EXHIBIT 99.1
Exhibit 99.1
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EXECUTION COPY
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CWABS, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
COUNTRYWIDE LFT LLC,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
THE BANK OF NEW YORK,
Trustee
and
BNY WESTERN TRUST COMPANY,
Co-Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2004
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ASSET-BACKED CERTIFICATES, SERIES 2004-AB1
Table of Contents
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Page
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ARTICLE I.
DEFINITIONS
Section 1.01 Defined Terms...................................................................................8
Section 1.02 Certain Interpretive Provisions................................................................49
ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans...................................................................50
Section 2.02 Acceptance by Trustee of the Mortgage Loans....................................................57
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the Sellers...............63
Section 2.04 Representations and Warranties of the Depositor................................................81
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions and Repurchases................82
Section 2.06 Authentication and Delivery of Certificates....................................................83
Section 2.07 Covenants of the Master Servicer...............................................................83
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer to Service Mortgage Loans......................................................83
Section 3.02 Subservicing; Enforcement of the Obligations of Master Servicer................................85
Section 3.03 Rights of the Depositor, the Sellers, the Certificateholders, the NIM Insurer and the
Trustee in Respect of the Master Servicer......................................................86
Section 3.04 Trustee to Act as Master Servicer..............................................................87
Section 3.05 Collection of Mortgage Loan Payments; Certificate Account; Distribution Account;
Pre-Funding Account; Seller Shortfall Interest Requirement.....................................88
Section 3.06 Collection of Taxes, Assessments and Similar Items; Escrow Accounts............................91
Section 3.07 Access to Certain Documentation and Information Regarding the Mortgage Loans...................91
Section 3.08 Permitted Withdrawals from the Certificate Account, Distribution Account, Carryover
Reserve Fund and the Principal Reserve Fund....................................................92
Section 3.09 [Reserved].....................................................................................95
Section 3.10 Maintenance of Hazard Insurance................................................................95
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements......................................96
Section 3.12 Realization Upon Defaulted Mortgage Loans; Determination of Excess Proceeds and
Realized Losses; Repurchase of Certain Mortgage Loans..........................................97
Section 3.13 Co-Trustee to Cooperate; Release of Mortgage Files............................................100
Section 3.14 Documents, Records and Funds in Possession of Master Servicer to be Held for the
Trustee.......................................................................................101
i
Section 3.15 Servicing Compensation........................................................................102
Section 3.16 Access to Certain Documentation...............................................................102
Section 3.17 Annual Statement as to Compliance.............................................................103
Section 3.18 Annual Independent Public Accountants' Servicing Statement; Financial Statements..............103
Section 3.19 The Corridor Contracts........................................................................103
Section 3.20 Prepayment Charges............................................................................104
ARTICLE IV.
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 4.01 Advances; Remittance Reports..................................................................105
Section 4.02 Reduction of Servicing Compensation in Connection with Prepayment Interest Shortfalls.........107
Section 4.03 [Reserved]....................................................................................107
Section 4.04 Distributions.................................................................................107
Section 4.05 Monthly Statements to Certificateholders......................................................115
Section 4.06 Class 1-A-1 Policy............................................................................118
Section 4.07 [Reserved]....................................................................................121
Section 4.08 Carryover Reserve Fund........................................................................121
Section 4.09 Credit Comeback Excess Account................................................................122
ARTICLE V.
THE CERTIFICATES
Section 5.01 The Certificates..............................................................................123
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates...................124
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.............................................127
Section 5.04 Persons Deemed Owners.........................................................................128
Section 5.05 Access to List of Certificateholders' Names and Addresses.....................................128
Section 5.06 Book-Entry Certificates.......................................................................128
Section 5.07 Notices to Depository.........................................................................129
Section 5.08 Definitive Certificates.......................................................................129
Section 5.09 Maintenance of Office or Agency...............................................................130
ARTICLE VI.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLERS
Section 6.01 Respective Liabilities of the Depositor, the Master Servicer and the Sellers..................130
Section 6.02 Merger or Consolidation of the Depositor, the Master Servicer or the Sellers..................130
Section 6.03 Limitation on Liability of the Depositor, the Sellers, the Master Servicer, the NIM
Insurer and Others............................................................................131
Section 6.04 Limitation on Resignation of Master Servicer..................................................132
Section 6.05 Errors and Omissions Insurance; Fidelity Bonds................................................132
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ARTICLE VII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 7.01 Events of Default.............................................................................132
Section 7.02 Trustee to Act; Appointment of Successor......................................................134
Section 7.03 Notification to Certificateholders............................................................136
ARTICLE VIII.
CONCERNING THE TRUSTEE AND THE CO-TRUSTEE
Section 8.01 Duties of Trustee.............................................................................136
Section 8.02 Certain Matters Affecting the Trustee.........................................................137
Section 8.03 Trustee Not Liable for Mortgage Loans.........................................................138
Section 8.04 Trustee May Own Certificates..................................................................139
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses............................................139
Section 8.06 Eligibility Requirements for Trustee..........................................................139
Section 8.07 Resignation and Removal of Trustee............................................................140
Section 8.08 Successor Trustee.............................................................................141
Section 8.09 Merger or Consolidation of Trustee............................................................141
Section 8.10 Appointment of Co-Trustee or Separate Trustee.................................................141
Section 8.11 Tax Matters...................................................................................143
Section 8.12 Co-Trustee....................................................................................145
Section 8.13 Access to Records of the Trustee..............................................................148
Section 8.14 Suits for Enforcement.........................................................................148
ARTICLE IX.
TERMINATION
Section 9.01 Termination upon Liquidation or Repurchase of all Mortgage Loans..............................149
Section 9.02 Final Distribution on the Certificates........................................................149
Section 9.03 Additional Termination Requirements...........................................................151
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.....................................................................................152
Section 10.02 Recordation of Agreement; Counterparts........................................................153
Section 10.03 Governing Law.................................................................................154
Section 10.04 Intention of Parties..........................................................................154
Section 10.05 Notices.......................................................................................155
Section 10.06 Severability of Provisions....................................................................156
Section 10.07 Assignment....................................................................................156
Section 10.08 Limitation on Rights of Certificateholders....................................................156
Section 10.09 Inspection and Audit Rights...................................................................157
Section 10.10 Certificates Nonassessable and Fully Paid.....................................................157
Section 10.11 Rights of NIM Insurer.........................................................................157
Section 10.12 Class 1-A-1 Insurer Rights....................................................................158
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Exhibits
EXHIBIT A-1 Form of Class 1-A-1 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 M-1 Certificate
EXHIBIT A-6 Form of Class M-2 Certificate
EXHIBIT A-7 Form of Class M-3 Certificate
EXHIBIT A-8 Form of Class M-4 Certificate
EXHIBIT A-9 Form of Class B Certificate
EXHIBIT B Form of Class P Certificates
EXHIBIT C Form of Class C Certificates
EXHIBIT D Form of Class A-R Certificate
EXHIBIT E Form of Tax Matters Person Certificate (Class A-R)
EXHIBIT F Mortgage Loan Schedule
EXHIBIT F-1 List of Initial 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
EXHIBIT G-2 Form of Interim Certification of Trustee
EXHIBIT G-3 Forms of Delay Delivery Certification
EXHIBIT G-4 Form of Initial Certification of Trustee (Subsequent
Mortgage Loans)
EXHIBIT H Form of Final Certification of Trustee
EXHIBIT I-1 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 Request for Document Release
EXHIBIT N 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-1 Corridor Contract
EXHIBIT Q-2 Form of Class 2-A Corridor Contract
EXHIBIT Q-3 Form of Subordinate Corridor Contract
EXHIBIT R Form of Class 1-A-1 Policy
EXHIBIT S Form of Corridor Contract Assignment Agreement
EXHIBIT T Officer's Certificate with respect to Prepayments
EXHIBIT U [Reserved]
SCHEDULE I Prepayment Charge Schedule and Prepayment Charge Summary
SCHEDULE II Class 2-A-1 Target Balance Schedule
iv
POOLING AND SERVICING AGREEMENT, dated as of September 1,
2004, 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"), COUNTRYWIDE LFT LLC (the "Liquidity Trust" or a
"Seller", and together with CHL, 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 BNY WESTERN TRUST COMPANY, a California banking
corporation, 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 Corridor Contracts, the Credit Comeback Excess Account, the
Carryover Reserve Fund and the assets held in the Pre-Funding Account) for
federal income tax purposes will consist of four REMICs ("REMIC 1", "REMIC 2",
"REMIC 3" 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 REMIC 1, REMIC
2, REMIC 3 and the Master REMIC. The Master REMIC will hold as assets the
several classes of uncertificated REMIC 3 Interests. Each REMIC 3 Interest
(other than the R-3-R Interest) is hereby designated as a regular interest in
REMIC 3 for federal income tax purposes. REMIC 3 will hold as assets the
several classes of REMIC 2 Interests (other than the R-2-R Interest). Each
REMIC 2 Interest (other than the R-2-R Interest) is hereby designated as a
regular interest in REMIC 2 for federal income tax purposes. REMIC 2 will hold
as assets the several classes of REMIC 1 Interests (other than the R-1-R
Interest). Each REMIC 1 Interest (other than the R-1-R Interest) is hereby
designated as a regular interest in REMIC 1 for federal income tax purposes.
REMIC 1 will hold as assets all property of the Trust Fund (excluding the
Corridor Contracts, the Credit Comeback Excess Account, the Carryover Reserve
Fund and the assets held in the Pre-Funding Account). The latest possible
maturity date of all REMIC regular interests created in this Agreement shall
be the Latest Possible Maturity Date.
REMIC 1:
The REMIC 1 Interests will have the principal balances,
pass-through rates and Corresponding Loan Groups as set forth below.
Corresponding Loan
REMIC 1 Interests Balance Pass-Through Rate Group(s)
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R-1-1-I (1) (5) 1
R-1-1-S (2) (6) 1
R-1-2-I (1) (5) 2
R-1-2-S (2) (6) 2
R-1-X (3) (7) 1 and 2
R-1-R (4) (4) N/A
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1
(1) The principal balance of each REMIC 1 Interest having an "I" designation
is the principal balance of all the Initial Mortgage Loans in the
Corresponding Loan Group.
(2) The principal balance of each REMIC 1 Interest having an "S" designation
is the principal balance of all the Subsequent Mortgage Loans in the
Corresponding Loan Group.
(3) This class of REMIC 1 Interest pays no principal.
(4) The R-1-R Interest is the sole class of residual interest in REMIC 1. It
has no principal balance and pays no principal or interest.
(5) The interest rate for this REMIC 1 Interest with respect to any
Distribution Date (and the related Accrual Period) through the
Distribution Date in November 2004 is a per annum rate equal to the
weighted average of the Adjusted Net Mortgage Rates of the Initial
Mortgage Loans in the Corresponding Loan Group. For any Distribution
Date (and the related Accrual Period) following the Distribution Date in
November 2004, the interest rate for this REMIC 1 Interest is a per
annum rate equal to the weighted average of the Adjusted Net Mortgage
Rates of all the Mortgage Loans in the Corresponding Loan Group.
(6) The interest rate for this REMIC 1 Interest with respect to any
Distribution Date (and the related Accrual Period) through the
Distribution Date in November 2004 is a per annum rate equal to 0.00%.
For any Distribution Date (and the related Accrual Period) following the
Distribution Date in November 2004, the interest rate for this REMIC 1
Interest is a per annum rate equal to the weighted average of the
Adjusted Net Mortgage Rates of all the Mortgage Loans in the
Corresponding Loan Group.
(7) For any Distribution Date (and the related Accrual Period) through the
Distribution Date in November 2004, this REMIC 1 Interest is entitled to
all the interest payable with respect to the Subsequent Mortgage Loans
in the Corresponding Loan Groups. For any Distribution Date (and the
related Accrual Period) following the Distribution Date in November
2004, the interest rate for this REMIC 1 Interest is a per annum rate
equal to 0.00%.
On each Distribution Date, the Interest Funds and the Principal
Distribution Amount of the Corresponding Loan Groups shall be distributed with
respect to the REMIC 1 Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each REMIC 1
Interest at the rate, or according to the formulas, described above.
(2) Principal. For any Distribution Date (and the related Accrual
Period) through the Distribution Date in November 2004, the Principal
Distribution Amount with respect to the Initial Mortgage Loans in a Loan Group
shall be allocated to its corresponding "I" REMIC 1 Interests, and the
Principal Distribution Amount with respect to the Subsequent Mortgage Loans in
a Loan Group shall be allocated to its corresponding "S" REMIC 1 Interests.
For any Distribution Date (and the related Accrual Period) after the
Distribution Date in November 2004,
2
the Principal Distribution Amount with respect to all Mortgage Loans in a Loan
Group shall be allocated in proportion to its corresponding REMIC 1 Interests.
REMIC 2:
The REMIC 2 Interests will have the principal balances,
pass-through rates and Corresponding Loan Groups as set forth below.
Initial Pass-Through Corresponding Loan
REMIC 2 Interests Balance Rate Group
------------------------------------ -------- ----------- ------------------
R-2-A-1 (0.9% of SCB Group 1)... (1) (4) 1
R-2-B-1 (0.1% of SCB Group 1)... (1) (4) 1
R-2-C-1 (0.9% of ASCB Group 1).. (1) (4) 1
R-2-D-1 (0.1% of ASCB Group 1).. (1) (4) 1
R-2-E-1(Excess of Group 1)...... (1) (4) 1
R-2-A-2 (0.9% of SCB Group 2)... (1) (5) 2
R-2-B-2 (0.1% of SCB Group 2)... (1) (5) 2
R-2-C-2 (0.9% of ASCB Group 2).. (1) (5) 2
R-2-D-2 (0.1% of ASCB Group 2).. (1) (5) 2
R-2-E-2 (Excess of Group 2)..... (1) (5) 2
R-2-P........................... $100 (6) N/A
R-2-X........................... (2) (7) N/A
R-2-R........................... (3) (3) N/A
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(1) With respect to the Interests, each REMIC 2 Interest having an "R-2-A-"
designation (each, an "R-2-A Interest") will have a principal balance
initially equal to 0.9% of the Subordinate Component Balance ("SCB") of
its Corresponding Loan Group. Each REMIC 2 Interest having an "R-2-B-"
designation (each, an "R-2-B Interest") will have a principal balance
initially equal to 0.1% of the SCB of its Corresponding Loan Group. Each
REMIC 2 Interest having an "R-2-C-" designation (each, an "R-2-C
Interest") will have a principal balance initially equal to 0.9% of the
Adjusted Subordinated Component Balance ("ASCB") of its Corresponding
Loan Group. Each REMIC 2 Interest having an "R-2-D-" designation (each,
an "R-2-D Interest") will have a principal balance initially equal to
0.1% of the ASCB of its Corresponding Loan Group. The initial principal
balance of each REMIC 2 Interest having an "R-2-E-" designation (each,
an "R-2-E Interest") will equal the excess of its Corresponding Loan
Group over the initial aggregate principal balances of the X-0-X, X-0-X,
X-0-X and R-2-D Interests corresponding to such Loan Group.
(2) This REMIC 2 Interest pays no principal.
(3) The REMIC 2 Interest is the sole class of residual interest in REMIC 2.
It has no principal balance and pays no principal or interest.
(4) A rate equal to the weighted average of the pass-through rates of the
R-1-1-I and R-1-1-S Interests (the "Loan Group 1 Net Rate Cap").
3
(5) A rate equal to the weighted average of the pass-through rates of the
R-1-2-I and R-1-2-S Interests (the "Loan Group 2 Net Rate Cap").
(6) This REMIC 2 Interest is entitled to all Prepayment Charges collected
with respect to the Mortgage Loans. It pays no interest.
(7) This REMIC 2 Interest is entitled to all amounts payable with respect to
the R-1-X Interest.
On each Distribution Date, the Interest Funds and the Principal
Distribution Amount payable with respect to the REMIC 1 Interests shall be
distributed with respect to the REMIC 2 Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each REMIC 2
Interest at the rate, or according to the formulas, described above.
(2) Principal if no Cross-Over Situation Exists. If no Cross-Over
Situation exists with respect to any REMIC 2 Interest, then principal amounts
distributable with respect to each Loan Group will be allocated: first to
cause the Loan Group's corresponding X-0-X, X-0-X, X-0-X and R-2-D Interests
to equal, respectively, 0.9% of the SCB, 0.1% of the SCB, 0.9% of the ASCB and
0.1% of the ASCB, of the Corresponding Loan Group, and then to the
corresponding R-2-E Interest.
(3) Principal if a Cross-Over Situation Exists. If a Cross-Over
Situation exists with respect to the R-2-A and R-2-B Interests then:
(a) if the Calculation Rate in respect of the outstanding R-2-A
and R-2-B Interests is less than the Subordinate Net Rate Cap, Principal
Relocation Payments will be made proportionately to the outstanding
R-2-A Interests prior to any other principal distributions from each
such Loan Group; and
(b) if the Calculation Rate in respect of the outstanding R-2-A
and R-2-B Interests is greater than the Subordinate Net Rate Cap,
Principal Relocation Payments will be made proportionately to the
outstanding R-2-B Interests prior to any other principal distributions
from each such Loan Group.
In each case, Principal Relocation Payments will be made so as to cause the
Calculation Rate in respect of the outstanding R-2-A and R-2-B Interests to
equal the Subordinate Net Rate Cap. With respect to each Loan Group, if (and
to the extent that) the sum of (a) the principal payments comprising the
Principal Remittance Amount for the related Distribution Date and (b) the
Realized Losses, are insufficient to make the necessary reductions of
principal on the R-2-A and R-2-B Interests, then interest will be added to the
Loan Group's R-2-E Interest.
(c) The outstanding aggregate R-2-A and R-2-B Interests for both
Loan Groups will not be reduced below 1 percent of the excess of (i) the
aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (ii) the Senior Certificates related to the Loan
Groups as of the related Distribution Date (after taking into account
distributions of principal on such Distribution Date).
4
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the R-2-A and R-2-B Interests of a Loan Group,
and if the Loan Group's corresponding R-2-E Interest has already been reduced
to zero, then the excess principal from that Loan Group will be paid to the
R-2-E Interest of the other Loan Group, the aggregate R-2-A and R-2-B
Interests of which are less than one percent of the Subordinate Component
Balance. If the Loan Group of the corresponding R-2-E Interest that receives
such payment has a weighted average Adjusted Net Mortgage Rate below the
weighted average Adjusted Net Mortgage Rate of the Loan Group making the
payment, then the payment will be treated by REMIC 2 as a Realized Loss.
Conversely, if the Loan Group of the R-2-E Interest that receives such payment
has a weighted average Adjusted Net Mortgage Rate above the weighted average
Adjusted Net Mortgage Rate of the Loan Group making the payment, then the
payment will be treated by REMIC 2 as a reimbursement for prior Realized
Losses.
If a Cross-Over Situation exists with respect to the R-2-C and R-2-D
Interests then:
(d) if the Calculation Rate in respect of the outstanding R-2-C
and R-2-D Interests is less than the Adjusted Subordinate Net Rate Cap,
Principal Relocation Payments will be made proportionately to the
outstanding R-2-C Interests prior to any other principal distributions
from each such Loan Group; and
(e) if the Calculation Rate in respect of the outstanding R-2-C
and R-2-D Interests is greater than the Adjusted Subordinate Net Rate
Cap, Principal Relocation Payments will be made proportionately to the
outstanding R-2-D Interests prior to any other principal distributions
from each such Loan Group.
In each case, Principal Relocation Payments will be made so as to cause
the Calculation Rate in respect of the outstanding R-2-C and R-2-D Interests
to equal the Adjusted Subordinate Net Rate Cap. With respect to each Loan
Group, if (and to the extent that) the sum of (a) the principal payments
comprising the Principal Remittance Amount for the related Distribution Date
and (b) the Realized Losses, are insufficient to make the necessary reductions
of principal on the R-2-C and R-2-D Interests, then interest will be added to
the Loan Group's R-2-E Interest.
(f) The outstanding aggregate R-2-C and R-2-D Interests for all
Loan Groups will not be reduced below 1 percent of the excess of (i) the
aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over (ii) the Senior Certificates related to the Loan
Groups as of the related Distribution Date (after taking into account
distributions of principal on such Distribution Date).
If (and to the extent that) the limitation in paragraph (f) prevents the
distribution of principal to the R-2-C and R-2-D Interests of a Loan Group,
and if the Loan Group's R-2-E Interest has already been reduced to zero, then
the excess principal from that Loan Group will be paid to the R-2-E Interest
of the other Loan Groups, the aggregate R-2-C and R-2-D Interests of which are
less than one percent of the Adjusted Subordinate Component Balance. If the
Loan Group of the R-2-E Interest that receives such payment has a weighted
average Adjusted Net Mortgage Rate below the weighted average Adjusted Net
Mortgage Rate of the Loan Group making the payment, then the payment will be
treated by REMIC 2 as a Realized Loss. Conversely, if the Loan Group of the
R-2-E Interest that receives such payment has a weighted
5
average Adjusted Net Mortgage Rate above the weighted average Adjusted Net
Mortgage Rate of the Loan Group making the payment, then the payment will be
treated by REMIC 2 as a reimbursement for prior Realized Losses.
REMIC 3:
The REMIC 3 Regular Interests will have the principal balances,
pass-through rates and Corresponding Classes of Certificates as set forth in
the following table:
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Initial Principal Pass-Through Corresponding Class of
REMIC 3 Interests Balance Rate Certificates
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R-3-1-A-1 (1) (2) 1-A-1
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R-3-2-A-1 (1) (3) 2-A-1
------------------------------------------------------------------------------
R-3-2-A-2 (1) (3) 2-A-2
------------------------------------------------------------------------------
R-3-2-A-3 (1) (3) 2-A-3
------------------------------------------------------------------------------
R-3-M-1.............. (1) (4) M-1
------------------------------------------------------------------------------
R-3-M-2.............. (1) (4) M-2
------------------------------------------------------------------------------
R-2-M-3.............. (1) (4) M-3
------------------------------------------------------------------------------
R-3-M-4.............. (1) (4) M-4
------------------------------------------------------------------------------
R-3-B................ (1) (4) B
------------------------------------------------------------------------------
R-3-P $100.00 (5) P
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R-3-X (6) (6) C
------------------------------------------------------------------------------
R-3-$100............. $100.00 (7) A-R
------------------------------------------------------------------------------
R-3-Accrual.......... (1) (8) N/A
------------------------------------------------------------------------------
R-3-R................ (9) (9) N/A
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(1) This REMIC 3 Interest has a principal balance that is initially equal to
50% of its Corresponding Certificate Class issued by the Master REMIC.
Principal payments, both scheduled and prepaid, Realized Losses,
Subsequent Recoveries and interest accruing on the R-3-Accrual Interest
will be allocated to this class to maintain its size relative to its
Corresponding Certificate Class (that is, 50%) with any excess payments
of principal, Realized Losses and Subsequent Recoveries being allocated
to the R-3-Accrual Interest in such manner as to cause the principal
balance of the R-3-Accrual Interest to have a principal balance equal to
(a) 50% of the principal balance of Loan Group 1 and Loan Group 2 plus
(b) 50% of the Overcollateralized Amount for such Distribution Date.
(2) A rate equal to the Loan Group 1 Net Rate Cap.
(3) A rate equal to the Loan Group 2 Net Rate Cap.
(4) The interest rate with respect to any Distribution Date (and the related
Accrual Period) for this REMIC 3 Interest is a per annum rate equal to
the Adjusted Subordinate Net Rate Cap. For federal income tax purposes
the "Adjusted Subordinate Net Rate Cap" will equal the Calculation Rate
with respect to the R-2-C and R-2-D REMIC 2 Interests.
(5) The R-3-P Interest is entitled to all amounts collected with respect to
the R-2-P Interest. It pays no interest.
6
(6) The R-3-X Interest is entitled to all amounts collected with respect to
the R-2-X Interest. It pays no interest or principal.
(7) This REMIC 3 Interest pays no interest.
(8) A rate equal to the weighted average of the rates of the Loan Group 1
Net Rate Cap and the Loan Group 2 Net Rate Cap (the "Loan Group 1/2 Net
Rate Cap").
(9) The R-3-R Interest is the sole class of residual interest in REMIC 3. 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 REMIC 2 Interests shall be
distributed with respect to the REMIC 3 Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each REMIC 3
Interest at the rate, or according to the formulas, described above.
(2) Principal. Principal Distribution Amounts shall be allocated among
the REMIC 3 Interests in the same manner that such items are allocated among
their corresponding Certificate Classes.
Master REMIC:
The Master REMIC Certificates will have the original
certificate principal initial balances and pass-through rates as set forth in
the following table:
Original Certificate Pass-Through
Class Principal Balance Rate
----- ------------------ -----------
Class 1-A-1........... $ 623,560,000 (1)
Class 2-A-1........... $ 184,903,000 (1)
Class 2-A-2........... $ 330,512,000 (1)
Class 2-A-3........... $ 89,805,000 (1)
Class M-1............. $ 48,805,000 (1)
Class M-2............. $ 22,780,000 (1)
Class M-3............. $ 13,400,000 (1)
Class M-4............. $ 13,400,000 (1)
Class B............... $ 13,400,000 (1)
Class C............... (2) (3)
Class P............... $100 (4)
Class A-R............. $100 (5)
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(1) The Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement. For federal income tax purposes, the pass
through rate in respect of (i) each of the Class 1-A-1 Certificates will
be subject to a cap equal to equal to the Loan Group 1 Net Rate Cap less
the Class 1-A-1 Policy Premium Rate, (ii) each of the Class 2-A
Certificates will be subject to a cap equal to the Loan Group 2 Net Rate
Cap, and (iii) each of the Class M and Class B Certificates will be
subject to a cap equal to the
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Adjusted Subordinate Net Rate Cap. Any entitlement of any class of
Certificates to Net Rate Carryover and any entitlement of the Class M
and Class B Certificates to interest at a rate in excess of Adjusted
Subordinate Net Rate Cap, will be treated as paid by the Master REMIC to
the Class C Certificates and then paid to by the Class C Certificates
pursuant to a limited recourse cap contract as described in Section 8.11
herein.
(2) The Class C Certificates have no Certificate Principal Balance.
(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 R-3-X Interests and (b) a specified
portion of the interest on the REMIC 1 Group 1 and 2 Interests equal to
the excess of the Loan Group 1/2 Net Rate Cap over the product of two
and the weighted average interest rate of the REMIC 3 Regular Interests
having an "A," "M," "B" or "Accrual" designation in the column entitled
"REMIC 3 Interests" with each such Class other than the Accrual
Interest, subject to a cap equal to the Pass-Through Rate of the
Corresponding Master REMIC Class and the Accrual Class subject to a cap
of 0.00%. The Pass-Through Rate of the Class C Certificates shall be a
rate sufficient to entitle it to all interest accrued on the REMIC 1
Group 1 and Group 2 Interests less the interest accrued on the A, M or B
interests issued by the Master REMIC. The Class C Distributable Amount
for any Distribution Date is payable from current interest on the Group
1 and Group 2 Mortgage Loans.
(4) For each Distribution Date the Class P Certificates are entitled to all
Prepayment Charges distributed with respect to the Class R-3-P
Interests.
(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 a REMIC
regular interest, without creating any shortfall--actual or potential (other
than for credit losses)--to any REMIC regular interest. To the extent that the
structure is believed to diverge from such intention the Trustee will resolve
ambiguities to accomplish such result and will to the extent necessary rectify
any drafting errors or seek clarification to the structure without
Certificateholder approval (but with guidance of Counsel) to accomplish such
intention.
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:
Accrual Period: With respect to any Distribution Date and
each Class of Adjustable Rate 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
8
Class C Certificates, the calendar month preceding the month in which such
Distribution Date occurs. All calculations of interest on the Adjustable Rate
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.
Adjustable Rate Certificates: The Class 1-A-1, Class 2-A and
Subordinate Certificates.
Adjustable Rate Mortgage Loans: The Mortgage Loans
identified in the Mortgage Loan Schedule as having a Mortgage Rate which is
adjustable in accordance with the terms of the related Mortgage Note (for the
avoidance of doubt, excluding any Credit Comeback Loans).
Adjusted Net Mortgage Rate: As to each Mortgage Loan, the
Mortgage Rate less the related Expense Fee Rate.
Adjusted Subordinate Component Balance: With respect to any
Distribution Date and for each Loan Group, (i) the principal balance of such
Loan Group as of the first day of the related Due Period (after giving effect
to Principal Prepayments received in the Prepayment Period ending during such
Due Period) less (ii) the product of (a) the Overcollateralized Amount and
(b)(I) the principal balance of such Loan Group, divided by (II) the sum of
the principal balance of the Mortgage Loans, as of the first day of the
related Due Period, less (iii) the aggregate Certificate Principal Balance of
the related Classes of Senior Certificates in either case immediately prior to
such Distribution Date.
Adjusted Subordinate Net Rate Cap: For each Distribution
Date, the weighted average of the Group 1 Net Rate Cap and Group 2 Net Rate
Cap weighted on the basis of the respective Adjusted Subordinate Component
Balance of their corresponding Loan Groups. For federal income tax purposes,
the Adjusted Subordinate Net Rate Cap will be the Calculation Rate in respect
of the Class C and Class D Interests in REMIC 2.
Adjustment Date: As to each Adjustable Rate Mortgage Loan,
each date on which the related Mortgage Rate is subject to adjustment, as
provided in the related Mortgage Note.
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 and interest on 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 each Mortgage Loan as to which
the related Mortgaged Property is an REO Property; 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 Mortgage Loan related to such 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.
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Agreement: This Pooling and Servicing Agreement and any and
all amendments or supplements hereto made in accordance with the terms herein.
Ambac: Ambac Assurance Corporation, organized and created
under the laws of the State of Wisconsin, or any successor thereto.
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, the sum of the Realized Losses with respect to the Mortgage
Loans which are to be applied in reduction of the Certificate Principal
Balances of the Subordinate Certificates pursuant to this Agreement, which
shall equal the amount, if any, by which the aggregate Certificate Principal
Balance of all Certificates (after all distributions of principal on such
Distribution Date) exceeds the sum of (x) the Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (y) the amount on deposit in the
Pre-Funding Account, if any.
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.
Bankruptcy Code: Title 11 of the United States Code.
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 Adjustable Rate 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 or savings and loans institutions
in the States of New York or California are authorized or obligated by law or
executive order to be closed.
Calculation Rate: For each Distribution Date, (a) in the
case of the Class A and Class B REMIC 2 Interests, the product of (i) 10 and
(ii) the weighted average rate of the outstanding Class A and Class B
Interests, treating each Class A Interest as capped at zero or reduced by a
fixed percentage of 100% of the interest accruing on such Class A Interest,
and (b) in the case of the Class C and Class D REMIC 2 Interests, the product
of (i) 10 and (ii) the weighted average rate of the outstanding Class C and
Class D Interests, treating each Class C
10
Interest as capped at zero or reduced by a fixed percentage of 100% of the
interest accruing on such Class C Interest.
Carryover Reserve Fund: The separate Eligible Account
created and initially maintained by the Trustee pursuant to Section 4.08 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 2004-AB1". 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 A-9, Exhibit B, Exhibit C and Exhibit D.
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 2004-AB1". 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 (including in the case of the Class 1-A-1 Certificates, the
amounts distributed as payments of principal under the Class 1-A-1 Policy),
and (ii) with respect to any Subordinate Certificates, any Applied Realized
Loss Amounts allocated to such Certificate on previous Distribution Dates
pursuant to Section 4.04(h), and (B) increased by, with respect to any
Subordinate Certificates, 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. Exclusively for the purpose of determining any subrogation
rights of the Class 1-A-1 Insurer arising under Section 4.06 hereof, the
"Certificate Principal Balance" of the Class 1-A-1 Certificates shall not be
reduced by the amount of any payments made by the Class 1-A-1 Insurer in
respect of principal on such Certificates under the Class 1-A-1 Policy, except
to the extent such payment shall have been reimbursed to the Class 1-A-1
Insurer pursuant to the provisions of this Agreement.
Certificate Register: The register maintained pursuant to
Section 5.02 hereof.
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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.
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-1 Available Funds: With respect to any
Distribution Date, funds allocated from amounts available pursuant to this
Agreement to make distributions on the Class 1-A-1 Certificates on such
Distribution Date, other than any Insured Amounts and amounts received under
the Class 0-X-0 Xxxxxxxx Xxxxxxxx.
Class 1-A-1 Certificate: Any Certificate designated as a
"Class 1-A-1 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-1 Corridor Contract: The transaction evidenced by
the related Confirmation (as assigned to the Trustee pursuant to the Corridor
Contract Assignment Agreement), a form of which is attached hereto as Exhibit
Q-1.
Class 1-A-1 Insurer: Ambac in its capacity as insurer under
the Class 1-A-1 Policy, and any permitted successor or assign.
Class 1-A-1 Insurer Contact Person: The officer designated
by the Master Servicer to provide information to the Class 1-A-1 Insurer
pursuant to Section 4.06(i).
Class 1-A-1 Insurer Default: As defined in Section 4.06(l).
Class 1-A-1 Net Rate Cap: With respect to any Distribution
Date, the weighted average Adjusted Net Mortgage Rate of the Mortgage Loans in
Loan Group 1 for such Distribution Date, less the Class 1-A-1 Policy Premium
Rate adjusted to an effective rate
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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.
Class 1-A-1 Policy: The irrevocable Certificate Guaranty
Insurance Policy, No. AB0805BE, including any endorsements thereto, issued by
Ambac with respect to the Class 1-A-1 Certificates, in the form attached
hereto as Exhibit R.
Class 1-A-1 Policy Payments Account: The separate Eligible
Account created and maintained by the Trustee pursuant to Section 4.06(c) in
the name of the Trustee for the benefit of the Class 1-A-1 Certificateholders
and designated "The Bank of New York in trust for registered holders of CWABS,
Inc., Asset-Backed Certificates, Series 2004-AB1, Class 1-A-1". Funds in the
Class 1-A-1 Policy Payments Account shall be held in trust for the Class 1-A-1
Certificateholders for the uses and purposes set forth in this Agreement.
Class 1-A-1 Premium: For any Distribution Date is the fee
payable to the Class 1-A-1 Insurer in respect of its services as Class 1-A-1
Insurer that accrues at the Class 1-A-1 Policy Premium Rate for the Class
1-A-1 Certificates on a balance equal to the Certificate Principal Balance of
the Class 1-A-1 Certificates immediately prior to such Distribution Date. The
Class 1-A-1 Premium shall be computed on the basis of the actual number of
days elapsed over a year of 360 days.
Class 1-A-1 Policy Premium Rate: Means the rate per annum
specified in the Commitment Letter dated as of September 29, 2004 between the
Class 1-A-1 Insurer and CHL.
Class 1-A-1 Principal Distribution Amount: With respect to
any Distribution Date, the product of (x) the Senior Principal Distribution
Target Amount and (y) a fraction, the numerator of which is the Class 1-A-1
Principal Distribution Target Amount and the denominator of which is the sum
of the Class 1-A-1 and Class 2-A Principal Distribution Target Amounts.
Class 1-A-1 Principal Distribution Target Amount: With
respect to any Distribution Date, the excess of (1) the Certificate Principal
Balance of the Class 1-A-1 Certificates immediately prior to such Distribution
Date, over (2) the lesser of (x) 82.40% 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 Stated
Principal Balance of the Mortgage Loans in Loan Group 1 as of the Initial
Cut-Off Date and the Group 1 Pre-Funded Amount on the Closing Date.
Class 1-A-1 Realized Loss Amount: For any Distribution Date
after the Certificate Principal Balance of the Subordinate Certificates has
been reduced to zero, the amount equal to the excess of (x) the Certificate
Principal Balance of the Class 1-A-1 Certificates for such Distribution Date
(after taking into account all distributions to be made on such Distribution
Date) over (y) the sum of the Stated Principal Balances of the Mortgage Loans
in Loan Group 1 and the amount on deposit in the Pre-Funding Account in
respect of Loan Group 1 for such Distribution Date, after taking into account
all distributions to be made on such Distribution Date.
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Class 2-A Certificate: Any Class 2-A-1 Certificate, Class
2-A-2 Certificate or Class 2-A-3 Certificate.
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-1 Acceleration Event: With respect to any
Distribution Date, beginning with the Distribution Date in June 2011 until the
Certificate Principal Balance of the Class 2-A-1 Certificates has been reduced
to zero, a Class 2-A-1 Acceleration Event shall exist if the Certificate
Principal Balance of the Class 2-A-1 Certificates (after taking into account
all prior distributions to the Class 2-A-1 Certificates for such Distribution
Date other than the Class 2-A-1 Acceleration Amount) exceeds the Class 2-A-1
Target Balance for such Distribution Date.
Class 2-A-1 Acceleration Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the amount of funds
remaining after making payments pursuant to Section 4.04(d)(13), and (b) the
excess of (x) the Certificate Principal Balance of the Class 2-A-1
Certificates (after taking into account all distributions to the Class 2-A-1
Certificates for such Distribution Date other than the Class 2-A-1
Acceleration Amount) over (y) the Class 2-A-1 Target Balance for such
Distribution Date.
Class 2-A-1 Target Balance: With respect to each
Distribution Date, beginning with the Distribution Date in June 2011, the
amount described in Schedule II hereto.
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 Corridor Contract: The transaction evidenced by
the related Confirmation (as assigned to the Trustee pursuant to the Corridor
Contract Assignment Agreement), a form of which is attached hereto as Exhibit
Q-2.
Class 2-A Net Rate Cap: With respect to any Distribution
Date, the weighted average Adjusted Net Mortgage Rate of the Mortgage Loans in
Loan Group 2 for such Distribution Date, 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.
Class 2-A Principal Distribution Amount: With respect to any
Distribution Date, the product of (x) the Senior 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-1 and Class 2-A Principal Distribution Target Amounts.
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
14
immediately prior to such Distribution Date, over (2) the lesser of (x) 82.40%
of the aggregate Stated Principal Balance of the Mortgage Loans in Loan Group
2 for such Distribution Date and (y) 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 Stated Principal Balance of the Mortgage Loans in
Loan Group 2 as of the Initial Cut-Off Date and the Group 2 Pre-Funded Amount
on the Closing Date.
Class A-R Certificate: Any Certificate designated as a
"Class A-R Certificate" on the face thereof, in the form of Exhibit D hereto,
representing the right to distributions as set forth herein.
Class B Certificate: Any Certificate designated as a "Class
B Certificate" on the face thereof, in the form of Exhibit A-9 hereto,
representing the right to distributions as set forth herein.
Class B Principal Distribution Amount: With respect to any
Distribution Date the excess of (i) the sum of (a) the aggregate Certificate
Principal Balance of the Class 1-A-1 and Class 2-A Certificates (after taking
into account distributions of the Class 1-A-1 and Class 2-A Principal
Distribution Amounts for such Distribution Date), (b) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
distribution of the Class M-1 Principal Distribution Amount on such
Distribution Date), (c) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (d) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
distribution of the Class M-3 Principal Distribution Amount on such
Distribution Date), (e) the Certificate Principal Balance of the Class M-4
Certificates (after taking into account distribution of the Class M-4
Principal Distribution Amount on such Distribution Date) and (f) the
Certificate Principal Balance of the Class B Certificates immediately prior to
such Distribution Date over (ii) the lesser of (x) 99.00% 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; provided, however, that if the Class B
Certificates are the only Class of Subordinate Certificates outstanding on
such Distribution Date, the Class B Certificates will be entitled to receive
the entire remaining Principal Distribution Amount for both Loan Groups until
the Certificate Principal Balance thereof is reduced to zero.
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-5
hereto, representing the right to distributions as set forth herein.
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date the excess of (i) the sum of (a) the aggregate Certificate
Principal Balance of the Class 1-A-1 and
15
Class 2-A Certificates (after taking into account distributions of the Class
1-A-1 and Class 2-A Principal Distribution Amounts for such Distribution Date)
and (b) the Certificate Principal Balance of the Class M-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (x)
89.60% 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; provided,
however, that if the Class M-1 Certificates are the only Class of Subordinate
Certificates outstanding on such Distribution Date, the Class M-1 Certificates
will be entitled to receive the entire remaining Principal Distribution Amount
for both Loan Groups until the Certificate Principal Balance thereof is
reduced to zero.
Class M-2 Certificate: Any Certificate designated as a
"Class M-2 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 Principal Distribution Amount: With respect to any
Distribution Date the excess of (i) the sum of (a) the aggregate Certificate
Principal Balance of the Class 1-A-1 and Class 2-A Certificates (after taking
into account distributions of the Class 1-A-1 and Class 2-A Principal
Distribution Amounts for such Distribution Date), (b) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
distribution of the Class M-1 Principal Distribution Amount for such
Distribution Date) and (c) the Certificate Principal Balance of the Class M-2
Certificates immediately prior to such Distribution Date over (ii) the lesser
of (x) 93.00% 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; provided,
however, that if the Class M-2 Certificates are the only Class of Subordinate
Certificates outstanding on such Distribution Date, the Class M-2 Certificates
will be entitled to receive the entire remaining Principal Distribution Amount
for both Loan Groups until the Certificate Principal Balance thereof is
reduced to zero.
Class M-3 Certificate: Any Certificate designated as a
"Class M-3 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 Principal Distribution Amount: With respect to any
Distribution Date the excess of (i) the sum of (a) the aggregate Certificate
Principal Balance of the Class 1-A-1 and Class 2-A Certificates (after taking
into account distributions of the Class 1-A-1 and Class 2-A Principal
Distribution Amounts for such Distribution Date), (b) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
distribution of the Class M-1 Principal Distribution Amount for such
Distribution Date), (c) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account distribution of the Class M-2
Principal Distribution Amount for such Distribution Date) (d) the Certificate
Principal Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (x) 95.00% 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; provided, however, that if the Class M-3 Certificates
are the only Class of Subordinate Certificates outstanding on such
Distribution Date, the Class M-3 Certificates will be entitled to receive the
entire remaining Principal Distribution Amount for both Loan Groups until the
Certificate Principal Balance thereof is reduced to zero.
16
Class M-4 Certificate: Any Certificate designated as a
"Class M-4 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 Principal Distribution Amount: With respect to any
Distribution Date the excess of (i) the sum of (a) the aggregate Certificate
Principal Balance of the Class 1-A-1 and Class 2-A Certificates (after taking
into account distributions of the Class 1-A-1 and Class 2-A Principal
Distribution Amounts for such Distribution Date), (b) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
distribution of the Class M-1 Principal Distribution Amount for such
Distribution Date), (c) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account distribution of the Class M-2
Principal Distribution Amount for such Distribution Date), (d) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date) and (e) the Certificate Principal Balance of the Class M-4
Certificates immediately prior to such Distribution Date over (ii) the lesser
of (x) 97.00% 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; provided,
however, that if the Class M-4 Certificates are the only Class of Subordinate
Certificates outstanding on such Distribution Date, the Class M-4 Certificates
will be entitled to receive the entire remaining Principal Distribution Amount
for both Loan Groups until the Certificate Principal Balance thereof is
reduced to zero.
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: September 29, 2004.
Code: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
Compensating Interest: With respect to the Mortgage Loans
and any Distribution Date, an amount equal to the lesser of (x) one-half of
the Servicing Fee for the Mortgage Loans for the related Due Period and (y)
the aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date.
Confirmation: Any of the Confirmations dated September 17,
2004 evidencing a transaction between the Corridor Contract Counterparty and
CHL relating to the Corridor Contracts.
Covered Mortgage Loan: A Mortgage Loan listed on the
Mortgage Loan Schedule as being covered by the Mortgage Insurance Policy.
17
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,
Xxx Xxxx, Xxx Xxxx 00000 (Attention: Corporate Trust MBS Administration),
telephone: (000) 000-0000, facsimile: (000) 000-0000.
Corridor Contract: The Class 1-A-1 Corridor Contract, the
Class 2-A Corridor Contract or the Subordinate Corridor Contract, as
applicable.
Corridor Contract Assignment Agreement: The assignment
agreement dated as of the Closing Date among CHL, the Trustee and the Corridor
Contract Counterparty, the form of which is attached hereto as Exhibit S.
Corridor Contract Counterparty: Bear Xxxxxxx Financial
Products, and its successors.
Corridor Contract Termination Date: With respect to the
Class 1-A-1 Corridor Contract and the Subordinate Corridor Contract, the
Distribution Date in August 2009 and with respect to the Class 2-A Corridor
Contract, the Distribution Date inn February 2011.
Co-Trustee: BNY Western Trust Company, a California banking
corporation, 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.
Credit Comeback Excess Account: The separate Eligible
Account created and initially maintained by the Trustee pursuant to Section
4.09 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 2004-AB1". Funds in the Credit
Comeback Excess Account shall be held in trust for the Certificateholders for
the uses and purposes set forth in this Agreement.
Credit Comeback Excess Cashflow: As defined in Section
4.04(d).
Credit Comeback Excess Amount: With respect to the Credit
Comeback Loans and any Master Servicer Advance Date, the portion of the sum of
the following (without duplication) attributable to the excess, if any, of the
actual mortgage rate on each Credit Comeback Loan and the Mortgage Rate on
such Credit Comeback Loan: (i) all scheduled interest collected during the
related Due Period with respect to the Credit Comeback Loans, (ii) all
Advances relating to interest with respect to the Credit Comeback Loans, (iii)
all Compensating Interest with respect to the Credit Comeback Loans and (iv)
Liquidation Proceeds with respect to the Credit Comeback Loans collected
during the related Due Period (to the extent such Liquidation Proceeds relate
to interest), less all Nonrecoverable Advances relating to interest reimbursed
during the related Due Period.
18
Credit Comeback Loan: Any Mortgage Loan for which the
related Mortgage Rate is subject to reduction (not exceeding 0.375% per annum)
for good payment history of Scheduled Payments by the related Mortgagor.
Cross-Over Situation: For any Distribution Date and for each
Loan Group (after taking into account principal distributions on such
Distribution Date) with respect to (1) the Class A and Class B REMIC 2
Interests, a situation in which the Class A and Class B Interests
corresponding to any Loan Group are in the aggregate less than 1% of the
Subordinate Component Balance of the Loan Group to which they correspond and
(2) the Class C and Class D REMIC 2 Interests, a situation in which the Class
C and Class D Interests corresponding to any Loan Group are in the aggregate
less than 1% of the Adjusted Subordinate Component Balance of the Loan Group
to which they correspond.
Cumulative Loss Trigger Event: With respect to a
Distribution Date on or after the Stepdown Date the aggregate amount of
Realized Losses on the Mortgage Loans from (and including) the Cut-off Date
for each 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 the applicable percentage, as
set forth below, for such Distribution Date, of the sum of (x) the aggregate
Cut-off Date Principal Balance of the Initial Mortgage Loans and (y) the
Pre-Funded Amount:
Distribution Date Percentage
----------------- ----------
October 2007--September 2008......... 1.50% with respect to October 2007,
plus an additional 1/12th of 0.50% for
each month thereafter
October 2008--September 2009......... 2.00% with respect to October 2008,
plus an additional 1/12th of 0.75% for
each month thereafter
October 2009--September 2010......... 2.75% with respect to October 2009,
plus an additional 1/12th of 0.25%
for each month thereafter
October 2010 and thereafter......... 3.00%
Current Interest: With respect to each Class of Adjustable
Rate 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, plus any amount previously distributed with respect to
interest for such Class that is recovered as a voidable preference by a
trustee in bankruptcy.
Cut-off Date: In the case of any Initial Mortgage Loan, the
later of (x) September 1, 2004 and (y) the date of origination of such
Mortgage Loan (the "Initial Cut-off Date"), and 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 (the related "Subsequent Cut-off Date"). When used with respect
to any Mortgage Loan "the Cut-off Date" shall mean the related Cut-off Date.
19
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.
Deficiency Amount: Means with respect to:
(a) for any Distribution Date prior to the Last Scheduled
Distribution Date, the sum of (1) the excess, if any, of the Current Interest
on the Class 1-A-1 Certificates net of any interest shortfalls resulting from
Prepayment Interest Shortfalls or any shortfalls resulting from the
application of the Relief Act, or similar state or local laws, over Class
1-A-1 Available Funds for such Distribution Date and (2) the Class 1-A-1
Realized Loss Amount, if any,
(b) for the Last Scheduled Distribution Date, an amount
equal to the sum of (1) the excess, if any, of the Current Interest on the
Class 1-A-1 Certificates net of any interest shortfalls resulting from
Prepayment Interest Shortfalls and any interest shortfalls resulting from the
application of the Relief Act, or similar state or local laws over the Class
1-A-1 Available Funds for such Distribution Date and (2) the Certificate
Principal Balance of the Class 1-A-1 Certificates on such Last Scheduled
Distribution Date (after taking into account all distributions to be made to
the Class 1-A-1 Certificates on such Distribution Date); and
(c) for any date on which the acceleration of the
Certificates has been directed or consented to by the Class 1-A-1 Insurer, the
excess of (i) the amount required to pay the outstanding Certificate Principal
Balance of the Class 1-A-1 Certificates in full, together with accrued and
unpaid interest thereon through the date of payment of the Class 1-A-1
Certificates and (ii) the Class 1-A-1 Available Funds for that Distribution
Date.
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 related Subsequent Transfer Agreement for which
all or a portion of the
20
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, not later than the Closing Date and
with respect to at least 10% of the Subsequent Mortgage Loans 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, not
later than 20 days after the Closing Date, and not later than 20 days after
the relevant Subsequent Transfer Date with respect to at least 90% of the
Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date, and (C)
with respect to the remaining 10% of the 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 to 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.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be
replaced by a Replacement Mortgage Loan.
Delinquency Trigger Event: With respect to a Distribution
Date on or after the Stepdown Date exists if the Rolling Sixty-Day Delinquency
Rate equals or exceeds 40.0% of the Senior Enhancement Percentage for such
Distribution Date.
Delinquent: A Mortgage Loan is "delinquent" if any payment
due thereon is not made pursuant to the terms of such Mortgage Loan by the
close of business on the day such payment is scheduled to be due. A Mortgage
Loan is "30 days delinquent" if such payment has not been received by the
close of business on the corresponding day of the month immediately succeeding
the month in which such payment was due, or, if there is no such corresponding
day (e.g., as when a 30-day month follows a 31-day month in which a payment
was due on the 31st day of such month), then on the last day of such
immediately succeeding month. Similarly for "60 days delinquent," "90 days
delinquent" and so on.
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, the Trustee and the initial
Depository, dated as of the Closing Date, substantially in the form of
Exhibit O.
21
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.
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 2004-AB1". 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, on the first Business Day thereafter, commencing in
October 2004.
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.
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 (without regard
to
22
the Class 1-A-1 Policy, in the case of the Class 1-A-1 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.
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
ceases to satisfy the applicable rating requirement under the Underwriter's
Exemption.
Escrow Account: As defined in Section 3.06.
Event of Default: As defined in Section 7.01 hereof.
Excess Cashflow: With respect to any Distribution Date the
sum of (x) the amount remaining as set forth in Section 4.04(a)(ii)(10) and
(y) the amount remaining as set forth in Section 4.04(b)(1)(B)(vi) or
4.04(b)(2)(H), as applicable.
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.
Expense Fee Rate: With respect to any Mortgage Loan, the sum
of (i) the Servicing Fee Rate, (ii) the Trustee Fee Rate and (iii) with
respect to a Covered Mortgage Loan, the applicable Mortgage Insurance Premium
Rate.
Extra Principal Distribution Amount: With respect to any
Distribution Date and any Loan Group, is the product of (a) the lesser of (1)
the Overcollateralization Deficiency Amount and (2) the Excess Cashflow and
Credit Comeback Excess Cashflow available for payment thereof pursuant to
Section 4.04(b) and (b) a fraction, the numerator of which is the Principal
Remittance Amount for such Loan Group and the denominator of which is the sum
of the Principal Remittance Amounts for both Loan Groups.
Xxxxxx Mae: 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.
23
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
Fixed Rate Mortgage Loans: The Mortgage Loans identified in
the Mortgage Loan Schedule as having a Mortgage Rate which is fixed for the
life of the related Mortgage and any Credit Comeback Loans, including in each
case any Mortgage Loans delivered in replacement thereof.
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 $25,000 and (y) October 29, 2004.
Gross Margin: The percentage set forth in the related
Mortgage Note for the Adjustable Rate Mortgage Loans to be added to the Index
for use in determining the Mortgage Rate on each Adjustment Date, and which is
set forth in the Mortgage Loan Schedule for the Adjustable Rate Mortgage
Loans.
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 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 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 $73,836,445.38.
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 $71,665,340.51.
Index: As to any Adjustable Rate 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, such index in general
being the average of the London interbank offered rates for six-month U.S.
dollar deposits in the London market, as set forth in The Wall Street Journal,
as most recently announced as of a date 45 days prior to such Adjustment Date
or, if the Index ceases to be published in The Wall Street Journal or becomes
unavailable for any reason, then the Index shall be a new index selected by
the Master Servicer, based on comparable information.
Initial Adjustment Date: As to any Adjustable Rate Mortgage
Loan, the first Adjustment Date following the origination of such Mortgage
Loan.
24
Initial Certificate Account Deposit: An amount equal to the
aggregate of all amounts in respect of (i) principal of the Initial Mortgage
Loans due on or 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.
Initial Cut-off Date: As defined in the definition of
Cut-off Date.
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 Adjustable Mortgage Loan,
the Mortgage Rate in effect prior to the Initial Adjustment Date.
Insolvency Proceeding: As defined in Section 4.06(h).
Insurance Policy: With respect to any Mortgage Loan included
in the Trust Fund, any insurance policy, including the Mortgage Insurance
Policy, including all riders and endorsements thereto 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 prior to such Mortgage Loan becoming a
Liquidated Mortgage Loan.
Insured Amounts: With respect to any Distribution Date, the
Deficiency Amount for such Distribution Date.
Insured Payments: With respect to any Distribution Date, the
aggregate amount actually paid by the Class 1-A-1 Certificate Insurer to the
Trustee in respect of (i) Insured Amounts for a Distribution Date and (ii)
Preference Amounts for any given Business Day.
Insured Expenses: Expenses covered by an Insurance Policy or
any other insurance policy with respect to the Mortgage Loans.
Interest Carry Forward Amount: With respect to each Class of
Adjustable Rate Certificates and each Distribution Date, the excess of (i) the
Current Interest for such Class with
25
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 Adjustable Rate Certificates, September 27, 2004. With
respect to any Accrual Period for the Adjustable Rate Certificates thereafter,
the second LIBOR Business Day preceding the commencement of such Accrual
Period.
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 and the Mortgage Insurance Premium for such
Distribution Date allocable to such Loan Group.
Interest Remittance Amount: With respect to the Mortgage
Loans in each Loan Group and any Master Servicer Advance Date, (x) the sum,
without duplication, of (i) all scheduled interest collected during the
related Due Period (for the avoidance of doubt, other than Credit Comeback
Excess Amounts) with respect to the related Mortgage Loans less the related
Servicing Fee, (ii) all interest on prepayments, 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) and (vi) the related Seller Shortfall Interest
Requirement, 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).
Late Payment Rate: Means for any Distribution Date, the
lesser of (i) the greater of (a) the rate of interest, as it is publicly
announced by Citibank, N.A. at its principal office in New York, New York as
its prime rate (any change in such prime rate of interest to be effective on
the date such change is announced by Citibank, N.A.) plus 2% and (b) the then
applicable highest rate of interest on the Class 1-A-1 Certificates and (ii)
the maximum rate permissible under applicable usury or similar laws limiting
interest rates. The Late Payment Rate shall be computed on the basis of the
actual number of days elapsed over a year of 360 days.
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.
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
26
has certified (in accordance with Section 3.12) 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, less the sum of related unreimbursed Advances,
Servicing Fees and Servicing Advances.
Liquidity Trust: Countrywide LFT LLC a Delaware limited
liability company, and its successors and assigns.
Liquidity Trust Mortgage Loans: The Mortgage Loans
identified as such on the Mortgage Loan Schedule for which the Liquidity Trust
is the applicable Seller.
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 Number and Borrower Identification Mortgage Loan
Schedule: With respect to any Subsequent Transfer Date, the Loan Number and
Borrower Identification Mortgage Loan Schedule delivered in connection with
such Subsequent Transfer Date pursuant to Section 2.01(f). Each Loan Number
and Borrower Identification Mortgage Loan Schedule shall contain the
information specified in the definition of "Mortgage Loan Schedule" with
respect to the Subsequent Mortgage Loans conveyed on such Subsequent Transfer
Date, and each Loan Number and Borrower Identification Mortgage Loan Schedule
shall be deemed to be included in the Mortgage Loan Schedule.
Loan-to-Value Ratio: The fraction, expressed as a
percentage, the numerator of which is the original principal balance of the
related 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.
Margin: With respect to any Accrual Period and Class of
Adjustable Rate Certificates, the per annum rate indicated in the following
table:
-----------------------------------------------------
Class Margin (1) Margin (2)
-----------------------------------------------------
Class 1-A-1........ 0.310% 0.620%
-----------------------------------------------------
Class 2-A-1........ 0.180% 0.360%
-----------------------------------------------------
Class 2-A-2........ 0.360% 0.720%
-----------------------------------------------------
Class 2-A-3........ 0.520% 1.040%
-----------------------------------------------------
Class M-1.......... 0.650% 0.975%
-----------------------------------------------------
27
-----------------------------------------------------
Class M-2.......... 1.050% 1.575%
-----------------------------------------------------
Class M-3.......... 1.150% 1.725%
-----------------------------------------------------
Class M-4.......... 1.350% 2.025%
-----------------------------------------------------
Class B............ 1.900% 2.850%
-----------------------------------------------------
(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.
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 Adjustable Rate
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.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS
on the MERS(R) System.
MERS(R) System: The system of recording transfers of
mortgages electronically maintained by MERS.
MIN: The Mortgage Identification Number for any MERS
Mortgage Loan.
Minimum Mortgage Rate: With respect to each Adjustable Rate
Mortgage Loan, the minimum rate of interest set forth as such in the related
Mortgage Note.
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.
28
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 Co-Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Insurance Policy: The Mortgage Insurance Policy
issued by PMI Mortgage Insurance Company with respect to certain Mortgage
Loans identified in the Mortgage Loan Schedule.
Mortgage Insurance Premium: The premium payable on the
Mortgage Insurance Policy on each Distribution Date and amounts due for
premium taxes with respect to West Virginia and Kentucky.
Mortgage Insurance Premium Rate: With respect to a Covered
Mortgage Loan and any Distribution Date, the per annum rate equal to a
quotient (expressed as a percentage), the numerator of which is equal to the
portion of the Mortgage Insurance Premium payable with respect to such
Distribution Date attributable to such Covered Mortgage Loan multiplied by
twelve and the denominator of which is equal to the Stated Principal Balance
of such Covered Mortgage Loan.
Mortgage Insurer: PMI Mortgage Insurance 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;
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(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) a code indicating whether such Mortgage Loan
is a Credit Comeback Loan;
(xiv) [Reserved];
(xv) [Reserved];
(xvi) the purpose of the Mortgage Loan;
(xvii) with respect to each Adjustable Rate
Mortgage Loan:
(a) the frequency of each Adjustment Date;
(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 Periodic Rate Cap;
(g) a code indicating if such Mortgage Loan is
a Covered Mortgage Loan and the rate for
the Mortgage Insurance Premium, if
applicable;
(h) the Gross Margin;
(i) premium rate for any lender-paid mortgage
insurance, if applicable;
(xviii) a code indicating whether the Mortgage Loan
is a Fixed Rate Mortgage Loan or an Adjustable Rate Mortgage
Loan; and
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(xix) a code indicating whether the Mortgage Loan
is a CHL Mortgage Loan or a Liquidity Trust Mortgage Loan.
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 Loan Number and
Borrower Identification Mortgage Loan Schedule 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 Group 1 Mortgage Loans and Group
2 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.
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; provided, however, the Mortgage Rate for each
Credit Comeback Loan shall be treated for all purposes of payments on the
Certificates, including the calculation of the Pass-Through Rates and the Net
Rate Cap, as reduced by 0.375% on the Due Date following the end of each of
the first four annual periods after the origination date, irrespective of
whether the Mortgagor qualifies for the reduction by having a good payment
history.
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 Servicing Fee
Rate.
Net Rate Cap: (i) With respect to the Class 1-A-1
Certificates, the Class 1-A-1 Net Rate Cap, (ii) with respect to the Class 2-A
Certificates, the Class 2-A Net Rate Cap and (iii) with respect to the
Subordinate Certificates, the Subordinate Net Rate Cap.
Net Rate Carryover: With respect to any Class of Adjustable
Rate 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,
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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.
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.
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: With respect to any Distribution Date, 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 or (iii) if provided for in this Agreement, signed
by a Servicing Officer, as the case may be, and delivered to the Depositor and
the Trustee, as the case may be, as required by this Agreement.
One-Month LIBOR: With respect to any Accrual Period for the
Adjustable Rate 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 that appears on Telerate Screen Page 3750 as of 11:00
a.m. (London time) on such Interest Determination Date; provided that the
parties hereto acknowledge that One-Month LIBOR calculated for the first
Accrual Period for the Adjustable Rate Certificates shall equal 1.840% per
annum. If such rate does not appear on such page (or such other page as may
replace that page on that service, 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
32
the Adjustable Rate 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 Adjustable Rate 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.
Optional Termination: The termination of the Trust Fund
provided hereunder pursuant to the purchase of the Mortgage Loans pursuant to
the last sentence of Section 9.01 hereof.
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 Stated Principal Balance of
the Initial Mortgage Loans as of the Initial Cut-off Date 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
33
Overcollateralized Amount for such Distribution Date (after giving effect to
distributions in respect of the Principal Remittance Amount for each Loan
Group on such Distribution Date).
Overcollateralization Target Amount: With respect to (a)
each Distribution Date prior to the Distribution Date in March 2005, zero and
(b) for any Distribution Date on or after the Distribution Date in March 2005,
an amount equal to the OC Floor.
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
remaining amounts on deposit in the Pre-Funding Account exceeds (y) the
aggregate Certificate Principal Balance of the Senior Certificates and the
Subordinate Certificates as of such Distribution Date (after giving effect to
distributions in respect of the Principal Remittance Amounts on such
Distribution Date).
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.
Pass-Through Rate: With respect to any Accrual Period and
each Class of Adjustable Rate Certificates, the lesser of (x) One-Month LIBOR
for such Accrual Period plus the 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 Adjustable Rate
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.
Periodic Rate Cap: As to substantially all Adjustable Rate
Mortgage Loans and the related Mortgage Notes, the provision therein that
limits permissible increases and decreases in the Mortgage Rate on any
Adjustment Date to not more than either 1.000% or 1.500%.
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 (without regard to the Class 1-A-1 Policy, in
the case of the Class 1-A-1 Certificates);
34
(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 (without regard to the Class 1-A-1
Policy, in the case of the Class 1-A-1 Certificates);
(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 (without regard to the Class 1-A-1
Policy, in the case of the Class 1-A-1 Certificates);
(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 (without regard to the Class 1-A-1 Policy, in
the case of the Class 1-A-1 Certificates);
(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 (without regard to the Class 1-A-1 Policy, in the
case of the Class 1-A-1 Certificates);
(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
35
originally assigned to the Certificates by such Rating
Agency (without regard to the Class 1-A-1 Policy, in the
case of the Class 1-A-1 Certificates); 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 (without regard to the Class 1-A-1 Policy, in the
case of the Class 1-A-1 Certificates) 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.
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
36
(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.
Pool Stated Principal Balance: The aggregate of the Stated
Principal Balances of the Mortgage Loans which were Outstanding Mortgage
Loans.
Preference Claim: As defined in Section 4.06(h).
Preference Amount: Any payment of principal or interest on a
Class 1-A-1 Certificate which has become Due for Payment and which was made to
a Holder by or on behalf of the Trust, which has been deemed a preferential
transfer and was previously recovered from the Holder pursuant to the United
States Bankruptcy Code in accordance with a final, non-appealable order a
court of competent jurisdiction.
Pre-Funded Amount: The amount deposited in the Pre-Funding
Account on the Closing Date, which shall equal $145,501,785.89.
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 2004-AB1." 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 to any
Mortgage Loan, the period of time during which a Prepayment Charge may be
imposed.
37
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.
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 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
38
month in which such Distribution Date occurs (or, with respect to the first
Distribution Date, the period from September 1, 2004) 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, (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.
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.
Principal Reduction: With respect to any Distribution Date
and for each Loan Group, the sum of the Principal Remittance Amount and any
Realized Losses from the Mortgage Loans in the related Loan Group, less any
Subsequent Recoveries from the Mortgage Loans in the related Loan Group.
Principal Reductions shall consist proportionately of principal allocations
comprising the Principal Remittance Amount and Realized Losses, and the REMIC
2 Interest allocated a principal payment shall receive such payment on such
Distribution Date and shall have its principal balance reduced by an
allocation of Realized Losses.
Principal Relocation Payment: A payment from any Loan Group
to a REMIC 2 Regular Interest other than a Regular Interest corresponding to
that Loan Group as provided in the Preliminary Statement. Principal Relocation
Payments shall be made of principal allocations comprising the Principal
Remittance Amount from a Loan Group and shall include a proportionate
allocation of Realized Losses from the Mortgage Loans of such Loan Group.
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 on or before 1:00
p.m. Pacific time on the related Master Servicer Advance 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 is less than the
aggregate unpaid principal balance of any Deleted Mortgage Loans delivered by
the
39
Sellers in connection with a substitution of a Mortgage Loan, 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 Nonrecoverable Advances relating to principal and certain
expenses reimbursable pursuant to Section 6.03 and reimbursed during the
related Due Period.
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 2004-AB1". 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 Supplement: The Prospectus Supplement dated
September 16, 2004, 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, 2.04 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 or repurchase, as the case may be, 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 or repurchase, as the case may be, 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 or
repurchase, as the case may be, 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.
Rating Agency: 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,
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
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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. With respect to each Mortgage Loan that has become the
subject of a Debt Service Reduction and any Distribution Date, the amount, if
any, by which the related Scheduled Payment was reduced.
Record Date: With respect to any Distribution Date and the
Adjustable Rate Certificates, the Business Day immediately preceding such
Distribution Date, or if such Certificates are no longer Book-Entry
Certificates, the last Business Day of the month preceding the month of such
Distribution Date. With respect to the Class A-R, Class C and Class P
Certificates, the last Business Day of the month preceding the month of a
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 Adjustable Rate
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 Adjustable Rate
Certificates on such Interest Determination Date.
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.
Reimbursement Amount: As to any Distribution Date, (i) all
Insured Payments paid by the Class 1-A-1 Insurer, but for which the Class
1-A-1 Insurer has not been reimbursed
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prior to such Distribution Date pursuant to Section 4.04 hereof, plus (ii)
interest accrued on such Insured Payments not previously repaid, calculated at
the Late Payment Rate from the date such Insured Payments were made.
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
CHL 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) with respect to
any Fixed Rate Mortgage Loan, have a Mortgage Rate not less than or no more
than 1% per annum higher than the Mortgage Rate of the Deleted Mortgage Loan
and with respect to any Adjustable Rate Mortgage Loan: (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, Periodic Rate Cap and
intervals between Adjustment Dates as that of the Deleted Mortgage Loan and
(d) have a Gross Margin no more than 1% per annum higher or lower than the
Gross Margin 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 fixed
rate to a variable rate or vice versa; (viii) provide for a Prepayment Charge
on terms substantially similar to those of the Prepayment Charge, if any, of
the Deleted Mortgage Loan; (ix) constitute 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.
Representing Party: As defined in Section 2.03(d).
Request for Document Release: A Request for Document Release
submitted by the Master Servicer to the Trustee or Co-Trustee, as applicable,
substantially in the form of Exhibit M.
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Request for File Release: A Request for Release submitted by
the Master Servicer to the Trustee or Co-Trustee, as applicable, substantially
in the form of Exhibit N.
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 with respect to the Covered Mortgage Loans,
the Mortgage Insurance Policy.
Required Secondary Carryover Reserve Fund Deposit: With
respect to any Distribution Date, an amount equal to the excess of (i) $10,000
over (ii) the amount of funds on deposit in the Carryover Reserve Fund.
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.
Rolling Sixty-Day Delinquency Rate: With respect to any
Distribution Date on or after the Stepdown Date, the average of the Sixty-Day
Delinquency Rates for 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.
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; (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.
Sellers: CHL, in its capacity as seller of the CHL Mortgage
Loans to the Depositor, and the Liquidity Trust, in its capacity as seller of
the Liquidity Trust Mortgage Loans to the Depositor.
Seller Shortfall Interest Requirement: With respect to the
Master Servicer Advance Date in each of October and November 2004, is the sum
of:
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(a) the product of: (1) the excess of the aggregate
Stated Principal Balances for such Distribution Date of the Mortgage Loans
(including the Subsequent Mortgage Loans, if any) owned by the Trust Fund at
the beginning of the related Due Period, over the aggregate Stated Principal
Balance for such Distribution Date of such Mortgage Loans (including such
Subsequent Mortgage Loans, if any) that have a scheduled payment of interest
due in the related Due Period, and (2) a fraction, the numerator of which is
the weighted average Net Mortgage Rate of such Mortgage Loans (including such
Subsequent Mortgage Loans, if any) (weighted on the basis of the Stated
Principal Balances thereof for such Distribution Date) and the denominator of
which is 12; and
(b) the lesser of:
(i) the product of: (1) the amount on deposit in
the Pre-Funding Account at the beginning of the related Due Period, and (2) a
fraction, the numerator of which is the weighted average Net Mortgage Rate of
the Mortgage Loans (including Subsequent Mortgage Loans, if any) owned by the
Trust Fund at the beginning of the related Due Period (weighted on the basis
of the Stated Principal Balances thereof for such Distribution Date) and the
denominator of which is 12; and
(ii) the excess of (x) the amount of Current
Interest and Interest Carry Forward Amount due and payable on the Adjustable
Rate Certificates over (y) Interest Funds otherwise available to pay Current
Interest and the Interest Carry Forward Amount on the Adjustable Rate
Certificates for such Distribution Date (after giving effect to the addition
of any amounts in clause (a) of this definition of Seller Shortfall Interest
Requirement to Interest Funds for such Distribution Date).
Senior Certificates: The Class 1-A-1, Class 2-A and Class
A-R Certificates.
Senior Enhancement Percentage: With respect to a
Distribution Date on and 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 preceding 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.
Senior Principal Distribution Target Amount: With respect to
any Distribution Date, the excess of (1) the aggregate Certificate Principal
Balance of the Class 1-A-1 and Class 2-A Certificates immediately prior to
such Distribution Date, over (2) the lesser of (i) 82.40% of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date minus the OC Floor.
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Senior Principal Distribution Allocation Amount: With
respect to any Distribution Date, (a) in the case of the Class 1-A-1
Certificates, the Class 1-A-1 Principal Distribution Amount and (b) in the
case of the Class 2-A Certificates, the Class 2-A Principal Distribution
Amount.
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 Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the 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 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,
0.50% per annum.
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
45
prior to such Distribution Date and (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. 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.
Stepdown Date: The earlier to occur of (i) the Distribution
Date on which the aggregate Certificate Principal Balance of the Senior
Certificates is reduced to zero, and (ii) the later to occur of (x) the
Distribution Date in October 2007 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 82.40% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date.
Subordinate Certificates: The Class M-1, Class M-2, Class
M-3, Class M-4 and Class B Certificates.
Subordinate Component Balance: With respect to any
Distribution Date and for each Loan Group, the excess of the principal balance
of such Loan Group as of the first day of the related Due Period (after giving
effect to Principal Prepayments received in the Prepayment Period ending
during such Due Period) over the Certificate Principal Balance of the related
Classes of Senior Certificates in either case immediately prior to such
Distribution Date.
Subordinate Corridor Contract: The transaction evidenced by
the related Confirmation (as assigned to the Trustee 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 (a)
the weighted average Adjusted Net Mortgage Rate of the Mortgage Loans in Loan
Group 1 (weighted by an amount equal to the positive difference (if any) of
the sum of the aggregate Stated Principal Balance of the Mortgage Loans in
Loan Group 1 and the amount on deposit in the Pre-Funding Account in respect
of Loan Group 1, over the outstanding Certificate Principal Balance of the
Class 1-A-1 Certificates) and (b) the weighted average Adjusted Net Mortgage
Rate of the Mortgage Loans in Loan Group 2 (weighted by an amount equal to the
positive difference (if any) of the sum of the aggregate Stated Principal
Balance of the Mortgage Loans in Loan Group 2 and the amount on deposit in the
Pre-Funding Account in respect of Loan Group 2, over the outstanding aggregate
Certificate Principal Balance of the Class 2-A Certificates), 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.
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
46
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 the 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: As defined in the definition of
Cut-off Date.
Subsequent Mortgage Loan: Any Mortgage Loan conveyed to the
Trustee on a Subsequent Transfer Date, and listed on the related Loan Number
and Borrower Identification 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 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, 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 Loan Number and
Borrower Identification Mortgage Loan Schedule delivered pursuant to Section
2.01(f); provided, however, that such amount shall not exceed 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(d).
47
Substitution Amount: With respect to any Mortgage Loan
substituted pursuant to Section 2.03(d), 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.
Tax Matters Person: The person designated as "tax matters
person" in the manner provided under Treasury regulation ss. 1.860F-4(d) and
temporary Treasury regulation ss. 301.6231(a)(7)-1T. Initially, this person
shall be the Trustee.
Tax Matters Person Certificate: With respect to the Master
REMIC, REMIC 1, REMIC 2 and REMIC 3, the Class A-R Certificate with a
Denomination of $0.05.
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.
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 a Distribution Date on or
after the Stepdown Date, consists of 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 Credit Comeback Excess Account and all amounts deposited therein pursuant
to the applicable provisions of this Agreement; (iii) the Corridor Contracts;
(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; (vi)
the rights of the Trustee, for the benefit of the Class 1-A-1
Certificateholders under the Class 1-A-1 Policy, and (vii) 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
48
may be a party and any successor trustee as may from time to time be serving
as successor trustee hereunder.
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
2002-41, 67 Fed. Reg. 54487 (2002), as amended (or any successor thereto), or
any substantially similar administrative exemption granted by the U.S.
Department of Labor.
Underwriters: Countrywide Securities Corporation, Banc of
America Securities LLC and X.X. Xxxxxx Securities Inc.
Unpaid Realized Loss Amount: For any Class of Subordinate
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 portion of the voting rights of all the
Certificates that is 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.
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
49
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; and (g) references to
any Person include that Person's permitted successors and assigns.
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 and CHL causes Ambac to
deliver the Class 1-A-1 Policy to the Trustee. The Master Servicer confirms
that, on behalf of the Sellers, concurrently with the transfer and assignment,
it or the other Seller 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 the
Mortgage Loans.
CHL further agrees to assign all of its right, title and
interest in and to the interest rate corridor transaction evidenced by each
Confirmation, and to cause all of its obligations in respect of such
transaction to be assumed by, the Trustee on behalf of the Trust Fund, on the
terms and conditions set forth in the Corridor 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
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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:
(i) 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);
(ii) 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 the any ratings
assigned to the Certificates by the Ratings Agencies (without regard
to the Class 1-A-1 Policy, in the case of the Class 1-A-1
Certificates);
(iii) 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;
51
(iv) 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 (iv), 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;
(v) 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
or the Class 1-A-1 Insurer;
(vi) no Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date was 30 or more days delinquent;
(vii) 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 the percentage of Mortgage Loans secured by
Mortgaged Properties located in the State of California, which will
not exceed 50% of the Mortgage Pool and the percentage of mortgage
loans in the Credit Grade Categories of "C" or below, which will not
exceed 10% 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
Permitted Variance
Characteristic or Range
Average Stated Principal Balance.................... $196,249 10%
Weighted Average Mortgage Rate...................... 6.645% 0.10%
Weighted Average Original Loan-to-Value Ratio....... 83.07% 3.0%
Weighted Average Remaining Term to Maturity......... 359 3 months
Weighted Average Credit Bureau Risk Score........... 680 5 points
Maximum Percentage of Credit Comeback Loans............... 0.0% 0.0%
Loan Group 2
Permitted Variance
Characteristic or Range
Average Stated Principal Balance..................... $280,762 10%
Weighted Average Mortgage Rate....................... 6.622% 0.10%
52
Weighted Average Original Loan-to-Value Ratio........ 83.24% 3.0%
Weighted Average Remaining Term to Maturity.......... 359 3 months
Weighted Average Credit Bureau Risk Score............ 680 5 points
Maximum Percentage of Credit Comeback Loans.......... 0.0% 0.0%
(viii) 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
(ix) 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)(i) and (e)(ix), (2) delivery to the
Trustee by CHL (on behalf of each Seller) of a Loan Number and Borrower
Identification 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), the Trustee shall pay
the applicable Seller the Subsequent Transfer Date Transfer Amount from such
funds that were set aside in the Pre-Funding Account pursuant to Section
2.01(d). 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.
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
53
stating whether or not the Subsequent Mortgage Loans conveyed on such
Subsequent Transfer Date conform to the characteristics described in Section
2.01(e)(vi) and (vii).
(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 the
applicable Seller or the originator of such Mortgage
Loan, without recourse, in the following form: "Pay to
the order of ________________ without recourse", with all
intervening endorsements that show a complete chain of
endorsement from the originator to the applicable Seller,
or, if the original Mortgage Note has been lost or
destroyed and not replaced, an original lost note
affidavit from the applicable Seller, stating that the
original Mortgage Note was lost or destroyed, together
with a copy of the related Mortgage Note;
(ii) in the case of each Mortgage Loan that is not
a MERS Mortgage Loan, the original recorded Mortgage, and
in the case of each MERS Mortgage Loan, the original
Mortgage, 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
2004-AB1, CWABS, Inc., by The Bank of New York, a New
York banking corporation, as trustee under the Pooling
and Servicing Agreement dated as of September 1, 2004,
without recourse" (each such assignment, when duly and
validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to
the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or
assignments of the Mortgage together with all interim
recorded assignments of such Mortgage (noting the
presence of a MIN in the case of each MERS Mortgage
Loan);
(v) the original or copies of each assumption,
modification, written assurance or substitution
agreement, if any; and
(vi) the original or duplicate original lender's
title policy or a printout of the electronic equivalent
and all riders thereto or, in the event such original
title policy has not been received from the insurer, such
original or duplicate original
54
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(R) 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 and each Subsequent
Transfer 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
55
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.
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 (a) the State of California or (b) any other 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, and a copy to the Rating Agencies, 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) either 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
the 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) of the second paragraph of
this Section 2.01(g) 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) of the second
paragraph of this Section 2.01(g).
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 above 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
56
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.
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
57
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 (xvii) 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 Co-Trustee or the
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 and CHL (on behalf of each
Seller), and to 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.
In connection with the Trustee's completion and delivery of
such Final Certification, the Co-Trustee, at the Trustee's direction, 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 the
applicable Seller or the originator of such Mortgage Loan,
without recourse, in the following form: "Pay to the order
of ________________ without recourse", with all intervening
endorsements that show a complete chain of endorsement from
the originator to such Seller, or, if the original Mortgage
Note has been lost or destroyed and not replaced, an
original lost note affidavit from such Seller, stating that
the original Mortgage Note was lost or destroyed, together
with a copy of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage,
and in the case of each Initial Mortgage Loan that is a MERS
Mortgage Loan, the original Mortgage, noting 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;
58
(iii) in the case of each Initial Mortgage Loan
that is not a MERS Mortgage Loan, a duly executed assignment
of the Mortgage in the form permitted by Section 2.01;
(iv) the original recorded assignment or
assignments of the Mortgage together with all interim
recorded assignments of such Mortgage (noting the presence
of a MIN in the case of each MERS Mortgage Loan);
(v) the original or copies of each assumption,
modification, written assurance or substitution agreement,
if any; and
(vi) the original or duplicate original 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(R) System in accordance with MERS'
rules and regulations.
59
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 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 the Sellers.
It is understood and agreed that the obligation of a Seller
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 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.
(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 (xvii) 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
60
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 the
applicable Seller or the originator of such Mortgage Loan, without
recourse, in the following form: "Pay to the order of
________________ without recourse", with all intervening endorsements
that show a complete chain of endorsement from the originator to such
Seller, or, if the original Mortgage Note has been lost or destroyed
and not replaced, an original lost note affidavit from the Seller,
stating that the original Mortgage Note was lost or destroyed,
together with a copy of the related Mortgage Note;
(ii) in the case of each Subsequent Mortgage Loan
that is not a MERS Mortgage Loan, the original recorded Mortgage, and
in the case of each Subsequent Mortgage Loan that is a MERS Mortgage
Loan, the original Mortgage, 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 in the form permitted by Section 2.01;
(iv) the original recorded assignment or
assignments of the Mortgage together with all interim recorded
assignments of such Mortgage (noting the presence of a MIN in the
case of each MERS Mortgage Loan);
(v) the original or copies of each assumption,
modification, written assurance or substitution agreement, if any;
and
(vi) the original or duplicate original 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
61
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(R) System in accordance
with MERS' rules and regulations.
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.
62
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.
(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
63
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 any Subsequent Transfer 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.
(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.
(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 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):
(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.
64
(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.
(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
65
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.
(9) None of the Mortgage Loans are delinquent in
payment of principal and interest.
(10) No Mortgage Loan that is secured by a first
lien on the related Mortgaged Property 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.
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(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.
(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 Mae 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 either 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.
67
(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.
(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.
68
(31) Each Mortgage Loan contains a customary "due
on sale" clause.
(32) No less than approximately 69.44% of the
Initial Mortgage Loans in Loan Group 1 are secured by single family
detached dwellings. No more than approximately 2.48% of the Initial
Mortgage Loans in Loan Group 1 are secured by two- to four-family
dwellings. No more than approximately 10.62% of the Initial Mortgage
Loans in Loan Group 1 are secured by low-rise condominium units. No
more than approximately 0.36% of the Initial Mortgage Loans in Loan
Group 1 are secured by high-rise condominium units. No more than
approximately 0.03% of the Initial Mortgage Loans in Loan Group 1 are
secured by manufactured housing. No more than approximately 17.06% of
the Initial Mortgage Loans in Loan Group 1 are secured by PUDs. No
less than approximately 71.42% of the Initial Mortgage Loans in Loan
Group 2 are secured by single family detached dwellings. No more than
approximately 1.67% of the Initial Mortgage Loans in Loan Group 2 are
secured by two- to four-family dwellings. No more than approximately
7.81% of the Initial Mortgage Loans in Loan Group 2 are secured by
low-rise condominium units. No more than approximately 0.51% Initial
Mortgage Loans in Loan Group 2 are secured by high-rise condominium
units. None of the Initial Mortgage Loans in Loan Group 2 are secured
by manufactured housing. No more than approximately 18.59% of the
Initial Mortgage Loans in Loan Group 2 are secured by PUDs.
(33) Each Initial Mortgage Loan in Loan Group 1 was
originated on or after October 23, 2003, and each Initial Mortgage
Loan in Loan Group 2 was originated on or after February 12, 2004.
(34) Each Initial Mortgage Loan that is an
Adjustable Rate Mortgage Loan, other than a Two-Year Hybrid Mortgage
Loan or a Three-Year Hybrid Mortgage Loan, had an initial Adjustment
Date no later than March 1, 2005; each Initial Mortgage Loan that is
a Two-Year Hybrid Mortgage Loan had an initial Adjustment Date no
later than October 1, 2006; and each Initial Mortgage Loan that is a
Three-Year Hybrid Mortgage Loan had an initial Adjustment Date no
later than October 1, 2007.
(35) Approximately 85.41% of the Initial Mortgage
Loans in Loan Group 1 and approximately 84.78% of the Initial
Mortgage Loans in Loan Group 2 provide for a prepayment penalty.
(36) On the basis of representations made by the
Mortgagors in their loan applications, no more than approximately
1.22% and 1.00% of the Initial Mortgage Loans in Loan Group 1 and
Loan Group 2, respectively, are secured by investor properties, and
no less than approximately 98.33% and 98.25% 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
69
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.
(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
neither 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
70
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.
(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 as of the Cut-off Date ranged from
2.000% per annum to 12.750% per annum and the weighted average
Mortgage Rate of such Initial Mortgage Loans as of the Cut-off Date
was 6.644% per annum. The Mortgage Rates borne by the Initial
Mortgage Loans in Loan Group 2 as of the Cut-off Date ranged from
4.375% per annum to 11.500% per annum and the weighted average
Mortgage Rate of such Initial Mortgage Loans as of the Cut-off Date
was 6.642% per annum.
(49) 100% of the Mortgage Loan with Loan-to-Value
Ratio that is 80% or greater is a Covered Mortgage Loan. 100% of the
Covered Mortgage Loan will be covered by the Mortgage Insurance
Policy until such Mortgage Loan is repaid or the Mortgage Insurance
Policy is cancelled.
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(50) 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 Sections 2.03(b) and 2.03(c) can be made. No selection
was made in a manner that would adversely affect the interests of
Certificateholders.
(51) The Gross Margins on the Initial Mortgage
Loans in Loan Group 1 that are Adjustable Rate Mortgage Loans range
from approximately 1.500% to 8.000%, and the weighted average Gross
Margin on such Initial Mortgage Loans was approximately 5.931%. The
Gross Margins on the Initial Mortgage Loans in Loan Group 2 that are
Adjustable Rate Mortgage Loans range from approximately 2.250% to
10.000%, and the weighted average Gross Margin on such Initial
Mortgage Loans was approximately 6.024%.
(52) Each of the Initial Mortgage Loans in the
Mortgage Pool has a Due Date on or before September 1, 2004.
(53) The Mortgage Loans, individually and in the
aggregate, conform in all material respects to the descriptions
thereof in the Prospectus Supplement.
(54) There is no obligation on the part of either
Seller under the terms of the Mortgage or related Mortgage Note to
make payments in addition to those made by the Mortgagor.
(55) 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.
(56) 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 ss. 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.
(57) No Mortgage Loan was either a "consumer credit
contract" or a "purchase money loan" as such terms are defined in 16
C.F.R. ss. 433 nor is any Mortgage Loan a "mortgage" as defined in 15
U.S.C. ss. 1602(aa).
(58) 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
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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;
(59) 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;
(60) 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;
(61) 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;
(62) 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 neither Seller nor, to the best of CHL's
knowledge, the Mortgagor, has received any notice of any violation or
potential violation of such law;
(63) 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
either Seller before or by any court, administrative agency,
arbitrator or governmental body;
(64) 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;
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(65) Each Mortgage Loan has a fully assignable life
of loan tax service contract which may be assigned without the
payment of any fee;
(66) No Mortgagor has notified CHL, and CHL has no
knowledge, of any relief requested or allowed to a Mortgagor under
the Relief Act;
(67) 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;
(68) 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;
(69) Each Mortgage Loan, at the time it was
originated and as of the Closing Date or the Subsequent Transfer
Date, complied in all material respects with applicable local, state
and federal laws, including, but not limited to, all predatory and
abusive lending laws;
(70) None of the Mortgage Loans are "high cost"
loans as defined by applicable federal, state and local predatory and
abusive lending laws;
(71) Each Prepayment Charge is enforceable and was
originated in compliance with all applicable federal, state and local
laws;
(72) 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);
(73) 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;
(74) 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(R) Glossary which is now
Version 5.6 Revised, Appendix E) and no Mortgage Loan originated on
or after October 1, 2002 through March 6, 2003 is governed by the
Georgia Fair Lending Act;
(75) Each Mortgage Loan is secured by a "single
family residence" within the meaning of Section 25(e)(10) of the
Internal Revenue Code of 1986 (as amended) (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
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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. Each Mortgage Loan is a "qualified mortgage" under
Section 860G(a)(3) of the Code;
(76) As of the Closing Date with respect to any
Initial Mortgage Loan and as of the applicable Subsequent Transfer
Date with respect to any Subsequent Mortgage Loan, the related
Mortgaged Property has not been damaged by the hurricanes which
struck the southeastern United States in August and September of 2004
in a manner which materially affects the value of such Mortgaged
Property. For purposes of clarification, any damage to a Mortgaged
Property occurring after the Closing Date as a result of the
hurricanes referred to in the preceding sentence or any other
hurricane, tornado or casualty shall not result in a breach of the
preceding representation and warranty; and
(77) Representations and Warranties relating to the
Group 1 Mortgage Loans:
(i) Each Group 1 Mortgage Loan is in compliance
with the anti-predatory lending eligibility for purchase
requirements of Xxxxxx Mae's Selling Guide.
(ii) No Group 1 Mortgage Loan is subject to the
requirements of the Home Ownership and Equity Protection Act
of 1994.
(iii) No Group 1 Mortgage Loan is a "High-Cost Home
Loan" as defined in the Georgia Fair Lending Act, as amended
(the "Georgia Act"). No Group 1 Mortgage Loan subject to the
Georgia Act and secured by owner occupied real property or
an owner occupied manufactured home located in the State of
Georgia was originated (or modified) on or after October 1,
2002 through and including March 6, 2003.
(iv) No Group 1 Mortgage Loan is a "High-Cost Home
Loan" as defined in New York Banking Law 6-1.
(v) No Group 1 Mortgage Loan is a "High-Cost Home
Loan" as defined in the Arkansas Home Loan Protection Act
effective July 16, 2003 (Act 1340 of 2003).
(vi) No Group 1 Mortgage Loan is a "High-Cost Home
Loan" as defined in the Kentucky high-cost home loan statute
effective June 24, 2003 (Ky. Rev. Stat. Section 360.100).
(vii) No Group 1 Mortgage Loan is a "High-Cost Home
Loan" as defined in the New Jersey Home Ownership Act
effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.).
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(viii) No Group 1 Mortgage Loan is a "High-Cost
Home Loan" as defined in the New Mexico Home Loan Protection
Act effective January 1, 2004 (N.M. Stat. Xxx. xx.xx.
58-21A-1 et seq.).
(ix) No Group 1 Mortgage Loan is a "High-Risk Home
Loan" as defined in the Illinois High-Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.).
(x) No borrower was encouraged or required to
select a Group 1 Mortgage Loan product offered by the
Mortgage Loan's originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time
of such Mortgage Loan's origination, such borrower did not
qualify taking into account credit history and
debt-to-income ratios for a lower-cost credit product then
offered by such Mortgage Loan's originator or any affiliate
of such Mortgage Loan's originator. If, at the time of loan
application, the borrower may have qualified for a for a
lower-cost credit product then offered by any mortgage
lending affiliate of such Mortgage Loan's originator, such
Mortgage Loan's originator referred the borrower's
application to such affiliate for underwriting
consideration.
(xi) With respect to any Group 1 Mortgage Loan that
contains a provision permitting imposition of a premium upon
a prepayment prior to maturity: (i) prior to the loan's
origination, the borrower agreed to such premium in exchange
for a monetary benefit, including but not limited to a rate
or fee reduction, (ii) prior to the loan's origination, the
borrower was offered the option of obtaining a mortgage loan
that did not require payment of such a premium, (iii) the
prepayment premium is disclosed to the borrower in the loan
documents pursuant to applicable state and federal law and
(iv) notwithstanding any state or federal law to the
contrary, the Master Servicer shall not impose such
prepayment premium in any instance when the mortgage debt is
accelerated as the result of the borrower's default in
making the loan payments.
(xii) No proceeds from any Group 1 Mortgage Loan
were used to purchase single premium credit insurance
policies as part of the origination of, or as a condition to
closing, such Mortgage Loan.
(xiii) All points and fees related to each Group 1
Mortgage Loan were disclosed in writing to the borrower in
accordance with applicable state and federal law and
regulation. Except in the case of a Group 1 Mortgage Loan in
an original principal amount of less than $60,000 which
would have resulted in an unprofitable origination, no
borrower in respect of a Group 1 Mortgage Loan was charged
"points and fees" (whether or not financed) in an amount
greater than 5% of the principal amount of such loan, such
5% limitation is calculated in accordance with Xxxxxx Mae's
anti-predatory lending requirements as set forth in the
Xxxxxx Mae Selling Guide.
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(xiv) All fees and charges (including finance
charges) and whether or not financed, assessed, collected or
to be collected in connection with the origination and
servicing of each Group 1 Mortgage Loan has been disclosed
in writing to the borrower in accordance with applicable
state and federal law and regulation; and
(xv) The Master Servicer will transmit full-file
credit reporting data for each Group 1 Mortgage Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and that for
each Group 1 Mortgage Loan, the Master Servicer agrees it
shall report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-,
90-days, etc.), foreclosed, or charged-off.
(c) The Liquidity Trust hereby represents and warrants to
the Depositor and the Trustee as follows, as of the Cut-off Date:
(1) The Liquidity Trust 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 the Liquidity Trust in any state in which a
Mortgaged Property securing a Liquidity Trust 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 Liquidity Trust Mortgage Loan, to sell
the Liquidity Trust 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) The Liquidity Trust has the full company power
and authority to sell each Liquidity Trust 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 the Liquidity Trust 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 Liquidity Trust, enforceable against the Liquidity Trust 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 the Liquidity Trust, the
sale of the Liquidity Trust Mortgage Loans by the Liquidity Trust
under this Agreement and each Subsequent Transfer Agreement, the
consummation of any other of the transactions contemplated by this
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Agreement and each Subsequent Transfer Agreement, and the fulfillment
of or compliance with the terms hereof are in the ordinary course of
business of the Liquidity Trust 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 the Liquidity Trust 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 Liquidity
Trust 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 Liquidity Trust of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Liquidity
Trust; and the Liquidity Trust 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 Liquidity Trust's ability to perform or meet any of its
obligations under this Agreement.
(4) No litigation is pending or, to the best of the
Liquidity Trust's knowledge, threatened, against the Liquidity Trust
that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or any Subsquent Transfer Agreement
or the ability of the Liquidity Trust to sell the Liquidity Trust
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 the Liquidity Trust of, or
compliance by the Liquidity Trust 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 Liquidity Trust has obtained the same.
(6) The Liquidity Trust will treat the transfer of
the Liquidity Trust Mortgage Loans to the Depositor as a sale of the
Liquidity Trust Mortgage Loans for all tax, accounting and regulatory
purposes.
(7) Immediately prior to the assignment of each
Liquidity Trust Mortgage Loan to the Depositor, the Liquidity Trust
had good title to, and was the sole owner of, such the Liquidity
Trust 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) Upon discovery by any of the parties hereto of a breach
of a representation or warranty set forth in Section 2.03(a) through (c) 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
(c) that within 90 days of the
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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.
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 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
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to such Replacement Mortgage Loan or Loans, as of the date of substitution,
the representations and warranties set forth in Section 2.03(b) or (c) 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 either 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.
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.
(e) 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.
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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.
(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
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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, and following the transfer of the
Mortgage Loans 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 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(d).
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 will 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 the
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, either 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
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event within 5 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(d) 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 to the
best of its ability, to the end that the interests of the Holders of the
Certificates may be adequately and effectively protected.
Section 2.07 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 the
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
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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(R) System, or
cause the removal from the registration of any Mortgage Loan on the MERS(R)
System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
In accordance with the standards of the preceding paragraph,
the Master Servicer shall advance or cause to be advanced funds as necessary
for the purpose of effecting the payment of taxes and assessments on the
Mortgaged Properties, which advances shall be reimbursable in the first
instance from related collections from the Mortgagors pursuant to Section
3.06, and further as provided in Section 3.08. 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.
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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 Policies and shall
perform all of the obligations of the insured under the Mortgage Insurance
Policies. If the Mortgage Insurance Policy is terminated for any reason other
than the exhaustion of its coverage, or if the financial strength rating of
its issuer 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 will provide
coverage equal to the then remaining coverage of the applicable Mortgage
Insurance Policy, if available. 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.
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
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subservicing agreements would not result in a withdrawal or a downgrading by
any Rating Agency of the ratings on any Class of Certificates (without regard
to the Class 1-A-1 Policy, in the case of the Class 1-A-1 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.
(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 Class 1-A-1 Insurer, 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 Class 1-A-1 Insurer, 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 Class 1-A-1 Insurer, 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
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obligations under this Agreement that it possesses. To the extent such
information is not otherwise available to the public, the Depositor, the Class
1-A-1 Insurer, 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 Class 1-A-1 Insurer, the NIM Insurer or the Trust Fund, and in
either case, the Depositor, the Class 1-A-1 Insurer, 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.
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), 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), 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.
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Section 3.05 Collection of Mortgage Loan Payments;
Certificate Account; Distribution Account;
Pre-Funding Account; Seller Shortfall Interest
Requirement.
(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.
(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 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 to the extent not
previously paid to or withheld by the Master Servicer), the Initial
Certificate Account Deposit and any Subsequent Certificate Account
Deposit;
(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;
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(5) all Compensating Interest;
(6) any amount required to be deposited by the
Master Servicer pursuant to Section 3.05(e) 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;
(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.
(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(e) 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
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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) The Trustee shall establish and maintain, on behalf of
the Certificateholders, the Pre-Funding Account. 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.
No later than 1:00 p.m. Pacific time on the Business Day
prior to the Master Servicer Advance Date in October 2004 and November 0000,
XXX on behalf of the Sellers shall remit to the Master Servicer, and the
Master Servicer shall deposit in the Certificate Account, the Seller Shortfall
Interest Requirement (if any) for such Master Servicer Advance Date.
(e) Each institution that maintains the Certificate Account,
the Distribution Account or the Pre-Funding 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 and the Pre-Funding 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 or Pre-Funding 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
and (ii) the Pre-Funding Account, all income and gain net of any losses
realized from any such investment shall be for the benefit of CHL and shall be
remitted to CHL as provided herein. 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 in respect of any such investments
shall be paid by CHL to the Trustee for deposit into the Pre-Funding Account
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
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lack of investment of funds held in the Certificate Account, the Distribution
Account or the Pre-Funding Account and made in accordance with this Section
3.05.
(f) 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 or
the Carryover Reserve Fund prior to any change thereof.
(g) Except as otherwise expressly provided in this
Agreement, if any default occurs under any Permitted Investment, the Trustee
may and, subject to Section 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
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and any other information relating to its capacity to perform its obligations
under this Agreement reasonably requested by the NIM Insurer.
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,
Subsequent Recoveries and purchase and repurchase proceeds)
that represent late recoveries
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of the payments for which such advances were made pursuant
to Section 3.01 or Section 3.06;
(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 Stated
Principal Balance 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 pursuant to Section 3.05 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
and Principal Remittance 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 $100.00.
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 October 2004 Distribution
Date, the Trustee shall transfer $100.00 from the Principal Reserve Fund to
the Distribution Account and shall distribute such amount to the Certificates
on the Distribution Date pursuant to Section 4.04(b) (such amount shall be
deemed for purposes of Section 4.04 to be added to the Principal Remittance
Amount for the Loan Group related to the Class A-R Certificates).
On the Business Day before the Class P Principal
Distribution Date, the Trustee shall transfer from the Principal Reserve Fund
to the Distribution Account $100.00 and shall distribute such amount to the
Class P Certificates on the Class P Principal Distribution Date. Following the
distributions to be made in accordance with the preceding sentence, the
Trustee shall then terminate the Principal Reserve Fund.
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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) and (viii) 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 the Class 1-A-1 Insurer
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 penultimate 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; and
(vi) to pay to the Co-Trustee, for payment to the
Mortgage Insurer as provided below, the Mortgage Insurance
Premium;
(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 applicable Mortgage Insurance
Premium to the Mortgage Insurer in accordance with the following wiring
instructions:
PMI Mortgage Insurance Co., Account # 12332-07419, ABA #
000-00000-0, Master Policy #00000-0000-0, Bulk #24-437, Txt: Attention:
Policy, Servicing, CWABS 2004-AB1. Bulk Primary.
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(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
penultimate 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.
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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
Periodic Rate Cap, the Adjustment Date and any other term affecting the amount
or timing of payment on the Mortgage Loan) may be
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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.
Section 3.12 Realization Upon Defaulted Mortgage Loans;
Determination of Excess Proceeds and Realized
Losses; Repurchase of Certain Mortgage Loans.
(a) The Master Servicer may agree to a modification of any
Mortgage Loan (the "Modified Mortgage Loan") if (i) the modification is in
lieu of a refinancing and (ii) the Mortgage Rate on the Modified Mortgage Loan
is approximately a prevailing market rate for newly-originated mortgage loans
having similar terms and (iii) the Master Servicer purchases the Modified
Mortgage Loan from the Trust Fund as described below. Effective immediately
after the modification, and, in any event, on the same Business Day on which
the modification occurs, all interest of the Trustee in the Modified Mortgage
Loan shall automatically be deemed transferred and assigned to the Master
Servicer and all benefits and burdens of ownership thereof, including the
right to accrued interest thereon from the date of modification and the risk
of default thereon, shall pass to the Master Servicer. The Master Servicer
shall promptly deliver to the Trustee a certification of a Servicing Officer
to the effect that all requirements of this paragraph have been satisfied with
respect to the Modified Mortgage Loan. For federal income tax purposes, the
Trustee shall account for such purchase as a prepayment in full of the
Modified Mortgage Loan. The Master Servicer shall deposit the Purchase Price
for any Modified Mortgage Loan in the Certificate Account pursuant to Section
3.05 within one Business Day after the purchase of the Modified Mortgage Loan.
Upon receipt by the Trustee of written notification of any such deposit signed
by a Servicing Officer, the Trustee shall release to the Master Servicer the
related Mortgage File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary
to vest in the Master Servicer any Modified Mortgage Loan previously
transferred and assigned pursuant hereto. The Master Servicer covenants and
agrees to indemnify the Trust Fund against any liability for any "prohibited
transaction" taxes and any related interest, additions, and penalties imposed
on the Trust Fund established hereunder as a result of any modification of a
Mortgage Loan effected pursuant to this subsection (b), any holding of a
Modified Mortgage Loan by the Trust Fund or any purchase of a Modified
Mortgage Loan by the Master Servicer (but such obligation shall not prevent
the Master Servicer or any other appropriate Person from in good faith
contesting any such tax in appropriate proceedings and shall not prevent the
Master Servicer from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The Master Servicer shall have no
right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest,
and penalties, together with interest thereon, is refunded to the Trust Fund
or the Master Servicer. 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, the Master Servicer will deliver to
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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.
(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
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Sections 1445, 6050J and 6050P of the Code by preparing and filing such tax
and information returns, as may be required.
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.
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.
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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 of
priority: 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.
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(R) System of such Mortgage and to execute
and deliver, on behalf of
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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.
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
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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 applicable 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.
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.
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Section 3.17 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the
Trustee on or before the 80th day after the end of the Master Servicer's
fiscal year, commencing with its 2004 fiscal year, an Officer's Certificate
stating, as to the signer thereof, that (i) a review of the activities of the
Master Servicer during the preceding calendar year and of the performance of
the Master Servicer under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and (iii) to the best of such
officer's knowledge, each Subservicer has fulfilled all its obligations under
its Subservicing Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation specifying each such default
known to such officer and the nature and status thereof. The Trustee shall
forward a copy of each such statement to each Rating Agency. 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.
Section 3.18 Annual Independent Public Accountants'
Servicing Statement; Financial Statements.
On or before the later of (i) the 80th day after the end of
the Master Servicer's fiscal year, commencing with its 2004 fiscal year or
(ii) within 30 days of the issuance of the annual audited financial statements
beginning with the audit for the period ending in 2004, the Master Servicer at
its expense shall cause a nationally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, CHL or
any affiliate thereof) that is a member of the American Institute of Certified
Public Accountants to furnish a report to the Trustee, the Depositor and CHL
in compliance with the Uniform Single Attestation Program for Mortgage
Bankers. Copies of such report shall be provided by the Trustee to any
Certificateholder or Certificate Owner upon request at the Master Servicer's
expense, provided such report is delivered by the Master Servicer to the
Trustee. Upon written request, the Master Servicer shall provide to the
Certificateholders or Certificate Owners its publicly available annual
financial statements (or the Master Servicer's parent company's publicly
available annual financial statements, as applicable), if any, promptly after
they become available.
Section 3.19 The Corridor Contracts.
CHL 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 Trustee on behalf of the Trust Fund, on the terms and
conditions set forth in the Corridor Contract Assignment Agreement. The
Corridor Contracts will be assets of the Trust Fund but will not be an asset
of any REMIC. The Master Servicer, on behalf of 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, on behalf of the Trustee, shall prepare
and deliver any notices required to be delivered under each Corridor Contract.
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The Master Servicer, on behalf of the Trustee, shall act as
calculation agent and/or shall terminate a Corridor Contract, in each case
upon the occurrence of certain events of default or termination events to the
extent specified thereunder. Upon any such termination, the Corridor Contract
Counterparty will be obligated to pay the Trustee or the Master Servicer for
the benefit of the Trust Fund an amount in respect of such termination. Any
amounts 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(e) 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 4.08(c) until the Corridor Contract
Termination Date. On the Corridor Contract Termination Date, after all other
distributions on such date, if any amounts in respect of early termination of
a 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
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.
(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
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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.
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 telecopy 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.
(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 telecopy 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
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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 the related Mortgaged Property or related REO Property has been
liquidated 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 telecopy), not later than
3:00 P.M., New York time, on the Business Day immediately preceding the
related Master Servicer Advance Date, specifying the amount that it will be
unable to deposit (each such amount an "Advance Deficiency") and certifying
that such Advance Deficiency constitutes an Advance hereunder and is not a
Nonrecoverable Advance. If the Trustee receives a Trustee Advance Notice on or
before 3:30 p.m., (New York time) on a Master Servicer Advance Date, the
Trustee shall, not later than 3:00 p.m., (New York time), on the related
Distribution Date, deposit in the Distribution Account an amount equal to the
Advance Deficiency identified in such Trustee Advance Notice unless it is
prohibited from so doing by applicable law. Notwithstanding the foregoing, the
Trustee shall not be required to make such deposit if the Trustee shall have
received written notification from the Master Servicer that the Master
Servicer has deposited or caused to be deposited in the Certificate Account an
amount equal to such Advance Deficiency. All Advances made by the Trustee
pursuant to this Section 4.01(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.
(e) 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 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.
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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, either 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 with respect to each Loan Group shall be allocated by the
Trustee from the Distribution Account in the following order of priority:
(i) concurrently:
(1) from Interest Funds for Loan Group 1,
sequentially (a) to the Class 1-A-1 Insurer, the
Class 1-A-1 Premium payable with respect to the
Class 1-A-1 Policy for such Distribution Date, (b)
to the Class 1-A-1 Certificates, the Current
Interest for such Class and Distribution Date, (c)
to the Class 1-A-1 Insurer, the Reimbursement
Amount, and (d) to the Class 1-A-1 Certificates,
the Interest Carry Forward Amount for such Class
and Distribution Date,
(2) 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, and
(ii) from the remaining Interest Funds for both
Loan Groups, in the following order of priority:
(1) to the Class 1-A-1 Insurer any
remaining Class 1-A-1 Premium not paid pursuant to
clause (a)(i)(1)(a) of this Section 4.04,
(2) to each Class of Senior Certificates,
any remaining Current Interest not paid pursuant to
clauses (a)(i)(1)(b) and (a)(i)(2) of this Section
4.04, pro rata, based on the Certificate Principal
Balances thereof, to the extent needed to pay any
Current Interest for each such Class; provided that
Interest Funds remaining after such allocation to
pay any Current Interest based on the Certificate
Principal Balances of the Certificates will be
distributed to each Class of Senior Certificates
with respect to which there remains any unpaid
Current Interest Amount (after the distribution
based on Certificate Principal Balances), pro rata,
based on the amount of such remaining unpaid
Current Interest,
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(3) to the Class 1-A-1 Insurer, any
remaining Reimbursement Amount not paid pursuant to
clause (a)(i)(1)(c) of this Section 4.04,
(4) to each Class of Senior Certificates,
any remaining Interest Carry Forward Amount not
paid pursuant to clauses (a)(i)(1)(d) and (a)(i)(2)
of this Section 4.04, pro rata, based on the
Certificate Principal Balances thereof, to the
extent needed to pay any Interest Carry Forward
Amount for each such Class; provided that Interest
Funds remaining after such allocation to pay any
Interest Carry Forward Amount based on the
Certificate Principal Balances of the Certificates
will be distributed to each Class of Senior
Certificates with respect to which there remains
any unpaid Interest Carry Forward Amount (after the
distribution based on Certificate Principal
Balances), pro rata, based on the amount of such
remaining unpaid Interest Carry Forward Amount,
(5) to the Class M-1 Certificates, the
Current Interest for such Class and such
Distribution Date,
(6) to the Class M-2 Certificates, the
Current Interest for such Class and such
Distribution Date,
(7) to the Class M-3 Certificates, the
Current Interest for such Class and such
Distribution Date,
(8) to the Class M-4 Certificates, the
Current Interest for such Class and such
Distribution Date,
(9) to the Class B Certificates, the
Current Interest for such Class and such
Distribution Date, and
(10) any remainder, as part of the Excess
Cashflow.
(b) On each Distribution Date, the Principal Distribution
Amounts for such Distribution Date with respect to the Loan Groups shall be
allocated by the Trustee from the Distribution Account in the following order
of priority:
(1) with respect to any Distribution Date prior to
the Stepdown Date or on which a Trigger Event is in effect:
(A) concurrently:
(i) from the Principal Distribution Amount for Loan
Group 1, sequentially:
(a) to the Class 1-A-1 Insurer, any
remaining Class 1-A-1 Premium that has not been
paid from Interest Funds for such Distribution
Date,
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(b) sequentially to the Class A-R and
Class 1-A-1 Certificates, in that order, until the
Certificate Principal Balance of each such Class is
reduced to zero,
(c) to the Class 1-A-1 Insurer any
remaining Reimbursement Amount, that has not been
paid from Interest Funds for such Distribution
Date, and
(d) from any remaining Principal
Distribution Amount for Loan Group 1, to each Class
of Class 2-A Certificates (after the distribution
of the Principal Distribution Amount from Loan
Group 2 as provided in clause (b)(1)(A)(ii)(a)
below), sequentially to the Class 2-A-1, Class
2-A-2 and Class 2-A-3 Certificates, in that order,
in each case until the Certificate Principal
Balances thereof are reduced to zero,
(ii) from the Principal Distribution Amount for
Loan Group 2, sequentially:
(a) sequentially to the Class 2-A-1, Class
2-A-2 and Class 2-A-3 Certificates, in that order,
in each case until the Certificate Principal
Balances thereof are reduced to zero, and
(b) from any remaining Principal
Distribution Amount for Loan Group 2, first, to the
Class 1-A-1 Insurer, any remaining Class 1-A-1
Premium for such Distribution Date to the extent
not previously paid pursuant to clause
(b)(1)(A)(i)(a) above, second to the Class 1-A-1
Certificates (after the distribution of the
Principal Distribution Amount from Loan Group 1 as
provided in clause (b)(1)(A)(i)(b) above), until
the Certificate Principal Balance thereof is
reduced to zero, and third, any remaining
Reimbursement Amount, to the extent not previously
paid pursuant to clause (b)(1)(A)(i)(c) above, and
(B) from the remaining Principal Distribution
Amounts for both Loan Groups, sequentially:
(i) to the Class M-1 Certificates, until the
Certificate Principal Balance thereof is reduced to zero,
(ii) to the Class M-2 Certificates, until the
Certificate Principal Balance thereof is reduced to zero,
(iii) to the Class M-3 Certificates, until the
Certificate Principal Balance thereof is reduced to zero,
(iv) to the Class M-4 Certificates, until the
Certificate Principal Balance thereof is reduced to zero,
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(v) to the Class B Certificates, until the
Certificate Principal Balance thereof is reduced to zero,
and
(vi) any remainder as part of the Excess Cashflow.
(2) For each Distribution Date on or after the
Stepdown Date and so long as a Trigger Event is not in effect, from
the Principal Distribution Amounts for both Loan Groups,
sequentially:
(A) in an amount up to the Senior Principal
Distribution Target Amount, pro rata based on the related
Senior Principal Distribution Allocation Amount for each
such Class of Certificates, concurrently, to (I) the Class
1-A-1 Certificates in an amount up to the Class 1-A-1
Principal Distribution Amount, until the Certificate
Principal Balance thereof is reduced to zero and (II) the
Class 2-A Certificates in an amount up to the Class 2-A
Principal Distribution Amount, sequentially to the Class
2-A-1, Class 2-A-2 and Class 2-A-3 Certificates, in that
order, in each case until the Certificate Principal Balances
thereof are reduced to zero; provided, however, that any
remaining unpaid Senior Principal Distribution Target Amount
will be distributed pro rata to each Class of remaining
Senior Certificates based on their remaining respective
Certificate Principal Balances after distributions from (I)
and (II) above,
(B) to the Class 1-A-1 Insurer, any remaining Class
1-A-1 Premium and any remaining Reimbursement Amount that
have not been paid from Interest Funds for such Distribution
Date,
(C) to the Class M-1 Certificates, the Class M-1
Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero,
(D) to the Class M-2 Certificates, the Class M-2
Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero,
(E) to the Class M-3 Certificates, the Class M-3
Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero,
(F) to the Class M-4 Certificates, the Class M-4
Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero,
(G) to the Class B Certificates, the Class B
Principal Distribution Amount, until the Certificate
Principal Balance thereof is reduced to zero, and
(H) any remainder as part of the Excess Cashflow.
Notwithstanding the foregoing, on any Distribution Date on which (x)
the aggregate Certificate Principal Balance of the Senior Certificates is
greater than the Stated Principal Balances of all Mortgage Loans in the
Mortgage Pool plus any amount on deposit in the Pre-Funding Account and (y)
the aggregate Certificate Principal Balance of the Class 2-A Certificates is
greater than the Stated Principal Balances of all Mortgage Loans in Loan
Group 2
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plus any amount on deposit in the Pre-Funding Account allocable to Loan Group
2, any Principal Distribution Amount for Loan Group 2 that is to be
distributed to each Class of Class 2-A Certificates will be distributed pro
rata, based on the Certificate Principal Balances thereof, in each case until
the Certificate Principal Balance thereof is reduced to zero, and not as
described above.
(c) [Reserved]
(d) On each Distribution Date, any Excess Cashflow and, in
the case of clauses 1, 3, 5, 7, 9 and 11 any amounts in the Credit Comeback
Excess Account available for such Distribution Date (the "Credit Comeback
Excess Cashflow") will be paid to the Classes of Certificates in the following
order of priority, in each case to the extent of remaining Excess Cashflow or
Credit Comeback Excess Cashflow, as applicable:
(1) to the Certificateholders of the Offered
Certificates then entitled to receive distributions in respect of
principal, in an aggregate amount equal to the Extra Principal
Distribution Amounts for the Loan Groups, payable to such
Certificateholders as part of the Principal Distribution Amount
pursuant to Section 4.04(b) above, provided, however, that Credit
Comeback Excess Cashflow (if any) will only be distributed pursuant
to this clause, (a) on or after the Distribution Date in March 2005
and (b) if the Overcollateralization Target Amount has at any
previous time been met;
(2) to the Class M-1 Certificateholders, in an
amount equal to the Interest Carry Forward Amount for such Class and
Distribution Date;
(3) to the Class M-1 Certificateholders, in an
amount equal to the Unpaid Realized Loss Amount for such Class and
Distribution Date;
(4) to the Class M-2 Certificateholders, in an
amount equal to the Interest Carry Forward Amount for such Class and
Distribution Date;
(5) to the Class M-2 Certificateholders, in an
amount equal to the Unpaid Realized Loss Amount for such Class and
Distribution Date;
(6) to the Class M-3 Certificateholders, in an
amount equal to the Interest Carry Forward Amount for such Class and
Distribution Date;
(7) to the Class M-3 Certificateholders, in an
amount equal to the Unpaid Realized Loss Amount for such Class and
Distribution Date;
(8) to the Class M-4 Certificateholders, in an
amount equal to the Interest Carry Forward Amount for such Class and
Distribution Date;
(9) to the Class M-4 Certificateholders, in an
amount equal to the Unpaid Realized Loss Amount for such Class and
Distribution Date;
(10) to the Class B Certificateholders, in an
amount equal to the Interest Carry Forward Amount for such Class and
Distribution Date;
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(11) to the Class B Certificateholders, in an
amount equal to the Unpaid Realized Loss Amount for such Class and
Distribution Date;
(12) to the Carryover Reserve Fund and from the
Carryover Reserve Fund, concurrently to each Class of Adjustable Rate
Certificates (after application of amounts received under 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 unpaid Net Rate Carryover for each such Class; and
then any Excess Cashflow remaining after such allocation to pay Net
Rate Carryover based on the Certificate Principal Balances of the
Certificates will be distributed to each Class of Adjustable Rate
Certificates with respect to which there remains any unpaid Net Rate
Carryover, pro rata, based on the amount of such unpaid Net Rate
Carryover;
(13) to the to the Carryover Reserve Fund, in an
amount equal to the Required Secondary Carryover Reserve Fund Deposit
(after giving effect to other deposits and withdrawals therefrom on
such Distribution Date without regard to any excess Corridor Contract
proceeds);
(14) in the event that a Class 2-A-1 Acceleration
Event is in effect, to the holders of the Class 2-A-1 Acceleration
Amount;
(15) to the Class C Certificateholders, the Class C
Distributable Amount for such Distribution Date; and
(16) to the Class A-R Certificates.
(e) 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 will be withdrawn from the
Carryover Reserve Fund and distributed:
(1) in the case of any such amounts received on the
Class 1-A-1 Corridor Contract, to the Class 1-A-1 Certificates, to
the extent needed to pay any Net Rate Carryover for such Class;
(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; provided that any amounts remaining after such allocation
to pay Net Rate Carryover based on the Certificate Principal Balances
of the Class 2-A Certificates will be distributed to each Class of
Class 2-A Certificates with respect to which there remains any unpaid
Net Rate Carryover (after the distribution based on Certificate
Principal Balances), pro rata, based on the amount of such 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; provided that any amounts remaining
after such allocation
112
to pay Net Rate Carryover based on the Certificate Principal Balances
of the Subordinate Certificates will be distributed to each Class of
Subordinate Certificates with respect to which there remains any
unpaid Net Rate Carryover (after the distribution based on
Certificate Principal Balances), pro rata, based on the amount of
such unpaid Net Rate Carryover; and
(4) any remaining amounts to the holders of the
Class C Certificates, unless a Corridor Contract is subject to early
termination, in which case any early termination payments received on
such Corridor Contract shall be deposited by the Trustee in the
Carryover Reserve Fund to cover any Net Rate Carryover on the
Certificates entitled thereto on future Distribution Dates until the
Corridor Contract Termination Date.
(f) To the extent that a Class of Adjustable Rate
Certificates receives interest in excess of the Net Rate Cap, such interest
shall be deemed to have been paid to the Carryover Reserve Fund and then paid
by the Carryover Reserve Fund 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
(including amounts deposited in connection with the full or partial waiver of
such Prepayment Charges pursuant to Section 3.20) shall be allocated and paid
to the Class P Certificates. On the Class P Principal Distribution Date, the
Trustee shall make the $100.00 distribution to the Class P Certificates as
specified in Section 3.08.
(h) On each Distribution Date, the Trustee shall allocate
the Applied Realized Loss Amount with respect to the Subordinate Certificates
to reduce the Certificate Principal Balances of the Subordinate Certificates
in the following order of priority:
(1) to the Class B Certificates until the
Certificate Principal Balance thereof is reduced to zero;
(2) to the Class M-4 Certificates until the
Certificate Principal Balance thereof is reduced to zero;
(3) to the Class M-3 Certificates until the
Certificate Principal Balance thereof is reduced to zero;
(4) to the Class M-2 Certificates until the
Certificate Principal Balance thereof is reduced to zero; and
(5) to the Class M-1 Certificates until the
Certificate Principal Balance thereof is reduced to zero.
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(i) On each Distribution Date, the Trustee shall allocate
the amount of the Subsequent Recoveries, if any, to increase the Certificate
Principal Balances of the Subordinate Certificates to which Applied Realized
Loss Amounts have been previously allocated in the following order of
priority:
(1) to the Class M-1 Certificates, but not by more
than the amount of the Unpaid Realized Loss Amount of the Class M-1
Certificates;
(2) to the Class M-2 Certificates, but not by more
than the amount of the Unpaid Realized Loss Amount of the Class M-2
Certificates;
(3) to the Class M-3 Certificates, but not by more
than the amount of the Unpaid Realized Loss Amount of the Class M-3
Certificates;
(4) to the Class M-4 Certificates, but not by more
than the amount of the Unpaid Realized Loss Amount of the Class M-4
Certificates; and
(5) to the Class B Certificates, but not by more
than the amount of the Unpaid Realized Loss Amount of the Class B
Certificates.
Holders of Certificates to which any Subsequent Recoveries
have been allocated will 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 5 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. Payments to the Class 1-A-1 Insurer shall be made
by wire transfer of immediately available funds to the following account,
unless the Class 1-A-1 Insurer notifies the Trustee in writing: Account Name:
Ambac Assurance Corporation, Citibank, NA, ABA # 000000000, DDA# 40609486, RE:
XX0000XX XXXXX 2004-AB1.
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 (including,
without limitation, the actual mortgage rate for each Credit Comeback Loan)
such as to permit the Trustee to prepare the Monthly Statement to
Certificateholders and make the required distributions for the related
Distribution Date (the
114
"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.
Section 4.05 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall
prepare and cause to be forwarded by first class mail to each Holder of a
Class of Certificates of the Trust Fund, the Master Servicer, the Class 1-A-1
Insurer, each Seller and the Depositor a statement setting forth for the
Certificates:
(1) the amount of the related distribution to
Holders of each Class 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;
(2) the amount of such distribution to Holders of
each Class allocable to interest;
(3) any Interest Carry Forward Amount for each
Class;
(4) the Certificate Principal Balance of each Class
after giving effect (i) to all distributions allocable to principal
on such Distribution Date, (ii) the allocation of any Applied
Realized Loss Amounts for such Distribution Date and (iii) the
allocation of any Subsequent Recoveries for such Distribution Date;
(5) the aggregate of the Stated Principal Balance
of the Mortgage Loans for the Mortgage Pool and each Loan Group;
(6) the related amount of the Servicing Fees paid
to or retained by the Master Servicer for the related Due Period;
(7) the Pass-Through Rate for each Class of
Certificates with respect to the current Accrual Period;
(8) the Net Rate Carryover paid on any Class of
Certificates on such Distribution Date and any Net Rate Carryover
remaining on any Class of Certificates on such Distribution Date;
(9) the amount of Advances for each Loan Group
included in the distribution on such Distribution Date;
(10) the number and aggregate principal amounts of
Mortgage Loans in each Loan Group: (A) Delinquent (exclusive of
Mortgage Loans in foreclosure) (1) 30 to 59 days, (2) 60 to 89 days
and (3) 90 or more days, and (B) in foreclosure and Delinquent (1) 30
to 59 days, (2) 60 to 89 days and (3) 90 or more days, in each case
as of the close of business on the last day of the calendar month
preceding such Distribution Date;
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(11) with respect to any Mortgage Loan that became
an REO Property during the preceding calendar month in each Loan
Group, the loan number and Stated Principal Balance of such Mortgage
Loan and the date of acquisition thereof;
(12) the total number and Stated Principal Balance
of any Mortgage Loans converted to REO Properties, in each Loan Group
as of the close of business on the Determination Date preceding such
Distribution Date;
(13) the aggregate Stated Principal Balance of all
Liquidated Mortgage Loans;
(14) with respect to any Liquidated Mortgage Loan
in each Loan Group, the loan number and Stated Principal Balance
relating thereto;
(15) whether a Trigger Event is in effect;
(16) the amount of the distribution made to the
Holders of the Class P Certificates;
(17) [Reserved];
(18) the amount of Realized Losses and Subsequent
Recoveries applied to the Subordinate Certificates for such
Distribution Date;
(19) prior to the end of the Funding Period, (A)
the amount on deposit in the Pre-Funding Account (if any) on the
related Determination Date (net of investment income) and the amount
(if any) included in the Principal Distribution Amount and (B) the
aggregate Stated Principal Balances of the Subsequent Mortgage Loans
for Subsequent Transfer Dates occurring during the related Due
Period;
(20) the amount, if any, due from the Corridor
Contract Counterparty, and the amounts received under each Corridor
Contract for such Distribution Date;
(21) all payments made by the Master Servicer in
respect of Compensating Interest for such Distribution Date;
(22) the information set forth in the Prepayment
Charge Schedule;
(23) with respect to any Mortgage Loan repurchased
by a Seller or purchased by the Master Servicer, the loan number and
Stated Principal Balance relating thereto;
(24) all amounts paid to the Class 1-A-1 Insurer in
respect of any Class 1-A-1 Premium and Reimbursement Amount, and the
amount of any claims made under the Class 1-A-1 Policy, and
(25) the amount of any claims made, and any claims
rejected, under the Mortgage Insurance Policy during the related Due
Period.
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(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 will send a copy of each statement provided pursuant to this
Section 4.05 to each Rating Agency, the Class 1-A-1 Insurer and the NIM
Insurer. The Trustee may make the above information available to
Certificateholders via the Trustee's website at xxxx://xxx.xxxxxxxxxxxx.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 set forth in clauses (a)(1), (a)(2) and (a)(6) of
this Section 4.05 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.
(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
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(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 Class 1-A-1 Policy.
(a) If, on the third Business Day before any Distribution
Date, the Trustee determines that a there will be a Deficiency Amount for such
Distribution Date, the Trustee shall determine the amount of any such
deficiency and shall give notice to the Class 1-A-1 Insurer by telephone or
telecopy of the amount of such deficiency, confirmed in writing by notice
substantially in the form of Exhibit A to the Class 1-A-1 Policy, by 12:00
p.m., New York time on such third Business Day. The Trustee's responsibility
for delivering the notice to the Class 1-A-1 Insurer as provided in the
preceding sentence is limited to the availability, timeliness and accuracy of
the information provided by the Master Servicer.
(b) In the event the Trustee receives a certified copy of an
order of the appropriate court that any scheduled payment of principal or
interest on a Class 1-A-1 Certificate has been voided in whole or in part as a
preference payment under applicable bankruptcy law, the Trustee shall (i)
promptly notify the Class 1-A-1 Insurer and (ii) comply with the provisions of
the Class 1-A-1 Policy, to obtain payment by the Class 1-A-1 Insurer of such
voided scheduled payment. In addition, the Trustee shall mail notice to all
Holders of the Class 1-A-1 Certificates so affected that, in the event that
any such Holder's scheduled payment is so recovered, such Holder will be
entitled to payment pursuant to the terms of the Class 1-A-1 Policy, a copy of
which shall be made available to such Holders by the Trustee. The Trustee
shall furnish to the Class 1-A-1 Insurer its records listing the payments on
the affected Class 1-A-1 Certificates, if any, that have been made by the
Trustee and subsequently recovered from the affected Holders, and the dates on
which such payments were made by the Trustee.
(c) At the time of the execution hereof, and for the
purposes hereof, the Trustee shall establish a special purpose trust account
in the name of the Trustee for the benefit of Holders of the Class 1-A-1
Certificates (the "Class 1-A-1 Policy Payments Account") over which the
Trustee shall have exclusive control and sole right of withdrawal. The Class
1-A-1 Policy Payments Account shall be an Eligible Account. The Trustee shall
deposit any amount paid under the Class 1-A-1 Policy into the Class 1-A-1
Policy Payments Account and distribute such amount only for the purposes of
making the payments to Holders of the Class 1-A-1 Certificates, in respect of
the related Deficiency Amount for which the related claim was made under the
Class 1-A-1 Policy. Such amounts shall be allocated by the Trustee to Holders
of Class 1-A-1 Certificates affected by such shortfalls in the same manner as
principal and interest payments are to be allocated with respect to such
Certificates pursuant to Section 4.04. It shall not be necessary for such
payments to be made by checks or wire transfers separated from the checks or
wire transfers used to make regular payments hereunder with funds withdrawn
from the Distribution Account. However, any payments made on the Class 1-A-1
Certificates from funds in the Class 1-A-1 Policy Payments Account shall be
noted as provided in subsection (e)
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below. Funds held in the Class 1-A-1 Policy Payments Account shall not be
invested by the Trustee.
(d) Any funds received from the Class 1-A-1 Insurer for
deposit into the Class 1-A-1 Policy Payments Account pursuant to the Class
1-A-1 Policy in respect of a Distribution Date or otherwise as a result of any
claim under the Class 1-A-1 Policy shall be applied by the Trustee directly to
the payment in full (i) of the related Deficiency Amount on such Distribution
Date or (ii) of other amounts payable under the Class 1-A-1 Policy. Funds
received by the Trustee as a result of any claim under the Class 1-A-1 Policy
shall be used solely for payment to the Holders of the Class 1-A-1
Certificates and may not be applied for any other purpose, including, without
limitation, satisfaction of any costs, expenses or liabilities of the Trustee,
the Master Servicer or the Trust Fund. Any funds remaining in the Class 1-A-1
Policy Payments Account on the first Business Day after each Distribution Date
shall be remitted promptly to the Class 1-A-1 Insurer in accordance with the
instructions set forth in Section 4.04(i).
(e) The Trustee shall keep complete and accurate records in
respect of (i) all funds remitted to it by the Class 1-A-1 Insurer and
deposited into the Class 1-A-1 Policy Payments Account and (ii) the allocation
of such funds to (A) payments of interest on and principal in respect of any
Class 1-A-1 Certificates, (B) the Class 1-A-1 Realized Loss Amount, if any,
and (C) the amount of funds available to make distributions on the Class 1-A-1
Certificates pursuant to Sections 4.04(a), (b) and (d). The Class 1-A-1
Insurer shall have the right to inspect such records at reasonable times
during normal business hours upon three Business Days' prior notice to the
Trustee.
(f) The Trustee acknowledges, and each Holder of a Class
1-A-1 Certificate by its acceptance of the Class 1-A-1 Certificate agrees,
that, without the need for any further action on the part of the Class 1-A-1
Insurer or the Trustee, to the extent the Class 1-A-1 Insurer makes payments,
directly or indirectly, on account of principal of or interest on any Class
1-A-1 Certificates, the Class 1-A-1 Insurer will be fully subrogated to the
rights of the Holders of such Class 1-A-1 Certificates to receive such
principal and interest from the Trust Fund. The Holders of the Class 1-A-1
Certificates, by acceptance of the Class 1-A-1 Certificates, assign their
rights as Holders of the Class 1-A-1 Certificates to the extent of the Class
1-A-1 Insurer's interest with respect to amounts paid under the Class 1-A-1
Policy. Anything herein to the contrary notwithstanding, solely for purposes
of determining the Class 1-A-1 Insurer's rights, as applicable, as subrogee
for payments distributable pursuant to Section 4.04, any payment with respect
to distributions to the Class 1-A-1 Certificates which is made with funds
received pursuant to the terms of the Class 1-A-1 Policy shall not be
considered payment of the Class 1-A-1 Certificates from the Trust Fund and
shall not result in the distribution or the provision for the distribution in
reduction of the Certificate Principal Balance of the Class 1-A-1 Certificates
within the meaning of Article IV.
(g) Upon its becoming aware of the occurrence of an Event of
Default, the Trustee shall promptly notify the Class 1-A-1 Insurer of such
Event of Default.
(h) The Trustee shall promptly notify the Class 1-A-1
Insurer of either of the following as to which it has actual knowledge: (A)
the commencement of any proceeding by or against the Depositor commenced under
the United States bankruptcy code or any other
119
applicable bankruptcy, insolvency, receivership, rehabilitation or similar law
(an "Insolvency Proceeding") and (B) the making of any claim in connection
with any Insolvency Proceeding seeking the avoidance as a preferential
transfer (a "Preference Claim") of any distribution made with respect to the
Class 1-A-1 Certificates as to which it has actual knowledge. Each Holder of a
Class 1-A-1 Certificate, by its purchase of Class 1-A-1 Certificates, and the
Trustee hereby agrees that the Class 1-A-1 Insurer (so long as no the Class
1-A-1 Insurer Default exists) may at any time during the continuation of any
proceeding relating to a Preference Claim direct all matters relating to such
Preference Claim, including, without limitation, (i) the direction of any
appeal of any order relating to any Preference Claim and (ii) the posting of
any surety, supersedes or performance bond pending any such appeal. In
addition and without limitation of the foregoing, the Class 1-A-1 Insurer
shall be subrogated to the rights of the Trustee and each Holder of a Class
1-A-1 Certificate in the conduct of any Preference Claim, including, without
limitation, all rights of any party to an adversary proceeding action with
respect to any court order issued in connection with any such Preference
Claim.
(i) The Master Servicer shall designate a Class 1-A-1
Insurer Contact Person who shall be available to the Class 1-A-1 Insurer to
provide reasonable access to information regarding the Mortgage Loans. The
initial Class 1-A-1 Insurer Contact Person is to the attention of Secondary
Marketing.
(j) The Trustee shall surrender the Class 1-A-1 Policy to
the Class 1-A-1 Insurer for cancellation upon the reduction of the Certificate
Principal Balance of the Class 1-A-1 Certificates to zero.
(k) The Trustee shall send to the Class 1-A-1 Insurer the
reports prepared pursuant to Sections 3.17 and 3.18 and the statements
prepared pursuant to Section 4.05, as well as any other statements or
communications sent to Holders of the Class 1-A-1 Certificates, in each case
at the same time such reports, statements and communications are otherwise
sent.
(l) For so long as there is no continuing default by the
Class 1-A-1 Insurer under its obligations under the Class 1-A-1 Policy (a
"Class 1-A-1 Insurer Default"), each Holder of a Class 1-A-1 Certificate
agrees that the Class 1-A-1 Insurer shall be treated by the Depositor, the
Master Servicer and the Trustee as if the Class 1-A-1 Insurer were the Holder
of all of the Class 1-A-1 Certificates, for the purpose (and solely for the
purpose) of the giving of any consent, the making of any direction or the
exercise of any voting or other control rights otherwise given to the Holders
of the Class 1-A-1 Certificates hereunder.
(m) With respect to this Section 4.06, the terms "Receipt"
and "Received" shall mean actual delivery to the Class 1-A-1 Insurer, if any,
prior to 12:00 p.m., New York time, on a Business Day; delivery either on a
day that is not a Business Day or after 12:00 p.m, New York time, shall be
deemed to be Receipt on the next succeeding Business Day. If any notice or
certificate given under the Class 1-A-1 Policy by the Trustee is not in proper
form or is not properly completed, executed or delivered, it shall be deemed
not to have been Received. The Class 1-A-1 Insurer shall promptly so advise
the Trustee and the Trustee may submit an amended notice.
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Section 4.07 [Reserved]
Section 4.08 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 $10,000 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 pursuant to 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 on the Corridor Contracts with
respect to a Distribution Date and remaining after the distributions required
pursuant to Section 4.04(e) shall be distributed to the Class C Certificates;
provided, however, that if any Corridor Contract is subject to early
termination, early termination payments received on 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 on the related
Classes of Certificates as provided in Section 4.04(e) 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) Funds in the Carryover Reserve Fund in respect of
amounts received under the Corridor Contract may be invested in Permitted
Investments at the direction of the Majority Holder of the Class C
Certificates (voting as a single Class), 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 Carryover Reserve Fund, then such Permitted Investment shall mature not
later than such Distribution Date) and shall not be sold or disposed of prior
to maturity. All such Permitted Investments shall be made in the name of the
Trustee, for the benefit of the Certificateholders. In the absence of such
written direction, all funds in the Carryover Reserve Fund in respect of
amounts received of under any Corridor Contract shall be invested by the
Trustee in The Bank of New York cash reserves. Any net investment earnings on
such amounts shall be payable pro rata to the Holders of the Class C
Certificates in accordance with their Percentage Interests. Any losses
incurred in the Carryover Reserve Fund in respect of any such investments
shall be charged against amounts on deposit in the Carryover Reserve Fund (or
such investments) immediately as realized.
(e) 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 Carryover Reserve Fund and made in accordance with this Section 4.08.
The Carryover Reserve Fund will not constitute an
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asset of any REMIC created hereunder. The Class C Certificates shall evidence
ownership of the Carryover Reserve Fund for federal tax purposes.
Section 4.09 Credit Comeback Excess Account.
(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 Credit Comeback Excess Account. The Credit Comeback Excess
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 held by the Trustee
pursuant to this Agreement.
(b) On each Distribution Date, the Trustee shall deposit all
Credit Comeback Excess Amounts in the Credit Comeback Excess Account. The
Trustee shall make withdrawals from the Credit Comeback Excess Account to make
distributions as and to the extent required by Section 4.04(d).
(c) Funds in the Credit Comeback Excess Account may be
invested in Permitted Investments at the direction of the Majority Holder of
the Class C Certificates (voting as a single Class), 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 Credit Comeback Excess Account, then such Permitted Investment
shall mature not later than such Distribution Date) and shall not be sold or
disposed of prior to maturity. All such Permitted Investments shall be made in
the name of the Trustee, for the benefit of the Certificateholders. In the
absence of such written direction, all funds in the Credit Comeback Excess
Account shall be invested by the Trustee in The Bank of New York cash
reserves. Any net investment earnings on such amounts shall be payable pro
rata to the Holders of the Class C Certificates in accordance with their
Percentage Interests. Any losses incurred in the Credit Comeback Excess
Account in respect of any such investments shall be charged against amounts on
deposit in the Credit Comeback Excess Account (or such investments)
immediately as realized.
(d) 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 Credit Comeback Excess Account and made in accordance with this Section
4.09. The Credit Comeback Excess Account will not constitute an asset of any
REMIC created hereunder. The Class C Certificates shall evidence ownership of
the Credit Comeback Excess Account for federal tax purposes.
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ARTICLE V.
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms
attached hereto as Exhibits A-1 through A-9. 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:
Integral Multiples in Original Certificate
Class Minimum Denomination Excess of Minimum Principal Balance
-------------------------------------------------------------------------------
1-A-1 $20,000 $1,000 $623,560,000
2-A-1 $20,000 $1,000 $184,903,000
2-A-2 $20,000 $1,000 $330,512,000
2-A-3 $20,000 $1,000 $89,805,000
M-1 $20,000 $1,000 $48,240,000
M-2 $20,000 $1,000 $22,780,000
M-3 $20,000 $1,000 $13,400,000
M-4 $20,000 $1,000 $13,400,000
B $20,000 $1,000 $13,400,000
A-R $99.95(1) N/A $100
C N/A N/A $1,340,000,000
(notional amount)
P N/A N/A $100
(1) The Tax Matters Person Certificate related to the Class A-R
Certificates 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.
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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 each certify to the Trustee
in writing the facts surrounding the Transfer in substantially the forms set
forth in Exhibit J (the "Transferor Certificate") and (i) deliver a letter in
substantially the form of either Exhibit K (the "Investment Letter") or
Exhibit L (the "Rule 144A Letter") or (ii) there shall be delivered to the
Trustee at the expense of the 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
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Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A.
The Trustee, the Co-Trustee and the Master Servicer shall cooperate with the
Depositor in providing the Rule 144A information referenced in the preceding
sentence, including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect
such Transfer shall, and does hereby agree to, indemnify the Trustee, the
Co-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.
No Transfer of an ERISA-Restricted Certificate shall be made
unless the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate, such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
K or Exhibit L, or in the event such Certificate is a Residual Certificate,
such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I-1), to the effect that (x) such transferee is not an employee benefit plan
or arrangement subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a Person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement, 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 to the effect that the purchase or
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 to any obligation in addition to those expressly undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Trustee.
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
representation letter 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
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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.
(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) 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-1.
(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
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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.
(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, either 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 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.
(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, either 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 (and with
respect to the Class 1-A-1 Certificates, the Class 1-A-1 Insurer) 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
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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.
Section 5.04 Persons Deemed Owners.
The Master Servicer, the Trustee, the Class 1-A-1 Insurer
and any agent of the Master Servicer, the Class 1-A-1 Insurer or the Trustee
may treat the person in whose name any Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions as provided in
this Agreement and for all other purposes whatsoever, and none of the Master
Servicer, the Trustee, the Class 1-A-1 Insurer or 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;
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(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;
(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 the 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
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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.
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 and the Class 1-A-1 Insurer 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
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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
either Seller may be merged or consolidated, or any Person resulting from any
merger or consolidation to which the Depositor, the Master Servicer or either
Seller shall be a party, or any person succeeding to the business of the
Depositor, the Master Servicer or either 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.
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
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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.
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 (such determination to
be made without regard to the Class 1-A-1 Policy). 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.
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, the Class
1-A-1 Insurer 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.
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
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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 evidenced by the Certificates; 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 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
evidenced by the Certificates; provided that the sixty-day cure
period shall not apply to the initial delivery of the Mortgage File
for Delay Delivery Mortgage Loans nor the failure to 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
(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 evidenced by the Certificates, by notice in writing to the
Master Servicer (with a copy to each Rating Agency), terminate all of the
rights and obligations of the Master Servicer
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under this Agreement and in and to the Mortgage Loans and the proceeds
thereof, other than its rights as a Certificateholder hereunder. 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 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.
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
(without regard to the Class 1-A-1 Policy, in the case of the Class 1-A-1
Certificates) and the NIM Insurer guaranteed notes (without giving effect to
any policy or guaranty provided by the NIM Insurer) by each
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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 (without regard to the
Class 1-A-1 Policy, in the case of the Class 1-A-1 Certificates). No
appointment of a successor to the Master Servicer hereunder shall be effective
until the Trustee shall have consented thereto, and written notice of such
proposed appointment shall have been provided by the Trustee to each
Certificateholder. 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.
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(R) System to the
successor Master Servicer. The predecessor Master Servicer shall file or cause
to be filed any such
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assignment in the appropriate recording office. The successor Master Servicer
shall cause such assignment to be delivered to the Co-Trustee promptly upon
receipt of the original with evidence of recording thereon or a copy certified
by the public recording office in which such assignment was recorded.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to
the Master Servicer, the Trustee shall give prompt written notice thereof to
the Certificateholders, the Class 1-A-1 Insurer and each Rating Agency.
(b) Within 60 days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all Certificateholders notice
of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
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
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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;
(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.
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;
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(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 such Certificateholders, the Trustee may require reasonable
indemnity against such expense, or liability from such
Certificateholders as a condition to taking any such action;
(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.
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
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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(R) 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 and (ii) resulting from any error in any tax
or information return prepared by the Master Servicer. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Trustee hereunder.
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 (without regard
to the Class 1-A-1 Policy, in the case of the Class 1-A-1 Certificates) 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
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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.
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.
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, or (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, then the Depositor, the NIM Insurer or the Master Servicer 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.
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 and one complete set to
the successor so appointed. Notice of any removal of the Trustee shall be
given to each Rating Agency by the Successor Trustee.
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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.
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 and its appointment shall not adversely affect
the then current ratings of the Certificates (without regard to the Class
1-A-1 Policy, in the case of the Class 1-A-1 Certificates).
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Depositor shall mail notice of the
succession of such trustee hereunder to 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.
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.
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
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necessary or desirable. If the Master Servicer shall not have joined in 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;
(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.
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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 penultimate
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
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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.
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 10 days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans (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 the 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 as an
outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h)
that is owned by the Holders of the
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Class C Certificates, and that is not an asset of any REMIC created hereunder.
The Trustee shall treat the rights of the Holders of each Class of
Certificates (other than the Class P and Class A-R Certificates) to receive
payments from the Carryover Reserve Fund as rights in an interest rate
corridor contract written by: (i) the Corridor Contract Counterparty in
respect of any Net Rate Carryover funded by each Corridor Contract and in
respect of any residual payments from each such Corridor Contract received by
the Class C Certificates, and (ii) the Holders of the Class C Certificates in
respect of any monies distributed pursuant to Section 4.04(d)(13) and (14) and
Section 4.08(c) herein, in favor of the other Certificateholders. Thus, each
Certificate (other than the Class P and Class A-R Certificates) shall be
treated as representing ownership of not only an Master REMIC regular
interest, but also ownership of an interest in an interest rate corridor
contract. For purposes of determining the issue price of the Master REMIC
regular interests, the Trustee shall assume that the Class 1-A Corridor
Contract, the Class 2-A Corridor Contract and the Subordinate Corridor
Contract have values of $930,000, $885,000 and $305,000, respectively. The
Trustee shall treat entitlement to Credit Comeback Excess Amounts as owned by
the Holders of the Class C Certificates that is not an asset of, or interest
in, any REMIC created hereunder. Further, the Trustee shall treat any payments
of Credit Comeback Excess Amounts to persons other than the Holders of the
Class C Certificates as payments made by the Holders of the Class C
Certificates pursuant to a credit enhancement contract under Treasury
Regulation 1.860G-2(c). The Trustee shall also treat any amount payable to a
Class C Certificate with respect to an R-3-X Interest as deposited into the
Carryover Reserve Fund.
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
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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
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;
(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(R) 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
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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.
(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
(without regard to the Class 1-A-1 Policy, in the case of the Class 1-A-1
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
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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.
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 any Co-Trustee shall afford the Sellers, the
Depositor, the Master Servicer, the Class 1-A-1 Insurer, the NIM Insurer and
each Certificate Owner upon reasonable notice during normal business hours
access to all records maintained by the Trustee or Co-Trustee in respect of
its duties under this Agreement and access to officers of the Trustee
responsible for performing its duties. Upon request, the Trustee or Co-Trustee
shall furnish the Depositor, the Master Servicer, the Class 1-A-1 Insurer, the
NIM Insurer and any requesting Certificate Owner with its most recent
financial statements. The Trustee shall cooperate fully with the Sellers, the
Master Servicer, the Depositor, the Class 1-A-1 Insurer, the NIM Insurer and
the Certificate Owner for review and copying any books, documents, or records
requested with respect to the Trustee's and Co-Trustee's respective duties
under this Agreement. The Sellers, the Depositor, the Class 1-A-1 Insurer, 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 Co-Trustee and
are not obligated to supervise the performance of the Trustee under this
Agreement or otherwise.
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.
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ARTICLE IX.
TERMINATION
Section 9.01 Termination upon Liquidation or Repurchase of
all Mortgage Loans.
Subject to Section 9.03, 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 shall terminate
upon the earlier 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) remaining in the Trust Fund at the price
equal to the sum of (i) 100% of the Stated Principal Balance of each Mortgage
Loan in the Trust Fund (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 in the Trust Fund (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 and (iv) plus, 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 and (b)
the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to related
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. If any such
termination will result in a Deficiency Amount on the Class 1-A-1 Policy, the
consent of the Class 1-A-1 Insurer will also be required prior to exercising
such option.
The right to purchase all Mortgage Loans and REO Properties
by the Terminator pursuant to clause (a) of the immediately preceding
paragraph 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 (x) the Stated Principal Balance of the Initial
Mortgage Loans as of the Initial Cut-off Date and (y) 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) unless the Class 1-A-1 Insurer
otherwise consents, the purchase price for such Mortgage Loans and REO
Properties shall result in a final distribution on the Class 1-A-1
Certificates that is sufficient to pay any amounts due and payable to the
Class 1-A-1 Insurer pursuant to the terms hereof. 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.
Section 9.02 Final Distribution on the Certificates.
If on any Determination Date, (i) 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
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in the Certificate Account related to such Loan Group, the Master Servicer
shall direct the Trustee to send a final distribution notice promptly to each
related Certificateholder and the Class 1-A-1 Insurer or (ii) the Trustee
determines that a Class of Certificates shall be retired after a final
distribution on such Class, the Trustee shall notify the related
Certificateholders within five (5) Business Days after such Determination Date
that the final distribution in retirement of such Class of Certificates is
scheduled to be made on the immediately following Distribution Date. Any final
distribution made pursuant to the immediately preceding sentence will be made
only upon presentation and surrender of the related Certificates at the
Corporate Trust Office of the Trustee. If the Terminator elects to terminate
pursuant to clause (a) of Section 9.01, at least 20 days prior to the date
notice is to be mailed to the affected Certificateholders, such electing party
shall notify the Depositor, the Class 1-A-1 Insurer and the Trustee of the
date such electing party intends to terminate and of the applicable repurchase
price of the related Mortgage Loans and REO Properties.
Notice of any termination, specifying the Distribution Date
on which related Certificateholders may surrender their Certificates for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to related 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 (a) the
Distribution Date upon which final distribution on related Certificates will
be made upon presentation and surrender of such Certificates at the office
therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of such Certificates at the office therein specified. The Terminator
will give such notice to each Rating Agency at the time such notice is given
to the affected Certificateholders.
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 the Business Day prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit and the receipt by the
Trustee of a Request for Release therefor, the Co-Trustee shall promptly
release to the Master Servicer the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to Certificateholders of each affected
Class and the Class 1-A-1 Insurer the amounts allocable to such Certificates
and the Class 1-A-1 Insurer held in the Distribution Account (and, if
applicable, the Carryover Reserve Fund) in the order and priority set forth in
Section 4.04 hereof on the final Distribution Date and in proportion to their
respective Percentage Interests. 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.
In the event that any affected Certificateholders shall not
surrender related Certificates for cancellation within six months after the
date specified in the above mentioned
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written notice, the Trustee shall give a second written notice to the
remaining Certificateholders to surrender their related 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 related Certificates shall not have been surrendered for
cancellation, the Class 1-A-1 Insurer, with respect to the Reimbursement
Amount and then, the Class A-R Certificates shall be entitled to all unclaimed
funds and other assets that remain subject hereto.
Section 9.03 Additional Termination Requirements.
(a) In the event the Terminator exercises its purchase
option, 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, 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" of a
REMIC, 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;
(2) During such 90-day liquidation period, and at
or prior to the time of making the final payment on the Certificates, the
Master Servicer as agent of the Trustee shall sell all of the assets of the
Trust Fund to the Terminator for cash; and
(3) At the time of the making of the final payment
on the Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Class A-R Certificateholders all cash on hand
(other than cash retained to meet claims) related to such Class of
Certificates, and the Trust Fund shall terminate at that time.
(b) By their acceptance of the Certificates, the Holders
thereof hereby authorize the Master Servicer to specify the 90-day liquidation
period for the Trust Fund, 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.
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(c) The Trustee as agent for each 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 together with the Holders of
the Class A-R Certificates agree to take such other action in connection
therewith as may be reasonably requested by the Terminator.
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 Co-Trustee and the Trustee
with the consent of the NIM Insurer, without the consent of any of the
Certificateholders to cure any ambiguity, to correct or supplement any
provisions herein, to conform this Agreement to the Prospectus Supplement, or
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 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.
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 have 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 Co-Trustee and the Trustee
with the consent of the NIM Insurer
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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, (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 or (iv) adversely affect in any material respect the rights and
interest of the Class 1-A-1 Insurer in any of the following provisions of this
Agreement without its consent, which consent shall not be unreasonably
withheld: (I) the definitions of "Class 1-A-1 Premium" and "Reimbursement
Amount" in Article I, (II) the priority of payments to the Class 1-A-1 Insurer
pursuant to Sections 4.04(a), (b) and (d) and (III) Sections 4.06, 10.01, and
10.12.
Notwithstanding any contrary provision of this Agreement,
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 requiring the consent of Certificateholders, the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder, the Class 1-A-1 Insurer 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
153
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.
Section 10.04 Intention of Parties.
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, 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 and
the NIM Insurer 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.
154
Section 10.05 Notices.
(a) The Trustee shall use its best efforts to promptly
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(1) Any material change or amendment to this
Agreement;
(2) The occurrence of any Event of Default that has
not been cured;
(3) The resignation or termination of the Master
Servicer or the Trustee and the appointment of any successor;
(4) The repurchase or substitution of Mortgage
Loans pursuant to Sections 2.02, 2.03, 2.04 and 3.12; and
(5) The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each
Rating Agency copies of the following:
(6) Each report to Certificateholders described in
Section 4.05;
(7) Each annual statement as to compliance
described in Section 3.17; and
(8) Each annual independent public accountants'
servicing report described in Section 3.18.
(b) 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: Xxxxx X. Xxxxxxx, 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: Xxxxx X. Xxxxxxx, 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 the Liquidity Trust,
Countrywide LFT 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; (iv) 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 parties hereto by the Master Servicer in writing;
(v) 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 2004-AB1, or such other address as the Trustee may hereafter furnish to
the parties hereto; (vi) in the case of the Co-Trustee, BNY Western Trust
Company, a subsidiary of The Bank of New York Company, Inc., 000 X. Xxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx, 00000, Attention: MBS Support
Services, or such other address as the Co-Trustee may be hereafter furnished
to the parties
155
hereto; (vii) 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 Class 1-A-1 Insurer, Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Consumer Asset-Backed Securities
Group or such other address as the Class 1-A-1 Insurer may be hereafter
furnished to the parties hereto. Notices to Certificateholders shall be deemed
given when mailed, first postage prepaid, to their respective addresses
appearing in the Certificate Register.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions
or terms of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
Section 10.07 Assignment.
Notwithstanding anything to the contrary contained herein,
except as provided 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 evidenced by the Certificates shall also have made
written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to
156
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.
Section 10.09 Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice,
it will permit any representative of the Depositor, either 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, either
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.
157
(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
(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 Certificate
(without giving effect to any policy or guaranty provided by the NIM Insurer).
Section 10.12 Class 1-A-1 Insurer Rights
(a) All notices, statements reports, certificates or
opinions required by this Agreement to be sent to the Rating Agencies or the
Class 1-A-1 Certificateholders shall also be sent at such time to the Class
1-A-1 Insurer at the notice address set forth in Section 10.05.
(b) The Class 1-A-1 Insurer shall be an express third party
beneficiary of this Agreement for the purpose of enforcing the provisions
hereof to the extent of the Class 1-A-1 Insurer's rights explicitly specified
herein as if a party hereto.
(c) All references herein to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the Class 1-A-1 Policy, in the case of the Class 1-A-1 Certificates.
158
159
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/ Xxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.,
as Seller
By: /s/ Xxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Senior Vice President
COUNTRYWIDE LFT LLC,
as Seller
By: /s/ Xxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
BNY WESTERN TRUST COMPANY,
as Co-Trustee
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
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
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this 29th day of September, 2004, before me, a notary
public in and for said State, appeared Xxxx Xxxxxxx, Xx., personally known to
me on the basis of satisfactory evidence to be the Senior 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]
Xxxxxx Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
Comm. Expires Oct. 15, 0000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF LOS ANGELES )
On this 29th day of September, 2004, before me, a notary
public in and for said State, appeared Xxxx Xxxxxxx, Xx., personally known to
me on the basis of satisfactory evidence to be the 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]
Xxxxxx Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
Comm. Expires Oct. 15, 0000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF LOS ANGELES )
On this 29th day of September, 2004, before me, a notary
public in and for said State, appeared Xxxx Xxxxxxx, Xx., personally known to
me on the basis of satisfactory evidence to be the 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]
Xxxxxx Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
Comm. Expires Oct. 15, 0000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF LOS ANGELES )
On this 29th day of September, 2004, before me, a notary
public in and for said State, appeared Xxxx Xxxxxxx, Xx., personally known to
me on the basis of satisfactory evidence to be the Vice President of
Countrywide LFT LLC, 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]
Xxxxxx Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
Comm. Expires Oct. 15, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 29th day of September, 2004, before me, a notary
public in and for said State, appeared Xxxxx Xxxxxx 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/ Xxxx Xxxxxx
---------------
Notary Public
[Notarial Seal]
Xxxx Xxxxxx
Notary Public, State of New York
No. 01GA6101139
Qualified in New York County
Commission Expires 11/03/2007
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this 29th day of September, 2004, before me, a notary
public in and for said State, appeared Xxxxxxxxx Xxxxxx, personally known to
me on the basis of satisfactory evidence to be a Vice President of BNY Western
Trust Company, 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/ Xxxxxxxx X. Xxxxxx
-----------------------
Notary Public
[Notarial Seal]
Xxxxxxxx X. Xxxxxx
Commission # 1389902
Notary Public - California
Los Angeles County
Comm. Expires December 13, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 29th day of September, 2004, 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/ Xxxxx Xxxxxx
----------------
Notary Public
[Notarial Seal]
Xxxxx Xxxxxx
Notary Public, State of New York
No. 01KA4994374
Qualified in Nassau County
Commission Expires April 6, 2006
Exhibit A-1
through A-9
[Exhibits A-1 through A-9 are
photocopies of such Certificates as delivered.]
[See appropriate documents delivered at closing.]
A-1
Exhibit B
Exhibit B is a photocopy
of the Class P Certificates
as delivered.
[See appropriate documents delivered at closing.]
B-1
Exhibit C
Exhibit C is a photocopy
of the Class C Certificates
as delivered.
[See appropriate documents 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 (Class A-R)
as delivered.
[See appropriate documents delivered at closing.]
E-1
Exhibit F-1 and F-2
[Exhibit 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]
[Seller]
[Master Servicer]
Re: CWABS Asset-Backed Certificates, Series 2004-AB1
Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement dated as of September 1, 2004 (the "Pooling and Servicing
Agreement") among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as
Seller, Countrywide LFT LLC, as Seller, Countrywide Home Loans Servicing LP,
as Master Servicer, the undersigned, as Trustee, BNY Western Trust Company, 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 the applicable
Seller or the originator of such Mortgage Loan, without recourse 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 from the applicable Seller, 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 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]
[Seller]
[Master Servicer]
Re: CWABS Asset-Backed Certificates, Series 2004-AB1
Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement dated as of September 1, 2004 (the "Pooling and Servicing
Agreement") among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as
Seller, Countrywide LFT LLC, as Seller, Countrywide Home Loans Servicing LP,
as Master Servicer, the undersigned, as Trustee, BNY Western Trust Company, as
Co-Trustee, the undersigned, as Trustee, hereby certifies that[, with respect
to the Subsequent Mortgage Loans delivered in connection with the Subsequent
Transfer Agreement, dated as of __________, 2004 (the "Subsequent Transfer
Agreement") among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as
Seller, Countrywide LFT LLC, as 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 [Mortgage Loan
Schedule][Loan Number and Borrower Identification Mortgage Loan Schedule]
(other than any [Mortgage Loan][Loan Number and Borrower Identification
Mortgage Loan Schedule] paid in full or listed on the attached list of
exceptions) the Co-Trustee has received:
(i) original Mortgage Note, endorsed by the applicable
Seller or the originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without recourse", with
all intervening endorsements that show a complete chain of endorsement from
the originator to the applicable Seller, or, if the original Mortgage Note has
been lost or destroyed and not replaced, an original lost note affidavit from
the applicable Seller, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage Note;
(ii) the case of each [Initial Mortgage Loan][Subsequent
Mortgage Loan] that is not a MERS Mortgage Loan, the original recorded
Mortgage, and in the case of each [Initial Mortgage Loan][Subsequent Mortgage
Loan] that is a MERS Mortgage Loan, the original Mortgage, 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) 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 2004-AB1, CWABS, Inc., by
The Bank of New York, a New York banking corporation, as trustee under the
Pooling and Servicing Agreement dated as of September 1, 2004, without
recourse", 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) original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of such Mortgage
(noting the presence of a MIN in the case of each MERS Mortgage Loan);
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under applicable law;
and
(vi) the original or duplicate original lender's title
policy or a printout of the electronic equivalent and all riders thereto or,
in the event such original title policy has not been received from the
insurer, any one of an original title binder, an original preliminary title
report or an original title commitment, or a copy thereof certified by the
title company, with the original policy of title insurance to be delivered
within one year of the Closing Date.
In the event that in connection with any [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 Co-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
(xvii) 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
[Mortgage Loan Schedule][Loan Number and Borrower Identification Mortgage Loan
Schedule] or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
G-2-2
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
The Bank of New York,
as Trustee
By:
---------------------------
Name:
Title:
G-2-3
EXHIBIT G-3
FORM OF DELAY DELIVERY CERTIFICATION
[Date]
[Depositor]
[Seller]
[Seller]
[Master Servicer]
Re: CWABS Asset-Backed Certificates, Series 0000-XX0
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 September 1, 2004 (the "Pooling and Servicing Agreement") among
CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as Seller,
Countrywide LFT LLC, as Seller, Countrywide Home Loans Servicing LP, as Master
Servicer, the undersigned, as Trustee, BNY Western Trust Company, 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 __________, 2004 (the "Subsequent Transfer Agreement")
among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as Seller,
Countrywide LFT LLC, as 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 the applicable
Seller or the originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without recourse", with
all intervening endorsements that show a complete chain of endorsement from
the originator to the applicable Seller, or, if the original Mortgage Note has
been lost or destroyed and not replaced, an original lost note affidavit from
the applicable Seller, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage Note;
(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 2004-AB1, CWABS, Inc., by
The Bank of New York, a New York banking corporation, as trustee under the
Pooling and Servicing Agreement dated as of September 1, 2004, without
recourse", or, in the case of each [Initial Mortgage
G-3-1
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).
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
[Mortgage Loan Schedule][Loan Number and Borrower Identification Mortgage Loan
Schedule] or (ii) the collectibility, insurability, effectiveness or
suitability of any such [Initial Mortgage Loan][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]
[Seller]
[Seller]
[Master Servicer]
Re: CWABS Asset-Backed Certificates, Series 2004-AB1
Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement dated as of September 1, 2004 (the "Pooling and Servicing
Agreement") among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as
Seller, Countrywide LFT LLC, as Seller, Countrywide Home Loans Servicing LP,
as Master Servicer, the undersigned, as Trustee, BNY Western Trust Company, as
Co-Trustee, the undersigned hereby certifies that, as to each Subsequent
Mortgage Loan listed in the Loan Number and Borrower Identification Mortgage
Loan Schedule (other than any Subsequent Mortgage Loan paid in full or listed
in the attached list of exceptions) the Co-Trustee has received:
(1) the original Mortgage Note, endorsed by the applicable
Seller or the originator of such Subsequent Mortgage Loan, without recourse in
the following form: "Pay to the order of _______________ without recourse",
with all intervening endorsements that show a complete chain of endorsement
from the originator to the applicable Seller, or, if the original Mortgage
Note has been lost or destroyed and not replaced, an original lost note
affidavit from the applicable Seller, stating that the original Mortgage Note
was lost or destroyed, together with a copy of the related Mortgage Note;
(2) a duly executed assignment of the Mortgage 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,
G-4-1
enforceability or genuineness of any of the documents contained in each
Mortgage File of any of the Subsequent Mortgage Loans identified on the Loan
Number and Borrower Identification Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such
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-4-2
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
[Depositor]
[Master Servicer]
[Seller]
Re: CWABS Asset-Backed Certificates, Series 2004-AB1
Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement dated as of September 1, 2004 (the "Pooling and Servicing
Agreement") among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as
Seller, Countrywide Home Loans Servicing LP, Countrywide LFT LLC, as Seller,
as Master Servicer, the undersigned, as Trustee, BNY Western Trust Company, as
Co-Trustee, the undersigned, as Trustee, hereby certifies that that[, with
respect to the Subsequent Mortgage Loans delivered in connection with the
Subsequent Transfer Agreement, dated as of __________, 2004 (the "Subsequent
Transfer Agreement") among CWABS, Inc., as Depositor, Countrywide Home Loans,
Inc., as Seller, Countrywide LFT LLC, as Seller, and The Bank of New York, as
Trustee,] as to each [Initial Mortgage Loan][Subsequent Mortgage Loan] listed
in the [Mortgage Loan Schedule][Loan Number and Borrower Identification
Mortgage Loan Schedule] (other than any [Initial Mortgage Loan][Subsequent
Mortgage Loan] paid in full or listed on the attached Document Exception
Report) it has received:
(i) the original Mortgage Note, endorsed by the applicable
Seller or the originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _________________ without recourse", with
all intervening endorsements that show a complete chain of endorsement from
the originator to the applicable Seller, or, if the original Mortgage Note has
been lost or destroyed and not replaced, an original lost note affidavit from
the applicable Seller, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage Note;
(ii) in the case of each [Initial Mortgage Loan][Subsequent
Mortgage Loan] that is not a MERS Mortgage Loan, the original recorded
Mortgage, and in the case of each [Initial Mortgage Loan][Subsequent Mortgage
Loan] that is a MERS Mortgage Loan, the original Mortgage, 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];
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 2004-AB1, CWABS, Inc., by
The Bank of New York, a New York banking corporation, as trustee under the
Pooling and Servicing Agreement dated as of September 1, 2004, without
recourse", 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 together with all interim recorded assignments of such Mortgage
(noting the presence of a MIN in the case of each MERS Mortgage Loan);
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under applicable law;
and
(vi) the original or duplicate original lender's title
policy or a printout of the electronic equivalent and all riders thereto or
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 (xvii) 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
[Mortgage Loan Schedule][Loan Number and Borrower Identification Mortgage Loan
Schedule] or (ii) the collectibility, insurability, effectiveness or
suitability of any such [Initial Mortgage Loan][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-1
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 September 1, 2004 (the "Agreement"), by and among CWABS, Inc., as
depositor (the "Depositor"), Countrywide Home Loans, Inc., as Seller,
Countrywide LFT LLC, as Seller, Countrywide Home Loans Servicing LP, as Master
Servicer, BNY Western Trust Company, as Co-Trustee, and The Bank of New York,
as Trustee. Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee is not an employee benefit plan that is
subject to Title I of ERISA or to section 4975 of the Internal Revenue Code of
1986, nor is it acting on behalf of or with plan assets of any such plan. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee will endeavor to remain a
Permitted Transferee for so long as it retains its Ownership Interest in the
Certificate. The Transferee is acquiring its Ownership Interest in the
Certificate for its own account.
3. The Transferee has been advised of, and understands that
(i) a tax will be imposed on Transfers of the Certificate to Persons that are
not Permitted Transferees; (ii) such tax will be imposed on the transferor,
or, if such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that
a tax will be imposed on a "pass-through entity" holding the Certificate if at
any time during the taxable year of the pass-through entity a Person that is
not a Permitted Transferee is the record holder of an interest in such entity.
The Transferee understands that such tax will not be imposed for any period
with respect to which the record holder furnishes to the pass-through entity
an affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
I-1-1
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-1-2
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-1-3
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-1-4
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:
(i) Each Person holding or acquiring any Ownership Interest
in a Class A-R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Class A-R Certificate
unless, 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-1 or Exhibit I-2,
respectively.
(iii) Each Person holding or acquiring any Ownership
Interest in a Class A-R Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person attempts
to Transfer its Ownership Interest in a Class A-R Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer
of a Class A-R Certificate and (C) not to Transfer its Ownership
Interest in a Class A-R Certificate, or to cause the Transfer of an
Ownership Interest in a Class A-R Certificate to any other Person, if
it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Class A-R Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee
shall become a Holder of a Class A-R Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Class A-R
Certificate. The Trustee shall be under no liability to any Person
for any registration of Transfer of a Class A-R Certificate that is
in fact not permitted by Section 5.02(b) and this Section 5.02(c) or
for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the Transfer was registered
after receipt of the related Transfer Affidavit 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.
(v) 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
I-1-5
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-1-6
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 2004-AB1
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 September 1, 2004, among CWABS, Inc., as Depositor,
Countrywide Home Loans, Inc., as Seller, Countrywide LFT LLC, as Seller,
Countrywide Home Loans Servicing LP, as Master Servicer, BNY Western Trust
Company, as Co-Trustee, and The Bank of New York, as 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 2004-AB1,
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 September 1, 2004, among CWABS, Inc., as
Depositor, Countrywide Home Loans, Inc., as Seller, Countrywide LFT LLC, as
Seller, Countrywide Home Loans Servicing LP, as Master Servicer, BNY Western
Trust Company, as Co-Trustee and The Bank of New York, as 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 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: CWABS, Inc. Asset-Backed Certificates, Series 2004-AB1,
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) 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) 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, (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
K-1
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.
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 September 1, 2004, among CWABS, Inc., as Depositor,
Countrywide Home Loans, Inc., as Seller, Countrywide LFT LLC, as Seller,
Countrywide Home Loans Servicing LP, as Master Servicer, BNY Western Trust
Company, as Co-Trustee, and The Bank of New York, as 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 2004-AB1,
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) 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) 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, (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,
L-1
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.
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 September 1, 2004, among CWABS, Inc., as Depositor,
Countrywide Home Loans, Inc., as Seller, Countrywide LFT LLC, as Seller,
Countrywide Home Loans Servicing LP, as Master Servicer, BNY Western Trust
Company, as Co-Trustee and The Bank of New York, as 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
L-3
risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a
similar official or agency of a State, territory or the
District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of
the Investment Advisors Act of 1940.
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
L-6
agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
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
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 2004-AB1, 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 September 1, 2004, among CWABS,
Inc., as Depositor, Countrywide Home Loans, Inc., as Seller, Countrywide LFT
LLC, as Seller, Countrywide Home Loans Servicing LP, as Master Servicer, BNY
Western Trust Company, as Co-Trustee, and The Bank of New York, as 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
M-1
_______________ of official records at page/image
_____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ----------------------------------------------
( ) ----------------------------------------------
( ) ----------------------------------------------
( ) ----------------------------------------------
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of
the Documents in trust for the benefit of the 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
REQUEST FOR FILE RELEASE
[Mortgage Loans Paid in Full, Repurchased or Replaced]
OFFICER'S CERTIFICATE AND TRUST RECEIPT
ASSET-BACKED CERTIFICATES,
Series 2004-AB1
__________________________________________ 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]
[MORTGAGE LOAN REPURCHASE 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"), COUNTRYWIDE LFT LLC, a Delaware
limited liability company, in its capacity as a seller under the Pooling and
Servicing Agreement ("Liquidity Trust" and, together with CHL, the "Sellers"),
and The Bank of New York, a New York banking corporation, as trustee (the
"Trustee");
WHEREAS, the Depositor, CHL, Liquidity Trust, the Trustee
and Countrywide Home Loans Servicing LP, as Master Servicer, and BNY Western
Trust Company, as Co-Trustee, have entered in the Pooling and Servicing
Agreement, dated as of September 1, 2004 (the "Pooling and Servicing
Agreement"), relating to the CWABS, Inc. Asset-Backed Certificates, Series
2004-AB1 (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 $_______________;
provided, however, that such amount shall not exceed the amount on deposit in
the Pre-Funding Account.
(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. by the Sellers as follows.
(d) Annex A hereto set 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.
P-1
(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.
(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:
COUNTRYWIDE LFT LLC,
as a Seller
By: __________________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:___________________________________
Name:
Title:
P-3
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-4
EXHIBIT Q-1
FORM OF CLASS 1-A-1 CORRIDOR CONTRACT
[See appropriate documents delivered at closing.]
Q-1-1
EXHIBIT Q-2
FORM OF CLASS 2-A CORRIDOR CONTRACT
[See appropriate documents delivered at closing.]
Q-2-1
EXHIBIT Q-3
FORM OF SUBORDINATE CORRIDOR CONTRACT
[See appropriate documents delivered at closing.]
Q-3-1
EXHIBIT R-1
Form of Class 1-A-1 Policy
[see document delivered at closing]
X-0-0
XXXXXXX X-0
[Reserved]
R-2-1
EXHIBIT S
FORM OF CORRIDOR CONTRACT ASSIGNMENT AGREEMENT
[see document delivered at closing]
S-1
EXHIBIT T
OFFICER'S CERTIFICATE WITH RESPECT TO PREPAYMENTS
ASSET-BACKED CERTIFICATES,
Series 2004-AB1
[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 September 1, 2004, (the "Pooling and Servicing Agreement") among
CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as Seller,
Countrywide LFT LLC, as Seller, Countrywide Home Loans Servicing LP, as Master
Servicer, BNY Western Trust Company, as Co-Trustee, and The Bank of New York,
as Trustee. Capitalized terms used herein shall have the meanings ascribed to
such terms in the Pooling and Servicing Agreement.
__________________ hereby certifies that he/she is a
Servicing Officer, holding the office set forth beneath his/her name and
hereby further certifies as follows:
With respect to the Distribution Date in _________ 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
T-2
SCHEDULE OF MORTGAGE LOANS FOR WHICH A PREPAYMENT WAS RECEIVED
DURING THE RELATED PREPAYMENT PERIOD
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Loan Number Clause 2: Yes/No Clause 3: (i) or (ii)
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T-3
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
CLASS 2-A-1 TARGET BALANCE SCHEDULE
Month of Class 2-A-1 Month of Class 2-A-1
Distribution Date Target Balance ($) Distribution Date Target Balance ($)
----------------- ------------------ ----------------- ------------------
June 2011...... 143,557,294.78 May 2012....... 66,520,341.43
July 2011...... 136,581,500.31 June 2012...... 59,480,640.36
August 2011.... 129,669,194.40 July 2012...... 52,356,491.32
September 2011. 122,744,336.96 August 2012.... 45,290,972.26
October 2011... 115,731,881.37 September 2012. 38,212,560.52
November 2011.. 108,781,712.16 October 2012... 31,050,758.98
December 2011.. 101,744,640.37 November 2012.. 23,946,357.33
January 2012... 94,769,048.26 December 2012.. 16,759,275.46
February 2012.. 87,780,764.24 January 2013... 9,628,768.15
March 2012..... 80,633,486.85 February 2013.. 2,485,222.01
April 2012..... 73,619,489.98 March 2013 and
thereafter .... 0.00
0.00
S-II-1
