure shall not have been
remedied, the Trustee shall, but only at the direction of the Depositor,
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other
than
its rights as a Certificateholder hereunder. The Depositor shall not
be entitled to terminate the rights and obligations of the Master Servicer
if a
failure of the Master Servicer to identify a Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
On
or
after the receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer hereunder, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall thereupon make any Advance described in Section 4.01 hereof
subject to Section 3.04 hereof. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such
termination shall affect any obligation of the Master Servicer to pay amounts
owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be credited
to the Certificate Account, or thereafter be received with respect to the
Mortgage Loans. The Trustee shall promptly notify the Rating Agencies
and the Depositor of the occurrence of an Event of Default.
Notwithstanding
any termination of the activities of a Master Servicer hereunder, such Master
Servicer shall be entitled to receive, out of any late collection of a Scheduled
Payment on a Mortgage Loan that was due prior to the notice terminating such
Master Servicer’s rights and obligations as Master Servicer hereunder and
received after such notice, that portion thereof to which such Master Servicer
would have been entitled pursuant to Sections 3.08(a)(i) through (viii), and
any
other amounts payable to such Master Servicer hereunder the entitlement to
which
arose prior to the termination of its activities hereunder.
136
If
the
Master Servicer is terminated, the Trustee shall provide the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of the
Master Servicer as set forth herein.
|
|
Section
7.02
|
Trustee
to Act; Appointment of
Successor.
|
On
and
after the time the Master Servicer receives a notice of termination pursuant
to
Section 7.01 hereof, the Trustee shall, to the extent provided in Section 3.04,
be the successor to the Master Servicer in its capacity as servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Master Servicer by the terms and provisions hereof and applicable
law including the obligation to make advances pursuant to Section
4.01. As compensation therefor, the Trustee shall be entitled to all
fees, costs and expenses relating to the Mortgage Loans that the Master Servicer
would have been entitled to if the Master Servicer had continued to act
hereunder. Notwithstanding the foregoing, if the Trustee has become
the successor to the Master Servicer in accordance with Section 7.01 hereof,
the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.01 hereof or if
it
is otherwise unable to so act, (i) appoint any established mortgage loan
servicing institution reasonably acceptable to the NIM Insurer (as evidenced
by
the prior written consent of the NIM Insurer), or (ii) if it is unable for
60
days to appoint a successor servicer reasonably acceptable to the NIM Insurer,
petition a court of competent jurisdiction to appoint any established mortgage
loan servicing institution, the appointment of which does not adversely affect
the then-current rating of the Certificates and the NIM Insurer guaranteed
notes
(without giving any effect to any policy or guaranty provided by the NIM
Insurer) by each Rating Agency as the successor to the Master Servicer hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer hereunder. Any successor Master
Servicer shall be an institution that is a Xxxxxx Mae and Xxxxxxx Mac approved
seller/servicer in good standing, that has been approved by the Mortgage Insurer
if required, that has a net worth of at least $15,000,000 and that is willing
to
service the Mortgage Loans and executes and delivers to the Depositor and the
Trustee an agreement accepting such delegation and assignment, that contains
an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer (other than liabilities
and
indemnities of the Master Servicer under Section 6.03 hereof incurred prior
to
termination of the Master Servicer under Section 7.01), with like effect as
if
originally named as a party to this Agreement; and provided further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation. No appointment
of a successor to the Master Servicer hereunder shall be effective until (i)
the
Trustee shall have consented thereto, (ii) written notice of such proposed
appointment shall have been provided by the Trustee to each Certificateholder
and (iii) at least 15 calendar days prior to the effective date of such
appointment, (x) the Trustee shall provide written notice to the Depositor
of
such successor pursuant to this Section 7.02 and (y) such successor Master
Servicer shall provide to the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement master servicer. The
Trustee shall not resign as servicer until a successor servicer has been
appointed and has accepted such appointment. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee, unless the Trustee
is
prohibited by law from so acting, shall, subject to Section 3.04 hereof, act
in
such capacity as herein above provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and
such
successor shall agree; provided that no such compensation shall be in excess
of
that permitted 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 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.
137
Any
successor to the Master Servicer as servicer shall give notice to the NIM
Insurer and the Mortgagors of such change of servicer and shall, during the
term
of its service as servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 6.05.
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 in causing
MERS to execute and deliver an assignment of Mortgage in recordable form to
transfer the Mortgage from MERS to the Trustee and to execute and deliver such
other notices, documents and other instruments as may be necessary or desirable
to effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan
on
the MERS® System to the successor Master Servicer. The predecessor
Master Servicer shall file or cause to be filed any such assignment in the
appropriate recording office. The successor Master Servicer shall
cause such assignment to be delivered to the Trustee promptly upon receipt
of
the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
|
|
Section
7.03
|
Notification
to Certificateholders.
|
(a) Upon
any termination of or appointment of a successor to the Master Servicer, the
Trustee shall give prompt written notice thereof to Certificateholders and
to
each Rating Agency.
138
(b) Within
60 days after the occurrence of any Event of Default, the Trustee shall transmit
by mail to all Certificateholders notice of each such Event of Default hereunder
known to the Trustee, unless such Event of Default shall have been cured or
waived.
ARTICLE
VIII.
CONCERNING
THE TRUSTEE AND THE CO-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 (or
the
Co-Trustee, to the extent provided in this Agreement) that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they conform to the requirements of this
Agreement, to the extent provided in this Agreement. If any such
instrument is found not to conform to the requirements of this Agreement in
a
material manner, the Trustee shall take action as it deems appropriate to have
the instrument corrected.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own grossly negligent action, its own gross negligent failure
to act or its own misconduct, its grossly negligent failure to perform its
obligations in compliance with this Agreement, or any liability that would
be
imposed by reason of its willful misfeasance or bad faith; provided
that:
(1) prior
to the occurrence of an Event of Default, and after the curing of all such
Events of Default that may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable, individually or as Trustee, 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 that it reasonably believed in good faith to
be
genuine and to have been duly executed by the proper authorities respecting
any
matters arising hereunder;
(2) the
Trustee shall not be liable, individually or as Trustee, for an error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of
the Trustee, unless the Trustee was grossly negligent or acted in bad faith
or
with willful misfeasance;
139
(3) the
Trustee shall not be liable, individually or as Trustee, with respect to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders of each Class of Certificates evidencing
not
less than 25% of the Voting Rights of such Class 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
(4) without
in any way limiting the provisions of this Section 8.01 or Section 8.02 hereof,
the Trustee shall be entitled to rely conclusively on the information delivered
to it by the Master Servicer in a Trustee Advance Notice in determining whether
or not it is required to make an Advance under Section 4.01(d), 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(d) in the absence of a Trustee Advance Notice or actual knowledge by a
Responsible Officer that (A) a required Advance was not made and (B) such
required Advance was not a Nonrecoverable Advance.
The
Trustee hereby represents, warrants, covenants and agrees that, except as
permitted by Article IX hereof, it shall not cause the Trust Fund to consolidate
or amalgamate with, or merge with or into, or transfer all or substantially
all
of the Trust Fund to, another Person.
|
|
Section
8.02
|
Certain
Matters Affecting the Trustee.
|
(a) Except
as otherwise provided in Section 8.01:
(1) the
Trustee may request and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officer’s 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;
(2) the
Trustee may consult with counsel 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;
(3) the
Trustee shall not be liable, individually or as Trustee, 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;
(4) prior
to the occurrence of an Event of Default hereunder and after the curing of
all
Events of Default that may have occurred, the Trustee shall not be bound to
make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing
so
to do by the NIM Insurer or the Holders of each Class of Certificates evidencing
not less than 25% of the Voting Rights of such Class; provided, however, that
if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee not reasonably assured to the Trustee by the
NIM
Insurer or such Certificateholders, the Trustee may require reasonable indemnity
against such expense, or liability from the NIM Insurer or such
Certificateholders as a condition to taking any such action;
140
(5) 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;
(6) the
Trustee shall not be required to expend its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(7) the
Trustee shall not be liable, individually or as Trustee, for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of the
investment security);
(8) 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
(9) the
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Agreement or to make any investigation of matters arising
hereunder or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of the NIM Insurer or any
of
the Certificateholders, pursuant to the provisions of this Agreement, unless
the
NIM Insurer or such Certificateholders, as applicable, shall have offered to
the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby.
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by the Trustee without the
possession of any of the Certificates, or the production thereof at the trial
or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of the Certificates, subject to the provisions of this
Agreement.
The
Depositor hereby directs the Trustee to execute, deliver and perform its
obligations under the Swap Contract Administration Agreement (in its capacity
as
Swap Trustee). The Sellers, the Depositor, the Master Servicer and
the Holders of the Interest-Bearing Certificates by their acceptance of such
Certificates acknowledge and agree that the Trustee shall execute, deliver
and
perform its obligations under the Swap Contract Administration Agreement and
shall do so solely in its capacity as Swap Trustee, as the case may be, and
not
in its individual capacity. Every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection
to
the Trustee shall apply to the Trustee’s execution of the Swap Contract
Administration Agreement in its capacity as Swap Trustee, and the performance
of
its duties and satisfaction of its obligations thereunder.
141
|
|
Section
8.03
|
Trustee
Not Liable for Mortgage Loans.
|
The
recitals contained herein shall be taken as the statements of the Depositor
or
the Master Servicer, 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 any
Mortgage Loan or related document or of MERS or the MERS® System other than with
respect to the Trustee’s execution and authentication 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
|
Master
Servicer to Pay Trustee’s Fees and
Expenses.
|
The
Master Servicer covenants and agrees to pay or reimburse the Trustee, upon
its
request, for all reasonable expenses, disbursements and advances incurred or
made by the Trustee on behalf of the Trust Fund in accordance with any of the
provisions of this Agreement (including, without limitation: (A) the
reasonable compensation and the expenses and disbursements of its counsel,
but
only for representation of the Trustee acting in its capacity as Trustee
hereunder and (B) to the extent that the Trustee must engage persons not
regularly in its employ to perform acts or services on behalf of the Trust
Fund,
which acts or services are not in the ordinary course of the duties of a
trustee, paying agent or certificate registrar, in the absence of a breach
or
default by any party hereto, the reasonable compensation, expenses and
disbursements of such persons, except any such expense, disbursement or advance
as may arise from its negligence, bad faith or willful
misconduct). 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 (i) incurred in connection with any
legal
action relating to this Agreement or the Certificates, or 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 by
reason of reckless disregard of the Trustee’s obligations and duties hereunder
or (ii) resulting from any error in any tax or information return prepared
by
the Master Servicer. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trustee
hereunder.
|
|
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 that would
not cause any of the Rating Agencies to reduce their respective ratings of
any
Class of Certificates below the ratings issued on the Closing Date (or having
provided such security from time to time as is sufficient to avoid such
reduction). 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 hereof. The corporation or national
banking association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Sellers and the Master Servicer and their
respective affiliates; provided that such corporation cannot be an affiliate
of
the Master Servicer other than the Trustee in its role as successor to the
Master Servicer.
142
|
|
Section
8.07
|
Resignation
and Removal of Trustee.
|
The
Trustee may at any time resign and be discharged from the trusts hereby created
by (1) giving written notice of resignation to the Depositor and the Master
Servicer and by mailing notice of resignation by first class mail, postage
prepaid, to the Certificateholders at their addresses appearing on the
Certificate Register 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 (2) acceptance of appointment by a successor trustee in
accordance with Section 8.08 and meeting the qualifications set forth in Section
8.06. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Trustee shall provide
(x) written notice to the Depositor of any successor pursuant to this Section
and (y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the resignation of the Trustee.
If
at any
time (i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 hereof and shall fail to resign after written request
thereto by the NIM Insurer or the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii)(A)
a tax is imposed with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund is located, (B) the imposition of such tax would
be
avoided by the appointment of a different trustee and (C) the Trustee fails
to
indemnify the Trust Fund against such tax, or (iv) during the period which
the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Trustee fails to comply with its obligations under the last sentence
of Section 7.01, the preceding paragraph, Section 8.09 or Article XI and such
failure is not remedied within the lesser of 10 calendar days or such period
in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions), then, in the case of clauses (i) through (iii),
the Depositor, the NIM Insurer or the Master Servicer, or in the case of clause
(iv), the Depositor, may remove the Trustee and appoint a successor trustee,
reasonably acceptable to the NIM Insurer, by written instrument, in triplicate,
one copy of which instrument shall be delivered to the Trustee, one copy of
which shall be delivered to the Master Servicer and one copy of which shall
be
delivered to the successor trustee.
143
The
Holders evidencing at least 51% of the Voting Rights of each Class of
Certificates may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders
or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered by the successor Trustee to the Master Servicer one complete
set to the Trustee so removed, one complete set to the successor so appointed
and one complete set to the Depositor, together with a written description
of
the basis for such removal. Notice of any removal of the Trustee
shall be given to each Rating Agency by the successor Trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 8.07 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
8.08 hereof.
|
|
Section
8.08
|
Successor
Trustee.
|
Any
successor trustee appointed as provided in Section 8.07 hereof shall execute,
acknowledge and deliver to the Depositor, its predecessor trustee and the Master
Servicer an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with the like effect as if originally named as trustee
herein. In addition, if any Corridor Contract is still outstanding,
the Person appointed as successor trustee shall execute, acknowledge and deliver
to the predecessor trustee, CHL and the Master Servicer an instrument accepting
the appointment as successor Corridor Contract Administrator under the Corridor
Contract Administration Agreement. Furthermore, if the Swap Contract
is still outstanding, the Person appointed as successor trustee shall execute,
acknowledge and deliver to the predecessor trustee, CHL and the Master Servicer
an instrument accepting the appointment as successor Swap Contract Administrator
under the Swap Contract Administration Agreement.
No
successor trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06 hereof, is reasonably acceptable to the
NIM
Insurer, its appointment shall not adversely affect the then-current ratings
of
the Certificates and has provided to the Depositor in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to a replacement
Trustee. Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Depositor shall mail notice of the succession
of such trustee hereunder to the NIM Insurer and all Holders of
Certificates. If the Depositor fails to mail such notice within ten
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.
144
|
|
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 substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation
shall be eligible under the provisions of Section 8.06 hereof without the
execution or filing of any paper or further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Trustee, the Trustee shall provide (x) written notice to the Depositor of any
successor pursuant to this Section and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement Trustee.
|
|
Section
8.10
|
Appointment
of Co-Trustee or Separate
Trustee.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund
or property securing any Mortgage Note may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and reasonably acceptable to the NIM Insurer to act as co-trustee or
co-trustees jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons,
in
such capacity and for the benefit of the Certificateholders, such title to
the
Trust Fund or any part thereof, whichever is applicable, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Master Servicer and the Trustee may consider necessary or
desirable. If the Master Servicer shall not have joined in such appointment,
or
the NIM Insurer shall not have approved such appointment, within 15 days after
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 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:
(1) 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 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;
145
(2) No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(3) The
Trustee may at any time accept the resignation of or remove any 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 then separate trustees and co-trustees, 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 Trust Fund shall constitute, and that the affairs of the
Trust
Fund shall be conducted so that each REMIC created pursuant to the Preliminary
Statement qualifies 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 the Trust Fund
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 Returns (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 each
REMIC created hereunder 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 for the Trust Fund; (c) make or cause to be made elections,
on behalf of each REMIC created hereunder to be treated as a REMIC on the
federal tax return of each such REMIC for its first taxable year (and, if
necessary, under applicable state law); (d) prepare and forward, or cause to
be
prepared and forwarded, to the Certificateholders and to the Internal Revenue
Service and, if necessary, state tax authorities, all information returns and
reports as and when required to be provided to them in accordance with the
REMIC
Provisions, including without limitation, the calculation of any original issue
discount using the Prepayment Assumption; (e) provide information necessary
for
the computation of tax imposed on the transfer of a Class A-R 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 the affairs of the Trust Fund at all times that any Certificates
are outstanding so as to maintain the status of each REMIC created hereunder
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 created hereunder; (h) pay, from the sources specified
in
the third paragraph of this Section 8.11, the amount of any federal, state
and
local taxes, including prohibited transaction taxes as described below, imposed
on any REMIC created hereunder prior to the termination of the Trust Fund 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) sign or cause to be signed federal, state or local income
tax
or information returns; (j) maintain records relating to each REMIC created
hereunder, including but not limited to the income, expenses, assets and
liabilities of each such REMIC, and the fair market value and adjusted basis
of
the Trust Fund property 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 the Trust Fund 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 REMIC created hereunder,
enter into settlement agreements with any governmental taxing agency, extend
any
statute of limitations relating to any tax item of the Trust Fund, and otherwise
act on behalf of any REMIC created hereunder in relation to any tax matter
involving any such REMIC.
146
In
order
to enable the Trustee to perform its duties as set forth herein, the Depositor
shall provide, or cause to be provided, to the Trustee within ten 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
(and, to the extent not part of the aforementioned, the information referred
to
in paragraphs (1), (2), (3)and (4) of Section 4.05(d)). 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, request in order to enable the Trustee to perform its duties
as
set forth herein. The Depositor hereby indemnifies the Trustee for
any losses, liabilities, damages, claims or expenses of the Trustee arising
from
any errors or miscalculations of the Trustee that result from any failure of
the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
In
the
event that any tax is imposed on “prohibited transactions” of the Trust Fund as
defined in section 860F(a)(2) of the Code, on the “net income from foreclosure
property” of the Trust Fund as defined in section 860G(c) of the Code, on any
contribution to the Trust Fund after the startup day pursuant to section 860G(d)
of the Code, or any other tax is imposed, including, without limitation, any
federal, state or local tax or minimum tax imposed upon the Trust Fund pursuant
to sections 23153 and 24872 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) (x) the Master
Servicer, in the case of any such minimum tax, and (y) any party hereto (other
than the Trustee) to the extent any such other tax arises out of or results
from
a breach by such other party of any of its obligations under this Agreement
or
(iii) in all other cases, or in the event that any liable party here fails
to
honor its obligations under the preceding clauses (i) or (ii), any such tax
will
be paid first with amounts otherwise to be distributed to the Class A-R
Certificateholders, and second with amounts otherwise to be distributed to
all
other Certificateholders in the same manner as if such tax were a Realized
Loss
that occurred ratably within each Loan Group. Notwithstanding
anything to the contrary contained herein, to the extent that such tax is
payable by the Class A-R Certificates, the Trustee is hereby authorized to
retain on any Distribution Date, from the Holders of the Class A-R Certificates
(and, if necessary, second, from the Holders of all other Certificates in the
priority specified in the preceding sentence), funds otherwise distributable
to
such Holders in an amount sufficient to pay such tax. The Trustee
agrees to promptly notify in writing the party liable for any such tax of the
amount thereof and the due date for the payment thereof.
The
Trustee shall treat the Carryover Reserve Fund and the Swap Trust, including
the
Swap Account, as outside reserve funds within the meaning of Treasury Regulation
1.860G-2(h), neither of which is an asset of any REMIC created
hereunder. The Carryover Reserve Fund shall be treated as owned by
the Class C Certificateholders and the Swap Trust, including the Swap Account,
shall be treated as owned by the Class C Certificateholders. The
rights of the Holders of each Class of Certificates (other than the Class P
and
Class A-R Certificates) to receive payments from, and the deemed obligations
of
such Holders to make payments to, the Carryover Reserve Fund or the Swap Trust,
including the Swap Account, shall be treated as rights and obligations with
respect to notional principal contracts written by (i) the Corridor Contract
Counterparty in respect of (x) any Net Rate Carryover funded by any Corridor
Contract and (y) any residual payments from such Corridor Contract received
by
the Class C Certificates, (ii) the Holders of the Class C Certificates in
respect of any Net Rate Carryover distributed pursuant to Sections 4.04(c)(4),
and (iii) the Swap Counterparty in respect of any Net Rate Carryover funded
by
the Swap Contract and in respect of any residual payments from such Swap
Contract received by the Class C Certificates. Thus, the Certificates
(other than the Class P and Class A-R Certificates), shall be treated as
representing ownership of Master REMIC regular interests coupled with
contractual rights and obligations within the meaning of Treasury Regulation
1.860G-2(i). For purposes of determining the issue price of the
various Master REMIC regular interests, the Trustee shall assume that the Class
1-A Corridor Contract, the Class 2-A Corridor Contract and the Subordinate
Corridor Contract have values of $15,000, $20,000 and $10,000,
respectively. For purposes of determining the issue price of the
various Master REMIC regular interests, the Trustee shall treat the $2,400,000
upfront amount received by CHL from the Swap Counterparty in connection with
the
execution of the related Confirmation as an additional amount paid by the
Certificateholders for the Master REMIC regular interests. Any
differences in the distributions to a Certificateholder (positive or negative)
that would result from the application of the Strip REMIC Cap rather than the
applicable Net Rate Cap shall be treated by the Trustee as reconciled among
the
Certificates by swap payments made pursuant to notional principal contracts
entered into among the Certificateholders.
147
The
Trustee shall
also treat any amount payable to a Class C Certificate with respect to the
STR-C-OC Interest as deposited into the Carryover Reserve
Fund. To the extent the amount payable with respect to the
Swap Contract exceeds the amount payable with respect to the Class C
Certificates, the Trustee, for federal income tax purposes, shall treat such
excess as Realized Losses from Mortgage Loans and to the extent such Realized
Losses (if they had occurred) would be allocated to a Certificateholder, the
Trustee shall treat such amount as first payable to the Certificateholder as
principal and as then payable by the Certificateholder with respect to a
notional principal contract.
The
Trustee shall treat the Final Maturity Reserve Fund as an outside reserve fund
within the meaning of Treasury Regulation 1.860G-2(h) that is owned by the
Holders of the Class C Certificates, and that is not an asset of any REMIC
created hereunder. Beginning on the Distribution Date in April 2017,
the Trustee shall treat any monies payable to the Class C Certificateholders
with respect to their interest in the STR-C-40 Year IO Interest, as first paid
to the Class C Certificates and then deposited in the Final Maturity Reserve
Fund. Any monies payable on the STR-C-40 Year IO Interest in excess of the
Final
Maturity Required Deposit shall be the “Excess
Deposit.” For income tax purposes, to the extent the amount of any
Excess Deposit is payable to Holders of Certificates other than the Class C
Certificates, such amount shall be treated as payable to such Holders as Net
Rate Carryover and any remaining amount of Excess Deposit shall be treated
as
payable to the Holders of the Class C Certificates. Any other monies
received by the Holders of the Interest-Bearing Certificates from the Final
Maturity Reserve Fund will be treated as monies paid by the Holders of the
Class
C Certificates to acquire the Interest-Bearing Certificates receiving such
monies. Thus, with respect to such other monies, the Interest-Bearing
Certificates and the Class C Certificates shall be treated as representing
ownership of not only a Master REMIC regular interest, but also ownership of
an
interest in a forward purchase contract and the Trustee shall treat the rights
of the holders of the Interest-Bearing Certificates to receive such other monies
from the Final Maturity Reserve Fund as rights in forward purchase contracts
entered into with the Holders of the Class C Certificates.
148
|
|
Section
8.12
|
Co-Trustee.
|
(a) The
Co-Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Co-Trustee
that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they conform to the
requirements of this Agreement, to the extent required by this
Agreement. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Co-Trustee shall take
action as it deems appropriate to have the instrument corrected. In
addition, the Co-Trustee shall act as the insured under the Mortgage Insurance
Policy and hereby directs the Master Servicer, on behalf of the Co-Trustee,
to
take all actions appropriate or required of the Co-Trustee under the Mortgage
Insurance Policy, other than the payment of the Mortgage Insurance Premium
and
obtaining the approval of the Mortgage Insurer with respect to the appointment
of a successor servicer.
(b) No
provision of this Agreement shall be construed to relieve the Co-Trustee from
liability for its own grossly negligent action, its own gross negligent failure
to act or its own misconduct, its grossly negligent failure to perform its
obligations in compliance with this Agreement, or any liability that would
be
imposed by reason of its willful misfeasance or bad faith; provided
that:
(1) the
duties and obligations of the Co-Trustee shall be determined solely by the
express provisions of this Agreement with the exception of Section 8.10, the
Co-Trustee shall not be liable, individually or as Co-Trustee, 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 Co-Trustee and the Co-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 Co-Trustee and conforming to
the
requirements of this Agreement that it reasonably believed in good faith to
be
genuine and to have been duly executed by the proper authorities respecting
any
matters arising hereunder; and
(2) the
Co-Trustee shall not be liable, individually or as Co-Trustee, for an error
of
judgment made in good faith by a Responsible Officer or Responsible Officers
of
the Co-Trustee, unless the Co-Trustee was grossly negligent or acted in bad
faith or with willful misfeasance.
(c) Except
as otherwise provided in paragraph (b) above:
(1) the
Co-Trustee may request and rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer’s 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;
(2) the
Co-Trustee may consult with counsel 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;
149
(3) the
Co-Trustee shall not be liable, individually or as Co-Trustee, 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;
(4) the
Co-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;
(5) the
Co-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; and
(6) the
Co-Trustee shall not be required to expend its own funds or otherwise incur
any
financial liability in the performance of any of its duties hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it.
(d) The
recitals contained herein shall be taken as the statements of the Depositor
or
the Master Servicer, as the case may be, and the Co-Trustee assumes no
responsibility for their correctness. The Co-Trustee makes no
representations as to the validity or sufficiency of this Agreement or of any
Mortgage Loan or related document or of MERS or the MERS® System. The
Co-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.
(e) The
Co-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
Co-Trustee.
(f) The
Master Servicer covenants and agrees (i) to pay to the Co-Trustee from time
to
time, and the Co-Trustee shall be entitled to, such compensation as shall be
agreed in writing by the Master Servicer and the Co-Trustee (which shall not
be
limited by any provision of law in regard to the compensation of a trustee
of an
express trust) for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Co-Trustee and (ii) to pay or reimburse the Co-Trustee,
upon its request, for all reasonable expenses, disbursements and advances
incurred or made by the Co-Trustee on behalf of the Trust Fund in accordance
with any of the provisions of this Agreement (including, without limitation:
(A)
the reasonable compensation and the expenses and disbursements of its counsel,
but only for representation of the Co-Trustee acting in its capacity as
Co-Trustee hereunder and (B) to the extent that the Co-Trustee must engage
persons not regularly in its employ to perform acts or services on behalf of
the
Trust Fund, which acts or services are not in the ordinary course of the duties
of a trustee, paying agent or certificate registrar, in the absence of a breach
or default by any party hereto, the reasonable compensation, expenses and
disbursements of such persons, except any such expense, disbursement or advance
as may arise from its negligence, bad faith or willful
misconduct). The Co-Trustee and any director, officer, employee or
agent of the Co-Trustee shall be indemnified by the Master Servicer and held
harmless against any loss, liability or expense (i) incurred in connection
with
any legal action relating to this Agreement or the Certificates, or in
connection with the performance of any of the Co-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
Co-Trustee’s duties hereunder or by reason of reckless disregard of the
Co-Trustee’s obligations and duties hereunder 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 Co-Trustee
hereunder.
150
(g) The
Co-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 that would
not cause any of the Rating Agencies to reduce their respective ratings of
any
Class of Certificates below the ratings issued on the Closing Date (or having
provided such security from time to time as is sufficient to avoid such
reduction). 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 8.12 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
Co-Trustee shall cease to be eligible in accordance with the provisions of
this
Section 8.12, the Co-Trustee shall resign immediately in the manner and with
the
effect specified in paragraph (h) below. The corporation or national
banking association serving as Co-Trustee may have normal banking and trust
relationships with the Depositor, the Sellers and the Master Servicer and their
respective affiliates; provided that such corporation cannot be an affiliate
of
the Master Servicer other than the Trustee in its role as successor to the
Master Servicer.
(h) The
Co-Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days prior written notice of resignation to the Trustee,
the Depositor and the Master Servicer. Upon such resignation the
Trustee (x) may appoint a successor Co-Trustee meeting the requirements in
paragraph (g) above and acceptable to the Master Servicer and the NIM Insurer
(in their sole discretion), so long as such Co-Trustee executes and delivers
to
the other parties hereto an instrument agreeing to be bound by the provisions
of
this Agreement or (y) may if permitted by the Master Servicer (in its sole
discretion) assume the rights and duties of the resigning Co-Trustee so long
as
the Trustee executes and delivers an instrument to that effect.
|
|
Section
8.13
|
Access
to Records of the Trustee.
|
The
Trustee and the Co-Trustee shall afford the Sellers, the Depositor, the Master
Servicer, the NIM Insurer and each Certificate Owner upon reasonable notice
during normal business hours access to all records maintained by the Trustee
or
the Co-Trustee in respect of its duties under this Agreement and access to
officers of the Trustee and the Co-Trustee responsible for performing its
duties. Upon request, the Trustee or the Co-Trustee shall furnish the Depositor,
the Master Servicer, the NIM Insurer and any requesting Certificate Owner with
its most recent financial statements. The Trustee and the Co-Trustee shall
cooperate fully with the Sellers, the Master Servicer, the Depositor, the NIM
Insurer and the Certificate Owner for review and copying any books, documents,
or records requested with respect to the Trustee’s and the Co-Trustee’s
respective duties under this Agreement. The Sellers, the Depositor, the Master
Servicer and the Certificate Owner shall not have any responsibility or
liability for any action for failure to act by the Trustee or the Co-Trustee
and
are not obligated to supervise the performance of the Trustee or the Co-Trustee
under this Agreement or otherwise.
151
|
|
Section
8.14
|
Suits
for Enforcement.
|
If
an
Event of Default or other material default by the Master Servicer or the
Depositor under this Agreement occurs and is continuing, at the direction of
the
Certificateholders holding not less than 51% of the Voting Rights or the NIM
Insurer, the Trustee shall proceed to protect and enforce its rights and the
rights of the Certificateholders or the NIM Insurer under this Agreement by
a
suit, action, or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement
or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable, or other remedy, as the Trustee,
being advised by counsel, and subject to the foregoing, shall deem most
effectual to protect and enforce any of the rights of the Trustee, the NIM
Insurer and the Certificateholders.
ARTICLE
IX.
TERMINATION
|
|
Section
9.01
|
Termination
upon Liquidation or Repurchase of all Mortgage
Loans.
|
Subject
to Section 9.03 and Section 9.04, the Trust Fund shall terminate and the
obligations and responsibilities of the Depositor, the Master Servicer, the
Sellers, the Trustee and the Co-Trustee created hereby with respect to the
Trust
Fund shall terminate upon the earliest of (a) the purchase by the Master
Servicer or NIM Insurer (the party exercising such purchase option, the
“Terminator”) of all of the Mortgage Loans (and REO Properties) at a price (the
“Termination Price”) equal to the sum of (i) 100% of the Stated Principal
Balance of each Mortgage Loan (other than in respect of an REO Property), (ii)
accrued interest thereon at the applicable Mortgage Rate (or, if such repurchase
is effected by the Master Servicer, at the applicable Net Mortgage Rate), (iii)
the appraised value of any REO Property (up to the Stated Principal Balance
of
the related Mortgage Loan), such appraisal to be conducted by an appraiser
mutually agreed upon by the Terminator and the Trustee, (iv) any remaining
unpaid costs and damages incurred by the Trust Fund that arises out of an actual
violation of any predatory or abusive lending law or regulation and (v) if
the
Terminator is the NIM Insurer, any unreimbursed Servicing Advances, and the
principal portion of any unreimbursed Advances, made on the Mortgage Loans
prior
to the exercise of such repurchase, (b) the purchase by the Winning Bidder
of
all of the Mortgage Loans (and REO Properties) after a Successful Auction is
conducted pursuant to Section 9.04 and the related auction proceeds are
distributed pursuant to Section 9.02(c) and (c) the later of (i) the maturity
or
other liquidation (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to the Certificateholders of all amounts required to
be
distributed to them pursuant to this Agreement, as applicable. In no
event shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St.
James’s, living on the date hereof and (ii) the Latest Possible Maturity
Date.
152
Notwithstanding
anything set forth herein to the contrary (including, without limitation, in
Section 9.04), the right to purchase all Mortgage Loans and REO Properties
by
the Terminator or the Winning Bidder pursuant to clause (a) or clause (b) of
the
immediately preceding paragraph, as the case may be, shall be conditioned upon
(1) the Stated Principal Balance of the Mortgage Loans, at the time of any
such
repurchase, aggregating ten percent (10%) or less of the sum of the aggregate
Cut-off Date Principal Balance of the Initial Mortgage Loans and the Pre-Funded
Amount, (2) unless the NIM Insurer otherwise consents, the purchase price for
such Mortgage Loans and REO Properties shall result in a final distribution
on
any NIM Insurer guaranteed notes that is sufficient (x) to pay such notes in
full and (y) to pay any amounts due and payable to the NIM Insurer pursuant
to
the indenture related to such notes and (3) only in case of a purchase by the
Master Servicer pursuant to clause (a) of the immediately preceding paragraph,
the absence of a request for an auction, or the absence of a Successful Auction,
of the Mortgage Loans and REO Properties pursuant to Section 9.04.
The
NIM
Insurer’s right to purchase all Mortgage Loans and REO Properties shall be
further conditioned upon the written consent of the Master
Servicer.
The
Swap
Trust shall terminate on the earliest of (i) the Swap Contract Termination
Date,
(ii) the reduction of the aggregate Certificate Principal Balance of the
Interest-Bearing Certificates to zero and (iii) the termination of this
Agreement.
|
|
Section
9.02
|
Final
Distribution on the
Certificates.
|
(a) Timing
of Notice of Final Distribution, Auction or Optional
Termination.
(1) 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, then the Master Servicer shall direct
the Trustee promptly to send a final distribution notice to each
Certificateholder in accordance with Section 9.02(b). In the event
such notice is given, the Master Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on or before the Business Day prior to the applicable
Distribution Date, net of any amounts permitted to be withdrawn pursuant to
Section 3.08(a). Upon such final deposit with respect to the Trust
Fund and the receipt by the Trustee of a Request for File Release therefor,
the
Co-Trustee shall promptly release to the Master Servicer the Mortgage Files
for
the Mortgage Loans.
(2) If
the Directing Certificateholder chooses to exercise its right to cause an
auction pursuant to Section 9.04, then the Directing Certificateholder shall
provide written notice to the Master Servicer no later than the first day of
the
calendar month in which such auction is to be conducted. If a
Successful Auction is held pursuant to the requirements of Section 9.04, then
the Trustee shall distribute the proceeds of the Successful Auction that have
been remitted to the Distribution Account to the Certificateholders pursuant
to
Sections 4.04 and 9.04 hereof on the Distribution Date in the calendar month
immediately following the calendar month in which the Successful Auction
occurs.
153
(3) If
the Directing Certificateholder does not exercise its right to cause an auction
pursuant to Section 9.04 and the Terminator (after prior written notice to
the
Master Servicer if the Terminator is the NIM Insurer) elects to terminate the
Trust Fund pursuant to Section 9.01, then at least 20 days prior to the date
notice is to be mailed to Certificateholders in accordance with Section 9.02(b),
the Terminator shall notify the Depositor and the Trustee of (a) its election
to
terminate the Trust Fund, (b) the Distribution Date on which it intends to
terminate the Trust Fund pursuant to Section 9.01 and (c) the applicable
purchase price of the Mortgage Loans and REO Properties. In the event
such notice is given, the Terminator shall remit to the Master Servicer, on
or
before the Business Day prior to the final Distribution Date, for deposit into
the Certificate Account, the Termination Price. The Master Servicer
shall cause all funds in the Certificate Account, including the Termination
Price, net of any amounts permitted to be withdrawn pursuant to Section 3.08(a),
to be remitted to the Trustee for deposit in the Distribution Account on or
before the Business Day prior to the applicable Distribution
Date. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for File Release therefor, the Co-Trustee
shall promptly release to the Master Servicer the Mortgage Files for the
Mortgage Loans.
(b) Timing
of Notice to Certificateholders of Termination. Notice of any
termination of the Trust Fund (whether because of a Successful Auction, Optional
Termination or otherwise), specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by letter
to Certificateholders mailed not earlier than the 10th day and
no later
than the 15th day of the month immediately preceding the month of such final
distribution. Any such notice shall specify (i) the Distribution Date
upon which final distribution on the Certificates will be made upon presentation
and surrender of such Certificates at the office therein designated, (ii) the
amount of such final distribution, (iii) the location of the office or agency
at
which such presentation and surrender must be made, and (iv) that the Record
Date otherwise applicable to such Distribution Date is not applicable,
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 and the Swap Counterparty at the
time such notice is given to Certificateholders.
(c) Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class, in each case on the final
Distribution Date and in the order set forth in Section 4.04 (and with respect
to the Class C Certificates after a Successful Auction, Sections 9.04(g) and
(k)) hereof and in proportion to their respective Percentage Interests from
the
Distribution Account (and, if applicable, the Carryover Reserve Fund) an amount
equal to (i) as to each Class of Regular Certificates, the Certificate
Principal Balance thereof plus accrued interest thereon (or on its Notional
Amount, if applicable) in the case of an interest-bearing Certificate and
(ii) as to the Class A-R 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 Certificate Principal
Balance of any Class of Certificates to zero, such Class will be outstanding
hereunder (solely for the purpose of receiving distributions (if any) to which
it may be entitled pursuant to the terms of this Agreement 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.
154
(d) In
the event that any affected Certificateholders shall not surrender their
respective 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 that remain a part of the Trust Fund. If within one year after
the second notice all Certificates shall not have been surrendered for
cancellation, the Class A-R Certificates shall be entitled to all unclaimed
funds and other assets of the Trust Fund that remain subject to this
Agreement.
|
|
Section
9.03
|
Additional
Termination Requirements.
|
(a) In
the event the Terminator exercises its purchase option as provided in Section
9.01 or there is a Successful Auction pursuant to Section 9.04, 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 Terminator (or the Directing Certificateholder, in the case of a
Successful Auction), to the effect that the failure of the Trust Fund to comply
with the requirements of this Section 9.03 will not (i) result in the imposition
of taxes on “prohibited transactions” on any REMIC as defined in Section 860F of
the Code, or (ii) cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(1) The
Master Servicer shall establish a 90-day liquidation period and notify the
Trustee thereof, which shall in turn specify the first day of such period in
a
statement attached to the Trust Fund’s final Tax Return pursuant to Treasury
Regulation Section 1.860F-1. The Master Servicer shall prepare a plan
of complete liquidation and shall otherwise satisfy all the requirements of
a
qualified liquidation under Section 860F of the Code and any regulations
thereunder, as evidenced by an Opinion of Counsel delivered to the Trustee
and
the Depositor obtained at the expense of the Terminator (or the Directing
Certificateholder, in the case of a Successful Auction); and
(2) Within
90 days after the time of adoption of such a plan of complete liquidation,
the
Trustee shall sell all of the assets of the Trust Fund to the Terminator (or
the
Winning Bidder in the case of a Successful Auction) for cash in accordance
with
Section 9.01 and, if applicable, Section 9.04.
155
(b) By
their acceptance of the Certificates, the Holders thereof hereby authorize
the
Master Servicer to prepare and the Trustee to adopt and sign a plan of complete
liquidation which authorization shall be binding upon all successor
Certificateholders. The Trustee shall attach a statement to the final
federal income tax return for each of any REMIC created hereunder stating that
pursuant to Treasury Regulation Section 1.860F-1, the first day of the 90-day
liquidation period for each the REMIC was the date on which the Trustee sold
the
assets of the Trust Fund to the Terminator.
(c) The
Trustee, as agent for any REMIC created hereunder, hereby agrees to adopt and
sign such a plan of complete liquidation upon the written request of the Master
Servicer, and the receipt of the Opinion of Counsel referred to in Section
9.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Terminator or the Directing Certificateholder,
as
applicable.
|
|
Section
9.04
|
Auction
of the Mortgage Loans and REO
Properties.
|
(a) On
or after the Optional Termination Date, the Holder of the largest Percentage
Interest of the Class C Certificates (the “Directing Certificateholder”), at its
option, may by written instruction direct the Master Servicer to direct the
Trustee to solicit bids in a commercially reasonable manner from Qualified
Bidders for the purchase of the Mortgage Loans and any REO Properties owned
by
the Trust Fund. The Directing Certificateholder shall provide written
notice to the Master Servicer as provided in Section 9.02(a)(2). Any
such direction by the Directing Certificateholder shall (i) be made in writing
and (ii) include contact information for the Directing Certificateholder. Upon
receipt of any direction from the Directing Certificateholder meeting the
requirements of the immediately preceding sentence, the Trustee shall commence
the auction process described in this Section 9.04. The Trustee may
engage a financial advisor, which financial advisor may be CHL or one of its
affiliates, in order to perform any of the duties of the Trustee specified
in
Section 9.04. To effectuate such sale, the Trustee (or such financial
advisor) shall follow the procedures specified in Section 9.04(b)
below. The Trustee shall facilitate the sale of the assets in the
Trust Fund to the Winning Bidder so long as the Trustee (or any financial
advisor on its behalf) has received at least three bids from Qualified Bidders
and at least one such bid is at least equal to the Acceptable Bid
Amount. In the event the auction is not a Successful Auction, the
Trustee may repeat this process periodically thereafter as directed by the
Directing Certificateholder until a Successful Auction is conducted or the
Terminator purchases all of the Mortgage Loans and REO Properties pursuant
to
Section 9.01. The Trustee shall be reimbursed for its reasonable
costs, including expenses associated with engaging any financial advisor, from
the Directing Certificateholder if the auction is not a Successful Auction,
and,
if the auction is a Successful Auction, from the proceeds of the auction before
the proceeds are distributed to Certificateholders.
The
Trustee, upon inquiry from the Master Servicer, agrees to provide the Master
Servicer with the Percentage Interest of Class C Certificates held by the
Directing Certificateholder.
If
CHL or
any of its affiliates is the Directing Certificateholder, such Directing
Certificateholder shall not have the right to direct the Trustee to solicit
bids
for the purchase of the Mortgage Loans and any REO Properties owned by the
Trust
Fund.
156
(b) The
Trustee (or any financial advisor on its behalf) shall solicit bids for the
purchase of assets owned by the Trust Fund as provided in Section 9.04(a) not
later than two Business Days following receipt of the Directing
Certificateholder’s written instruction by contacting by telephone or in writing
at least three Qualified Bidders and requesting that each Qualified Bidder
bid
on the Mortgage Loans and REO Properties owned by the Trust Fund (on a
non-recourse basis with no representations or warranties of any nature
whatsoever made by the Trustee (or such financial advisor)) and providing to
the
Qualified Bidder any information relating to the Mortgage Loans and REO
Properties owned by the Trust Fund reasonably requested by such Qualified
Bidder, subject to the Qualified Bidder’s written agreement not to use such
information in the purchase or sale of Certificates (it being understood no
Qualified Bidder shall be obligated to submit a bid or take any other action
in
connection with any auction). The Master Servicer shall cooperate
with the Trustee (and any financial advisor on its behalf) during the auction
process. At 1:00 p.m. New York time on the second Business Day after
the date on which bids are last solicited (such second day, the “Bid
Determination Date”), the Trustee (or any financial advisor on its behalf) shall
determine the highest bid based on the bids received by the Trustee (or any
financial advisor on its behalf) on or before such time.
(c) If
the highest of the bids that are submitted by Qualified Bidders are less than
the Minimum Auction Amount, then the Trustee shall promptly inform the Directing
Certificateholder of the amount of the shortfall and indicate that the Directing
Certificateholder must notify the Trustee within 24 hours whether it will
contribute the amount of such difference (such difference being the “Auction
Supplement Amount”) so that the auction will be a Successful
Auction. If the highest of the bids that are submitted by Qualified
Bidders is equal to or greater than the Minimum Auction Amount, or if the
Directing Certificateholder notifies the Trustee within 24 hours of its receipt
of notice as described in the previous sentence that it will contribute the
Auction Supplement Amount, then the Trustee (or any financial advisor on its
behalf) shall notify promptly (but in any event no later than 3:00 p.m. New
York
time on the Business Day following the Bid Determination Date) the Winning
Bidder that its bid was the highest bid and shall provide wiring instructions
for payment of the bid amount into the Certificate Account by 12:00 p.m. New
York time on the second Business Day following the Bid Determination Date and,
if applicable, provide the Directing Certificateholder with wiring instructions
for payment of the Auction Supplement Amount into the Certificate Account by
such time.
(d) If
such Winning Bidder does not wire the bid amount so that it is received in
the
Certificate Account in immediately available funds by 12:00 p.m. New York time
on the second Business Day following the Bid Determination Date, the Trustee
shall repeat the process specified in the preceding paragraph with respect
to
the second highest bid, but only if such bid is at least the Minimum Auction
Amount or the Directing Certificateholder agrees to pay the new Auction
Supplement Amount. If no other bids are available to be accepted
pursuant to the preceding sentence, or if the amount remitted by the Winning
Bidder plus any Auction Supplement Amount remitted by the Directing
Certificateholder is less than the Minimum Auction Amount, then the auction
shall be considered to have failed for all purposes.
(e) The
Trustee shall not be liable with regard to the selection or engagement of,
or
for any act or omission of, a financial advisor pursuant to this Section 9.04
if
the Trustee engages CHL to be such financial advisor.
157
(f) In
the event of a Successful Auction and so long as the Winning Bidder has wired
its bid amount (and the Directing Certificateholder has wired any Auction
Supplement Amount, if applicable) to the Certificate Account as provided above,
then the Trustee shall promptly convey to the Winning Bidder the Mortgage Loans
and REO Properties owned by the Trust Fund. The Master Servicer shall
take all reasonable actions requested by the Trustee to effect such conveyance,
including remitting to the Distribution Account from the Certificate Account,
on
the Business Day prior to the Distribution Date on which final distribution
on
the Certificates is required to be paid under this Agreement, all amounts on
deposit in the Certificate Account, net of any amounts permitted to be withdrawn
pursuant to Section 3.08(a) and amounts owing to the Trustee in reimbursement
of
its reasonable costs, including expenses associated with engaging any financial
advisor, incurred in connection with the auction process. Such
amounts owed to the Trustee shall be withdrawn from the Certificate Account
by
the Master Servicer and paid to the Trustee.
(g) Any
amount paid by the Winning Bidder in excess of the Minimum Auction Amount shall
be distributed by the Trustee pro rata to the Class C Certificates on the
Distribution Date on which the final distribution on the Certificates is
made.
(h) In
the event of a Successful Auction and to the extent the Swap Contract is still
outstanding, the Directing Certificateholder shall either:
(1) if
any Swap Termination Payment would be payable by the Swap Contract Administrator
to the Swap Counterparty were the Swap Contract to be terminated following
final
distribution on the Certificates, either:
(A) pay
to the Swap Contract Administrator any such Swap Termination Payment;
or
(B) accept
assignment of the Swap Contract to the extent that the Directing
Certificateholder is an acceptable counterparty for the Swap
Counterparty;
(2) if
any Swap Termination Payment would be payable by the Swap Counterparty to the
Swap Contract Administrator were the Swap Contract to be terminated following
final distribution on the Certificates, either
(A) (i)
if the Directing Certificateholder does not own 100% of the Class C
Certificates, accept assignment of the Swap Contract to the extent that the
Directing Certificateholder is an acceptable counterparty for the Swap
Counterparty and pay to the Swap Contract Administrator the Swap Termination
Payment that would be owed to the Swap Contact Administrator by the Swap
Counterparty if the Swap Contract were terminated by the Swap Contract
Administrator following distribution on the Certificates or (ii) if the
Directing Certificateholder owns 100% of the Class C Certificates, accept
assignment of the Swap Contract to the extent that the Directing
Certificateholder is an acceptable counterparty for the Swap Counterparty;
or
158
(B) instruct
the Swap Contract Administrator to accept from the Swap Counterparty any Swap
Termination Payment that would be owed to the Swap Contract
Administrator.
(i) Any
amounts paid to the Swap Contract Administrator pursuant to subsection (h)(2)
above shall be distributed to the Class C Certificates, pro rata, based on
entitlement, by the Swap Contract Administrator.
(j) The
Master Servicer may purchase the Mortgage Loans and REO Properties owned by
the
Trust Fund for its own account pursuant to Section 9.01 or consent to the NIM
Insurer’s purchase of the Mortgage Loans and REO Properties owned by the Trust
Fund pursuant to Section 9.01 only if (1) the Directing Certificateholder
chooses not to request an auction as described above or if the immediately
preceding auction is unsuccessful or (2) the Master Servicer notifies the
Directing Certificateholder no later than 30 days prior to the date on which
the
Master Servicer or the NIM Insurer, as applicable, intends to effect the
purchase of the Mortgage Loans and REO Properties owned by the Trust Fund and
the Directing Certificateholder does not direct the Trustee to conduct an
auction prior to the end of that 30-day period.
(k) If
the Directing Certificateholder pays any Auction Supplement Amount pursuant
to
Section 9.04(c) or any Swap Termination Payment pursuant to Section
9.04(h)(1)(A), on the final Distribution Date any amounts to be distributed
to
the Class C Certificates pursuant to Section 4.02 will be distributed as
follows, first to the Directing Certificateholder, in an amount up to the sum of
such Auction Supplement Amount and such Swap Termination Payment and second
to
the Class C Certificates, pro rata. For federal income tax purposes,
such Auction Supplement Amount and such Swap Termination Payment so distributed
shall be deemed paid pro rata to the Class C Certificates, and the portion
of
such amounts deemed distributed to holders of the Class C Certificates other
than the Directing Certificateholder shall be deemed paid from such other
holders to the Directing Certificateholder.
ARTICLE
X.
MISCELLANEOUS
PROVISIONS
|
|
Section
10.01
|
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, the Master
Servicer, the Sellers, the Trustee and the Co-Trustee with the consent of the
NIM Insurer, without the consent of any of the Certificateholders (i) to cure
any ambiguity, (ii) to correct or supplement any provisions herein, (iii) to
conform this Agreement to the Prospectus Supplement or the Prospectus, (iv)
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, or (v) to make such other
provisions with respect to matters or questions arising under this Agreement,
as
shall not be inconsistent with any other provisions herein if such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder; provided that any such amendment
shall be deemed not to adversely affect in any material respect the interests
of
the Certificateholders and no such Opinion of Counsel shall be required if
the
Person requesting such amendment obtains a letter from each Rating Agency
stating that such amendment would not result in the downgrading or withdrawal
of
the respective ratings then assigned to the Certificates, it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent
a
determination only as to the credit issues affecting any such
rating. Any amendment described above made solely to conform this
Agreement to the Prospectus or the Prospectus Supplement shall be deemed not
to
adversely affect in any material respect the interests of the
Certificateholders. 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 Certificateholders representing
not
less than 51% of the Voting Rights of each Class of Certificates affected by
such amendment. Each party to this Agreement hereby agrees that it
will cooperate with each other party in amending this Agreement pursuant to
clause (iv) above.
159
The
Trustee, the Co-Trustee, the Depositor, the Master Servicer and the Sellers
with
the consent of the NIM Insurer may also 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 appropriate to maintain the qualification of the Trust Fund as a REMIC under
the Code or to avoid or minimize the risk of the imposition of any tax on the
Trust Fund pursuant to the Code that would be a claim against the Trust Fund
at
any time prior to the final redemption of the Certificates, 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, to the effect that such action is necessary or
appropriate to maintain such qualification or to avoid or minimize the risk
of
the imposition of such a tax.
This
Agreement may also be amended from time to time by the Depositor, the Master
Servicer, the Sellers, the Trustee and the Co-Trustee with the consent of the
NIM Insurer and the Holders of each Class of Certificates affected thereby
evidencing not less than 51% of the Voting Rights of such Class 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 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
66%
or more of the Voting Rights of such Class, 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, no amendment shall adversely affect
in
any material respect the Swap Counterparty without at least ten Business Days’
prior notice to the Swap Counterparty and without the prior written consent
of
the Swap Counterparty, which consent shall not be unreasonably
withheld. CHL shall provide the Swap Counterparty with prior written
notice of any proposed material amendment of this Agreement.
160
Notwithstanding
any contrary provision of this Agreement, the Trustee and the NIM Insurer shall
not consent to any amendment to this Agreement unless each shall have first
received an Opinion of Counsel satisfactory to the Trustee and the NIM Insurer,
which opinion shall be an expense of the party requesting such amendment but
in
any case shall not be an expense of the Trustee or the NIM Insurer, to the
effect that such amendment will not cause the imposition of any tax on the
Trust
Fund or the Certificateholders or cause any REMIC formed hereunder 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, the Trustee shall
furnish written notification of the substance of such amendment to the Swap
Counterparty, to each Certificateholder (if the consent of Certificateholders
is
required) and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment without
receiving an Opinion of Counsel, reasonably satisfactory to the Trustee and
the
NIM Insurer 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.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
|
|
Section
10.03
|
Governing
Law.
|
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
161
|
|
Section
10.04
|
Intention
of Parties.
|
(a) It
is the express intent of the parties hereto that the conveyance of the Mortgage
Notes, Mortgages, assignments of Mortgages, title insurance policies and any
modifications, extensions and/or assumption agreements and private mortgage
insurance policies relating to the Mortgage Loans by the Depositor to the
Trustee be, and be construed as, an absolute sale thereof to the
Trustee. It is, further, not the intention of the parties that such
conveyance be deemed a pledge thereof by the Depositor to the
Trustee. However, in the event that, notwithstanding the intent of
the parties, such assets are held to be the property of the Depositor, or if
for
any other reason this Agreement or any Subsequent Transfer Agreement is held
or
deemed to create a security interest in 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 conveyance provided for in this Agreement and
any Subsequent Transfer Agreement shall be deemed to be an assignment and a
grant pursuant to the terms of this Agreement by the Depositor to the Trustee,
for the benefit of the Certificateholders and the Swap Counterparty, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired.
The
Depositor for the benefit of the Certificateholders, the NIM Insurer and the
Swap Counterparty 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 assets of 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
and
the Swap Counterparty.
(b) The
Depositor hereby represents that:
(i) This
Agreement creates a valid and continuing security interest (as defined in the
Uniform Commercial Code as enacted in the State of New York (the “NY UCC”)) in
the Mortgage Notes in favor of the Trustee, which security interest is prior
to
all other liens, and is enforceable as such as against creditors of and
purchasers from the Depositor.
(ii) The
Mortgage Notes constitute “instruments” within the meaning of the NY
UCC.
(iii) Immediately
prior to the assignment of each Mortgage Loan to the Trustee, the Depositor
owns
and has good and marketable title to such Mortgage Loan free and clear of any
lien, claim or encumbrance of any Person.
(iv) The
Depositor has received all consents and approvals required by the terms of
the
Mortgage Loans to the sale of the Mortgage Loans hereunder to the
Trustee.
162
(v) All
original executed copies of each Mortgage Note that are required to be delivered
to the Co-Trustee pursuant to Section 2.01 have been delivered to the
Co-Trustee.
(vi) Other
than the security interest granted to the Trustee pursuant to this Agreement,
the Depositor has not pledged, assigned, sold, granted a security interest
in,
or otherwise conveyed any of the Mortgage Loans. The Depositor has
not authorized the filing of and is not aware of any financing statements
against the Depositor that include a description of collateral covering the
Mortgage Loans other than any financing statement relating to the security
interest granted to the Trustee hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor.
The
parties to this Agreement shall not waive any of the representations set forth
in this Section 10.04(b) without obtaining a confirmation of the then-current
ratings of the Certificates.
(c) The
Master Servicer shall take such action as is reasonably necessary to maintain
the perfection and priority of the security interest of the Trustee in the
Mortgage Loans; provided, however, that the obligation to deliver the Mortgage
File to the Co-Trustee pursuant to Section 2.01 shall be solely the Depositor’s
obligation and the Master Servicer shall not be responsible for the safekeeping
of the Mortgage Files by the Co-Trustee.
(d) It
is understood and agreed that the representations and warranties set forth
in
subsection (b) above shall survive delivery of the Mortgage Files to the
Co-Trustee. Upon discovery by the Depositor or the Trustee of a
breach of any of the foregoing representations and warranties set forth in
subsection (b) above, which breach materially and adversely affects the interest
of the Certificateholders, the party discovering such breach shall give prompt
written notice to the others and to each Rating Agency.
|
|
Section
10.05
|
Notices.
|
(a) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency and the Swap Counterparty 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 Sections 2.02, 2.03,
2.04 and 3.12; and
(5) The
final payment to Certificateholders.
163
(b) In
addition, the Trustee shall promptly furnish to each Rating Agency copies of
the
following:
(1) Each
report to Certificateholders described in Section 4.05;
(2) Each
annual statement as to compliance described in Section 3.17; and
(3) Each
annual independent public accountants’ servicing report described in Section
11.07.
(c) All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when sent by facsimile transmission, first class
mail or delivered to (i) in the case of the Depositor, CWABS, Inc., 0000 Xxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxx Xxxxx, or such other address as may be hereafter furnished
to
the Sellers, the Master Servicer and the Trustee by the Depositor in writing;
(ii) in the case of CHL, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number (000) 000-0000, Attention: Xxxx
Xxxxx, or such other address as may be hereafter furnished to the Depositor,
the
Master Servicer and the Trustee by the Sellers in writing; (iii) in the case
of
Park Monaco, Park Monaco Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number (000) 000-0000, Attention: Xxxx Xxx, or such other address
as
may be hereafter furnished to the Depositor, the Master Servicer and the Trustee
by the Sellers in writing; (iv) in the case of Park Sienna, Park Sienna LLC,
0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number (000) 000-0000,
Attention: Xxxx Xxx, or such other address as may be hereafter furnished to
the
Depositor, the Master Servicer and the Trustee by the Sellers in writing; (v)
in
the case of the Master Servicer, Countrywide Home Loans Servicing LP, 0000
Xxxxxxxxx Xxxxx, Xxxxx, Xxxxx 00000, facsimile number (000) 000-0000, Attention:
Xxxx Xxxx or such other address as may be hereafter furnished to the Depositor,
the Sellers and the Trustee by the Master Servicer in writing; (vi) in the
case
of the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust MBS Administration, CWABS, Series
2007-5, or such other address as the Trustee may hereafter furnish to the
parties hereto; (vii) in the case of the Co-Trustee, The Bank of New York Trust
Company, N.A., 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: MBS Support Services, or such other address as the
Co-Trustee may hereafter furnish to the Depositor, the Master Servicer and
the
Trustee; (viii) in the case of the Rating Agencies, (x) Xxxxx’x Investors
Service, Inc., Attention: ABS Monitoring Department, 00 Xxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (y) Standard & Poor’s
Ratings Services, a division of The XxXxxx-Xxxx Companies,
Attention: Mortgage Surveillance Group, 00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000; and (viii) in the case of the Swap Counterparty, Deutsche Bank
AG, New York Branch, Attention: New York Derivatives Documentation, Facsimile:
(000) 000-0000, Telephone: (000) 000-0000, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other address as may be hereafter furnished by the Swap
Counterparty. Notices to Certificateholders shall be deemed given
when mailed, first postage prepaid, to their respective addresses appearing
in
the Certificate Register.
164
|
|
Section
10.06
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
|
|
Section
10.07
|
Assignment.
|
Notwithstanding
anything to the contrary contained herein, except as provided pursuant to
Section 6.02, this Agreement may not be assigned by the Master Servicer without
the prior written consent of the Trustee and the Depositor.
|
|
Section
10.08
|
Limitation
on Rights of
Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, 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 Fund,
or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, the Holders
of Certificates evidencing not less than 25% of the Voting Rights 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 herein provided and for the common benefit of all
Certificateholders. For the protection and enforcement of the
provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
165
|
|
Section
10.09
|
Inspection
and Audit Rights.
|
The
Master Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Depositor, any Seller, the NIM Insurer 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, a Seller, the NIM Insurer 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 such 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, any Seller, the NIM Insurer 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.
|
|
Section
10.10
|
Certificates
Nonassessable and Fully Paid.
|
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
|
|
Section
10.11
|
Rights
of NIM Insurer.
|
(a) The
rights of the NIM Insurer under this Agreement shall exist only so long as
either:
(1) the
notes certain payments on which are guaranteed by the NIM Insurer remain
outstanding or
(2) the
NIM Insurer is owed amounts paid by it with respect to that
guaranty.
(b) The
rights of the NIM Insurer under this Agreement are exercisable by the NIM
Insurer only so long as no default by the NIM Insurer under its guaranty of
certain payments under notes backed or secured by the Class C or Class P
Certificates has occurred and is continuing. If the NIM Insurer is the subject
of any insolvency proceeding, the rights of the NIM Insurer under this Agreement
will be exercisable by the NIM Insurer only so long as:
(1) the
obligations of the NIM Insurer under its guaranty of notes backed or secured
by
the Class C or Class P Certificates have not been disavowed and
166
(2) CHL
and the Trustee have received reasonable assurances that the NIM Insurer will
be
able to satisfy its obligations under its guaranty of notes backed or secured
by
the Class C or Class P Certificates.
(c) The
NIM Insurer is a third party beneficiary of this Agreement to the same extent
as
if it were a party to this Agreement and may enforce any of those rights under
this Agreement.
(d) A
copy of any documents of any nature required by this Agreement to be delivered
by the Trustee, or to the Trustee or the Rating Agencies, shall in each case
at
the same time also be delivered to the NIM Insurer. Any notices required to
be
given by the Trustee, or to the Trustee or the Rating Agencies, shall in each
case at the same time also be given to the NIM Insurer. If the
Trustee receives a notice or document that is required hereunder to be delivered
to the NIM Insurer, and if such notice or document does not indicate that a
copy
thereof has been previously sent to the NIM Insurer, the Trustee shall send
the
NIM Insurer a copy of such notice or document. If such document is an
Opinion of Counsel, the NIM Insurer shall be an addressee thereof or such
Opinion of Counsel shall contain language permitting the NIM Insurer to rely
thereon as if the NIM Insurer were an addressee thereof.
(e) Anything
in this Agreement that is conditioned on not resulting in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies shall also be conditioned on not resulting in the downgrading or
withdrawal of the ratings then assigned by the Rating Agencies to the notes
backed or secured by the Class C or Class P Certificates (without giving effect
to any policy or guaranty provided by the NIM Insurer).
|
|
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:
(1) borrow
money or issue debt;
(2) merge
with another entity, reorganize, liquidate or sell assets; or
(3) engage
in any business or activities.
(b) Each
party to this Agreement agrees that it will not file an involuntary bankruptcy
petition against the Trustee or the Trust Fund or initiate any other form of
insolvency proceeding until the date that is one year and one day after the
Certificates have been paid.
167
ARTICLE
XI.
EXCHANGE
ACT REPORTING
|
|
Section
11.01
|
Filing
Obligations.
|
The
Master Servicer, the Trustee and each Seller shall reasonably cooperate with
the
Depositor in connection with the satisfaction of the Depositor’s reporting
requirements under the Exchange Act with respect to the Trust
Fund. In addition to the information specified below, if so requested
by the Depositor for the purpose of satisfying its reporting obligation under
the Exchange Act, the Master Servicer, the Trustee and each Seller shall (and
the Master Servicer shall cause each Subservicer to) provide the Depositor
with
(a) such information which is available to such Person without unreasonable
effort or expense and within such timeframe as may be reasonably requested
by
the Depositor to comply with the Depositor’s reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor
is
not a party) to any agreement or amendment required to be filed, copies of
such
agreement or amendment in XXXXX-compatible form.
|
|
Section
11.02
|
Form
10-D Filings.
|
(a) In
accordance with the Exchange Act, the Trustee shall prepare for filing and
file
within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act) with the Commission with respect to the Trust Fund,
a
Form 10-D with copies of the Monthly Statement and, to the extent delivered
to
the Trustee, no later than 10 days following the Distribution Date, such other
information identified by the Depositor or the Master Servicer, in writing,
to
be filed with the Commission (such other information, the “Additional Designated
Information”). If the Depositor or Master Servicer directs that any
Additional Designated Information is to be filed with any Form 10-D, the
Depositor or Master Servicer, as the case may be, shall specify the Item on
Form
10-D to which such information is responsive and, with respect to any Exhibit
to
be filed on Form 10-D, the Exhibit number. Any information to be
filed on Form 10-D shall be delivered to the Trustee in XXXXX-compatible form
or
as otherwise agreed upon by the Trustee and the Depositor or the Master
Servicer, as the case may be, at the Depositor’s expense, and any necessary
conversion to XXXXX-compatible format will be at the Depositor’s
expense. At the reasonable request of, and in accordance with the
reasonable directions of, the Depositor or the Master Servicer, subject to
the
two preceding sentences, the Trustee shall prepare for filing and file an
amendment to any Form 10-D previously filed with the Commission with respect
to
the Trust Fund. The Master Servicer shall sign the Form 10-D filed on
behalf of the Trust Fund.
(b) No
later than each Distribution Date, each of the Master Servicer and the Trustee
shall notify (and the Master Servicer shall cause any Subservicer to notify)
the
Depositor and the Master Servicer of any Form 10-D Disclosure Item, together
with a description of any such Form 10-D Disclosure Item in form and substance
reasonably acceptable to the Depositor. In addition to such
information as the Master Servicer and the Trustee are obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Depositor, each of the Master Servicer and the Trustee shall provide such
information which is available to the Master Servicer and the Trustee, as
applicable, without unreasonable effort or expense regarding the performance
or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Master Servicer) as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB. Such information shall be provided concurrently with
the Remittance Reports in the case of the Master Servicer and the Monthly
Statement in the case of the Trustee, commencing with the first such report
due
not less than five Business Days following such request.
168
(c) The
Trustee shall not have any responsibility to file any items (other than those
generated by it) that have not been received in a format suitable (or readily
convertible into a format suitable) for electronic filing via the XXXXX system
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it or that are readily convertible to
such
format). The Trustee shall have no liability to the
Certificateholders, the Trust Fund, the Master Servicer, the Depositor or the
NIM Insurer with respect to any failure to properly prepare or file any of
Form
10-D to the extent that such failure is not the result of any negligence, bad
faith or willful misconduct on its part.
|
|
Section
11.03
|
Form
8-K Filings.
|
The
Master Servicer shall prepare and file on behalf of the Trust Fund any Form
8-K
required by the Exchange Act. Each Form 8-K must be signed by the
Master Servicer. Each of the Master Servicer (and the Master Servicer
shall cause any Subservicer to promptly notify) and the Trustee shall promptly
notify the Depositor and the Master Servicer (if the notifying party is not
the
Master Servicer), but in no event later than one (1) Business Day after its
occurrence, of any Reportable Event of which it has actual
knowledge. Each Person shall be deemed to have actual knowledge of
any such event to the extent that it relates to such Person or any action or
failure to act by such Person. Concurrently with any Subsequent
Transfer, CHL shall notify the Depositor and the Master Servicer, if any
material pool characteristic of the actual asset pool at the time of issuance
of
the Certificates differs by 5% or more (other than as a result of the pool
assets converting into cash in accordance with their terms) from the description
of the asset pool in the Prospectus Supplement.
|
|
Section
11.04
|
Form
10-K Filings.
|
Prior
to
March 30th of each year, commencing in 2008 (or such earlier date as may be
required by the Exchange Act), the Depositor shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. A senior officer in charge of the servicing function of the
Master Servicer shall sign each Form 10-K filed on behalf of the Trust
Fund. Such Form 10-K shall include as exhibits each (i) annual
compliance statement described under Section 3.17, (ii) annual report on
assessments of compliance with servicing criteria described under Section 11.07
and (iii) accountant’s report described under Section 11.07. Each
Form 10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be
included therewith, as described in Section 11.05.
If
the
Item 1119 Parties listed on Exhibit Z have changed since the Closing Date,
no
later than March 1 of each year, the Master Servicer shall provide each of
the
Master Servicer (and the Master Servicer shall provide any Subservicer) and
the
Trustee with an updated Exhibit Z setting forth the Item 1119
Parties. No later than March 15 of each year, commencing in 2008, the
Master Servicer and the Trustee shall notify (and the Master Servicer shall
cause any Subservicer to notify) the Depositor and the Master Servicer of any
Form 10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the
Depositor. Additionally, each of the Master Servicer and the Trustee
shall provide, and shall cause each Reporting Subcontractor retained by the
Master Servicer or the Trustee, as applicable, and in the case of the Master
Servicer shall cause each Subservicer, to provide, the following information
no
later than March 15 of each year in which a Form 10-K is required to be filed
on
behalf of the Trust Fund: (i) if such Person’s report on assessment of
compliance with servicing criteria described under Section 11.07 or related
registered public accounting firm attestation report described under Section
11.07 identifies any material instance of noncompliance, notification of such
instance of noncompliance and (ii) if any such Person’s report on assessment of
compliance with servicing criteria or related registered public accounting
firm
attestation report is not provided to be filed as an exhibit to such Form 10-K,
information detailing the explanation why such report is not
included.
169
|
|
Section
11.05
|
Xxxxxxxx-Xxxxx
Certification.
|
Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
of the Commission promulgated thereunder (including any interpretations thereof
by the Commission’s staff)). No later than March 15 of each year,
beginning in 2008, the Master Servicer and the Trustee shall (unless such person
is the Certifying Person), and the Master Servicer shall cause each Subservicer
and each Reporting Subcontractor and the Trustee shall cause each Reporting
Subcontractor to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying Person”) a certification (each, a
“Performance Certification”), in the form attached hereto as Exhibit X-1
(in the case of a Subservicer or any Reporting Subcontractor of the Master
Servicer or a Subservicer) and Exhibit X-2 (in the case of the Trustee or any
Reporting Subcontractor of the Trustee), on which the Certifying Person, the
entity for which the Certifying Person acts as an officer, and such entity’s
officers, directors and Affiliates (collectively with the Certifying Person,
“Certification Parties”) can reasonably rely. The senior
officer in charge of the servicing function of the Master Servicer shall serve
as the Certifying Person on behalf of the Trust Fund. Neither the
Master Servicer nor the Depositor will request delivery of a certification
under
this clause unless the Depositor is required under the Exchange Act to file
an
annual report on Form 10-K with respect to the Trust Fund. In the
event that prior to the filing date of the Form 10-K in March of each year,
the
Trustee or the Depositor has actual knowledge of information material to the
Xxxxxxxx-Xxxxx Certification, the Trustee or the Depositor, as the case may
be,
shall promptly notify the Master Servicer and the Depositor. The
respective parties hereto agree to cooperate with all reasonable requests made
by any Certifying Person or Certification Party in connection with such Person’s
attempt to conduct any due diligence that such Person reasonably believes to
be
appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx Certification
or
portion thereof with respect to the Trust Fund.
|
|
Section
11.06
|
Form
15 Filing.
|
Prior
to
January 30 of the first year in which the Depositor is able to do so under
applicable law, the Depositor shall file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange
Act.
170
|
|
Section
11.07
|
Report
on Assessment of Compliance and
Attestation.
|
(a) On
or before March 15 of each calendar year, commencing in 2008:
(1) Each
of the Master Servicer and the Trustee shall deliver to the Depositor and the
Master Servicer a report (in form and substance reasonably satisfactory to
the
Depositor) regarding the Master Servicer’s or the Trustee’s, as applicable,
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be
signed by an authorized officer of such Person and shall address each of the
Servicing Criteria specified on a certification substantially in the form of
Exhibit Y hereto delivered to the Depositor concurrently with the execution
of
this Agreement. To the extent any of the Servicing Criteria are not
applicable to such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a statement to
that effect. The Depositor and the Master Servicer, and each of their
respective officers and directors shall be entitled to rely on upon each such
servicing criteria assessment.
(2) Each
of the Master Servicer and the Trustee shall deliver to the Depositor and the
Master Servicer a report of a registered public accounting firm reasonably
acceptable to the Depositor that attests to, and reports on, the assessment
of
compliance made by Master Servicer or the Trustee, as applicable, and delivered
pursuant to the preceding paragraphs. Such attestation shall be in
accordance with Rules 1-02(a)(3)and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act, including, without limitation that in
the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such
an
opinion. Such report must be available for general use and not
contain restricted use language. To the extent any of the Servicing
Criteria are not applicable to such Person, with respect to asset-backed
securities transactions taken as a whole involving such Person and that are
backed by the same asset type backing the Certificates, such report shall
include such a statement that that effect.
(3) The
Master Servicer shall cause each Subservicer and each Reporting Subcontractor
to
deliver to the Depositor an assessment of compliance and accountant’s
attestation as and when provided in paragraphs (a) and (b) of this Section
11.07.
(4) The
Trustee shall cause each Reporting Subcontractor to deliver to the Depositor
and
the Master Servicer an assessment of compliance and accountant’s attestation as
and when provided in paragraphs (a) and (b) of this Section.
(5) The
Master Servicer and the Trustee shall execute (and the Master Servicer shall
cause each Subservicer to execute, and the Master Servicer and the Trustee
shall
cause each Reporting Subcontractor to execute) a reliance certificate to enable
the Certification Parties to rely upon each (i) annual compliance statement
provided pursuant to Section 3.17, (ii) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section 11.07
and
(iii) accountant’s report provided pursuant to this Section 11.07 and shall
include a certification that each such annual compliance statement or report
discloses any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the certificates
provided for in this Section 11.07.
171
(b) In
the event the Master Servicer, any Subservicer, the Trustee or Reporting
Subcontractor is terminated or resigns during the term of this Agreement, such
Person shall provide documents and information required by this Section 11.07
with respect to the period of time it was subject to this Agreement or provided
services with respect to the Trust Fund, the Certificates or the Mortgage
Loans.
(c) Each
assessment of compliance provided by a Subservicer pursuant to Section
11.07(a)(3)shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit Y hereto delivered to the
Depositor concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 11.07(a)(3)or (4) need not address any elements of the
Servicing Criteria other than those specified by the Master Servicer or the
Trustee, as applicable, pursuant to Section 11.07(a)(1).
|
|
Section
11.08
|
Use
of Subservicers and
Subcontractors.
|
(a) The
Master Servicer shall cause any Subservicer used by the Master Servicer (or
by
any Subservicer) for the benefit of the Depositor to comply with the provisions
of Section 3.17 and this Article XI to the same extent as if such Subservicer
were the Master Servicer (except with respect to the Master Servicer’s duties
with respect to preparing and filing any Exchange Act Reports or as the
Certifying Person). The Master Servicer shall be responsible for
obtaining from each Subservicer and delivering to the Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
3.17, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 11.07 and any certification required to be
delivered to the Certifying Person under Section 11.05 as and when required
to
be delivered. As a condition to the succession to any Subservicer as
subservicer under this Agreement by any Person (i) into which such Subservicer
may be merged or consolidated, or (ii) which may be appointed as a successor
to
any Subservicer, the Master Servicer shall provide to the Depositor, at least
15
calendar days prior to the effective date of such succession or appointment,
(x)
written notice to the Depositor of such succession or appointment and (y) in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K.
(b) It
shall not be necessary for the Master Servicer, any Subservicer or the Trustee
to seek the consent of the Depositor or any other party hereto prior to the
utilization of any Subcontractor. The Master Servicer or the Trustee,
as applicable, shall promptly upon request provide to the Depositor (or any
designee of the Depositor, such as the Master Servicer or administrator) a
written description (in form and substance satisfactory to the Depositor) of
the
role and function of each Subcontractor utilized by such Person (or in the
case
of the Master Servicer, any Subservicer), specifying (i) the identity of each
such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
172
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Master Servicer or the Trustee, as applicable, shall cause
any such Subcontractor used by such Person (or in the case of the Master
Servicer, any Subservicer) for the benefit of the Depositor to comply with
the
provisions of Sections 11.07 and 11.09 of this Agreement to the same extent
as
if such Subcontractor were the Master Servicer (except with respect
to the Master Servicer’s duties with respect to preparing and filing any
Exchange Act Reports or as the Certifying Person) or the Trustee, as
applicable. The Master Servicer or the Trustee, as applicable, shall
be responsible for obtaining from each Subcontractor and delivering to the
Depositor and the Master Servicer, any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 11.05 and Section
11.07, in each case as and when required to be delivered.
|
|
Section
11.09
|
Amendments.
|
In
the
event the parties to this Agreement desire to further clarify or amend any
provision of this Article XI, this Agreement shall be amended to reflect the
new
agreement between the parties covering matters in this Article XI pursuant
to
Section 10.01, which amendment shall not require any Opinion of Counsel or
Rating Agency confirmations or the consent of any Certificateholder or the
NIM
Insurer.
If,
during the period that the Depositor is required to file Exchange Act Reports
with respect to the Trust Fund, the Master Servicer is no longer an Affiliate
of
the Depositor, the Depositor shall assume the obligations and responsibilities
of the Master Servicer in this Article XI with respect to the preparation and
filing of the Exchange Act Reports and/or acting as the Certifying Person,
if
the Depositor has received indemnity from such successor Master Servicer
satisfactory to the Depositor, and such Master Servicer has agreed to provide
a
Xxxxxxxx-Xxxxx Certification to the Depositor substantially in the form of
Exhibit AA and the certifications referred to in Section 11.07.
|
|
Section
11.10
|
Reconciliation
of Accounts.
|
Any
reconciliation of Accounts performed by any party hereto, or any Subservicer
or
Subcontractor shall be prepared no later than 45 calendar days after the bank
statement cut-off date.
173
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
|
CWABS,
INC.,
as
Depositor
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
|
COUNTRYWIDE
HOME LOANS, INC.,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
|
PARK
MONACO INC.,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
|
PARK
SIENNA LLC,
as
a Seller
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
|
COUNTRYWIDE
HOME LOANS SERVICING LP,
as
Master Servicer
|
|||
| By: COUNTRYWIDE GP, INC. | |||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
|
THE
BANK OF NEW YORK,
as
Trustee
|
|||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxx | |
| Name: | |||
| Title: | |||
|
THE
BANK OF NEW YORK
(solely
with respect to its obligations under Section
4.01(d))
|
|||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
|
THE
BANK OF NEW YORK TRUST COMPANY, N.A.
as
Co-Trustee
|
|||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Vice President | |||
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On
this
30th day of March, 2007, before me, a notary public in and for said State,
appeared Xxxxxx Xxxxx, personally known to me on the basis of satisfactory
evidence to be an Executive Vice President of Countrywide Home Loans, Inc.,
one
of the corporations that executed the within instrument, and also known to
me to
be the person who executed it on behalf of such corporation and acknowledged
to
me that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxx Xxxxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On
this
30th day of March, 2007, before me, a notary public in and for said State,
appeared Xxxxxx Xxxxx, personally known to me on the basis of satisfactory
evidence to be an Executive Vice President of Countrywide GP, Inc., the parent
company of Countrywide Home Loans Servicing LP, one of the organizations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such limited partnership and acknowledged to me that
such limited partnership executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxx Xxxxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On
this
30th day of March, 2007, before me, a notary public in and for said State,
appeared Xxxxxx Xxxxx, personally known to me on the basis of satisfactory
evidence to be an Executive Vice President of CWABS, Inc., one of the
corporations that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such corporation and acknowledged to me
that
such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxx Xxxxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On
this
30th day of March, 2007, before me, a notary public in and for said State,
appeared Xxxxxx Xxxxx, personally known to me on the basis of satisfactory
evidence to be an Executive Vice President of Park Monaco Inc., one of the
corporations that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such corporation and acknowledged to me
that
such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxx Xxxxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On
this
30th day of March, 2007, before me, a notary public in and for said State,
appeared Xxxxxx Xxxxx, personally known to me on the basis of satisfactory
evidence to be an Executive Vice President of Park Sienna LLC, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity and acknowledged to me that
such
entity executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxx Xxxxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
this
30th day of March, 2007 before me, a notary public in and for said State,
appeared Xxxxxxxx Xxxxxx, personally known to me on the basis of satisfactory
evidence to be a Assitant Treasurer of The Bank of New York, a New York banking
corporation that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
this
30th day of March, 2007 before me, a notary public in and for said State,
appeared Xxxx Xxxxxxxx, personally known to me on the basis of satisfactory
evidence to be a Vice President of The Bank of New York, a New York banking
corporation that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On
this
30th day of March, 2007, before me, a notary public in and for said State,
appeared Xxxx Marshalll, personally known to me on the basis of satisfactory
evidence to be a Vice President of The Bank of New York Trust Company, N.A.,
one
of the corporations that executed the within instrument, and also known to
me to
be the person who executed it on behalf of such corporation and acknowledged
to
me that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxxx X. Xxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
Exhibits
A-1
through
A-13
[Exhibits
A-1 through A-13 are
photocopies
of such Certificates as delivered.]
A-1
[See
appropriate documents delivered at closing.]
Exhibit
B
Exhibit
B
is a photocopy
of
the
Class P Certificates
as
delivered.
[See
appropriate document delivered at closing.]
B-1
Exhibit
C
Exhibit
C
is a photocopy
of
the
Class C Certificates
as
delivered.
[See
appropriate document delivered at closing.]
C-1
Exhibit
D
Exhibit
D
is a photocopy
of
the
Class A-R Certificate
as
delivered.
[See
appropriate documents delivered at closing.]
D-1
Exhibit
E
Exhibit
E
is a photocopy
of
the
Tax Matters Person Certificate
as
delivered.
[See
appropriate documents delivered at closing.]
E-1
Exhibit
F-1 and F-2
[Exhibits
F-1 and F-2 are schedules of Mortgage Loans]
[Delivered
to Trustee at closing and on file with the Trustee.]
F-1
EXHIBIT
G-1
FORM
OF
INITIAL CERTIFICATION OF TRUSTEE
[Date]
[Depositor]
[Sellers]
[Master
Servicer]
|
|
Re:
|
CWABS
Asset-Backed Certificates, Series
0000-0
|
Xxxxxxxxx:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement dated as
of
March 1, 2007 (the “Pooling and Servicing Agreement”) among CWABS, Inc., as
Depositor, Countrywide Home Loans, Inc., as a Seller, Park Monaco Inc., as
a
Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP,
as
Master Servicer, the undersigned, as Trustee, and The Bank of New York Trust
Company, N.A., as Co-Trustee, the undersigned, as Trustee, hereby certifies
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than
any Mortgage Loan paid in full or listed in the attached list of exceptions)
the
Co-Trustee has received:
(i) the
original Mortgage Note, endorsed by manual or facsimile signature in blank
in
the following form: “Pay to the order of ______________, without
recourse”, or, if the original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit, stating that the original Mortgage
Note was lost or destroyed, together with a copy of the related Mortgage Note;
and
(ii) a
duly executed assignment of the Mortgage or a copy of such assignment, in either
case in the form permitted by Section 2.01 of the Pooling and Servicing
Agreement.
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
G-1-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| The
Bank of New York,
as
Trustee
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
G-1-2
EXHIBIT
G-2
FORM
OF
INTERIM CERTIFICATION OF TRUSTEE
[Date]
[Depositor]
[Sellers]
[Master
Servicer]
|
|
Re:
|
CWABS
Asset-Backed Certificates, Series
0000-0
|
Xxxxxxxxx:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement dated as
of
March 1, 2007 (the “Pooling and Servicing Agreement”) among CWABS, Inc., as
Depositor, Countrywide Home Loans, Inc., as a Seller, Park Monaco Inc., as
a
Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP,
as
Master Servicer, the undersigned, as Trustee, and The Bank of New York Trust
Company, N.A., as Co-Trustee, the undersigned hereby certifies that [, with
respect to the Subsequent Mortgage Loans delivered in connection with the
Subsequent Transfer Agreement, dated as of __________ (the “Subsequent Transfer
Agreement”) among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as a
Seller, Park Monaco Inc., as a Seller, Park Sienna LLC, as a Seller, and The
Bank of New York, as Trustee], except as listed in the following paragraph,
as
to each [Initial Mortgage Loan][Subsequent Mortgage Loan] listed in the [related
supplement to the] Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on the attached list of exceptions) the Co-Trustee has
received:
(i) 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 that show 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, if the original Mortgage Note has been lost or destroyed
and
not replaced, an original lost note affidavit, stating that the original
Mortgage Note was lost or destroyed, together with a copy of the related
Mortgage Note and all such intervening endorsements;
(ii) in
the case of each [Initial Mortgage Loan][Subsequent Mortgage Loan] that is
not a
MERS Mortgage Loan, the original recorded Mortgage or a copy of such Mortgage,
with recording information, and in the case of each [Initial Mortgage
Loan][Subsequent Mortgage Loan] that is a MERS Mortgage Loan, the original
Mortgage or a copy of such Mortgage, with recording information, noting thereon
the presence of the MIN of the [Initial Mortgage Loan][Subsequent Mortgage
Loan]
and language indicating that the [Initial Mortgage Loan][Subsequent Mortgage
Loan] is a MOM Loan if the [Initial Mortgage Loan][Subsequent Mortgage Loan]
is
a MOM Loan, with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which such Mortgage has
been recorded;
G-2-1
(iii) in
the case of each [Initial Mortgage Loan][Subsequent Mortgage Loan] that is
not a
MERS Mortgage Loan, a duly executed assignment of the Mortgage to “Asset-Backed
Certificates, Series 2007-5, CWABS, Inc., by The Bank of New York, a New York
banking corporation, as trustee under the Pooling and Servicing Agreement dated
as of March 1, 2007, without recourse” or a copy of such assignment, with
recording information, or, in the case of each [Initial Mortgage
Loan][Subsequent 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 or a copy of such
assignments, with recording information, together with all interim recorded
assignments of such Mortgage or a copy of such assignments, with recording
information (in each case 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; and
(vi) the
original or duplicate original lender’s title policy or a copy of 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][Subsequent Mortgage
Loan] that is not a MERS Mortgage Loan the applicable Seller cannot deliver
the
original recorded Mortgage or all interim recorded assignments of the Mortgage
satisfying the requirements of clause (ii), (iii) or (iv), as applicable, the
Trustee has received, in lieu thereof, a true and complete copy of such Mortgage
and/or such assignment or assignments of the Mortgage, as applicable, each
certified by the applicable Seller, the applicable title company, escrow agent
or attorney, or the originator of such [Initial Mortgage Loan][Subsequent
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][Subsequent Mortgage Loan], and (ii) the information set forth in items
(i), (iv), (v), (vi), (viii), (ix) and (xv) of the definition of the “Mortgage
Loan Schedule” in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
G-2-2
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the [Initial Mortgage Loans][Subsequent Mortgage Loans] identified on the
[related supplement to the] Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
G-2-3
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| The
Bank of New York,
as
Trustee
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
G-2-4
EXHIBIT
G-3
FORM
OF
DELAY DELIVERY CERTIFICATION
[Date]
[Depositor]
[Sellers]
[Master
Servicer]
|
|
Re:
|
CWABS
Asset-Backed Certificates, Series
0000-0
|
Xxxxxxxxx:
[Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto, delivered by the
undersigned, as Trustee, on the Closing Date in accordance with Section 2.02
of
the Pooling and Servicing Agreement dated as of March 1, 2007 (the “Pooling and
Servicing Agreement”) among CWABS, Inc., as Depositor, Countrywide Home Loans,
Inc., as a Seller, Park Monaco Inc., as a Seller, Park Sienna LLC, as a Seller,
Countrywide Home Loans Servicing LP, as Master Servicer, the undersigned, as
Trustee, and The Bank of New York Trust Company, N.A., as
Co-Trustee.] The undersigned hereby certifies that [, with respect to
the Subsequent Mortgage Loans delivered in connection with the Subsequent
Transfer Agreement, dated as of __________ (the “Subsequent Transfer Agreement”)
among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as a Seller,
Park
Monaco Inc., as a Seller, Park Sienna LLC, as a Seller, and The Bank of New
York, as Trustee,] as to each Delay Delivery Mortgage Loan listed on the
Schedule A attached hereto (other than any [Initial Mortgage Loan][Subsequent
Mortgage Loan] paid in full or listed on Schedule B attached hereto) it has
received:
(1) 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 that show 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, if the original Mortgage Note has been lost or destroyed
and
not replaced, an original lost note affidavit, stating that the original
Mortgage Note was lost or destroyed, together with a copy of the related
Mortgage Note and all such intervening endorsements;
(2) in
the case of each [Initial Mortgage Loan][Subsequent Mortgage Loan] that is
not a
MERS Mortgage Loan, a duly executed assignment of the Mortgage to “Asset-Backed
Certificates, Series 2007-5, CWABS, Inc., by The Bank of New York, a New York
banking corporation, as trustee under the Pooling and Servicing Agreement dated
as of March 1, 2007, without recourse” or a copy of such assignment, with
recording information, or, in the case of each [Initial Mortgage
Loan][Subsequent 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).
G-3-1
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the [Initial Mortgage Loans][Subsequent Mortgage Loans] identified on the
[related supplement to the] Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such [Initial Mortgage
Loan][Subsequent Mortgage Loan].
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-3-2
EXHIBIT
G-4
FORM
OF
INITIAL CERTIFICATION OF TRUSTEE
(SUBSEQUENT
MORTGAGE LOANS)
[Date]
[Depositor]
[Sellers]
[Master
Servicer]
|
|
Re:
|
CWABS
Asset-Backed Certificates, Series
0000-0
|
Xxxxxxxxx:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement dated as
of
March 1, 2007 (the “Pooling and Servicing Agreement”) among CWABS, Inc., as
Depositor, Countrywide Home Loans, Inc., as a Seller, Park Monaco Inc., as
a
Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP,
as
Master Servicer, the undersigned, as Trustee, and The Bank of New York Trust
Company, N.A., as Co-Trustee, the undersigned hereby certifies that, as to
each
Subsequent Mortgage Loan listed in the related supplement to the Mortgage Loan
Schedule (other than any Subsequent Mortgage Loan paid in full or listed in
the
attached list of exceptions) the Trustee has received:
(1) 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 that show 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, if the original Mortgage Note has been lost or destroyed
and
not replaced, an original lost note affidavit, stating that the original
Mortgage Note was lost or destroyed, together with a copy of the related
Mortgage Note and all such intervening endorsements; and
(2) a
duly executed assignment of the Mortgage or a copy of such assignment with
recording information, in either case in the form permitted by Section 2.01
of
the Pooling and Servicing Agreement.
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as
to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Subsequent Mortgage Loans identified on the related supplement to the
Mortgage Loan Schedule or (ii) the collectibility, insurability, effectiveness
or suitability of any such Subsequent Mortgage Loan.
G-4-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| The
Bank of New York,
as
Trustee
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
G-4-2
EXHIBIT
H
FORM
OF
FINAL CERTIFICATION OF TRUSTEE
[Date]
[Depositor]
[Master
Servicer]
[Sellers]
|
|
Re:
|
CWABS
Asset-Backed Certificates, Series
0000-0
|
Xxxxxxxxx:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement dated as
of
January 1, 2007 (the “Pooling and Servicing Agreement”) among CWABS, Inc., as
Depositor, Countrywide Home Loans, Inc., as a Seller, Park Monaco Inc., as
a
Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP,
as
Master Servicer, the undersigned, as Trustee, and The Bank of New York Trust
Company, N.A., as Co-Trustee, the undersigned hereby certifies that[, with
respect to the Subsequent Mortgage Loans delivered in connection with the
Subsequent Transfer Agreement, dated as of __________ (the “Subsequent Transfer
Agreement”) among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as a
Seller, Park Monaco Inc., as a Seller, Park Sienna LLC, as a Seller and The
Bank
of New York, as Trustee,] as to each [Initial Mortgage Loan][Subsequent Mortgage
Loan] listed in the [related supplement to the] Mortgage Loan Schedule (other
than any [Initial Mortgage Loan][Subsequent Mortgage Loan] paid in full or
listed on the attached exception report) it has received:
(i) 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 that show 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, if the original Mortgage Note has been lost or destroyed
and
not replaced, an original lost note affidavit, stating that the original
Mortgage Note was lost or destroyed, together with a copy of the related
Mortgage Note and all such intervening endorsements;
(ii) in
the case of each [Initial Mortgage Loan][Subsequent Mortgage Loan] that is
not a
MERS Mortgage Loan, the original recorded Mortgage or a copy of such Mortgage,
with recording information, and in the case of each [Initial Mortgage
Loan][Subsequent Mortgage Loan] that is a MERS Mortgage Loan, the original
Mortgage or a copy of such Mortgage, with recording information, noting the
presence of the MIN of the [Initial Mortgage Loan][Subsequent Mortgage Loan]
and
language indicating that the [Initial Mortgage Loan][Subsequent Mortgage Loan]
is a MOM Loan if the [Initial Mortgage Loan][Subsequent Mortgage Loan] is a
MOM
Loan, with evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded];
H-1
(iii) in
the case of each [Initial Mortgage Loan][Subsequent Mortgage Loan] that is
not a
MERS Mortgage Loan, a duly executed assignment of the Mortgage to “Asset-Backed
Certificates, Series 2007-5, CWABS, Inc., by The Bank of New York, a New York
banking corporation, as trustee under the Pooling and Servicing Agreement dated
as of March 1, 2007, without recourse” or a copy of such assignment, with
recording information, or, in the case of each [Initial Mortgage
Loan][Subsequent 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 or a copy of such
assignments, with recording information, together with all interim recorded
assignments of such Mortgage or a copy of such assignments, with recording
information (in each case 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; and
(vi) the
original or duplicate original lender’s title policy or a copy of lender’s title
policy or a printout of the electronic equivalent and all riders thereto or
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.
If
the
public recording office in which a Mortgage or assignment thereof is recorded
has retained the original of such Mortgage or assignment, the Trustee has
received, in lieu thereof, a copy of the original Mortgage or assignment so
retained, with evidence of recording thereon, certified to be true and complete
by such recording office.
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 Mortgage Loan, and
(ii) the information set forth in items (i), (iv), (v), (vi), (viii), (ix)
and
(xv) of the definition of the “Mortgage Loan Schedule” in Section 1.01 of the
Pooling and Servicing Agreement accurately reflects information set forth in
the
Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the 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][Subsequent Mortgage Loans] identified on the
[related supplement to the] Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such [Initial Mortgage
Loan][Subsequent Mortgage Loan].
H-2
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
| The
Bank of New York,
as
Trustee
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
H-3
EXHIBIT
I
TRANSFER
AFFIDAVIT FOR THE CLASS A-R CERTIFICATES
| STATE OF | ) |
| ) ss.: | |
| COUNTY OF | ) |
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of _______________, the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (the “Certificate”) issued
pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2007
(the
“Agreement”), by and among CWABS, Inc., as depositor (the “Depositor”),
Countrywide Home Loans, Inc., as a Seller, Park Monaco Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master
Servicer, The Bank of New York, as Trustee, and The Bank of New York Trust
Company, N.A., as Co-Trustee. Capitalized terms used, but not defined
herein or in Exhibit 1 hereto, shall have the meanings ascribed to such terms
in
the Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee.
2. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or to section 4975 of the Internal Revenue Code of 1986, nor is it acting on
behalf of or with plan assets of any such plan. The Transferee is, as of the
date hereof, and will be, as of the date of the Transfer, a Permitted
Transferee. The Transferee will endeavor to remain a Permitted
Transferee for so long as it retains its Ownership Interest in the
Certificate. The Transferee is acquiring its Ownership Interest in
the Certificate for its own account.
3. The
Transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise liable
for the tax shall be relieved of liability for the tax if the subsequent
Transferee furnished to such Person an affidavit that such subsequent Transferee
is a Permitted Transferee and, at the time of Transfer, such Person does not
have actual knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with respect to
which the record holder furnishes to the pass-through entity an affidavit that
such record holder is a Permitted Transferee and the pass-through entity does
not have actual knowledge that such affidavit is false. (For this
purpose, a “pass-through entity” includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
I-1
5. The
Transferee has reviewed the provisions of Section 5.02(c) of the Agreement
(attached hereto as Exhibit 2 and incorporated herein by reference) and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory
sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 5.02(c) of the Agreement and the restrictions noted
on
the face of the Certificate. The Transferee understands and agrees
that any breach of any of the representations included herein shall render
the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection
with any such Transfer by the Transferee, the Transferee agrees to deliver
to
the Trustee a certificate substantially in the form set forth as Exhibit J-1
to
the Agreement (a “Transferor Certificate”) to the effect that such Transferee
has no actual knowledge that the Person to which the Transfer is to be made
is
not a Permitted Transferee.
7. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the Class A-R
Certificates.
8. The
Transferee’s taxpayer identification number is _____.
9. The
Transferee is a U.S. Person as defined in Code section 7701(a)(30).
10. The
Transferee is aware that the Class A-R Certificates may be “noneconomic residual
interests” 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. In addition, as the holder of a
noneconomic residual interest, the Transferee may incur tax liabilities in
excess of any cash flows generated by the interest and the Transferee hereby
represents that it intends to pay taxes associated with holding the residual
interest as they become due.
11. The
Transferee has provided financial statements or other financial information
requested by the Transferor in connection with the transfer of the Class A-R
Certificates to permit the Transferor to assess the financial capability of
the
Transferee to pay such taxes.
* * *
I-2
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__.
| [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-3
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 section 521 of the Code) that is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by
section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of
a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration
of
the trust and one or more United States persons have authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon
an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause any REMIC formed hereunder to fail to
qualify as a REMIC at any time that any Certificates are
Outstanding. The terms “United States,” “State” and “International
Organization” shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with
the exception of the Federal Home Loan Mortgage Corporation, a majority of
its
board of directors is not selected by such government unit.
“Person”: Any
individual, corporation, limited liability company, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
“Transfer”: Any
direct or indirect transfer or sale of any Ownership Interest in a Certificate,
including the acquisition of a Certificate by the Depositor.
“Transferee”: Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
I-4
Section
5.02(c) of the Agreement
(c) Each
Person who has or who acquires any Ownership Interest in a Class A-R Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Class A-R Certificate are expressly
subject to the following provisions:
(1) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(2) Except
in connection with (i) the registration of the Tax Matters Person Certificate
in
the name of the Trustee or (ii) any registration in the name of, or transfer
of
a Class A-R Certificate to, an affiliate of the Depositor (either directly
or
through a nominee) in connection with the initial issuance of the Certificates,
no Ownership Interest in a Class A-R Certificate may be registered on the
Closing Date or thereafter transferred, and the Trustee shall not register
the
Transfer of any Class A-R Certificate, unless the Trustee shall have been
furnished with an affidavit (a “Transfer Affidavit”) of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
(3) Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to whom
such Person attempts to Transfer its Ownership Interest in a Class A-R
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
a Class A-R Certificate and (C) not to Transfer its Ownership Interest in a
Class A-R Certificate, or to cause the Transfer of an Ownership Interest in
a
Class A-R Certificate to any other Person, if it has actual knowledge that
such
Person is not a Permitted Transferee.
(4) Any
attempted or purported Transfer of any Ownership Interest in a Class A-R
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Class A-R Certificate in violation of the provisions of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all rights
as
Holder thereof retroactive to the date of registration of Transfer of such
Class
A-R Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Class A-R Certificate that is
in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the Transfer was registered after receipt of the related Transfer
Affidavit and Transferor Certificate. The Trustee shall be entitled
but not obligated to recover from any Holder of a Class A-R Certificate that
was
in fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all payments
made on such Class A-R Certificate at and after either such time. Any
such payments so recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Permitted Transferee of such
Certificate.
I-5
(5) The
Master Servicer shall use its best efforts to make available, upon receipt
of
written request from the Trustee, all information necessary to compute any
tax
imposed under section 860E(e) of the Code as a result of a Transfer of an
Ownership Interest in a Class A-R Certificate to any Holder who is not a
Permitted Transferee.
The
restrictions on Transfers of a Class A-R Certificate set forth in this Section
5.02(c) shall cease to apply (and the applicable portions of the legend on
a
Class A-R Certificate may be deleted) with respect to Transfers occurring after
delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall
not be an expense of the Trustee, the Sellers or the Master Servicer to the
effect that the elimination of such restrictions will not cause any constituent
REMIC of any REMIC formed hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax
on
the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any ownership Interest in a Class A-R Certificate hereby
consents to any amendment of this Agreement that, based on an Opinion of Counsel
furnished to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Class A-R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Class
A-R
Certificate that is held by a Person that is not a Permitted Transferee to
a
Holder that is a Permitted Transferee.
I-6
EXHIBIT
J-1
FORM
OF
TRANSFEROR CERTIFICATE FOR CLASS A-R CERTIFICATES
Date:
CWABS,
Inc.
as
Depositor
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
The
Bank
of New York
as
Trustee
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
|
Re:
|
CWABS,
Inc. Asset Backed
|
|
|
Certificates,
Series 2007-5
|
Ladies
and Gentlemen:
In
connection with our disposition of the Class A-R Certificates, we certify that
we have no knowledge that the Transferee is not a Permitted
Transferee. All capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Pooling and Servicing Agreement
dated as of March 1, 2007, among CWABS, Inc., as Depositor, Countrywide Home
Loans, Inc., as a Seller, Park Monaco Inc., as a Seller, Park Sienna LLC, as
a
Seller, Countrywide Home Loans Servicing LP, as Master Servicer, The Bank of
New
York, as Trustee, and The Bank of New York Trust Company, N.A., as
Co-Trustee.
|
Very
truly yours,
_____________________________________
Name
of Transferor
By:
_________________________________
Name:
Title:
|
X-0-0
XXXXXXX
X-0
FORM
OF
TRANSFEROR CERTIFICATE FOR
PRIVATE
CERTIFICATES
Date:
CWABS,
Inc.,
as
Depositor
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
The
Bank
of New York,
as
Trustee
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
|
Re:
|
CWABS,
Inc. Asset-Backed Certificates,
Series
2007-5, Class
[ ]
|
Ladies
and Gentlemen:
In
connection with our disposition of the above-captioned 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. All capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Pooling and Servicing Agreement dated
as of March 1, 2007, among CWABS, Inc., as Depositor, Countrywide Home Loans,
Inc., as a Seller, Park Monaco Inc., as a Seller, Park Sienna LLC, as a Seller,
Countrywide Home Loans Servicing LP, as Master Servicer, The Bank of New York,
as Trustee, and The Bank of New York Trust Company, N.A., as
Co-Trustee.
|
Very
truly yours,
_____________________________________
Name
of Transferor
By:
_________________________________
Name:
Title:
|
J-2-1
EXHIBIT
K
FORM
OF
INVESTMENT LETTER (NON-RULE 144A)
Date:
CWABS,
Inc.,
as
Depositor
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
The
Bank
of New York,
as
Trustee
000
Xxxxxxx Xx., Xxxxx 0X
Xxx
Xxxx,
Xxx Xxxx 00000
|
|
Re:
|
CWABS,
Inc. Asset-Backed Certificates,
Series
2007-5, Class
[ ]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned 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) (I) either (i) we are not an employee benefit
plan that is subject to the Employee Retirement Income Security Act of 1974,
as
amended, 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 any
such plan or arrangement, or using the assets of any such plan or arrangement
to
effect such acquisition or (ii) (A) (if the above-captioned Certificates are
ERISA-Restricted Certificates) if the Certificates have been the subject of
an
ERISA-Qualifying Underwriting, we are 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 the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, or (B) (if
the
above-captioned Certificates are not ERISA-Restricted Certificates) it is an
“accredited investor” as defined in Rule 501(a)(1) under the Act, and (II) we
will obtain from our transferee such a representation and agreement described
in
this clause (d), (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.
K-1
All
capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement dated as of March 1,
2007, among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as a
Seller, Park Monaco Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, The Bank of New York, as Trustee,
and The Bank of New York Trust Company, N.A., as Co-Trustee.
|
Very
truly yours,
_____________________________________
Name
of Transferee
By:
_________________________________
Authorized
Officer
|
K-2
EXHIBIT
L
FORM
OF
RULE 144A LETTER
Date:
CWABS,
Inc.,
as
Depositor
0000
Xxxx
Xxxxxxx
Xxxxxxxxx,
Xxxxxxxxxx 00000
The
Bank
of New York,
as
Trustee
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
|
Re:
|
CWABS,
Inc. Asset-Backed Certificates,
|
|
|
Series
2007-5, Class [ ]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned 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) (I) either (i) we are not an employee benefit
plan that is subject to the Employee Retirement Income Security Act of 1974,
as
amended, 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 any
such plan or arrangement, or using the assets of any such plan or arrangement
to
effect such acquisition or (ii) (A) (if the above-captioned Certificates are
ERISA-Restricted Certificates) if the Certificates have been the subject of
an
ERISA-Qualifying Underwriting, we are 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 the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, or (B) (if
the
above-captioned Certificates are not ERISA-Restricted Certificates) it is an
“accredited investor” as defined in Rule 501(a)(1) under the Act, and (II) we
will obtain from our transferee such a representation and agreement described
in
this clause (d), (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited
any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (f) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Securities Act and have completed either of
the
forms of certification to that effect attached hereto as Annex 1 or Annex
2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for
resale pursuant to Rule 144A and further, understand that such Certificates
may
be resold, pledged or transferred only (i) to a person reasonably believed
to be
a qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities
Act.
L-1
All
capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement dated as of March 1,
2007, among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as a
Seller, Park Monaco Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, The Bank of New York, as Trustee,
and The Bank of New York Trust Company, N.A., as Co-Trustee.
|
Very
truly yours,
_____________________________________
Name
of Transferee
By:
_________________________________
Authorized
Officer
|
L-2
ANNEX
1
TO EXHIBIT L
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the
Buyer.
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 $100,000,000 in securities or, if Buyer
is a
dealer, Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities (except for the excluded securities referred to
below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
|
|
___
|
Corporation,
etc. The Buyer is a corporation (other than a bank, savings and
loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described
in
Section 501(c)(3)of the Internal Revenue Code of 1986, as
amended.
|
|
|
___
|
Bank. The
Buyer (a) is a national bank or banking institution organized under
the
laws of any State, territory or the District of Columbia, the business
of
which is substantially confined to banking and is supervised by the
State
or territorial banking commission or similar official or is a foreign
bank
or equivalent institution, and (b) has an audited net worth of at
least
$25,000,000 as demonstrated in its latest annual financial statements,
a
copy of which is attached hereto.
|
|
|
___
|
Savings
and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or
similar institution, which is supervised and examined by a State
or
Federal authority having supervision over any such institutions or
is a
foreign savings and loan association or equivalent institution and
(b) has
an audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a copy of which is attached
hereto.
|
|
|
___
|
Broker-dealer. The
Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
|
|
___
|
Insurance
Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which
is
subject to supervision by the insurance commissioner or a similar
official
or agency of a State, territory or the District of
Columbia.
|
L-3
|
|
___
|
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.
|
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.
For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the
securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer
in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer’s direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary of another
enterprise and the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
L-4
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.
|
|
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).
|
|
|
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).
|
|
|
The
term “securities” as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer’s
Family of Investment Companies, (ii) securities issued or guaranteed
by
the U.S. or any instrumentality thereof, (iii) bank deposit notes
and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity
swaps.
|
L-6
|
|
The
Buyer is familiar with Rule 144A and under-stands 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.
|
|
|
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 DOCUMENT RELEASE
| Loan Information | |
|
|
|
| Name of Mortgagor: | ______________________________________________________________________ |
| Master Servicer Loan No.: | ______________________________________________________________________ |
| Trustee | |
| Name: | ______________________________________________________________________ |
| Address: | ______________________________________________________________________ |
| ______________________________________________________________________ | |
| Trustee | |
| Mortgage File No.: | ______________________________________________________________________ |
The
undersigned Master Servicer hereby acknowledges that it has received from
_______________________________________, as Trustee for the Holders of
Asset-Backed Certificates, Series 2007-5, the documents referred to below (the
“Documents”). All capitalized terms not otherwise defined in this
Request for Document Release shall have the meanings given them in the Pooling
and Servicing Agreement dated as of March 1, 2007 (the “Pooling and Servicing
Agreement”) among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as a
Seller, Park Monaco Inc., as a Seller, Park Sienna LLC, as a Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, The Bank of New York, as Trustee,
and The Bank of New York Trust Company, N.A., as Co-Trustee.
|
( )
|
Mortgage
Note dated ___________, ____, in the original principal sum of $________,
made by __________________, payable to, or endorsed to the order
of, the
Trustee.
|
|
( )
|
Mortgage
recorded on _________________ as instrument no. ________________ in the
County Recorder’s Office of the County of ________________, State of
_______________ in book/reel/docket _______________ of official records
at
page/image _____________.
|
|
( )
|
Deed
of Trust recorded on _________________ as instrument no. ________________
in the County Recorder’s Office of the County of ________________, State
of _______________ in book/reel/docket _______________ of official
records
at page/image _____________.
|
|
( )
|
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
_____________.
|
M-1
|
( )
|
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 Trust Fund, solely for the purposes provided in the Pooling
and Servicing 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 Master 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 Pooling and Servicing 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 Trust Fund, 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.
| [Master
Servicer]
By_______________________________________
Its_______________________________________
Date:
_________________, _____
|
M-2
EXHIBIT
N
FORM
OF
REQUEST FOR FILE RELEASE
OFFICER’S
CERTIFICATE AND TRUST RECEIPT
ASSET-BACKED
CERTIFICATES,
Series
2007-5
__________________________________________
HEREBY CERTIFIES THAT HE/SHE IS AN OFFICER OF THE MASTER SERVICER, HOLDING
THE
OFFICE SET FORTH BENEATH HIS/HER SIGNATURE, AND HEREBY FURTHER CERTIFIES AS
FOLLOWS:
WITH
RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
[ALL
PAYMENTS OF PRINCIPAL AND INTEREST HAVE BEEN MADE.] [THE PURCHASE
PRICE FOR SUCH MORTGAGE LOANS HAS BEEN PAID.] [THE MORTGAGE LOANS
HAVE BEEN LIQUIDATED AND THE RELATED [INSURANCE PROCEEDS] [LIQUIDATION PROCEEDS]
HAVE BEEN DEPOSITED PURSUANT TO SECTION 3.13 OF THE POOLING AND SERVICING
AGREEMENT.] [A REPLACEMENT MORTGAGE LOAN HAS BEEN DELIVERED TO THE
TRUSTEE IN THE MANNER AND OTHERWISE IN ACCORDANCE WITH THE CONDITIONS SET FORTH
IN SECTIONS 2.02 AND 2.03 OF THE POOLING AND SERVICING AGREEMENT.]
LOAN
NUMBER:_______________ BORROWER’S
NAME:_____________
COUNTY:____________________
[For
Substitution or Repurchase Only: The Master Servicer certifies that
[an] [no] opinion is required by Section 2.05 [and is attached
hereto].]
I
HEREBY
CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS, THAT ARE
REQUIRED TO BE DEPOSITED IN THE CERTIFICATE ACCOUNT PURSUANT TO SECTION 3.05
OF
THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE CREDITED.
| ______________________ | ______________________________ |
| DATED:_________________ | |
| / / | VICE PRESIDENT |
| / / |
ASSISTANT VICE
PRESIDENT
|
N-1
Exhibit
O
Exhibit
O
is a photocopy
of
the
Depository Agreement
as
delivered.
[See
appropriate documents delivered at closing.]
O-1
EXHIBIT
P
FORM
OF
SUBSEQUENT TRANSFER AGREEMENT
SUBSEQUENT
TRANSFER AGREEMENT, dated as of ____________, 200[_] (this
“Subsequent Transfer Agreement”), among CWABS, INC., a Delaware corporation, as
depositor (the “Depositor”), COUNTRYWIDE HOME LOANS, INC., a New York
corporation, in its capacity as a seller under the Pooling and Servicing
Agreement referred to below (“CHL”), PARK MONACO INC., a Delaware corporation,
in its capacity as a seller under the Pooling and Servicing Agreement (“Park
Monaco”), PARK SIENNA LLC, a Delaware limited liability company, in its capacity
as a seller under the Pooling and Servicing Agreement (“Park Sienna” and,
together with CHL and Park Monaco, the “Sellers”) and The Bank of New York, a
New York banking corporation, as trustee (the “Trustee”);
WHEREAS,
the Depositor, CHL, Park Monaco, Park Sienna, the Trustee, Countrywide Home
Loans Servicing LP, as Master Servicer, and The Bank of New York Trust Company
N.A., as Co-Trustee, have entered in the Pooling and Servicing Agreement, dated
as of March 1, 2007 (the “Pooling and Servicing Agreement”), relating to the
CWABS, Inc. Asset-Backed Certificates, Series 2007-5 (capitalized terms not
otherwise defined herein are used as defined in the Pooling and Servicing
Agreement);
WHEREAS,
Section 2.01(b) of the Pooling and Servicing Agreement provides for the parties
hereto to enter into this Subsequent Transfer Agreement in accordance with
the
terms and conditions of the Pooling and Servicing Agreement;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged the
parties hereto agree as follows:
(a) The
“Subsequent Transfer Date” with respect to this Subsequent Transfer Agreement
shall be ________ __, 200[_].
(b) The
“Subsequent Transfer Date Purchase Amount” with respect to this Subsequent
Transfer Agreement shall be $_______________.
(c) The
Subsequent Mortgage Loans conveyed on the Subsequent Transfer Date shall be
subject to the terms and conditions of the Pooling and Servicing
Agreement.
(d) Annex
I hereto sets forth a list of the Mortgage Loans which are Delay Delivery
Mortgage Loans.
(e) In
case any provision of this Subsequent Transfer Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions or obligations shall not in any way be affected or impaired
thereby.
(f) In
the event of any conflict between the provisions of this Subsequent Transfer
Agreement and the Pooling and Servicing Agreement, the provisions of the Pooling
and Servicing Agreement shall prevail.
P-1
(g) This
Subsequent Transfer Agreement shall be governed by, and shall be construed
and
enforced in accordance with the laws of the State of New York.
(h) The
Subsequent Transfer Agreement may be executed in one or more counterparts,
each
of which so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument.
P-2
IN
WITNESS WHEREOF, the parties to this Subsequent Transfer Agreement have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
| CWABS, INC., | ||||
| as Depositor | ||||
|
|
By: |
|
||
|
|
Name:
|
|||
|
|
Title:
|
|||
| COUNTRYWIDE HOME LOANS, INC., | ||||
| as a Seller | ||||
|
|
By: |
|
||
|
|
Name:
|
|||
|
|
Title:
|
|||
| PARK MONACO INC., | ||||
| as a Seller | ||||
|
|
By: |
|
||
|
|
Name:
|
|||
|
|
Title:
|
|||
| PARK SIENNA LLC, | ||||
| as Depositor | ||||
|
|
By: |
|
||
|
|
Name:
|
|||
|
|
Title:
|
|||
X-0
| XXX XXXX XX XXX XXXX, | ||||
| not in its individual capacity, | ||||
| but solely as Trustee | ||||
|
|
By: |
|
||
|
|
Name:
|
|||
|
|
Title:
|
|||
P-4
Annex
I
Mortgage
Loans for which All or a Portion of a Related Mortgage File is not Delivered
to
the
Trustee
on or prior to the Subsequent Transfer Date
P-5
EXHIBIT
Q-1
FORM
OF
CLASS 1-A CORRIDOR CONTRACT
[See
document delivered at closing.]
Q-1-1
EXHIBIT
Q-2
FORM
OF
CLASS 2-A CORRIDOR CONTRACT
[See
document delivered at closing.]
Q-2-1
EXHIBIT
Q-3
FORM
OF
SUBORDINATE CORRIDOR CONTRACT
[See
document delivered at closing.]
Q-3-1
EXHIBIT
R
[RESERVED]
R-1
EXHIBIT
S-1
FORM
OF
CORRIDOR CONTRACT ASSIGNMENT AGREEMENT
[See
document delivered at closing.]
X-0-0
XXXXXXX
X-0
FORM
OF
CORRIDOR CONTRACT ADMINISTRATION AGREEMENT
[See
document delivered at closing.]
S-2-1
EXHIBIT
T
OFFICER’S
CERTIFICATE WITH RESPECT TO PREPAYMENTS
ASSET-BACKED
CERTIFICATES,
Series
2007-5
[Date]
Via
Facsimile
The
Bank
of New York,
as
Trustee
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Dear
Sir
or Madam:
Reference
is made to the Pooling and Servicing Agreement, dated as of March 1, 2007,
(the
“Pooling and Servicing Agreement”) among CWABS, Inc., as Depositor, Countrywide
Home Loans, Inc., as a Seller, Park Monaco Inc., as a Seller, Park Sienna LLC,
as a Seller, Countrywide Home Loans Servicing LP, as Master Servicer, The Bank
of New York, as Trustee, and The Bank of New York Trust Company, N.A., as
Co-Trustee. Capitalized terms used herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
__________________
hereby certifies that he/she is a Servicing Officer, holding the office set
forth beneath his/her name and hereby further certifies as follows:
With
respect to the Distribution Date in _________ 20[ ] and each Mortgage
Loan set forth in the attached schedule:
1.
A
Principal Prepayment in full or in part was received during the related
Prepayment Period;
2.
Any
Prepayment Charge due under the terms of the Mortgage Note with respect to
such
Principal Prepayment was or was not, as indicated on the attached schedule
using
“Yes” or “No”, received from the Mortgagor and deposited in the Certificate
Account;
3.
As to
each Mortgage Loan set forth on the attached schedule for which all or part
of
the Prepayment Charge required in connection with the Principal Prepayment
was
waived by the Master Servicer, such waiver was, as indicated on the attached
schedule, based upon:
(i)
the
Master Servicer’s determination that such waiver would maximize recovery of
Liquidation Proceeds for such Mortgage Loan, taking into account the value
of
such Prepayment Charge, or
T-1
(ii)(A)
the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium,
receivership, or other similar law relating to creditors’ rights generally or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law; and
4.
We
certify that all amounts due in connection with the waiver of a Prepayment
Charge inconsistent with clause 3 above which are required to be deposited
by
the Master Servicer pursuant to Section 3.20 of the Pooling and Servicing
Agreement, have been or will be so deposited.
| COUNTRYWIDE HOME LOANS, INC., | ||||
| as Master Servicer | ||||
|
|
By: |
|
||
|
|
Name:
|
|||
|
|
Title:
|
|||
T-2
SCHEDULE
OF MORTGAGE LOANS FOR WHICH A PREPAYMENT WAS RECEIVED
DURING
THE RELATED PREPAYMENT PERIOD
|
Loan
Number
|
Clause
2: Yes/No
|
Clause
3: (i) or (ii)
|
T-3
EXHIBIT
U
FORM
OF
SWAP CONTRACT
[See
document delivered at closing.]
U-1
EXHIBIT
V-1
FORM
OF
SWAP CONTRACT ASSIGNMENT AGREEMENT
[See
document delivered at closing.]
V-1-1
EXHIBIT
V-2
FORM
OF
SWAP CONTRACT ADMINISTRATION AGREEMENT
[See
document delivered at closing.]
V-2-1
EXHIBIT
W
FORM
OF
MONTHLY STATEMENT
[On
file
with the Trustee.]
W-1-1
EXHIBIT
X-1
FORM
OF
PERFORMANCE CERTIFICATION
(Subservicer)
|
|
Re:
|
The
Pooling and Servicing Agreement dated as of March 1, 2007 (the “Pooling
and Servicing Agreement”) among CWABS, Inc., as Depositor, Countrywide
Home Loans, Inc., as a Seller, Park Monaco Inc., as a Seller, Park
Sienna
LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master
Servicer,
The Bank of New York, as Trustee, and The Bank of New York Trust
Company,
N.A., as Co-Trustee, and [Subservicing Agreement] dated as of
[ ] (the
“Agreement”)
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to the Depositor and the Master Servicer, and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I
have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the Depositor, the Master Servicer and the Trustee pursuant to the
Agreement (collectively, the “Company Servicing Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the [Depositor]
[Master Servicer];
(4) I
am responsible for reviewing the activities performed by the Company as a
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Agreement; and
X-1-1
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the Master Servicer. Any material
instances of noncompliance described in such reports have been disclosed to
the
Master Servicer. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
| Date: ____________________________ | |
| By: ________________________________ | |
| Name: | |
| Title: |
X-1-2
EXHIBIT
X-2
FORM
OF
PERFORMANCE CERTIFICATION
(Trustee)
|
|
Re:
|
The
Pooling and Servicing Agreement dated as of March 1, 2007 (the “Pooling
and Servicing Agreement”) among CWABS, Inc., as Depositor, Countrywide
Home Loans, Inc., as a Seller, Park Monaco Inc., as a Seller, Park
Sienna
LLC, as a Seller, Countrywide Home Loans Servicing LP, as Master
Servicer,
The Bank of New York, as Trustee, and The Bank of New York Trust
Company,
N.A., as Co-Trustee
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to the Depositor and the Master Servicer, and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I
have reviewed the report on assessment of the Company’s compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”), provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and Item 1122 of
Regulation AB (the “Servicing Assessment”), the registered public accounting
firm’s attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), [all reports on Form 10-D containing statements to certificateholders
filed in respect of the period included in the year covered by the annual report
of the Trust Fund] (collectively, the “Distribution Date
Statements”);
(2) Assuming
the accuracy and completeness of the information delivered to the Company by
the
Master Servicer as provided in the Pooling and Servicing Agreement and subject
to paragraph (4) below, the distribution information determined by the Company
and set forth in the Distribution Date Statements contained in all Form 10-D’s
included in the year covered by the annual report of such Trust on Form 10-K
for
the calendar year 200[ ], is complete and does not contain any
material misstatement of fact as of the last day of the period covered by such
annual report;
(3) Based
solely on the information delivered to the Company by the Master Servicer as
provided in the Pooling and Servicing Agreement, (i) the distribution
information required under the Pooling and Servicing Agreement to be contained
in the Trust Fund’s Distribution Date Statements and (ii) the servicing
information required to be provided by the Master Servicer to the trustee for
inclusion in the Trust Fund’s Distribution Date Statements, to the extent
received by the Trustee from the Master Servicer in accordance with the Pooling
and Servicing Agreement, is included in such Distribution Date
Statements;
(4) The
Company is not certifying as to the accuracy, completeness or correctness of
the
information which it received from the Master Servicer and did not independently
verify or confirm the accuracy, completeness or correctness of the information
provided by the Master Servicer;
X-2-1
(5) I
am responsible for reviewing the activities performed by the Company as a person
“performing a servicing function” under the Pooling and Servicing Agreement, and
based on my knowledge and the compliance review conducted in preparing the
Servicing Assessment and except as disclosed in the Servicing Assessment or
the
Attestation Report, the Company has fulfilled its obligations under the Pooling
and Servicing Agreement; and
(6) The
Servicing Assessment and Attestation Report required to be provided by the
Company and by Subcontractor pursuant to the Pooling and Servicing Agreement,
have been provided to the Master Servicer and the Depositor. Any
material instances of noncompliance described in such reports have been
disclosed to the Master Servicer and the Depositor. Any material
instance of noncompliance with the Servicing Criteria has been disclosed in
such
reports.
| Date: ____________________________ | |
| By: ________________________________ | |
| Name: | |
| Title: |
X-2-2
FORM
OF
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by [the Master Servicer] [Trustee]
[Name of Subservicer] shall address, at a minimum, the criteria identified
as
below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3)or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
[NAME
OF MASTER SERVICER] [NAME OF
TRUSTEE]
[NAME OF SUBSERVICER]
Date: _________________________
By: ________________________________
Name:
Title:
|
Y-1
EXHIBIT
Z
[FORM
OF]
LIST OF ITEM 1119 PARTIES
ASSET
BACKED CERTIFICATES,
Series
200_-__
[Date]
|
Party
|
Contact
Information
|
Z-1
EXHIBIT
AA
FORM
OF
XXXXXXXX-XXXXX
CERTIFICATION
(Replacement
Master Servicer)
(On
file
with Trustee)
AA-1
SCHEDULE
I
PREPAYMENT
CHARGE SCHEDULE AND PREPAYMENT CHARGE SUMMARY
[Delivered
to Trustee at closing and on file with the Trustee.]
S-I-1
SCHEDULE
II
COLLATERAL
SCHEDULE
|
Characteristic
|
Applicable
Section
|
Loan
Group 1
|
Loan
Group 2
|
|
Single-Family
Detached Dwellings
|
2.03(b)(32)
|
73.48%
|
68.14%
|
|
Two-
to Four-Family Dwellings
|
2.03(b)(32)
|
6.44%
|
5.38%
|
|
Low-Rise
Condominium Units
|
2.03(b)(32)
|
5.43%
|
7.17%
|
|
High-Rise
Condominium Units
|
2.03(b)(32)
|
0.10%
|
0.67%
|
|
Manufactured
Housing
|
2.03(b)(32)
|
0.00%
|
0.09%
|
|
PUDs
|
2.03(b)(32)
|
14.56%
|
18.54%
|
|
Earliest
Origination Date
|
2.03(b)(33)
|
7/18/2006
|
12/30/2005
|
|
Prepayment
Penalty
|
2.03(b)(35)
|
74.19%
|
69.29%
|
|
Investor
Properties
|
2.03(b)(36)
|
6.99%
|
4.10%
|
|
Primary
Residences
|
2.03(b)(36)
|
90.94%
|
94.80%
|
|
Lowest
Current Mortgage Rate
|
2.03(b)(48)
|
4.750%
|
4.875%
|
|
Highest
Current Mortgage Rate
|
2.03(b)(48)
|
14.250%
|
12.500%
|
|
Weighted
Average Current Mortgage Rate
|
2.03(b)(48)
|
8.076%
|
8.437%
|
|
Lowest
Gross Margin
|
2.03(b)(50)
|
2.500%
|
2.250%
|
|
Highest
Gross Margin
|
2.03(b)(50)
|
8.900%
|
9.400%
|
|
Weighted
Average Gross Margin
|
2.03(b)(50)
|
6.562%
|
6.206%
|
|
Date
on or before which each Initial Mortgage Loan has a
Due
Date
|
2.03(b)(51)
|
5/1/2007
|
5/1/2007
|
|
Adjustment
Date
|
Applicable
Section
|
Mortgage
Loans (other than Two-Year, Three-Year and Five-Year Hybrid Mortgage
Loans)
|
Two-Year
Hybrid Mortgage Loans
|
Three-Year
Hybrid Mortgage Loans
|
Five-Year
Hybrid Mortgage Loans
|
|
Latest
Next Adjustment Date
|
2.03(b)(34)
|
4/1/2017
|
4/1/2009
|
4/1/2010
|
4/1/2012
|
S-II-1
SCHEDULE
III
40-YEAR
TARGET SCHEDULE
|
Month
of
Distribution
Date
|
40-Year
Target
($)
|
|
April
2017
|
40,400,028
|
|
May
2017
|
39,845,131
|
|
June
2017
|
39,297,741
|
|
July
2017
|
38,757,754
|
|
August
2017
|
38,225,073
|
|
September
2017
|
37,699,598
|
|
October
2017
|
37,181,232
|
|
November
2017
|
36,669,880
|
|
December
2017
|
36,165,446
|
|
January
2018
|
35,667,839
|
|
February
2018
|
35,176,965
|
|
March
2018
|
34,692,735
|
|
April
2018
|
34,215,058
|
|
May
2018
|
33,743,846
|
|
June
2018
|
33,279,012
|
|
July
2018
|
32,820,471
|
|
August
2018
|
32,368,137
|
|
September
2018
|
31,921,927
|
|
October
2018
|
31,481,758
|
|
November
2018
|
31,047,549
|
|
December
2018
|
30,619,220
|
|
January
2019
|
30,196,691
|
|
February
2019
|
29,779,884
|
|
March
2019
|
29,368,722
|
|
April
2019
|
28,963,129
|
|
May
2019
|
28,563,030
|
|
June
2019
|
28,168,351
|
|
July
2019
|
27,779,019
|
|
August
2019
|
27,394,961
|
|
September
2019
|
27,016,108
|
|
October
2019
|
26,642,387
|
|
November
2019
|
26,273,732
|
|
December
2019
|
25,910,072
|
|
January
2020
|
25,551,341
|
|
February
2020
|
25,197,472
|
|
March
2020
|
24,848,400
|
|
April
2020
|
24,504,061
|
|
May
2020
|
24,164,389
|
|
June
2020
|
23,829,323
|
|
July
2020
|
23,498,801
|
|
August
2020
|
23,172,760
|
|
September
2020
|
22,851,141
|
|
October
2020
|
22,533,884
|
|
November
2020
|
22,220,931
|
|
December
2020
|
21,912,222
|
|
January
2021
|
21,607,702
|
|
February
2021
|
21,307,313
|
|
March
2021
|
21,011,000
|
|
April
2021
|
20,718,708
|
|
May
2021
|
20,430,382
|
|
June
2021
|
20,145,970
|
|
July
2021
|
19,865,418
|
|
August
2021
|
19,588,674
|
|
September
2021
|
19,315,688
|
|
October
2021
|
19,046,407
|
|
November
2021
|
18,780,784
|
|
December
2021
|
18,518,767
|
|
January
2022
|
18,260,308
|
|
February
2022
|
18,005,360
|
|
March
2022
|
17,753,875
|
|
April
2022
|
17,505,807
|
|
May
2022
|
17,261,108
|
|
June
2022
|
17,019,735
|
|
July
2022
|
16,781,641
|
|
August
2022
|
16,546,783
|
|
September
2022
|
16,315,118
|
|
October
2022
|
16,086,601
|
|
November
2022
|
15,861,191
|
|
December
2022
|
15,638,846
|
|
January
2023
|
15,419,523
|
|
February
2023
|
15,203,184
|
|
March
2023
|
14,989,787
|
|
April
2023
|
14,779,292
|
|
May
2023
|
14,571,661
|
|
June
2023
|
14,366,854
|
|
July
2023
|
14,164,834
|
|
August
2023
|
13,965,564
|
|
September
2023
|
13,769,005
|
|
October
2023
|
13,575,121
|
|
November
2023
|
13,383,877
|
|
December
2023
|
13,195,237
|
|
January
2024
|
13,009,165
|
|
February
2024
|
12,825,627
|
|
March
2024
|
12,644,589
|
|
April
2024
|
12,466,017
|
|
May
2024
|
12,289,877
|
|
June
2024
|
12,116,137
|
|
July
2024
|
11,944,764
|
|
August
2024
|
11,775,728
|
|
September
2024
|
11,608,995
|
|
October
2024
|
11,444,534
|
|
November
2024
|
11,282,316
|
|
December
2024
|
11,122,310
|
|
January
2025
|
10,964,486
|
|
February
2025
|
10,808,815
|
|
March
2025
|
10,655,267
|
|
April
2025
|
10,503,814
|
|
May
2025
|
10,354,427
|
|
June
2025
|
10,207,079
|
|
July
2025
|
10,061,742
|
|
August
2025
|
9,918,389
|
|
September
2025
|
9,776,994
|
|
October
2025
|
9,637,529
|
|
November
2025
|
9,499,969
|
|
December
2025
|
9,364,287
|
|
January
2026
|
9,230,459
|
|
February
2026
|
9,098,460
|
|
March
2026
|
8,968,265
|
|
April
2026
|
8,839,849
|
|
May
2026
|
8,713,188
|
|
June
2026
|
8,588,260
|
|
July
2026
|
8,465,039
|
|
August
2026
|
8,343,504
|
|
September
2026
|
8,223,631
|
|
October
2026
|
8,105,398
|
|
November
2026
|
7,988,783
|
|
December
2026
|
7,873,764
|
|
January
2027
|
7,760,319
|
|
February
2027
|
7,648,428
|
|
March
2027
|
7,538,069
|
|
April
2027
|
7,429,221
|
|
May
2027
|
7,321,864
|
|
June
2027
|
7,215,978
|
|
July
2027
|
7,111,543
|
|
August
2027
|
7,008,539
|
|
September
2027
|
6,906,947
|
|
October
2027
|
6,806,749
|
|
November
2027
|
6,707,924
|
|
December
2027
|
6,610,455
|
|
January
2028
|
6,514,323
|
|
February
2028
|
6,419,510
|
|
March
2028
|
6,325,998
|
|
April
2028
|
6,233,770
|
|
May
2028
|
6,142,808
|
|
June
2028
|
6,053,096
|
|
July
2028
|
5,964,615
|
|
August
2028
|
5,877,351
|
|
September
2028
|
5,791,285
|
|
October
2028
|
5,706,403
|
|
November
2028
|
5,622,687
|
|
December
2028
|
5,540,122
|
|
January
2029
|
5,458,693
|
|
February
2029
|
5,378,385
|
|
March
2029
|
5,299,181
|
|
April
2029
|
5,221,068
|
|
May
2029
|
5,144,029
|
|
June
2029
|
5,068,052
|
|
July
2029
|
4,993,121
|
|
August
2029
|
4,919,222
|
|
September
2029
|
4,846,342
|
|
October
2029
|
4,774,466
|
|
November
2029
|
4,703,581
|
|
December
2029
|
4,633,673
|
|
January
2030
|
4,564,730
|
|
February
2030
|
4,496,738
|
|
March
2030
|
4,429,684
|
|
April
2030
|
4,363,556
|
|
May
2030
|
4,298,341
|
|
June
2030
|
4,234,026
|
|
July
2030
|
4,170,601
|
|
August
2030
|
4,108,051
|
|
September
2030
|
4,046,366
|
|
October
2030
|
3,985,534
|
|
November
2030
|
3,925,544
|
|
December
2030
|
3,866,383
|
|
January
2031
|
3,808,041
|
|
February
2031
|
3,750,507
|
|
March
2031
|
3,693,769
|
|
April
2031
|
3,637,817
|
|
May
2031
|
3,582,640
|
|
June
2031
|
3,528,228
|
|
July
2031
|
3,474,570
|
|
August
2031
|
3,421,657
|
|
September
2031
|
3,369,477
|
|
October
2031
|
3,318,021
|
|
November
2031
|
3,267,280
|
|
December
2031
|
3,217,243
|
|
January
2032
|
3,167,901
|
|
February
2032
|
3,119,245
|
|
March
2032
|
3,071,264
|
|
April
2032
|
3,023,951
|
|
May
2032
|
2,977,296
|
|
June
2032
|
2,931,290
|
|
July
2032
|
2,885,925
|
|
August
2032
|
2,841,191
|
|
September
2032
|
2,797,080
|
|
October
2032
|
2,753,583
|
|
November
2032
|
2,710,693
|
|
December
2032
|
2,668,400
|
|
January
2033
|
2,626,698
|
|
February
2033
|
2,585,577
|
|
March
2033
|
2,545,031
|
|
April
2033
|
2,505,050
|
|
May
2033
|
2,465,628
|
|
June
2033
|
2,426,757
|
|
July
2033
|
2,388,429
|
|
August
2033
|
2,350,638
|
|
September
2033
|
2,313,375
|
|
October
2033
|
2,276,633
|
|
November
2033
|
2,240,406
|
|
December
2033
|
2,204,687
|
|
January
2034
|
2,169,468
|
|
February
2034
|
2,134,743
|
|
March
2034
|
2,100,505
|
|
April
2034
|
2,066,747
|
|
May
2034
|
2,033,463
|
|
June
2034
|
2,000,647
|
|
July
2034
|
1,968,291
|
|
August
2034
|
1,936,391
|
|
September
2034
|
1,904,939
|
|
October
2034
|
1,873,929
|
|
November
2034
|
1,843,356
|
|
December
2034
|
1,813,214
|
|
January
2035
|
1,783,496
|
|
February
2035
|
1,754,198
|
|
March
2035
|
1,725,312
|
|
April
2035
|
1,696,834
|
|
May
2035
|
1,668,758
|
|
June
2035
|
1,641,079
|
|
July
2035
|
1,613,790
|
|
August
2035
|
1,586,888
|
|
September
2035
|
1,560,366
|
|
October
2035
|
1,534,220
|
|
November
2035
|
1,508,443
|
|
December
2035
|
1,483,032
|
|
January
2036
|
1,457,981
|
|
February
2036
|
1,433,286
|
|
March
2036
|
1,408,941
|
|
April
2036
|
1,384,941
|
|
May
2036
|
1,361,283
|
|
June
2036
|
1,337,961
|
|
July
2036
|
1,314,971
|
|
August
2036
|
1,292,307
|
|
September
2036
|
1,269,967
|
|
October
2036
|
1,247,945
|
|
November
2036
|
1,226,237
|
|
December
2036
|
1,204,839
|
|
January
2037
|
1,183,746
|
|
February
2037
|
1,162,954
|
|
March
2037
|
1,142,460
|
S-III-1
