EXHIBIT 99.1
------------
The Pooling and Servicing Agreement
EXECUTION COPY
===========================
CWALT, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
PARK GRANADA LLC,
Seller
PARK MONACO INC.,
Seller
PARK SIENNA LLC,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
and
THE BANK OF NEW YORK,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2006
-----------------------------------
ALTERNATIVE LOAN TRUST 2006-OC10
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OC10
===========================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS
SECTION 1.01. Defined Terms.....................................................................12
SECTION 1.02. Certain Interpretive Provisions...................................................50
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans......................................................51
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans.......................................57
SECTION 2.03. Representations, Warranties and Covenants of the Sellers and Master Servicer......61
SECTION 2.04. Representations and Warranties of the Depositor as to the Mortgage Loans..........64
SECTION 2.05. Delivery of Opinion of Counsel in Connection with Substitutions...................64
SECTION 2.06. Execution and Delivery of Certificates............................................65
SECTION 2.07. REMIC Matters.....................................................................65
SECTION 2.08. Covenants of the Master Servicer..................................................65
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans.........................................66
SECTION 3.02. Subservicing; Enforcement of the Obligations of Subservicers......................67
SECTION 3.03. Rights of the Depositor, the NIM Insurer and the Trustee in Respect of the Master
Servicer..........................................................................67
SECTION 3.04. Trustee to Act as Master Servicer.................................................68
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate Account; Distribution Account;
Carryover Reserve Fund; Principal Reserve Fund; the Pre-funding Account; the
Capitalized Interest Account......................................................68
SECTION 3.06. Collection of Taxes, Assessments and Similar Items; Escrow Accounts...............73
SECTION 3.07. Access to Certain Documentation and Information Regarding the Mortgage Loans......73
SECTION 3.08. Permitted Withdrawals from the Certificate Account, the Distribution Account, the
Carryover Reserve Fund and the Principal Reserve Fund.............................74
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies........76
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements.........................77
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans...78
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files...................................82
SECTION 3.13. Documents, Records and Funds in Possession of Master Servicer to be Held for the
Trustee...........................................................................83
i
SECTION 3.14. Servicing Compensation............................................................83
SECTION 3.15. Access to Certain Documentation...................................................84
SECTION 3.16. Annual Statement as to Compliance.................................................84
SECTION 3.17. Errors and Omissions Insurance; Fidelity Bonds....................................84
SECTION 3.18. Notification of Adjustments.......................................................85
SECTION 3.19. The Swap Contract.................................................................85
SECTION 3.20. Prepayment Charges................................................................87
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances..........................................................................89
SECTION 4.02. Priorities of Distribution........................................................90
SECTION 4.03. [Reserved]........................................................................95
SECTION 4.04. [Reserved]........................................................................95
SECTION 4.05. [Reserved]........................................................................95
SECTION 4.06. Monthly Statements to Certificateholders..........................................95
SECTION 4.07. Determination of Pass-Through Rates for COFI Certificates.........................96
SECTION 4.08. Determination of Pass-Through Rates for LIBOR Certificates........................97
SECTION 4.09. Swap Trust and Swap Account.......................................................98
ARTICLE V THE CERTIFICATES
SECTION 5.01. The Certificates.................................................................100
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange of Certificates......101
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates................................106
SECTION 5.04. Persons Deemed Owners............................................................106
SECTION 5.05. Access to List of Certificateholders' Names and Addresses........................106
SECTION 5.06. Maintenance of Office or Agency..................................................107
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master Servicer..................108
SECTION 6.02. Merger or Consolidation of the Depositor or the Master Servicer..................108
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers, the Master Servicer, the
NIM Insurer and Others...........................................................108
SECTION 6.04. Limitation on Resignation of Master Servicer.....................................109
ARTICLE VII DEFAULT
SECTION 7.01. Events of Default................................................................110
SECTION 7.02. Trustee to Act; Appointment of Successor.........................................112
SECTION 7.03. Notification to Certificateholders...............................................113
ARTICLE VIII CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee................................................................114
SECTION 8.02. Certain Matters Affecting the Trustee............................................115
ii
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans............................116
SECTION 8.04. Trustee May Own Certificates.....................................................116
SECTION 8.05. Trustee's Fees and Expenses......................................................116
SECTION 8.06. Eligibility Requirements for Trustee.............................................117
SECTION 8.07. Resignation and Removal of Trustee...............................................117
SECTION 8.08. Successor Trustee................................................................118
SECTION 8.09. Merger or Consolidation of Trustee...............................................119
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee....................................119
SECTION 8.11. Tax Matters......................................................................121
SECTION 8.12. Monitoring of Significance Percentage............................................123
ARTICLE IX TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Mortgage Loans...................125
SECTION 9.02. Final Distribution on the Certificates...........................................125
SECTION 9.03. Additional Termination Requirements..............................................127
SECTION 9.04. Auction of the Mortgage Loans and REO Properties.................................128
ARTICLE X MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment........................................................................132
SECTION 10.02. Recordation of Agreement; Counterparts...........................................133
SECTION 10.03. Governing Law....................................................................134
SECTION 10.04. Intention of Parties.............................................................134
SECTION 10.05. Notices..........................................................................135
SECTION 10.06. Severability of Provisions.......................................................137
SECTION 10.07. Assignment.......................................................................137
SECTION 10.08. Limitation on Rights of Certificateholders.......................................137
SECTION 10.09. Inspection and Audit Rights......................................................138
SECTION 10.10. Certificates Nonassessable and Fully Paid........................................138
SECTION 10.11. [Reserved].......................................................................138
SECTION 10.12. Protection of Assets.............................................................138
SECTION 10.13. Rights of NIM Insurer............................................................138
ARTICLE XI EXCHANGE ACT REPORTING
SECTION 11.01. Filing Obligations...............................................................139
SECTION 11.02. Form 10-D Filings................................................................140
SECTION 11.03. Form 8-K Filings.................................................................141
SECTION 11.04. Form 10-K Filings................................................................141
SECTION 11.05. Xxxxxxxx-Xxxxx Certification.....................................................142
SECTION 11.06. Form 15 Filing...................................................................142
SECTION 11.07. Report on Assessment of Compliance and Attestation...............................142
SECTION 11.08. Use of Subservicers and Subcontractors...........................................144
SECTION 11.09. Amendments.......................................................................145
SECTION 11.10. Reconciliation of Accounts.......................................................145
iii
SCHEDULES
Schedule I: Mortgage Loan Schedule.............................................................S-I-1
Schedule II-A: Representations and Warranties of Countrywide...................................S-II-A-1
Schedule II-B: Representations and Warranties of Park Granada..................................S-II-B-1
Schedule II-C: Representations and Warranties of Park Monaco...................................S-II-C-1
Schedule III-A: Representations and Warranties of Countrywide as to all of the
Mortgage Loans.................................................................S-III-A-1
Schedule III-B: Representations and Warranties of Countrywide as to the Countrywide
Mortgage Loans.................................................................S-III-B-1
Schedule III-C: Representations and Warranties of Park Granada as to the Park Granada
Mortgage Loans.................................................................S-III-C-1
Schedule III-D: Representations and Warranties of Park Monaco as to the Park Monaco
Mortgage Loans.................................................................S-III-D-1
Schedule III-E: Representations and Warranties of Park Sienna as to the Park Sienna
Mortgage Loans.................................................................S-III-E-1
Schedule IV: Representations and Warranties of the Master Servicer.............................S-IV-1
Schedule V: Principal Balance Schedules [if applicable]........................................S-V-1
Schedule VI: Form of Monthly Master Servicer Report............................................S-VI-1
Schedule VII: Prepayment Charge Schedule.......................................................S-VII-1
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional Amount Certificates)..................A-1
Exhibit B: Form of Subordinated Certificate.....................................................B-1
Exhibit C-1: Form of Class A-R Certificate......................................................C-1-1
Exhibit C-2: Form of Class P Certificate........................................................C-2-1
Exhibit C-3 Form of Class C Certificate........................................................C-3-1
Exhibit D: Form of Notional Amount Certificate..................................................D-1
Exhibit E: Form of Reverse of Certificates......................................................E-1
Exhibit F-1: Form of Initial Certification of Trustee (Initial Mortgage Loans)..................F-1-1
Exhibit F-2: Form of Initial Certification of Trustee (Supplemental
Mortgage Loans)....................................................................F-2-1
Exhibit G-1: Form of Delay Delivery Certification of Trustee (Initial
Mortgage Loans)....................................................................G-1-1
Exhibit G-2: Form of Delay Delivery Certification of Trustee (Supplemental
Mortgage Loans)....................................................................G-2-1
Exhibit H-1: Form of Final Certification of Trustee (Initial Mortgage Loans)....................H-1-1
Exhibit H-2: Form of Final Certification of Trustee (Supplemental
Mortgage Loans)....................................................................H-2-1
Exhibit I: Form of Transfer Affidavit...........................................................I-1
Exhibit J-1: Form of Transferor Certificate (Residual)..........................................J-1-1
Exhibit J-2: Form of Transferor Certificate (Private)...........................................J-2-1
Exhibit K: Form of Investment Letter [Non-Rule 144A]............................................K-1
Exhibit L-1: Form of Rule 144A Letter...........................................................L-1-1
Exhibit L-2: Form ERISA Letter (Covered Certificates)...........................................L-2-1
iv
Exhibit M: Form of Request for Release (for Trustee)............................................M-1
Exhibit N: Form of Request for Release of Documents (Mortgage Loan - Paid
in Full, Repurchased and Replaced)...................................................N-1
Exhibit O: [Reserved]...........................................................................O-1
Exhibit P: Form of Supplemental Transfer Agreement..............................................P-1
Exhibit Q: Standard & Poor's LEVELS(R) Version 5.7 Glossary Revised,
Appendix E...........................................................................Q-1
Exhibit R: Form of Swap Contract................................................................R-1
Exhibit S-1: Form of Swap Contract Assignment Agreement.........................................S-1-1
Exhibit S-2: Form of Swap Contract Administration Agreement.....................................S-2-1
Exhibit T: Form of Officer's Certificate with respect to Prepayments............................T-1
Exhibit U: Monthly Statement....................................................................U-1
Exhibit V-1: Form of Performance Certification (Subservicer)....................................V-1-1
Exhibit V-2: Form of Performance Certification (Trustee)........................................V-2-1
Exhibit W: Form of Servicing Criteria to be Addressed in Assessment of Compliance
Statement............................................................................W-1
Exhibit X: List of Item 1119 Parties............................................................X-1
Exhibit Y: Form of Xxxxxxxx-Xxxxx Certification (Replacement Master Servicer)...................Y-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2006, among
CWALT, INC., a Delaware corporation, as depositor (the "Depositor"), COUNTRYWIDE
HOME LOANS, INC. ("Countrywide"), a New York corporation, as a seller (a
"Seller"), PARK GRANADA LLC ("Park Granada"), a Delaware limited liability
company, as a seller (a "Seller"), PARK MONACO INC. ("Park Monaco"), a Delaware
corporation, as a seller (a "Seller"), PARK SIENNA LLC ("Park Sienna"), a
Delaware limited liability company, as a seller (a "Seller"), COUNTRYWIDE HOME
LOANS SERVICING LP, a Texas limited partnership, as master servicer (the "Master
Servicer"), and THE BANK OF NEW YORK, a banking corporation organized under the
laws of the State of New York, as trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements contained in this Agreement, the
parties to this Agreement agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. The Trust Fund (excluding the
Pre-funding Account, the Capitalized Interest Account and the Carryover Reserve
Fund) for federal income tax purposes will consist of three REMICs (the "Swap-IO
REMIC," the " Strip REMIC" and the "Master REMIC"). Each Certificate, other than
the Class A-R Certificate, will represent ownership of one or more regular
interests in the Master REMIC for purposes of the REMIC Provisions. The Class
A-R Certificate will represent ownership of the sole class of residual interest
in each of the Swap-IO REMIC, the Strip REMIC and the Master REMIC. The Master
REMIC will hold as assets the several classes of uncertificated Strip REMIC
Interests (other than the STR-A-R Interest). Each Strip REMIC Interest (other
than the STR-A-R Interest) is hereby designated as a regular interest in the
Strip REMIC. The Strip REMIC will hold as assets the several classes of
uncertificated Swap-IO REMIC Interests (other than the SWR-A-R Interest). Each
Swap-IO REMIC Interest (other than the SWR-A-R Interest) is hereby designated as
a regular interest in the Swap-IO REMIC. The Swap-IO REMIC will hold as assets
all property of the Trust Fund (excluding the Pre-funding Account, the
Capitalized Interest Account and the Carryover Reserve Fund). The latest
possible maturity date of all REMIC regular interests created in this Agreement
shall be the Latest Possible Maturity Date.
The Swap Trust, the Swap Contract and the Swap Account will not constitute
any part of any REMIC.
SWAP-IO REMIC:
The Swap-IO REMIC Interests will have the principal balances and
pass-through rates as set forth below:
SWAP-IO REMIC Interests Initial Principal Balance(1) Pass-Through Rate
----------------------- ---------------------------- -----------------
SWR-1A $ 2,819,054.15 (2)
SWR-1B $ 2,819,054.15 (3)
SWR-2A $ 3,159,887.67 (2)
SWR-2B $ 3,159,887.67 (3)
SWR-3A $ 3,494,814.73 (2)
SWR-3B $ 3,494,814.73 (3)
SWR-4A $ 3,778,807.75 (2)
SWR-4B $ 3,778,807.75 (3)
SWR-5A $ 3,771,999.94 (2)
SWR-5B $ 3,771,999.94 (3)
SWR-6A $ 4,094,118.63 (2)
SWR-6B $ 4,094,118.63 (3)
SWR-7A $ 4,406,637.77 (2)
SWR-7B $ 4,406,637.77 (3)
SWR-8A $ 4,708,295.81 (2)
SWR-8B $ 4,708,295.81 (3)
SWR-9A $ 4,997,864.85 (2)
SWR-9B $ 4,997,864.85 (3)
SWR-10A $ 5,274,159.69 (2)
SWR-10B $ 5,274,159.69 (3)
SWR-11A $ 5,534,651.06 (2)
SWR-11B $ 5,534,651.06 (3)
SWR-12A $ 5,660,648.81 (2)
SWR-12B $ 5,660,648.81 (3)
SWR-13A $ 5,778,351.38 (2)
SWR-13B $ 5,778,351.38 (3)
SWR-14A $ 5,887,226.93 (2)
SWR-14B $ 5,887,226.93 (3)
SWR-15A $ 5,986,764.58 (2)
SWR-15B $ 5,986,764.58 (3)
SWR-16A $ 6,076,496.69 (2)
SWR-16B $ 6,076,496.69 (3)
SWR-17A $ 6,156,001.33 (2)
SWR-17B $ 6,156,001.33 (3)
SWR-18A $ 6,224,904.82 (2)
SWR-18B $ 6,224,904.82 (3)
SWR-19A $ 6,194,001.98 (2)
SWR-19B $ 6,194,001.98 (3)
SWR-20A $ 6,158,195.07 (2)
SWR-20B $ 6,158,195.07 (3)
SWR-21A $ 6,116,663.44 (2)
2
SWAP-IO REMIC Interests Initial Principal Balance(1) Pass-Through Rate
----------------------- ---------------------------- -----------------
SWR-21B $ 6,116,663.44 (3)
SWR-22A $ 5,937,755.73 (2)
SWR-22B $ 5,937,755.73 (3)
SWR-23A $ 8,392,426.49 (2)
SWR-23B $ 8,392,426.49 (3)
SWR-24A $ 8,001,998.53 (2)
SWR-24B $ 8,001,998.53 (3)
SWR-25A $ 7,630,904.30 (2)
SWR-25B $ 7,630,904.30 (3)
SWR-26A $ 7,278,145.26 (2)
SWR-26B $ 7,278,145.26 (3)
SWR-27A $ 6,942,776.44 (2)
SWR-27B $ 6,942,776.44 (3)
SWR-28A $ 6,623,902.84 (2)
SWR-28B $ 6,623,902.84 (3)
SWR-29A $ 4,837,558.73 (2)
SWR-29B $ 4,837,558.73 (3)
SWR-30A $ 4,682,152.03 (2)
SWR-30B $ 4,682,152.03 (3)
SWR-31A $ 4,531,756.23 (2)
SWR-31B $ 4,531,756.23 (3)
SWR-32A $ 4,386,209.03 (2)
SWR-32B $ 4,386,209.03 (3)
SWR-33A $ 4,245,354.31 (2)
SWR-33B $ 4,245,354.31 (3)
SWR-34A $ 4,255,095.20 (2)
SWR-34B $ 4,255,095.20 (3)
SWR-35A $ 4,399,691.01 (2)
SWR-35B $ 4,399,691.01 (3)
SWR-36A $ 4,235,932.55 (2)
SWR-36B $ 4,235,932.55 (3)
SWR-37A $ 4,078,647.66 (2)
SWR-37B $ 4,078,647.66 (3)
SWR-38A $ 3,927,562.71 (2)
SWR-38B $ 3,927,562.71 (3)
SWR-39A $ 3,782,416.41 (2)
SWR-39B $ 3,782,416.41 (3)
SWR-40A $ 3,561,187.57 (2)
SWR-40B $ 3,561,187.57 (3)
SWR-41A $ 3,264,202.84 (2)
SWR-41B $ 3,264,202.84 (3)
SWR-42A $ 3,157,461.76 (2)
SWR-42B $ 3,157,461.76 (3)
SWR-43A $ 3,054,221.66 (2)
3
SWAP-IO REMIC Interests Initial Principal Balance(1) Pass-Through Rate
----------------------- ---------------------------- -----------------
SWR-43B $ 3,054,221.66 (3)
SWR-44A $ 2,954,367.28 (2)
SWR-44B $ 2,954,367.28 (3)
SWR-45A $ 2,857,787.16 (2)
SWR-45B $ 2,857,787.16 (3)
SWR-46A $ 2,763,566.43 (2)
SWR-46B $ 2,763,566.43 (3)
SWR-47A $ 2,672,030.78 (2)
SWR-47B $ 2,672,030.78 (3)
SWR-48A $ 2,584,768.58 (2)
SWR-48B $ 2,584,768.38 (3)
SWR-49A $ 2,500,364.38 (2)
SWR-49B $ 2,500,364.58 (3)
SWR-50A $ 69,268,251.48 (2)
SWR-50B $ 69,268,251.48 (3)
SWR-Support (1) (5)
SWR-P $ 100.00 (6)
SW-A-R (7) (7)
---------------
(1) Scheduled principal, prepayments and Realized Losses will be allocated
first, to the SWR-Support Interest and second, to the numbered classes
sequentially (from lowest to highest). Amounts so allocated to a numbered
class shall be further allocated among the "A" and "B" components of such
numbered class pro-rata until the entire class is reduced to zero.
(2) Prior to the 51st Distribution Date, a rate equal to twice the Pool Tax
Cap less 10.00% per annum. On and after the 51st Distribution Date a rate
equal to the Pool Tax Cap. The "Pool Tax Cap" means the weighted average
of the Adjusted Net Mortgage Rates of all the Mortgage Loans.
(3) Prior to the 51st Distribution Date, a rate equal to the lesser of (i)
10.00% per annum and (ii) twice the Pool Tax Cap. On and after the 51st
Distribution Date, a rate equal to the Pool Tax Cap.
(4) On the Closing Date and on each Distribution Date, following the
allocation of Principal Amounts and Realized Losses, the principal balance
in respect of the SWR-Support Interest will equal the excess of (i) the
sum of (A) the principal balance of the Mortgage Loans (as of the end of
the Due Period, reduced by principal prepayments received after the Due
Period that are to be distributed on the Distribution Date related to the
Due Period) and (B) the amount (if any) in the Pre-Funding Account over
(ii) the principal balance in respect of the remaining Swap-IO REMIC
Interests other than the SWR-P and the SWR-A-R Interests.
(5) A rate equal to the Pool Tax Cap.
(6) On each Distribution Date the Class SWR-P Interest is entitled to all
Prepayment Charges collected with respect to the Mortgage Loans. It pays
no interest.
4
(7) The Class SW-A-R Interest is the sole class of residual interest in the
Swap-IO REMIC. It has no principal and pays no principal or interest.
On each Distribution Date, the Available Funds shall be payable with
respect to the Swap-IO REMIC Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each Swap-IO
REMIC Interest at the rate, or according to the formulas, described above.
(2) Principal. Principal Distribution Amounts shall be allocated among the
Swap-IO REMIC Interests as described above.
(3) Prepayment Penalties. All Prepayment Charges are allocated to the
SWR-P Interest.
STRIP REMIC:
The Strip REMIC Regular Interests will have the principal balances,
pass-through rates and Corresponding Classes of Certificates as set forth in the
following table:
------------------------------- ---------------------------- ------------------------- -------------------------------
Pass-Through Corresponding Class of
STRIP REMIC Interests Initial Principal Balance Rate Certificates
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-1-A (1) (2) Class 1-A
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-2-A-1 (1) (2) Class 2-A-1
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-2-A-2A (1) (2) Class 2-A-2A
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-2-A-2B (1) (2) Class 2-A-2B
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-2-A-3 (1) (2) Class 2-A-3
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-M-1 (1) (2) Class M-1
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-M-2 (1) (2) Class M-2
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-M-3 (1) (2) Class M-3
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-M-4 (1) (2) Class M-4
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-M-5 (1) (2) Class M-5
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-M-6 (1) (2) Class M-6
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-M-7 (1) (2) Class M-7
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-M-8 (1) (2) Class M-8
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-$100 $100 (3) A-R
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-C-OC (4) (2) N/A
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-C-Swap-IO (5) (5) N/A
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-P $100 (6) P
------------------------------- ---------------------------- ------------------------- -------------------------------
STR-A-R (7) (7) N/A
------------------------------- ---------------------------- ------------------------- -------------------------------
(1) This Strip REMIC Interest has a principal balance that is initially equal to
100% of its corresponding Certificate Class issued by the Master REMIC.
Principal payments, both scheduled and prepaid, Realized Losses and Subsequent
Recoveries attributable to the SWAP-IO
5
REMIC Interests held by the Strip REMIC will be allocated to this class to
maintain its size relative to its corresponding Certificate Class.
(2) On each Distribution Date, the pass through rate will equal the "Strip REMIC
Cap." The Strip REMIC Cap will equal the weighted average of the pass through
rates of the Swap-IO REMIC Interests (other than the Class SWR-P and Class
SWR-A-R Interests) treating each "B" Interest the cardinal number of which (for
example, XXX-0X, XXX-0X, XXX-0X, etc.,) is not less than the ordinal number of
the Distribution Date (first Distribution Date, second Distribution Date, third
Distribution Date, etc., ) as capped at a rate equal to the product of (i) 2 and
(ii) LIBOR.
(3) This Strip REMIC Interest pays no interest.
(4) This Strip REMIC Interest has a principal balance that is initially equal to
100% of the Overcollateralized Amount. Principal payments, both scheduled and
prepaid, Realized Losses and Subsequent Recoveries attributable to the Swap-IO
REMIC Interests held by the Strip REMIC will be allocated to this class to
maintain its size relative to the Overcollateralized Amount.
(5) For each Distribution Date, the STR-C-Swap-IO Interest is entitled to
receive from each Swap REMIC "B" Interest the cardinal number of which (for
example, XXX-0X, XXX-0X, XXX-0X, etc.,) is not less than the ordinal number of
the Distribution Date (first Distribution Date, second Distribution Date, third
Distribution Date, etc.) the interest accruing on such interest in excess of a
per annum rate equal to the product of (i) 2 and (ii) LIBOR.
(6) The STR-P Interest is entitled to all amounts payable with respect to the
SWR-P Interest. It pays no interest.
(7) The STR-A-R Interest is the sole class of residual interest in the Strip
REMIC. It has no principal balance and pays no principal or interest.
On each Distribution Date, the Interest Funds and the Principal
Distribution Amount payable with respect to the Swap-IO Interests shall be
payable with respect to the Strip REMIC Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each Strip
REMIC Interest at the rate, or according to the formulas, described above.
(2) Principal. Principal Distribution Amounts shall be allocated among the Strip
REMIC Interests as described above.
(3) Prepayment Penalties. All Prepayment Charges are allocated to the STR-P
Interest.
Master REMIC:
The Master REMIC Certificates will have the original certificate principal
balances and pass-through rates as set forth in the following table:
6
Original Class
Class Certificate Balance Pass-Through Rate
----- ------------------- -----------------
Class 1-A $165,209,000 (1)
Class 2-A-1 $235,018,000 (1)
Class 2-A-2A $266,090,000 (1)
Class 2-A-2B $29,566,000 (1)
Class 2-A-3 $50,926,000 (1)
Class M-1 $17,781,000 (1)
Class M-2 $14,952,000 (1)
Class M-3 $4,849,000 (1)
Class M-4 $4,849,000 (1)
Class M-5 $4,041,000 (1)
Class M-6 $4,041,000 (1)
Class M-7 $4,041,000 (1)
Class M-8 $4,041,000 (1)
Class C (2) (3)
Class P $100 (4)
Class A-R $100 (5)
---------------
(1) The Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement. For federal income tax purposes, including the
computation of the Class C Distributable Amount and entitlement to Net Rate
Carryover the pass-through rate in respect of each Class 1 Certificate, Class 2
Certificate and Class M Certificate will be subject to a cap equal to the Strip
REMIC Cap rather than the Net Rate Cap.
(2) For federal income tax purposes, the Class C Certificates will be treated as
having a Certificate Principal Balance equal to the Overcollateralized Amount.
(3 For each Interest Accrual Period the Class C Certificates are entitled to an
amount (the "Class C Distributable Amount") equal to the sum of (a) the interest
payable on the STR-C-Swap-IO Interest, (b) the interest payable on the STR-C-OC
Interest and (c) a specified portion of the interest payable on the Strip REMIC
Regular Interests (other than the STR-$100, STR-C and STR-P Interests) equal to
the excess of the Pool Tax Cap over the weighted average interest rate of the
Strip REMIC Regular Interests (other than the STR-$100, STR-C and STR-P
Interests) with each such Class subject to a cap and a floor equal to the
Pass-Through Rate of the Corresponding Master REMIC Class. The Pass-Through Rate
of the Class C Certificates shall be a rate sufficient to entitle it to an
amount equal to all interest accrued on the Mortgage Loans less the interest
accrued on the other interests issued by the Master REMIC. The Class C
Distributable Amount for any Distribution Date is payable from current interest
on the Mortgage Loans and any Overcollateralization Reduction Amount for that
Distribution Date.
(4) For each Distribution Date the Class P Certificates are entitled to all
Prepayment Charges distributed with respect to the STR-P Interest.
(5) The Class A-R Certificates represent the sole class of residual interest in
each REMIC created hereunder. The Class A-R Certificates are not entitled to
distributions of interest.
7
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Master REMIC as cash flow on REMIC
regular interests, without creating any shortfall--actual or potential (other
than for credit losses)-- to any REMIC regular interest. It is not intended that
the Class A-R Certificates be entitled to any cash flows pursuant to this
Agreement except as provided in Section 4.02(b) hereunder.
8
Set forth below are designations of Classes or Components of Certificates
and other defined terms to the categories used in this Agreement:
Accretion Directed
Certificates........................ None.
Accretion Directed
Components.......................... None.
Accrual Certificates................ None.
Accrual Components.................. None.
Book-Entry Certificates............. All Classes of Certificates other than the Physical Certificates.
COFI Certificates................... None.
Component Certificates.............. None.
Components.......................... For purposes of calculating distributions of principal and/or interest,
the Component Certificates, if any, will be comprised of multiple payment
components having the designations, Initial Component Balances or
Notional Amounts, as applicable, and Pass-Through Rates set forth below:
Initial Component
Designation Principal Balance Pass-Through Rate
N/A N/A N/A
Delay Certificates.................. All interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
ERISA-Restricted
Certificates........................ The Residual Certificates and the Private Certificates; and any
Certificate of a Class that does not have or no longer has a rating of at
least BBB- or its equivalent from at least one Rating Agency.
Group 1 Certificates................ Group 1 Senior Certificates and the portions of the Subordinated
Certificates related to Loan Group 1.
Group 1
Senior Certificates................. The Class 1-A Certificates.
Group 2 Certificates........................Group 2 Senior Certificates and the portions of the Subordinated
Certificates related to Loan Group 2.
9
Group 2
Senior Certificates................. The Class 2-A-1, Class 2-A-2A, Class 2-A-2B and Class 2-A-3 Certificates.
Inverse Floating Rate
Certificates........................ None.
LIBOR Certificates.................. The Class 1-A, Class 2-A-1, Class 2-A-2A, Class 2-A-2B, Class 2-A-3,
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7 and Class M-8 Certificates.
Non-Delay Certificates.............. The LIBOR Certificates.
Notional Amount
Certificates........................ None.
Offered Certificates................ All Classes of Certificates other than the Private Certificates.
Physical Certificates............... The Private Certificates and the Residual Certificates.
Planned Principal Classes........... None.
Planned Principal
Components.......................... None.
Principal Only Certificates......... None.
Private Certificates................ The Class C and Class P Certificates.
Rating Agencies..................... S&P and Xxxxx'x.
Regular Certificates................ All Classes of Certificates, other than the Residual Certificates.
Residual Certificates............... The Class A-R Certificates.
Scheduled Principal
Classes............................. None.
Senior Certificates................. The Class 1-A, Class 2-A-1, Class 2-A-2A, Class 2-A-2B and Class
2-A-3 Certificates.
Subordinated Certificates .......... The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7 and Class M-8 Certificates.
Targeted Principal
Classes............................. None.
10
Underwriter......................... Countrywide Securities Corporation.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to statistical
rating agencies not designated above as Rating Agencies shall be of no force or
effect.
If the sum of the aggregate Stated Principal Balances of the Initial
Mortgage Loans in Loan Group 1 and Loan Group 2 on the Closing Date is equal to
or greater than the sum of (x) the aggregate Class Certificate Balance of the
Offered Certificates, as of such date, and (y) the Overcollateralized Amount as
of the Closing Date, all references herein to "Aggregate Supplemental Purchase
Amount", "Aggregate Supplemental Transfer Amount", "Capitalized Interest
Account", "Capitalized Interest Requirement", "Funding Period", "Funding Period
Distribution Date", "Remaining Pre-funded Amount", "Pre-funded Amount",
"Supplemental Cut-off Date", "Pre-funding Account", "Supplemental Mortgage
Loan", "Supplemental Transfer Agreement" and "Supplemental Transfer Date" with
respect to that Loan Group shall be of no force or effect and all provisions
herein related thereto shall similarly be of no force or effect.
11
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
40-Year Mortgage Loans: The Mortgage Loans that have original terms to
maturity of 40-years.
Acceptable Bid Amount: Either (i) a bid equal to or greater than the
Minimum Auction Amount or (ii) the highest bid submitted by a Qualified Bidder
in an auction if the Directing Certificateholder agrees to pay the related
Auction Supplement Amount.
Account: Any Escrow Account, the Certificate Account, the Distribution
Account, the Carryover Reserve Fund, the Principal Reserve Fund, the Pre-funding
Account, the Capitalized Interest Account, the Swap Account or any other account
related to the Trust Fund or the Mortgage Loans.
Accretion Directed Classes: As specified in the Preliminary Statement.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the Master Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the related Expense Fee Rate.
Adjustment Date: A date specified in each Mortgage Note as a date on which
the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: As to each Loan Group, the payment required to be made by the
Master Servicer with respect to any Distribution Date pursuant to Section 4.01,
the amount of any such payment being equal to the aggregate of payments of
principal and interest (net of the Master Servicing Fee) on the Mortgage Loans
in such Loan Group that were due on the related Due Date and not received by the
Master Servicer as of the close of business on the related Determination Date,
together with an amount equivalent to interest on each Mortgage Loan as to which
the related Mortgaged Property is an REO Property, net of any net income from
such REO Property, less the aggregate amount of any such delinquent payments
that the Master Servicer has determined would constitute a Nonrecoverable
Advance if advanced.
Aggregate Supplemental Purchase Amount: With respect to any Supplemental
Transfer Date and Loan Group, the applicable "Aggregate Supplemental Purchase
Amount" identified in the related Supplemental Transfer Agreement for such Loan
Group, which shall be an estimate of the aggregate Stated Principal Balances of
the Supplemental Mortgage Loans to be included in such Loan Group identified in
such Supplemental Transfer Agreement.
12
Aggregate Supplemental Transfer Amount: With respect to any Supplemental
Transfer Date and Loan Group, the aggregate Stated Principal Balance as of the
related Supplemental Cut-off Date of the Supplemental Mortgage Loans to be
included in such Loan Group conveyed on such Supplemental Transfer Date, as
listed on the revised 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 allocated to purchasing Supplemental Mortgage
Loans for such Loan Group.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements this Pooling and Servicing Agreement.
Amount Held for Future Distribution: As to any Distribution Date and each
Loan Group, the aggregate amount held in the Certificate Account at the close of
business on the related Determination Date on account of (i) Principal
Prepayments received after the related Prepayment Period and Liquidation
Proceeds and Subsequent Recoveries received in the month of such Distribution
Date relating to such Loan Group and (ii) all Scheduled Payments relating to
such Loan Group due after the related Due Date.
Applied Realized Loss Amount: With respect to any Distribution Date and
the LIBOR Certificates, the sum of the Realized Losses which are to be applied
in reduction of the Class Certificate Balances of any such Class of Certificates
pursuant to this Agreement, which, in the case of the Subordinated Certificates,
shall equal the amount, if any, by which the aggregate Class Certificate Balance
of all LIBOR Certificates (after all distributions of principal on such
Distribution Date) exceeds the sum of the aggregate Stated Principal Balance of
the Mortgage Loans and the amount on deposit in the Pre-funding Account as of
the Due Date in the month in which such Distribution Date occurs (after giving
effect to Principal Prepayments and Liquidation Proceeds allocated to principal
and Subsequent Recoveries received in the related Prepayment Period). With
respect to the Group 1 Senior Certificates and any Distribution Date on which
the aggregate Class Certificate Balance of the Subordinated Certificates and
Class C Certificates is equal to zero, the amount, if any, by which the Class
Certificate Balance of the Group 1 Senior Certificates (after all distributions
of principal on such Distribution Date) exceeds the aggregate Stated Principal
Balance of the Group 1 Mortgage Loans as of the Due Date in the month in which
such Distribution Date occurs (after giving effect to Principal Prepayments and
Liquidation Proceeds allocated to principal and Subsequent Recoveries received
in the related Prepayment Period). With respect to each Class of Group 2 Senior
Certificates and any Distribution Date on which the aggregate Class Certificate
Balance of the Subordinated Certificates and Class C Certificates is equal to
zero, the pro rata share (based on the Class Certificate Balance of each such
Class) of the amount, if any, by which the aggregate Class Certificate Balance
of the Group 2 Senior Certificates (after all distributions of principal on such
Distribution Date) exceeds the aggregate Stated Principal Balance of the Group 2
Mortgage Loans as of the Due Date in the month in which such Distribution Date
occurs (after giving effect to Principal Prepayments and Liquidation Proceeds
allocated to principal and Subsequent Recoveries received in the related
Prepayment Period).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of
13
the Mortgaged Property at the time of the origination of such Mortgage Loan;
(ii) with respect to a Refinancing Mortgage Loan other than a Streamlined
Documentation Mortgage Loan, the value of the Mortgaged Property based upon the
appraisal made-at the time of the origination of such Refinancing Mortgage Loan;
and (iii) with respect to a Streamlined Documentation Mortgage Loan, (a) if the
loan-to-value ratio with respect to the Original Mortgage Loan at the time of
the origination thereof was 80% or less and the loan amount of the new mortgage
loan is $650,000 or less, the value of the Mortgaged Property based upon the
appraisal made at the time of the origination of the Original Mortgage Loan and
(b) if the loan-to-value ratio with respect to the Original Mortgage Loan at the
time of the origination thereof was greater than 80% or the loan amount of the
new mortgage loan being originated is greater than $650,000, the value of the
Mortgaged Property based upon the appraisal (which may be a drive-by appraisal)
made at the time of the origination of such Streamlined Documentation Mortgage
Loan.
Auction Supplement Amount: As defined in Section 9.04(c).
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bid Determination Date: As defined in Section 9.04(b).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the City of New York, New York, or the States
of California or Texas or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Capitalized Interest Account: The separate Eligible Account designated as
such and created and maintained by the Trustee pursuant to Section 3.05(i)
hereof. The Capitalized Interest Account shall be treated as an "outside reserve
fund" under applicable Treasury regulations and shall not be part of the REMIC.
Except as provided in Section 3.05(i) hereof, any investment earnings on the
amounts on deposit in the Capitalized Interest Account shall be treated as owned
by the Depositor and will be taxable to the Depositor.
Capitalized Interest Requirement: With respect to each Funding Period
Distribution Date and Loan Group, the excess, if any, of (a) the sum of (1)
Current Interest for each Class of related Certificates in the Certificate Group
related to such Loan Group for such Distribution Date, plus (2) the Trustee Fee,
over (b) with respect to each Mortgage Loan in the related Loan Group, (1) 1/12
of the product of the related Adjusted Mortgage Rate and the related Stated
Principal Balance as of the related Due Date (prior to giving effect to any
Scheduled Payment due on such Mortgage Loan on such Due Date). On the Closing
Date, the amount deposited in the Capitalized Interest Account shall be
$51,913.74.
Carryover Reserve Fund: The separate Eligible Account created and
initially maintained by the Trustee pursuant to Section 3.05(g) in the name of
the Trustee for the benefit of the Holders of the Offered Certificates and
designated "The Bank of New York in trust for registered holders of CWALT, Inc.,
Alternative Loan Trust 2006-OC10, Mortgage Pass-Through Certificates, Series
2006-OC10." Funds in the Carryover Reserve Fund shall be held in trust for the
Holders of the Offered Certificates for the uses and purposes set forth in this
Agreement.
14
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached this Agreement as exhibits.
Certificate Account: The separate Eligible Account or Accounts created and
maintained by the Master Servicer pursuant to Section 3.05 with a depository
institution, initially Countrywide Bank, N.A., in the name of the Master
Servicer for the benefit of the Trustee on behalf of Certificateholders and
designated "Countrywide Home Loans Servicing LP in trust for the registered
holders of Alternative Loan Trust 2006-OC10, Mortgage Pass-Through Certificates
Series 2006-OC10."
Certificate Balance: With respect to any Certificate (other than the Class
C Certificates) at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled under this Agreement, such amount being equal to
the Denomination of that Certificate (A) plus, with respect to the LIBOR
Certificates, any increase to the Certificate Balance of such Certificate
pursuant to Section 4.02 due to the receipt of Subsequent Recoveries and (B)
minus the sum of (i) all distributions of principal previously made with respect
to that Certificate and (ii) with respect to the LIBOR Certificates, any Applied
Realized Loss Amounts allocated to such Certificate on previous Distribution
Dates pursuant to Section 4.02 without duplication.
Certificate Group: The Group 1 Certificates or the Group 2 Certificates,
as the context requires.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any affiliate of the Depositor shall be deemed not to
be Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision of this Agreement (other than the
second sentence of Section 10.01) that requires the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action
under this Agreement. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in determining
which Certificates are registered in the name of an affiliate of the Depositor.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate. For the purposes of
this Agreement, in order for a Certificate Owner to enforce any of its rights
under this Agreement, it shall first have to provide evidence of its beneficial
ownership interest in a Certificate that is reasonably satisfactory to the
Trustee, the Depositor, and/or the Master Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section 5.02.
Certification Party: As defined in Section 11.05.
Certifying Person: As defined in Section 11.05.
15
Class: All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
Class C Distributable Amount: As defined in the Preliminary Statement.
Class Certificate Balance: With respect to any Class of Certificates other
than the Class C Certificates and as to any date of determination, the aggregate
of the Certificate Balances of all Certificates of such Class as of such date.
With respect to the Class C Certificates and any Distribution Date, the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans as of
the Due Date in the prior calendar month (after giving effect to Principal
Prepayments, the principal portion of any Liquidation Proceeds and any
Subsequent Recoveries received in the Prepayment Period related to that prior
Due Date) over the aggregate Class Certificate Balance of the Offered
Certificates and the Class P Certificates immediately prior to that Distribution
Date.
Class P Certificate: Any Certificate designated as a "Class P Certificate"
on the face thereof, in the form of Exhibit C-2 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.
Closing Date: November 30, 2006.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: The Monthly Weighted Average Cost of Funds Index for the Eleventh
District Savings Institutions published by the Federal Home Loan Bank of San
Francisco.
COFI Certificates: As specified in the Preliminary Statement. Commission:
The U.S. Securities and Exchange Commission.
Compensating Interest: As to any Distribution Date, an amount equal to the
product of 50% and the aggregate Master Servicing Fee payable to the Master
Servicer for that Distribution Date.
Component: As specified in the Preliminary Statement.
Component Balance: Not applicable.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Coop Shares: Shares issued by a Cooperative Corporation.
16
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the State
of New York at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx
Xxxx 00000 (Attn: Mortgage-Backed Securities Group, CWALT, Inc. Series
2006-OC10, facsimile no. (000) 000-0000), and which is the address to which
notices to and correspondence with the Trustee should be directed.
Countrywide: Countrywide Home Loans, Inc., a New York corporation and its
successors and assigns, in its capacity as the seller of the Countrywide
Mortgage Loans to the Depositor.
Countrywide Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which Countrywide is the applicable Seller.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a Texas
limited partnership and its successors and assigns.
Covered Certificates: The LIBOR Certificates.
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 to (and including) the related Due
Date (reduced by the aggregate amount of Subsequent Recoveries received from the
Cut-off Date through the Prepayment Period related to that Due Date) exceeds the
applicable percentage, for such Distribution Date, of the sum of the Initial
Cut-off Date Pool Principal Balance and the original Pre-funded Amount as set
forth below:
Distribution Date Percentage
----------------- ----------
December 2008 - November 2009.......... 0.25% with respect to December 2008, plus an additional 1/12th of
0.40% for each month thereafter through November 2009
December 2009 - November 2010.......... 0.65% with respect to December 2009, plus an additional 1/12th of
0.50% for each month thereafter through
17
Distribution Date Percentage
----------------- ----------
November 2010
December 2010 - November 2011.......... 1.15% with respect to December 2010, plus an additional 1/12th of
0.50% for each month thereafter through November 2011
December 2011 - November 2012.......... 1.65% with respect to December 2011, plus an additional 1/12th of
0.30% for each month thereafter through November 2012
December 2012 - November 2013.......... 1.95% with respect to December 2012, plus an additional 1/12th of
0.05% for each month thereafter through November 2013
December 2013 and thereafter........... 2.00%
Current Interest: With respect to each Class of Offered Certificates and
each Distribution Date, the interest accrued at the applicable Pass-Through Rate
for the applicable Interest Accrual Period on the Class Certificate Balance of
such Class immediately prior to such Distribution Date.
Cut-off Date: In the case of any Initial Mortgage Loan, the Initial
Cut-off Date, and in the case of any Supplemental Mortgage Loan, the related
Supplemental Cut-off Date.
Cut-off Date Pool Principal Balance: An amount equal to the sum of (x) the
Initial Cut-off Date Pool Principal Balance plus (y) the amount, if any,
deposited in the Pre-funding Account on the Closing Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by
a court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan that became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then-outstanding indebtedness under the Mortgage Loan, or any reduction in
the amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of such court which is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
18
Delay Delivery Certification: As defined in Section 2.02(a).
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to the Trustee on the
Closing Date or Supplemental Transfer Date, as applicable. The number of Delay
Delivery Mortgage Loans shall not exceed 50% of the aggregate number of Initial
Mortgage Loans in each Loan Group and 90% of the Supplemental Mortgage Loans in
each Loan Group conveyed on the related Supplemental Transfer Date. To the
extent that Countrywide Servicing shall be in possession of any Mortgage Files
with respect to any Delay Delivery Mortgage Loan, until delivery of such
Mortgage File to the Trustee as provided in Section 2.01, Countrywide Servicing
shall hold such files as Master Servicer hereunder, as agent and in trust for
the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(C).
Delinquency Trigger Event: With respect to a Distribution Date on or after
the Stepdown Date, the Rolling Sixty-Day Delinquency Rate equals or exceeds the
product of (x) the Senior Enhancement Percentage for such Distribution Date and
(y) the applicable percentage listed below for the most senior Class of
outstanding LIBOR Certificates:
Class Percentage
------------------------------------------- ----------
Senior Certificates........................ 42.00%
M-1........................................ 59.00%
M-2........................................ 89.75%
M-3........................................ 108.00%
M-4........................................ 135.75%
M-5........................................ 172.50%
M-6........................................ 236.25%
M-7........................................ 375.50%
M-8........................................ 911.75%
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 of that Certificate as the "Initial Certificate Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if neither
of the foregoing, the Percentage Interest appearing on the face thereof.
Depositor: CWALT, Inc., a Delaware corporation, or its successor in
interest.
19
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 22nd day of each
month or, if such 22nd day is not a Business Day, the next preceding Business
Day; provided, however, that if such 22nd day or such Business Day, whichever is
applicable, is less than two Business Days prior to the related Distribution
Date, the Determination Date shall be the first Business Day that is two
Business Days preceding such Distribution Date.
Directing Certificateholder: As defined in Section 9.04(a).
Distribution Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.05(d) in the name of the Trustee for the
benefit of the Certificateholders and designated "The Bank of New York in trust
for registered holders of Alternative Loan Trust 2006-OC10, Mortgage
Pass-Through Certificates, Series 2006-OC10." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if such 25th day is not a Business Day, the
next succeeding Business Day, commencing in December 2006.
Due Date: With respect to a Mortgage Loan, the date on which Scheduled
Payments are due on that Mortgage Loan. With respect to any Distribution Date,
the related Due Date is the first day of the calendar month in which that
Distribution Date occurs.
Due Period: Not applicable.
XXXXX: The Commission's Electronic Data Gathering, Analysis and Retrieval
system.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of Xxxxx'x and one of the two highest short-term ratings of
S&P, if S&P is a Rating Agency at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each
20
Rating Agency, the Certificateholders have a claim with respect to the funds in
such account or a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments) securing such funds
that is superior to claims of any other depositors or creditors of the
depository institution or trust company in which such account is maintained, or
(iii) a trust account or accounts maintained with (a) the trust department of a
federal or state chartered depository institution or (b) a trust company, acting
in its fiduciary capacity or (iv) any other account acceptable to each Rating
Agency. Eligible Accounts may bear interest, and may include, if otherwise
qualified under this definition, accounts maintained with the Trustee.
Eligible Repurchase Month: As defined in Section 3.11.
Eligible EPD Protected Mortgage Loan: A Mortgage Loan that (i) was
originated not more than one year prior to the Closing Date, (ii) was purchased
by a Seller or one of its affiliates pursuant to a purchase agreement containing
provisions under which the seller thereunder has become obligated to repurchase
such Mortgage Loan from Countrywide due to a Scheduled Payment due on or prior
to the first Scheduled Payment owing to the Trust Fund becoming delinquent and
(iii) was not purchased through Countrywide Home Loan Inc.'s Correspondent
Lending Division.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a).
Event of Default: As defined in Section 7.01.
Excess Cashflow: With respect to any Distribution Date the sum of (i) the
amount remaining as set forth in Section 4.02(a)(iv)(B), (ii) the amount
remaining as set forth in Section 4.02(b)(i)(C) or 4.02(b)(ii)(C), as
applicable, in each case for such Distribution Date and (iii) the
Overcollateralization Reduction Amount for that Distribution Date, if any.
Excess Overcollateralization Amount: With respect to any Distribution
Date, the excess, if any, of the Overcollateralized Amount for the Distribution
Date over the Overcollateralization Target Amount for the Distribution Date.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the amount,
if any, by which the sum of any Liquidation Proceeds received with respect to
such Mortgage Loan during the calendar month in which such Mortgage Loan became
a Liquidated Mortgage Loan plus any Subsequent Recoveries received with respect
to such Mortgage Loan, net of any amounts previously reimbursed to the Master
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.08(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due
21
Date in the month in which such Mortgage Loan became a Liquidated Mortgage Loan
plus (ii) accrued interest at the Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date applicable to the Distribution Date immediately following the
calendar month during which such liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under the
Exchange Act.
Expense Fee: As to each Mortgage Loan and any Distribution Date, the
product of the related Expense Fee Rate and its Stated Principal Balance as of
that Distribution Date.
Expense Fee Rate: As to each Mortgage Loan and any date of determination,
the sum of (a) the related Master Servicing Fee Rate and (b) the Trustee Fee
Rate.
Extra Principal Distribution Amount: With respect to any Distribution Date
and Loan Group, the product of (a) the lesser of (1) the Overcollateralization
Deficiency Amount and (2) the Excess Cashflow available for payment pursuant to
Section 4.02(c) 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.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor to the Federal
Home Loan Mortgage Corporation.
Final Certification: As defined in Section 2.02(a).
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement Act
of 1989.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group, or
such other address as Fitch may hereafter furnish to the Depositor and the
Master Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor to the Federal National
Mortgage Association.
Form 10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending (a) against such Person, or (b)
against any of the Trust Fund, the Depositor, the Trustee, any co-trustee, the
Master Servicer or any Subservicer, if such Person has actual knowledge thereof.
Form 10-K Disclosure Item: With respect to any Person, (a) any Form 10-D
Disclosure Item, and (b) any affiliations or relationships between such Person
and any Item 1119 Party.
22
Funding Period: The period from the Closing Date until the earliest of (i)
the date on which the amount on deposit in the Pre-funding Account is less than
$150,000, or (ii) an Event of Default occurs or (iii) December 31, 2006.
Funding Period Distribution Date: Each Distribution Date during the
Funding Period and, if the Funding Period ends after the Distribution Date in a
month, the immediately succeeding Distribution Date.
Gross Margin: The percentage set forth in the related Mortgage Note for
the Mortgage Loans to be added to One-Year LIBOR for use in determining the
Mortgage Rate on each Adjustment Date, and which is set forth in the Mortgage
Loan Schedule.
Group 1 Mortgage Loans: The Mortgage Loans in Loan Group 1.
Group 1 Overcollateralization Reduction Amount: For any Distribution Date,
the Overcollateralization Reduction Amount for such Distribution Date multiplied
by a fraction, the numerator of which is the Principal Remittance Amount for
Loan Group 1 for such Distribution Date, and the denominator of which is the
aggregate Principal Remittance Amount for Loan Group 1 and Loan Group 2 for such
Distribution Date.
Group 1 Principal Distribution Target Amount: For any Distribution Date,
the excess of (1) the Class Certificate Balance of the Class 1-A Certificates
immediately prior to such Distribution Date, over (2) the lesser of (x) 84.80%
of the aggregate Stated Principal Balance of the Mortgage Loans in Loan Group 1
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (y) the
aggregate Stated Principal Balance of the Mortgage Loans in Loan Group 1 as of
the Due Date in the month of that Distribution Date (after giving effect to
Principal Prepayments received in the related Prepayment Period) minus 0.35% 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 portion of the original
Pre-funded Amount allocated to Loan Group 1.
Group 1 Senior Principal Distribution Amount: For any Distribution Date,
the product of (x) the Senior Principal Distribution Target Amount and (y) a
fraction, the numerator of which is the Group 1 Principal Distribution Target
Amount for Loan Group 1 and the denominator of which is the sum of the Group 1
Principal Distribution Target Amount and the Group 2 Principal Distribution
Target Amount.
Group 1 Tax Net Rate Cap: As defined in the Preliminary Statement.
Group 2 Mortgage Loans: The Mortgage Loans in Loan Group 2.
Group 2 Overcollateralization Reduction Amount: For any Distribution Date,
the Overcollateralization Reduction Amount for such Distribution Date multiplied
by a fraction, the numerator of which is the Principal Remittance Amount for
Loan Group 2 for such Distribution Date, and the denominator of which is the
aggregate Principal Remittance Amount for Loan Group 1 and Loan Group 2 for such
Distribution Date.
Group 2 Principal Distribution Target Amount: For any Distribution Date,
the excess of (1) the aggregate Class Certificate Balance of the Group 2 Senior
Certificates immediately prior
23
to such Distribution Date, over (2) the lesser of (x) 84.80% of the aggregate
Stated Principal Balance of the Mortgage Loans in Loan Group 2 as of the Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) and (y) the aggregate
Stated Principal Balance of the Mortgage Loans in Loan Group 2 as of the Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) minus 0.35% 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 portion of the original Pre-funded Amount
allocated to Loan Group 2.
Group 2 Senior Principal Distribution Amount: For any Distribution Date,
the product of (x) the Senior Principal Distribution Target Amount and (y) a
fraction, the numerator of which is the Group 2 Principal Distribution Target
Amount for Loan Group 2 and the denominator of which is the sum of the Group 1
Principal Distribution Target Amount and the Group 2 Principal Distribution
Target Amount.
Group 2 Tax Net Rate Cap: As defined in the Preliminary Statement.
Index: With respect to any Interest Accrual Period for the COFI
Certificates, if any, the then-applicable index used by the Trustee pursuant to
Section 4.07 to determine the applicable Pass-Through Rate for such Interest
Accrual Period for the COFI Certificates.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Certification: As defined in Section 2.02(a).
Initial Component Balance: As specified in the Preliminary Statement.
Initial Cut-off Date: With respect to any Initial Mortgage Loan, the later
of (i) the date of origination of such Mortgage Loan and (ii) November 1, 2006.
Initial Cut-off Date Pool Principal Balance: $799,232,004.
Initial Mortgage Loan: With respect to any Mortgage Loan included in Loan
Group 1 or Loan Group 2, a Mortgage Loan conveyed to the Trust Fund on the
Closing Date pursuant to this Agreement as identified on the Mortgage Loan
Schedule delivered to the Trustee on the Closing Date.
Initial Periodic Rate Cap: As to each Mortgage Loan and the related
Mortgage Note, the provision therein that limits permissible increases and
decreases in the Mortgage Rate on the first Adjustment Date for that Mortgage
Loan to not more than the amount set forth therein.
Insurance Policy: With respect to any Mortgage Loan included in the Trust
Fund, any insurance policy, including all riders and endorsements thereto in
effect, including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
24
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay Certificates,
its corresponding REMIC Regular Interest and any Distribution Date, the calendar
month prior to the month of such Distribution Date. With respect to any Class of
Non-Delay Certificates, its corresponding REMIC Regular Interest and any
Distribution Date, the period commencing on the Distribution Date in the month
preceding the month in which such Distribution Date occurs (other than the first
Distribution Date, for which it is the Closing Date) and ending on the day
preceding such Distribution Date.
Interest Carry Forward Amount: With respect to each Class of Offered
Certificates and each Distribution Date, the excess of (i) the Current Interest
for such Class with respect to prior Distribution Dates over (ii) the amount
actually distributed to such Class with respect to interest on such prior
Distribution Dates.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual Period for the
COFI Certificates for which the applicable Index is LIBOR, the second Business
Day prior to the first day of such Interest Accrual Period.
Interest Funds: With respect to any Distribution Date and Loan Group, the
excess of the Interest Remittance Amount for that Loan Group over the portion of
the Trustee Fee for such Distribution Date allocable to such Loan Group.
Interest Remittance Amount: With respect to the Mortgage Loans in a Loan
Group and any Distribution Date, (x) the sum, without duplication, of (i) all
scheduled interest on the Mortgage Loans in that Loan Group due on the related
Due Date and received on or prior to the related Determination Date, less the
related Master Servicing Fees and any payments made in respect of premiums on
Lender PMI Mortgage Loans, (ii) all interest on Principal Prepayments on the
Mortgage Loans in that Loan Group, other than Prepayment Interest Excess, (iii)
all Advances relating to interest with respect to the Mortgage Loans in that
Loan Group, (iv) all Compensating Interest with respect to the Mortgage Loans in
that Loan Group, (v) Liquidation Proceeds with respect to the Mortgage Loans in
that Loan Group during the related Prepayment Period (to the extent such
Liquidation Proceeds relate to interest) and (vi) with respect to each Loan
Group, on each Funding Period Distribution Date, the amount, if any, transferred
from the Capitalized Interest Account in respect of the applicable Capitalized
Interest Requirement with respect to such Loan Group, less (y) all
reimbursements to the Master Servicer since the immediately preceding Due Date
for Advances of interest previously made allocable to such Loan Group.
Investment Letter: As defined in Section 5.02(b).
ISDA Master Agreement: The 1992 ISDA Master Agreement (Multicurrency -
Cross Border), including the Schedule and Credit Support Annex thereto, dated
November 30, 2006, between the Swap Counterparty and the Swap Contract
Administrator.
Item 1119 Party: The Depositor, any Seller, the Master Servicer, the
Trustee, any Subservicer, any originator identified in the Prospectus
Supplement, the Swap Counterparty and
25
any other material transaction party, as identified in Exhibit X hereto, as
updated pursuant to Section 11.04.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender PMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the Mortgagor) acquires the Primary Insurance Policy and charges
the related Mortgagor an interest premium.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 4.08.
LIBOR Certificates: As specified in the Preliminary Statement.
Limited Exchange Act Reporting Obligations: The obligations of the Master
Servicer under Section 3.16(b), Section 6.02 and Section 6.04 with respect to
notice and information to be provided to the Depositor and Article XI (except
Section 11.07(a)(1) and (2)).
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Master Servicer has determined (in accordance with this Agreement) that it has
received all amounts it expects to receive in connection with the liquidation of
such Mortgage Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Master Servicing Fees, Servicing Advances
and Advances.
Loan Group: Any of Loan Group 1 and Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans identified as Loan Group 1 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Loan Group 2 Mortgage Loans
on the Mortgage Loan Schedule.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any date
of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at that date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
26
Maintenance: With respect to any Cooperative Unit, the rent paid by the
Mortgagor to the Cooperative Corporation pursuant to the Proprietary Lease.
Majority in Interest: As to any Class of Regular Certificates, the Holders
of Certificates of such Class evidencing, in the aggregate, at least 51% of the
Percentage Interests evidenced by all Certificates of such Class.
Master REMIC: As described in the Preliminary Statement.
Master Servicer: Countrywide 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, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount payable out of each full payment of interest received on such Mortgage
Loan and equal to one-twelfth of the Master Servicing Fee Rate multiplied by the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
preceding the month of such Distribution Date, subject to reduction as provided
in Section 3.14.
Master Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate set forth on the Mortgage Loan Schedule for such Mortgage Loan.
Maximum Mortgage Rate: With respect to each Mortgage Loan, the maximum
rate of interest set forth as such in the related Mortgage Note.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
to Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS(R)
System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Auction Amount: With respect to any auction of the Mortgage Loans
and any REO Properties pursuant to Section 9.04, the sum of (i) the Termination
Price that would be payable by the NIM Insurer if the Optional Termination were
exercised in the following calendar month pursuant to Section 9.01 and (ii) all
reasonable fees and expenses incurred by the Trustee in connection with any
auction conducted pursuant to Section 9.04.
Minimum Mortgage Rate: With respect to each Mortgage Loan, the minimum
rate of interest set forth as such in the related Mortgage Note, which, with
respect to certain Mortgage Loans is equal to the related Gross Margin.
27
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody's may
hereafter furnish to the Depositor or the Master Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on an estate in fee simple or leasehold interest in real property securing
a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining to
a particular Mortgage Loan and any additional documents delivered to the Trustee
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the addition of Substitute Mortgage
Loans, the addition of any Supplemental Mortgage Loans pursuant to the
provisions of this Agreement and any Supplemental Transfer Agreement and the
deletion of Deleted Mortgage Loans pursuant to the provisions of this Agreement)
transferred to the Trustee as part of the Trust Fund and from time to time
subject to this Agreement, attached to this Agreement as Schedule I, setting
forth the following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the Loan Group;
(iii) the Mortgagor's name and the street address of the Mortgaged
Property, including the zip code;
(iv) the maturity date;
(v) the original principal balance; (vi) the Cut-off Date
Principal Balance;
(vii) the first payment date of the Mortgage Loan;
(viii) the Scheduled Payment in effect as of the Cut-off Date;
(ix) the Loan-to-Value Ratio at origination;
(x) a code indicating whether the residential dwelling at the time
of origination was represented to be owner-occupied;
28
(xi) a code indicating whether the residential dwelling is either
(a) a detached or attached single family dwelling, (b) a dwelling in
a de minimis PUD, (c) a condominium unit or PUD (other than a de
minimis PUD) or (d) a two- to four-unit residential property or (e)
a Cooperative Unit;
(xii) the Mortgage Rate as of the Cut-off Date, the Gross Margin,
the Initial Periodic Rate Cap, the Subsequent Periodic Rate Cap, the
Maximum Mortgage Rate and the Minimum Mortgage Rate;
(xiii) the initial Adjustment Date and the Master Servicing Fee Rate
both before and after the initial Adjustment Date for each Mortgage
Loan;
(xiv) a code indicating whether the Mortgage Loan is a Lender PMI
Mortgage Loan and, in the case of any Lender PMI Mortgage Loan, a
percentage representing the amount of the related interest premium
charged to the borrower;
(xv) the purpose for the Mortgage Loan;
(xvi) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xvii) a code indicating whether the Mortgage Loan is a Countrywide
Mortgage Loan, a Park Granada Mortgage Loan, a Park Monaco Mortgage
Loan or a Park Sienna Mortgage Loan;
(xviii) the direct servicer of such Mortgage Loan as of the Cut-off
Date; and
(xix) a code indicating whether the Mortgage Loan is a MERS Mortgage
Loan.
Such schedule shall also set forth the total of the amounts described
under (iv) and (v) above for all of the Mortgage Loans and for each Loan Group.
Countrywide shall update he Mortgage Loan Schedule in connection with each
Supplemental Transfer Agreement within a reasonable period of time after
delivery to it of the Schedule of Supplemental Mortgage Loans attached to the
related Supplemental Transfer Agreement as Schedule A thereto.
Mortgage Loans: Such of the mortgage loans as from time to time are
transferred and assigned to the Trustee pursuant to the provisions of this
Agreement and any Supplemental Transfer Agreement and that are held as a part of
the Trust Fund (including any REO Property), the mortgage loans so held being
identified in the Mortgage Loan Schedule, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
29
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time, net of any interest premium charged by the mortgagee to obtain or
maintain any Primary Insurance Policy.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net Prepayment Interest Shortfalls: As to any Distribution Date and Loan
Group, the excess of the amount of the aggregate Prepayment Interest Shortfalls
for that Loan Group during the related Prepayment Period over the sum of (i) the
Compensating Interest for such Loan Group and Distribution Date and (ii) the
excess, if any, of the Compensating Interest for the other Loan Group for such
Distribution Date over the Prepayment Interest Shortfall for such other Loan
Group.
Net Rate Cap: For each Distribution Date and the Senior Certificates the
weighted average Adjusted Net Mortgage Rate on the Mortgage Loans in the related
Loan Group as of the Due Date in the prior calendar month (after giving effect
to Principal Prepayments received in the Prepayment Period related to that prior
Due Date), adjusted to an effective rate reflecting the accrual of interest on
the basis of a 360-day year and the actual number of days that elapsed in the
related Interest Accrual Period, minus the Swap Adjustment Rate for such
Distribution Date and the related Loan Group. For each Distribution Date and the
Subordinated Certificates, the Subordinate Net Rate Cap.
Net Rate Carryover: For any Class of LIBOR 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 not been determined based on the applicable Net
Rate Cap, over (ii) the amount of interest accrued on such Class at the
applicable Net Rate Cap for such Distribution Date and (B) the Net Rate
Carryover for such Class for all previous Distribution Dates not previously paid
pursuant to Section 4.02, together with interest thereon at the then applicable
Pass-Through Rate for such Class, without giving effect to the applicable Net
Rate Cap.
Net Swap Payment: With respect to the Swap Contract, any Distribution Date
and payment by the Swap Contract Administrator to the Swap Counterparty, the
excess, if any, of the "Fixed Amount" (as defined in the Swap Contract) with
respect to such Distribution Date over the "Floating Amount" (as defined in the
Swap Contract) with respect to such Distribution Date. With respect to any
Distribution Date and payment by the Swap Counterparty to the Swap Contract
Administrator, the excess, if any, of the "Floating Amount" (as defined in the
Swap Contract) with respect to such Distribution Date over the "Fixed Amount"
(as defined in the Swap Contract) with respect to such Distribution Date.
NIM Insurer: Any insurer guarantying at the request of Countrywide certain
payments under notes backed or secured by the Class C or Class P Certificates.
30
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: Not applicable.
Notional Amount Certificates: As specified in the Preliminary Statement.
OC Floor: With respect to any Distribution Date prior to the Distribution
Date in December 2026, an amount equal to 0.35% of the sum of the Initial
Cut-off Date Pool Principal Balance and the original Pre-funded Amount. With
respect to any Distribution Date on or after the Distribution Date in December
2026, the greater of (a) 0.35% of the sum of the Initial Cut-off Date Pool
Principal Balance and the original Pre-funded Amount and (b) the sum of (x) the
aggregate Stated Principal Balance of the 40-Year Mortgage Loans as of the Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) and (y) 0.10% of the sum
of the Initial Cut-off Date Pool Principal Balance and the original Pre-funded
Amount.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) in the case of the Depositor,
signed by the Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President (however denominated), an
Assistant Vice President, the Treasurer, the Secretary, or one of the Assistant
Treasurers or Assistant Secretaries of the Depositor, (ii) in the case of the
Master Servicer, signed by the President, an Executive Vice President, a Vice
President, an Assistant Vice President, the Treasurer, or one of the Assistant
Treasurers or Assistant Secretaries of Countrywide GP, Inc., its general
partner, (iii) if provided for in this Agreement, signed by a Servicing Officer,
as the case may be, and delivered to the Depositor and the Trustee, as the case
may be, as required by this Agreement or (iv) in the case of any other Person,
signed by an authorized officer of such Person.
One-Year LIBOR: As of any date of determination, the per annum rate equal
to the average of the London interbank offered rates for one-year U.S. dollar
deposits in the London market, generally as set forth in either The Wall Street
Journal or some other source generally accepted in the residential mortgage loan
origination business and specified in the related Mortgage Note, or, if such
rate ceases to be published in The Wall Street Journal or becomes unavailable
for any reason, then based upon a new index selected by the Master Servicer,
based on comparable information, in each case, as most recently announced as of
either 45 days prior to, or the first business day of the month immediately
preceding the month of, such Adjustment Date.
31
Opinion of Counsel: A written opinion of counsel, who may be counsel for a
Seller, the Depositor or the Master Servicer, including, in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of a Seller, the Depositor and the Master Servicer, (ii)
not have any direct financial interest in a Seller, the Depositor or the Master
Servicer or in any affiliate thereof, and (iii) not be connected with a Seller,
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 clause (a) of the first sentence of Section 9.01.
Optional Termination Date: The first Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans is less than or equal
to 10% of the sum of (a) the Initial Cut-off Date Pool Principal Balance and (b)
any amount on deposit in the Pre-funding Account on the Closing Date.
Original Mortgage Loan: The mortgage loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
OTS: The Office of Thrift Supervision.
Outside Reference Date: As to any Interest Accrual Period for the COFI
Certificates, the close of business on the tenth day thereof.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the
Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero, which was not the subject of a
Principal Prepayment in Full prior to the end of the related Prepayment Period
and which did not become a Liquidated Mortgage Loan prior to the end of the
related Prepayment Period.
Overcollateralization Deficiency Amount: With respect to any Distribution
Date, the amount, if any, by which the Overcollateralization Target Amount
exceeds the Overcollateralized Amount on such Distribution Date (after giving
effect to distributions in respect of the Principal Remittance Amount for each
Loan Group on such Distribution Date).
Overcollateralization Reduction Amount: With respect to any Distribution
Date, the amount equal to the lesser of (i) the Excess Overcollateralization
Amount for the Distribution Date and (ii) the Principal Remittance Amount for
Loan Group 1 and Loan Group 2 for the Distribution Date.
32
Overcollateralization Target Amount: With respect to any Distribution
Date, (i) prior to the Stepdown Date, an amount equal to the greater of (a) the
product of (1) 0.35%, (2) the Initial Cut-Off Date Pool Principal Balance and
(3) the original Pre-funded Amount and (b) the OC Floor, and (ii) on or after
the Stepdown Date, an amount equal to the greater of (a) the product of (1)
0.70% and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the Due Date in the month of that Distribution Date (after giving effect to
principal prepayments, the principal portion of any liquidation proceeds and any
Subsequent Recoveries received in the related Prepayment Period) and (b) the OC
Floor provided, however, that if a Trigger Event is in effect on any
Distribution Date, the Overcollateralization Target Amount will be the
Overcollateralization Target Amount as in effect for the prior Distribution
Date.
Overcollateralized Amount: For any Distribution Date, the amount, if any,
by which (x) the aggregate Stated Principal Balance of the Mortgage Loans as of
the Due Date in the month of that Distribution Date (after giving effect to
Principal Prepayments, the principal portion of any Liquidation Proceeds and any
Subsequent Recoveries received in the related Prepayment Period) exceeds (y) the
aggregate Class Certificate Balance of the Offered Certificates as of such
Distribution Date (after giving effect to distributions of the Principal
Remittance Amount for each Loan Group to be made on such Distribution Date) and,
in the case of the Distribution Date immediately following the end of the
Funding Period, any amounts to be released from the Pre-funding Account.
Ownership Interest: As to any Residual Certificate, any ownership interest
in such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
Park Granada: Park Granada LLC, a Delaware limited liability company, and
its successors and assigns, in its capacity as the seller of the Park Granada
Mortgage Loans to the Depositor.
Park Granada Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which Park Granada is the applicable Seller.
Park Monaco: Park Monaco Inc., a Delaware corporation, and its successors
and assigns, in its capacity as the seller of the Park Monaco Mortgage Loans to
the Depositor.
Park Monaco Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which Park Monaco is the applicable Seller.
Park Sienna: Park Sienna LLC, a Delaware limited liability company, and
its successors and assigns, in its capacity as the seller of the Park Sienna
Mortgage Loans to the Depositor.
Park Sienna Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule for which Park Sienna is the applicable Seller.
Pass-Through Margin: With respect to the Interest Accrual Period for any
Distribution Date and Class of LIBOR Certificates, the per annum rate indicated
in the following table:
33
------------------ ------------------------ -----------------------
Class Pass-Through Margin (1) Pass-Through Margin (2)
------------------ ------------------------ -----------------------
Class 1-A........ 0.160% 0.320%
------------------ ------------------------ -----------------------
Class 2-A-1...... 0.090% 0.180%
------------------ ------------------------ -----------------------
Class 2-A-2A..... 0.180% 0.360%
------------------ ------------------------ -----------------------
Class 2-A-2B..... 0.220% 0.440%
------------------ ------------------------ -----------------------
Class 2-A-3...... 0.230% 0.460%
------------------ ------------------------ -----------------------
Class M-1........ 0.300% 0.450%
------------------ ------------------------ -----------------------
Class M-2........ 0.310% 0.465%
------------------ ------------------------ -----------------------
Class M-3........ 0.340% 0.510%
------------------ ------------------------ -----------------------
Class M-4........ 0.420% 0.630%
------------------ ------------------------ -----------------------
Class M-5........ 0.460% 0.690%
------------------ ------------------------ -----------------------
Class M-6........ 0.510% 0.765%
------------------ ------------------------ -----------------------
Class M-7........ 1.200% 1.800%
------------------ ------------------------ -----------------------
Class M-8........ 1.450% 2.175%
------------------ ------------------------ -----------------------
(1) For the Interest Accrual Period related to any Distribution
Date occurring on or prior to the Optional Termination Date.
(2) For the Interest Accrual Period related to any Distribution
Date occurring after the Optional Termination Date.
Pass-Through Rate: With respect to any Interest Accrual Period and each
Class of LIBOR Certificates the lesser of (x) LIBOR for such Interest Accrual
Period plus the Pass-Through Margin for such Class and Interest Accrual Period
and (y) the applicable Net Rate Cap for such Class and the related Distribution
Date.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class. With
respect to the Class C, Class P and Class A-R Certificates, the portion of the
Class evidenced thereby, expressed as a percentage, as stated on the face of
such Certificate.
Performance Certification: As defined in Section 11.05.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the
United States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency, or such lower
rating as will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each
Rating Agency, or such
34
lower rating as will not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state
thereof and subject to supervision and examination by federal and/or
state banking authorities, provided that the commercial paper and/or
long term unsecured debt obligations of such depository institution
or trust company (or in the case of the principal depository
institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of such holding company, but
only if Xxxxx'x is not a Rating Agency) are then rated one of the
two highest long-term and the highest short-term ratings of each
Rating Agency for such securities, or such lower ratings as will not
result in the downgrading or withdrawal of the rating then assigned
to the Certificates by either Rating Agency;
(v) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (iv) above;
(vi) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if Fitch is a Rating
Agency and has not rated the portfolio, the highest rating assigned
by Moody's) and restricted to obligations issued or guaranteed by
the United States of America or entities whose obligations are
backed by the full faith and credit of the United States of America
and repurchase agreements collateralized by such obligations; and
(vii) such other relatively risk free investments bearing interest
or sold at a discount acceptable to each Rating Agency as will not
result in the downgrading or withdrawal of the rating then assigned
to the Certificates by either Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency, 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 evidences the right to receive interest only payments with respect to
the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United States, any State or
political subdivision thereof, or any agency or instrumentality of any of the
foregoing, (ii) a foreign government, International Organization or any agency
or instrumentality of either of the foregoing, (iii) an organization (except
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from tax imposed by Chapter 1 of the Code (including the tax imposed by
Section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in Section 860E(c)(1) of the Code) with respect to any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in Section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" as
defined in Section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
35
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI or any applicable successor form, and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Residual Certificate to such Person may cause any
REMIC created under this Agreement to fail to qualify as a REMIC at any time
that the Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of the Federal Home Loan Mortgage Corporation, a majority of its
board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Pool Characteristics: With respect to the Mortgage Loans in Loan Group 1
and Loan Group 2 as of the Cut-off Date, the related characteristics set forth
in the sixth bullet point under "The Mortgage Pool--Conveyance of Supplemental
Mortgage Loans" set forth on page S-65 of the Prospectus Supplement.
Pool Stated Principal Balance: The aggregate of the Stated Principal
Balances of the Outstanding Mortgage Loans plus the amount on deposit in the
Pre-funding Account, exclusive of any investment income included therein.
Pre-funded Amount: The amount deposited in the Pre-funding Account on the
Closing Date, which shall equal $9,002,510.
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 Alternative Loan Trust 2006-OC10, Mortgage
Pass-Through Certificates, Series 2006-OC10, Offered Certificates." 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 shall be
for the account of the Depositor.
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.
36
Prepayment Charge Amount: As to any Distribution Date, the sum of the
Prepayment Charges collected on the Mortgage Loans during the related Prepayment
Period and any amounts paid pursuant to Section 3.20 with respect to such
Distribution Date.
Prepayment Charge Period: With respect to any Mortgage Loan, the period of
time during which a Prepayment Charge may be imposed.
Prepayment Charge Schedule: As of the Cut off Date with respect to each
Mortgage Loan, a list attached hereto as Schedule VII (including the prepayment
charge summary attached thereto), setting forth the following information with
respect to each Prepayment Charge:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination of the related Mortgage Loan;
(iv) the date on which the first monthly payment was due on the
related Mortgage Loan;
(v) the term of the related Prepayment Charge; and
(vi) the principal balance of the related Mortgage Loan as of the
Cut off Date.
As of the Closing Date, the Prepayment Charge Schedule shall contain the
necessary information for each Mortgage Loan. The Prepayment Charge Schedule
shall be amended from time to time by the Master Servicer in accordance with the
provisions of this Agreement and a copy of each related amendment shall be
furnished by the Master Servicer to the Class P and Class C Certificateholders
and the NIM Insurer.
Prepayment Interest Excess: As to any Principal Prepayment received by the
Master Servicer from the first day through the fifteenth day of any calendar
month (other than the calendar month in which the Initial Cut-off Date occurs),
all amounts paid by the related Mortgagor in respect of interest on such
Principal Prepayment. All Prepayment Interest Excess shall be paid to the Master
Servicer as additional master servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage Loan
and Principal Prepayment received on or after the sixteenth day of the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, on or after November 1, 2006) and on or before the last day
of the month preceding the month of such Distribution Date, the amount, if any,
by which one month's interest at the related Mortgage Rate, net of the related
Master Servicing Fee Rate, on such Principal Prepayment exceeds the amount of
interest paid in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date and the related Due Date,
the period from the 16th day of the calendar month immediately preceding the
month in which the Distribution Date occurs (or, in the case of the first
Distribution Date, from November 1, 2006) through the 15th day of the calendar
month in which the Distribution Date occurs.
37
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Prime Rate: The prime commercial lending rate of The Bank of New York, as
publicly announced to be in effect from time to time. The Prime Rate shall be
adjusted automatically, without notice, on the effective date of any change in
such prime commercial lending rate. The Prime Rate is not necessarily The Bank
of New York's lowest rate of interest.
Principal Distribution Amount: With respect to each Distribution Date and
Loan Group, the sum of: (i) (1) the Principal Remittance Amount for such Loan
Group and Distribution Date, less any portion of such amount used to cover any
payment due to the Swap Counterparty with respect to such Distribution Date, and
(2) the Extra Principal Distribution Amount for such Loan Group and Distribution
Date minus (ii) (1) the Group 1 Overcollateralization Reduction Amount for the
Distribution Date, in the case of Loan Group 1, and (2) the Group 2
Overcollateralization Reduction Amount for the Distribution Date, in the case of
Loan Group 2.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance with
the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: As to any Distribution Date and either Loan
Group, (x) the sum, without duplication, of (a) the principal portion of each
Scheduled Payment (without giving effect to any reductions thereof caused by any
Debt Service Reductions or Deficient Valuations) due on each Mortgage Loan in
that Loan Group (other than a Liquidated Mortgage Loan) on the related Due Date,
(b) the principal portion of the Purchase Price of each Mortgage Loan in that
Loan Group that was repurchased by the applicable Seller or purchased by the
Master Servicer pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan in
that Loan Group received with respect to such Distribution Date, (d) any
Insurance Proceeds or Liquidation Proceeds allocable to recoveries of principal
of Mortgage Loans in that Loan Group that are not yet Liquidated Mortgage Loans
received during the calendar month preceding the month of such Distribution
Date, (e) with respect to each Mortgage Loan in that Loan Group that became a
Liquidated Mortgage Loan during the related Prepayment Period, the amount of the
Liquidation Proceeds allocable to principal received during such Prepayment
Period with respect to such Mortgage Loan, (f) all Principal Prepayments on the
Mortgage Loans in that Loan Group received during the related Prepayment Period,
(g) any Subsequent Recoveries on the Mortgage Loans in that Loan Group received
during the related Prepayment Period and (h) with respect to the last Funding
Period Distribution Date, the related Remaining Pre-funded Amount minus (y) all
Advances on the Mortgage Loans in that Loan Group relating to principal and
certain expenses reimbursable pursuant to Section 6.03 and reimbursed since the
immediately preceding Due Date.
38
Principal Reserve Fund: The separate Eligible Account created and
initially maintained by the Trustee pursuant to Section 3.05(c) in the name of
the Trustee for the benefit of the Holders of the Class P Certificates and
designated "The Bank of New York in trust for registered holders of CWALT, Inc.,
Alternative Loan Trust 2006-OC10, Mortgage Pass-Through Certificates, Series
2006-OC10." Funds in the Principal Reserve Fund shall be held in trust for the
Holders of the Class P Certificates for the uses and purposes set forth in this
Agreement.
Priority Amount: Not applicable.
Priority Percentage: Not applicable.
Private Certificate: As specified in the Preliminary Statement.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Prospectus: The prospectus dated November 14, 2006 generally relating to
mortgage pass-through certificates to be sold by the Depositor.
Prospectus Supplement: The prospectus supplement dated November 29, 2006
relating to the Offered Certificates.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be purchased
by the applicable Seller pursuant to Section 2.02 or 2.03 or purchased at the
option of the Master Servicer pursuant to Section 3.11, an amount equal to the
sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the date
of such purchase, (ii) accrued interest thereon at the applicable Mortgage Rate
(or at the applicable Adjusted Mortgage Rate if (x) the purchaser is the Master
Servicer or (y) if the purchaser is Countrywide and Countrywide is an affiliate
of the Master Servicer) from the date through which interest was last paid by
the Mortgagor to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders and (iii) costs and damages incurred by the
Trust Fund in connection with a repurchase pursuant to Section 2.03 that arises
out of a violation of any predatory or abusive lending law with respect to the
related Mortgage Loan.
Qualified Bidder: With respect to any auction pursuant to Section 9.04,
any institution that is a regular purchaser and/or seller in the secondary
market of residential mortgage loans as determined by the Trustee (or any
advisor on its behalf), in its sole discretion, and any holder of an interest in
the Class C Certificates; provided, however, that neither Countrywide nor any of
its affiliates shall constitute a Qualified Bidder.
Qualified Insurer: A mortgage guaranty insurance company duly qualified as
such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a
FNMA-approved mortgage insurer and having a claims paying ability rating of at
least "AA" or equivalent rating
39
by a nationally recognized statistical rating organization. Any replacement
insurer with respect to a Mortgage Loan must have at least as high a claims
paying ability rating as the insurer it replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, identified as a "Rating Agency" under
the Underwriter's Exemption, as is designated by the Depositor, notice of which
designation shall be given to the Trustee. References in this Agreement to a
given rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan which has become
the subject of a Deficient Valuation, if the principal amount due under the
related Mortgage Note has been reduced, the difference between the principal
balance of the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the principal balance of the Mortgage Loan as reduced by the
Deficient Valuation.
To the extent the Master Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of Realized Losses with respect to that
Mortgage Loan will be reduced by the amount of such Subsequent Recoveries.
Recognition Agreement: With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative Property.
Record Date: With respect to any Distribution Date and the Delay
Certificates, the last Business Day of the month preceding the month of a
Distribution Date. With respect to any Distribution Date and the Non-Delay
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.
Reference Bank: As defined in Section 4.08(b).
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection with
the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
40
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Relief Act: The Servicemembers Civil Relief Act and any similar state or
local laws.
Remaining Pre-funded Amount: With respect to the last Funding Period
Distribution Date and any Loan Group, any portion of the Pre-funded Amount
allocated to such Loan Group remaining in the Pre-funding Account.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation, revenue
ruling, revenue procedure or other official announcement or interpretation
relating to REMICs and the REMIC Provisions issued after the Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K, and in
any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction
Document, even if the Depositor is not a party to such agreement (e.g., a
servicing agreement with a servicer contemplated by Item 1108(a)(3) of
Regulation AB);
(b) termination of a Transaction Document (other than by expiration
of the agreement on its stated termination date or as a result of all
parties completing their obligations under such agreement), even if the
Depositor is not a party to such agreement (e.g., a servicing agreement
with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Master Servicer only, if the Master Servicer
becomes aware of any bankruptcy or receivership with respect to
Countrywide, the Depositor, the Master Servicer, any Subservicer, the
Trustee, the Swap Counterparty, any enhancement or support provider
contemplated by Items 1114(b) or 1115 of Regulation AB, or any other
material party contemplated by Item 1101(d)(1) of Regulation AB;
41
(d) with respect to the Trustee, the Master Servicer and the
Depositor only, the occurrence of an early amortization, performance
trigger or other event, including an Event of Default under this
Agreement;
(e) the resignation, removal, replacement, substitution of the
Master Servicer, any Subservicer or the Trustee;
(f) with respect to the Master Servicer only, if the Master Servicer
becomes aware that (i) any material enhancement or support specified in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB
that was previously applicable regarding one or more classes of the
Certificates has terminated other than by expiration of the contract on
its stated termination date or as a result of all parties completing their
obligations under such agreement; (ii) any material enhancement specified
in Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation
AB has been added with respect to one or more classes of the Certificates;
or (iii) any existing material enhancement or support specified in Item
1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB with
respect to one or more classes of the Certificates has been materially
amended or modified; and
(g) with respect to the Trustee, the Master Servicer and the
Depositor only, a required distribution to Holders of the Certificates is
not made as of the required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Master Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to Section
11.08(b) to be "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB. References to a Reporting Subcontractor shall refer
only to the Subcontractor of such Person and shall not refer to Subcontractors
generally
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N to this
Agreement, as appropriate.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also to whom, with respect to a particular matter, such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
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.
42
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for purposes
of Section 10.05(b) the address for notices to S&P shall be Standard & Poor's,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Surveillance
Monitoring, or such other address as S&P may hereafter furnish to the Depositor
and the Master Servicer.
Xxxxxxxx-Xxxxx Certification: As defined in Section 11.05.
Scheduled Balances: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified in this Agreement, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide, Park Granada, Park Monaco or Park Sienna, as
applicable.
Senior Certificates: As specified in the Preliminary Statement.
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 Class Certificate Balances of the Senior Certificates have been reduced to
zero, the sum of the Class Certificate Balances of the Senior Certificates, or
(ii) after the Class Certificate Balances of the Senior Certificates have been
reduced to zero, the Class Certificate Balance of the most senior Class of
Subordinated 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 Allocation Amount: For any Distribution
Date, (a) with respect to the Class 1-A Certificates, the Group 1 Senior
Principal Distribution Amount and (b) with respect to the Group 2 Senior
Certificates, the Group 2 Senior Principal Distribution Amount.
Senior Principal Distribution Target Amount: As to any Distribution Date,
the excess of (x) the aggregate Class Certificate Balance of the Senior
Certificates immediately prior to such Distribution Date, over (y) the lesser of
(i) 84.80% of the aggregate Stated Principal Balance of the Mortgage Loans as of
the Due Date in the month of such Distribution Date (after giving effect to
Principal Prepayments, the principal portion of any Liquidation Proceeds and any
Subsequent Recoveries received in the related Prepayment Period) and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date in
the month of such Distribution Date (after giving effect to Principal
Prepayments, the principal portion of any Liquidation Proceeds and any
Subsequent Recoveries received in the related Prepayment Period), minus the OC
Floor.
43
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.09.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Shift Percentage: Not applicable.
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 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 the Mortgage Loans as of
the related Due Date (after giving effect to Principal Prepayments, the
principal portion of any Liquidation Proceeds and any Subsequent Recoveries
received in the related Prepayment Period).
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date, as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) minus the sum of: (i) any previous partial Principal Prepayments
and the payment of principal due on such Due Date, irrespective of any
delinquency in payment by the related Mortgagor, (ii) Liquidation Proceeds
allocable to principal (other than with respect to any Liquidated Mortgage Loan)
received in the prior calendar month and Principal Prepayments received through
the last day of the related Prepayment Period, in each case, with respect to
that Mortgage Loan and (iii) any Realized Loss previously incurred in connection
with a Deficient Valuation. The Stated Principal Balance of any Mortgage Loan
that becomes a Liquidated Mortgage Loan will be zero on each date following the
Due Period in which such Mortgage Loan becomes a Liquidated Mortgage Loan.
Stepdown Date: The earlier to occur of: (1) the Distribution Date
immediately following the Distribution Date on which the aggregate Class
Certificate Balance of the Senior Certificates is reduced to zero, and (2) the
later to occur of (x) the Distribution Date in December 2009 and (y) the first
Distribution Date on which the aggregate Class Certificate Balance of the Senior
Certificates (after calculating anticipated distributions on such Distribution
Date) is less than or equal to 84.80% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Due
44
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments, the principal portion of any Liquidation Proceeds and any
Subsequent Recoveries received in the Prepayment Period related to that prior
Due Date).
Stepdown Target Subordination Percentage: With respect to any Class of
Subordinated Certificates, the respective percentage indicated in the following
table:
Stepdown Target
Subordination
Percentage
---------------
Class M-1..................................... 10.80%
Class M-2..................................... 7.10%
Class M-3..................................... 5.90%
Class M-4..................................... 4.70%
Class M-5..................................... 3.70%
Class M-6..................................... 2.70%
Class M-7..................................... 1.70%
Class M-8..................................... 0.70%
Streamlined Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to Countrywide's Streamlined Loan Documentation Program then in effect.
For the purposes of this Agreement, a Mortgagor is eligible for a mortgage
pursuant to Countrywide's Streamlined Loan Documentation Program if that
Mortgagor is refinancing an existing mortgage loan that was originated or
acquired by Countrywide where, among other things, the mortgage loan has not
been more than 30 days delinquent in payment during the previous twelve month
period.
Strip REMIC: As defined in the Preliminary Statement.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to the Mortgage Loans under the direction or authority of the
Master Servicer or a Subservicer or the Trustee, as the case may be.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Class Principal Distribution Target Amount: With respect to
any Distribution Date and any Class of Subordinated Certificates and
Distribution Date will equal the excess of: (1) the sum of: (a) the aggregate
Class Certificate Balance of the Senior Certificates (after taking into account
the distribution of the Senior Principal Distribution Amount for such
Distribution Date), (b) the aggregate Class Certificate Balance of any Class(es)
of Subordinated Certificates that are senior to the subject Class (in each case,
after taking into account distribution of the Subordinated Class Principal
Distribution Target Amount(s) for such more senior Class(es) of Certificates for
such Distribution Date), and (c) the Class Certificate Balance of the subject
Class of Subordinated Certificates immediately prior to such Distribution Date
over (2) the lesser of (a) the product of (x) 100% minus the Stepdown Target
Subordination Percentage for the subject Class of Certificates and (y) the
aggregate Stated Principal Balance of
45
the Mortgage Loans in the Mortgage Pool for such Distribution Date and (b) the
aggregate Stated Principal Balance of the Mortgage Loans in the Mortgage Pool
for such Distribution Date minus the OC Floor; provided, however, that if such
Class of Subordinated Certificates is the only Class of Subordinated
Certificates outstanding on such Distribution Date, that Class will be entitled
to receive the entire remaining Principal Distribution Amount until its Class
Certificate Balance is reduced to zero.
Subordinate Net Rate Cap: For each Distribution Date, the weighted average
of the Group 1 Net Rate Cap and the Group 2 Net Rate Cap weighted on the basis
of the respective Subordinate Portion of their corresponding Loan Groups.
Subordinate Portion: For any Distribution Date and Loan Group, the excess
of the aggregate Stated Principal Balance of the Mortgage Loans in such Loan
Group as of the Due Date in the prior month (after giving effect to Principal
Prepayments received in the Prepayment Period related to such prior Due Date)
over the aggregate Class Certificate Balance of the Group 1 Senior Certificates
in the case of Loan Group 1 and the aggregate Class Certificate Balance of the
Group 2 Senior Certificates in the case of Loan Group 2, in each case,
immediately prior to such Distribution Date.
Subsequent Periodic Rate Cap: As to each Mortgage Loan and the related
Mortgage Note, the provision therein that limits permissible increases and
decreases in the Mortgage Rate on the each Adjustment Date after the first
Adjustment Date for that Mortgage Loan to not more than the amount set forth
therein.
Subsequent Recoveries: As to any Distribution Date and Loan Group, with
respect to a Liquidated Mortgage Loan in that Loan Group that resulted in a
Realized Loss in a prior calendar month, unexpected amounts received by the
Master Servicer (net of any related expenses permitted to be reimbursed pursuant
to Section 3.08) specifically related to such Liquidated Mortgage Loan after the
classification of such Mortgage Loan as a Liquidated Mortgage Loan.
Subservicer: Any person to whom the Master Servicer has contracted for the
servicing of all or a portion of the Mortgage Loans pursuant to Section 3.02.
Substitute Mortgage Loan: A Mortgage Loan substituted by the applicable
Seller for a Deleted Mortgage Loan which must, on the date of such substitution,
as confirmed in a Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the principal portion of
the Scheduled Payment due in the month of substitution, not in excess of, and
not more than 10% less than the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) be accruing interest at a rate no lower than and not more than 1% per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value
Ratio no higher than that of the Deleted Mortgage Loan; (iv) have a remaining
term to maturity no greater than (and not more than one year less than that of)
the Deleted Mortgage Loan; (v) have a maximum interest rate no lower than and
not more than 1% per annum higher than, that of the Deleted Mortgage Loan; (vi)
have a minimum interest specified in its related mortgage note not more than 1%
per annum higher or lower than the minimum mortgage rate of the Deleted Mortgage
Loan; (vii) have the same mortgage index reset period and periodic rate cap as
the Deleted Mortgage Loan and a gross margin not more than 1% per annum higher
or lower than that of the Deleted Mortgage Loan; (viii) not be a Cooperative
Loan unless the Deleted Mortgage Loan was
46
a Cooperative Loan; and (ix) comply with each representation and warranty set
forth in Section 2.03.
Substitution Adjustment Amount: The meaning ascribed to such term pursuant
to Section 2.03.
Successful Auction: An auction held pursuant to Section 9.04 at which at
least three Qualified Bidders submitted bids and at least one of those bids was
an Acceptable Bid Amount.
Supplemental Cut-off Date: With respect to any Supplemental Mortgage Loan,
the later of (i) the date of origination of such Mortgage Loan and (ii) the
first day of the month in which the related Supplemental Transfer Date occurs.
Supplemental Mortgage Loan: Any Mortgage Loan in each Loan Group other
than an Initial Mortgage Loan in that Loan Group conveyed to the Trust Fund
pursuant to Section 2.01 hereof and to a Supplemental Transfer Agreement, which
Mortgage Loan shall be listed on the revised Mortgage Loan Schedule delivered
pursuant to this Agreement and on Schedule A to such Supplemental Transfer
Agreement. When used with respect to a single Supplemental Transfer Date,
Supplemental Mortgage Loan shall mean a Supplemental Mortgage Loan conveyed to
the Trust Fund on that Supplemental Transfer Date.
Supplemental Transfer Agreement: A Supplemental Transfer Agreement
substantially in the form of Exhibit P hereto, executed and delivered by the
related Seller or Sellers, the Master Servicer, the Depositor and the Trustee as
provided in Section 2.01 hereof.
Supplemental Transfer Date: For any Supplemental Transfer Agreement, the
date the related Supplemental Mortgage Loans are transferred to the Trust Fund
pursuant to the related Supplemental Transfer Agreement.
Swap Account: The separate Eligible Account created and initially
maintained by the Swap Trustee pursuant to Section 4.09.
Swap Adjustment Rate: For any Distribution Date and Loan Group, a
fraction, (A) the numerator of which is the product of (i) the sum of (a) the
Net Swap Payment payable to the Swap Counterparty under the Swap Contract with
respect to such Distribution Date times a fraction, the numerator of which is
equal to 360 and the denominator of which is equal to the actual number of days
in the related Interest Accrual Period and (b) any Swap Termination Payment
payable to the Swap Counterparty under the Swap Contract for such Distribution
Date (other than a Swap Termination Payment due to a Swap Counterparty Trigger
Event), and (ii) a fraction, the numerator of which is the Interest Funds for
that Loan Group and the denominator of which is the aggregate of the Interest
Funds for both Loan Groups and (B) the denominator of which is equal to the
aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group as
of the Due Date in the prior calendar month (after giving effect to Principal
Prepayments, the principal portion of Liquidation Proceeds and any Subsequent
Recoveries received in the Prepayment Period related to that prior Due Date).
Swap Contract: With respect to the LIBOR Certificates, the transaction
evidenced by the confirmation (as assigned to the Swap Contract Administrator
pursuant to the Swap Contract Assignment Agreement), a form of which is attached
hereto as Exhibit R.
47
Swap Contract Administration Agreement: The swap contract administration
agreement dated as of the Closing Date among Countrywide, the Trustee and the
Swap Contract Administrator, a form of which is attached hereto as Exhibit S-2.
Swap Contract Administrator: The Bank of New York, in its capacity as swap
contract administrator under the Swap Contract Administration Agreement and its
successors and assigns.
Swap Contract Assignment Agreement: The assignment agreement dated as of
the Closing Date among Countrywide, the Swap Contract Administrator and the Swap
Counterparty, a form of which is attached hereto as Exhibit S-1.
Swap Contract Termination Date: The Distribution Date in January 2011.
Swap Counterparty: Xxxxxx Brothers Special Financing Inc. and its
successors.
Swap Counterparty Trigger Event: A Swap Termination Payment that is
triggered upon (i) an "Event of Default" under the ISDA Master Agreement with
respect to which the Swap Counterparty is the sole "Defaulting Party" (as
defined in the ISDA Master Agreement) or (ii) a "Termination Event" (other than
an Illegality or a Tax Event (as such terms are defined in the ISDA Master
Agreement)) or "Additional Termination Event" under the ISDA Master Agreement
with respect to which the Swap Counterparty is the sole "Affected Party" (as
defined in the ISDA Master Agreement).
Swap Termination Payment: The payment payable to either party under the
ISDA Master Agreement due to an early termination of the Swap Contract.
Swap Trust: The trust fund established by Section 4.09.
Swap Trustee: The Bank of New York, a New York banking corporation, not in
its individual capacity, but solely in its capacity as trustee for the benefit
of the Holders of the LIBOR Certificates under this Agreement, and any successor
thereto, and any corporation or national banking association resulting from or
surviving any consolidation or merger to which it or its successors may be a
party and any successor trustee as may from time to time be serving as successor
trustee hereunder.
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulation ss. 1.860F-4(d) and Treasury
regulation ss. 301.6231(a)(7)1. Initially, the Tax Matters Person shall be the
Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Termination Price: As defined in Section 9.01.
Terminator: As defined in Section 9.01.
Transaction Documents: This Agreement, the Swap Contract, the Swap
Administration Agreement, each Supplemental Transfer Agreement and any other
document or agreement entered into in connection with the Trust Fund, the
Certificates or the Mortgage Loans.
48
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trigger Event: With respect to a Distribution Date on or after the
Stepdown Date, either a Delinquency Trigger Event or a Cumulative Loss Trigger
Event is in effect with respect to that Distribution Date.
Trust Fund: The corpus of the trust created under this Agreement
consisting of (i) the Mortgage Loans and all interest and principal received on
or with respect thereto after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance of the Mortgage Loans; (ii) the
Certificate Account, the Distribution Account, the Pre-funding Account, the
Capitalized Interest Account and the Carryover Reserve Fund and all amounts
deposited therein pursuant to the applicable provisions of this Agreement; (iii)
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise; and (iv) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed under this Agreement, such successor.
Trustee Advance Rate: With respect to any Advance made by the Trustee
pursuant to Section 4.01(b), a per annum rate of interest determined as of the
date of such Advance equal to the Prime Rate in effect on such date plus 5.00%.
Trustee Fee: As to any Distribution Date, an amount equal to one-twelfth
of the Trustee Fee Rate multiplied by the Pool Stated Principal Balance with
respect to such Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.009% per annum.
Underwriters: As specified in the Preliminary Statement.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002), as amended (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor.
Unpaid Realized Loss Amount: For any Class of LIBOR Certificates, (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 Class Certificate Balance of that Class of Subsequent Recoveries to the
Class Certificate Balance of that Class pursuant to Section 4.02(h).
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. As of any date of determination, (a) 1%
of all Voting Rights shall be allocated to each Class of Notional Amount
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to each of the Class
A-R, Class C and Class P Certificates, and (c) the remaining Voting Rights (or
100% of the Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among
49
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
Weighted Average Adjusted Net Mortgage Rate: As to any Distribution Date,
the average of the Adjusted Net Mortgage Rates on the Mortgage Loans, weighted
on the basis of the Stated Principal Balance of each Mortgage Loan as of the Due
Date in the prior calendar month (after giving effect to Principal Prepayments
received in the Prepayment Period related to that prior Due Date).
Winning Bidder: With respect to a Successful Auction, the Qualified Bidder
that bids the highest price.
SECTION 1.02. Certain Interpretive Provisions.
All terms defined in this Agreement shall have the defined meanings when
used in any certificate, agreement or other document delivered pursuant hereto
unless otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles; (b) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement (or the certificate, agreement or other
document in which they are used) as a whole and not to any particular provision
of this Agreement (or such certificate, agreement or document); (c) references
to any Section, Schedule or Exhibit are references to Sections, Schedules and
Exhibits in or to this Agreement, and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term "including" means "including without limitation"; (e)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (f) references to
any agreement refer to that agreement as amended from time to time; (g)
references to any Person include that Person's permitted successors and assigns;
and (h) a Mortgage Loan is "30 days delinquent" if any Scheduled Payment has not
been received by the close of business on the day immediately preceding the Due
Date on which the next Scheduled Payment is due. Similarly for "60 days
delinquent," "90 days delinquent" and so on.
50
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans
(a) Each Seller, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Depositor, without recourse, all its respective right, title and interest in and
to the related Initial Mortgage Loans, including all interest and principal
received or receivable by such Seller, on or with respect to the applicable
Initial Mortgage Loans after the Initial Cut-off Date and all interest and
principal payments on the related Initial Mortgage Loans received prior to the
Initial Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of principal and interest due and payable
on such Initial Mortgage Loans, on or before the Initial Cut-off Date. On or
prior to the Closing Date, Countrywide shall deliver to the Depositor or, at the
Depositor's direction, to the Trustee or other designee of the Depositor, the
Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule
(except that, in the case of the Delay Delivery Mortgage Loans (which may
include Countrywide Mortgage Loans, Park Granada Mortgage Loans, Park Monaco
Mortgage Loans and Park Sienna Mortgage Loans), such delivery may take place
within thirty (30) days following the Closing Date or twenty (20) days following
the applicable Supplemental Transfer Date, as applicable). Such delivery of the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Sellers and Depositor, for the Mortgage
Loans. With respect to any Initial Mortgage Loan that does not have a first
payment date on or before the Due Date in the month of the first Distribution
Date or any Supplemental Mortgage Loan that does not have a first payment date
on or before the Due Date in the month after the related Supplemental Transfer
Date, Countrywide shall deposit into the Distribution Account on or before the
Distribution Account Deposit Date relating to the first applicable Distribution
Date, an amount equal to one month's interest at the related Adjusted Mortgage
Rate on the Cut-off Date Principal Balance of such Mortgage Loan.
(b) Immediately upon the conveyance of the Initial Mortgage Loans
referred to in clause (a), the Depositor sells, transfers, assigns, sets over
and otherwise conveys to the Trustee for the benefit of the Certificateholders,
without recourse, all the right, title and interest of the Depositor in and to
the Trust Fund together with the Depositor's right to require each Seller to
cure any breach of a representation or warranty made herein by such Seller or to
repurchase or substitute for any affected Mortgage Loan in accordance herewith.
(c) In connection with the transfer and assignment set forth in
clause (b) above, the Depositor has delivered or caused to be delivered to the
Trustee (or, in the case of the Delay Delivery Mortgage Loans that are Initial
Mortgage Loans, will deliver or cause to be delivered to the Trustee within
thirty (30) days following the Closing Date and in the case of the Delay
Delivery Mortgage Loans that are Supplemental Mortgage Loans, will deliver or
cause to be delivered to the Trustee within twenty (20) days following the
applicable Supplemental Transfer Date) for the benefit of the Certificateholders
the following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) (A) the original Mortgage Note endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
____________ without
51
recourse," with all intervening endorsements showing a complete chain of
endorsement from the originator to the Person endorsing the Mortgage Note
(each such endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in
and to that Mortgage Note); or
(B) with respect to any Lost Mortgage Note, a lost note affidavit
from Countrywide stating that the original Mortgage Note was lost or
destroyed, together with a copy of such Mortgage Note;
(ii) except as provided below and for each Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage or a copy of such
Mortgage, with recording information, (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the Commonwealth of
Puerto Rico, a true copy of the Mortgage certified as such by the
applicable notary) and in the case of each MERS Mortgage Loan, the
original Mortgage or a copy of such mortgage, with recording information,
noting the presence of the MIN of the Mortgage Loans and either language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a
MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the
public recording office in which such Mortgage has been recorded;
(iii) in the case of each Mortgage Loan that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage or a copy of such
assignment, with recording information, (which may be included in a
blanket assignment or assignments), together with, except as provided
below, all interim recorded assignments of such mortgage or a copy of such
assignment, with recording information, (each such assignment, when duly
and validly completed, to be in recordable form and sufficient to effect
the assignment of and transfer to the assignee thereof, under the Mortgage
to which the assignment relates); provided that, if the related Mortgage
has not been returned from the applicable public recording office, such
assignment of the Mortgage may exclude the information to be provided by
the recording office; provided, further, that such assignment of Mortgage
need not be delivered in the case of a Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any;
(v) except as provided below, the original or a copy of lender's title
policy or a printout of the electronic equivalent and all riders thereto;
and
(vi) in the case of a Cooperative Loan, the originals of the following
documents or instruments:
(A) The Coop Shares, together with a stock power in blank;
52
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
(E) The executed UCC-1 financing statement with evidence of
recording thereon which have been filed in all places required to perfect
the applicable Seller's interest in the Coop Shares and the Proprietary
Lease; and
(F) The executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of recording
thereon (or in a form suitable for recordation).
In addition, in connection with the assignment of any MERS Mortgage Loan,
each Seller agrees that it will cause, at the Trustee's expense, the MERS(R)
System to indicate that the Mortgage Loans sold by such Seller to the Depositor
have been assigned by that Seller to the Trustee in accordance with this
Agreement (and any Supplemental Transfer Agreement, as applicable) for the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in such
computer files the information required by the MERS(R) System to identify the
series of the Certificates issued in connection with such Mortgage Loans. Each
Seller further agrees that it will not, and will not permit the Master Servicer
to, and the Master Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by such
Seller to the Depositor during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage or
a copy of such mortgage, with recording information, or (b) all interim recorded
assignments or a copy of such assignments, with recording information, or (c)
the lender's title policy or a copy of lender's title policy (together with all
riders thereto) satisfying the requirements of clause (ii), (iii) or (v) above,
respectively, concurrently with the execution and delivery of this Agreement
because such document or documents have not been returned from the applicable
public recording office in the case of clause (ii) or (iii) above, or because
the title policy has not been delivered to either the Master Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above, the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii) or
(iii) above, such original Mortgage or a copy of such mortgage, with recording
information, or such interim assignment or a copy of such assignments, with
recording information, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or, in
the case of clause (v) above, no later than 120 days following the Closing Date;
provided, however, in the event the Depositor is unable to deliver by such date
each Mortgage and each such interim assignment by reason of the fact that any
such documents have
53
not been returned by the appropriate recording office, or, in the case of each
such interim assignment, because the related Mortgage has not been returned by
the appropriate recording office, the Depositor shall deliver such documents to
the Trustee as promptly as possible upon receipt thereof and, in any event,
within 720 days following the Closing Date. The Depositor shall forward or cause
to be forwarded to the Trustee (a) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and (b)
any other documents required to be delivered by the Depositor or the Master
Servicer to the Trustee. In the event that the original Mortgage is not
delivered and in connection with the payment in full of the related Mortgage
Loan and the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Master Servicer shall execute and deliver or cause to be
executed and delivered such a document to the public recording office. In the
case where a public recording office retains the original recorded Mortgage or
in the case where a Mortgage is lost after recordation in a public recording
office, Countrywide shall deliver to the Trustee a copy of such Mortgage
certified by such public recording office to be a true and complete copy of the
original recorded Mortgage.
As promptly as practicable subsequent to such transfer and assignment, and
in any event, within one hundred twenty (120) days after such transfer and
assignment, the Trustee shall (A) as the assignee thereof, affix the following
language to each assignment of Mortgage: "CWALT, Inc. Series 2006-OC10, The Bank
of New York as trustee", (B) cause such assignment to be in proper form for
recording in the appropriate public office for real property records and (C)
cause to be delivered for recording in the appropriate public office for real
property records the assignments of the Mortgages to the Trustee, except that
(i) with respect to any assignments of Mortgage as to which the Trustee has not
received the information required to prepare such assignment in recordable form,
the Trustee's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within thirty (30) days after receipt thereof and (ii) the Trustee need
not cause to be recorded any assignment which relates to a Mortgage Loan, the
Mortgaged Property and Mortgage File relating to which are located in any
jurisdiction (including Puerto Rico) under the laws of which the recordation of
such assignment is not necessary to protect the Trustee's and the
Certificateholders' interest in the related Mortgage Loan as evidenced by an
opinion of counsel delivered by Countrywide to the Trustee within 90 days of the
Closing Date (which opinion may be in the form of a "survey" opinion and is not
required to be delivered by counsel admitted to practice law in the jurisdiction
as to which such legal opinion applies).
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee, will deposit in the Certificate Account the portion of such payment
that is required to be deposited in the Certificate Account pursuant to Section
3.05.
Notwithstanding anything to the contrary in this Agreement, within thirty
(30) days after the Closing Date with respect to the Initial Mortgage Loans,
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) shall either (i) deliver to the Depositor, or at the Depositor's
direction, to the Trustee or other designee of the Depositor the Mortgage File
as required pursuant to this Section 2.01 for each Delay Delivery Mortgage Loan
or (ii) either (A) substitute a Substitute Mortgage Loan for the Delay Delivery
Mortgage Loan or (B) repurchase the Delay Delivery Mortgage Loan, which
substitution or repurchase shall be
54
accomplished in the manner and subject to the conditions set forth in Section
2.03 (treating each Delay Delivery Mortgage Loan as a Deleted Mortgage Loan for
purposes of such Section 2.03); provided, however, that if Countrywide fails to
deliver a Mortgage File for any Delay Delivery Mortgage Loan within the thirty
(30)-day period provided in the prior sentence, Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) shall use its best
reasonable efforts to effect a substitution, rather than a repurchase of, such
Deleted Mortgage Loan and provided further that the cure period provided for in
Section 2.02 or in Section 2.03 shall not apply to the initial delivery of the
Mortgage File for such Delay Delivery Mortgage Loan, but rather Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) shall
have five (5) Business Days to cure such failure to deliver. At the end of such
thirty (30)-day period the Trustee shall send a Delay Delivery Certification for
the Delay Delivery Mortgage Loans delivered during such thirty (30)-day period
in accordance with the provisions of Section 2.02.
(d) Subject to the execution and delivery of the related
Supplemental Transfer Agreement as provided in Section 2.01(e) hereof and the
terms and conditions of this Agreement, each Seller sells, transfers, assigns,
sets over and otherwise conveys to the Depositor, without recourse, on each
Supplemental Transfer Date, with respect to each Supplemental Mortgage Loan sold
by such Seller to the Depositor, all the right, title and interest of that
Seller in and to the Supplemental Mortgage Loans sold by it identified in such
Supplemental Transfer Agreement, including all interest and principal received
and receivable by such Seller on or with respect to the related Supplemental
Mortgage Loans on and after the related Supplemental Cut-off Date (to the extent
not applied in computing the Cut-off Date Principal Balance thereof) or
deposited into the Certificate Account by the related Seller, other than
principal and interest due on such Supplemental Mortgage Loans prior to the
related Supplemental Cut-off Date.
Immediately upon the conveyance of the Supplemental Mortgage Loans
referred to in the preceding paragraph, the Depositor sells, transfers, assigns,
sets over and otherwise conveys to the Trustee for benefit of the
Certificateholders, without recourse, all right title and interest in all of the
Supplemental Mortgage Loans.
Each Seller has entered into this Agreement in consideration for the
purchase of the Mortgage Loans sold by such Seller to the Depositor and has
agreed to take the actions specified herein. The Depositor, concurrently with
the execution and delivery of this Agreement, hereby sells, transfers, assigns
and otherwise conveys to the Trustee for the use and benefit of the
Certificateholders, without recourse, all right title and interest in the
portion of the Trust Fund not otherwise conveyed to the Trust Fund pursuant to
Sections 2.01(a) or (b).
(e) Upon five (5) Business Days written notice to the Trustee, the
Depositor, the Master Servicer (if the Master Servicer is not a Seller) and the
Rating Agencies, on any other Business Day during the Funding Period designated
by Countrywide, Park Granada, Park Monaco and Park Sienna, if applicable, the
Depositor and the Trustee shall complete, execute and deliver a Supplemental
Transfer Agreement so long as no Rating Agency has provided notice that the
execution and delivery of such Supplemental Transfer Agreement will result in a
reduction or withdrawal of the any ratings assigned to the Certificates. After
the execution and delivery of such Supplemental Transfer Agreement, on the
Supplemental Transfer Date, the Trustee shall set aside in the Pre-funding
Account an amount equal to the Aggregate Supplemental Purchase Amount.
55
The transfer of Supplemental Mortgage Loans and the other property and
rights relating to them on a Supplemental Transfer Date is subject to the
satisfaction of each of the following conditions:
(i) each Supplemental Mortgage Loan conveyed on such
Supplemental Transfer Date satisfies the representations and warranties
applicable to it under this Agreement; provided, however, that with
respect to a breach of a representation and warranty with respect to a
Supplemental Mortgage Loan, the obligation under Section 2.03(c) of this
Agreement of Countrywide, Park Granada, Park Monaco and Park Sienna, if
applicable, to cure, repurchase or replace such Supplemental Mortgage Loan
shall constitute the sole remedy against such Seller respecting such
breach available to Certificateholders, the Depositor or the Trustee;
(ii) the Trustee, the Underwriter and the Rating Agencies are
provided with an Opinion of Counsel or Opinions of Counsel with respect to
the tax treatment of the Trust Fund, to be delivered as provided pursuant
to Section 2.01(f);
(iii) the Rating Agencies and the Underwriter are provided
with an Opinion of Counsel or Opinions of Counsel with respect to the
validity of the conveyance of the Supplemental Mortgage Loans conveyed on
such Supplemental Transfer Date, to be delivered as provided pursuant to
Section 2.01(f);
(iv) the execution and delivery of such Supplemental Transfer
Agreement or conveyance of the related Supplemental Mortgage Loans does
not result in a reduction or withdrawal of any ratings assigned to the
Certificates by the Rating Agencies;
(v) the Supplemental Mortgage Loans conveyed on such
Supplemental Transfer Date were selected in a manner reasonably believed
not to be adverse to the interests of the Certificateholders;
(vi) no Supplemental Mortgage Loan conveyed on such
Supplemental Transfer date was 30 or more days delinquent;
(vii) following the conveyance of the Supplemental Mortgage
Loans on such Supplemental Transfer Date to the Trust Fund, the
characteristics of the Mortgage Loans will comply with the Pool
Characteristics (including the permitted variances listed therein);
provided, that for the purpose of making these calculations, the
characteristics for any Initial Mortgage Loan made will be taken as of the
Initial Cut-off Date and the characteristics for any Supplemental Mortgage
Loan will be taken as of the related Supplemental Cut-off Date;
(ix) none of the Sellers or the Depositor shall be insolvent
or shall be rendered insolvent as a result of such transfer; and
(x) the Depositor shall have delivered to the Trustee an
Officer's Certificate confirming the satisfaction of each of these
conditions precedent.
56
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 seven Business Days after each Supplemental Transfer
Date, upon (1) delivery to the Trustee by the Depositor or Countrywide of the
Opinions of Counsel referred to in Sections 2.01(e)(ii) and (iii), (2) delivery
to the Trustee by Countrywide of a revised Mortgage Loan Schedule reflecting the
Supplemental Mortgage Loans conveyed on such Supplemental Transfer Date to the
Loan Group into which each Supplement Mortgage Loan was conveyed and (3)
delivery to the Trustee by the Depositor of an Officer's Certificate confirming
the satisfaction of each of the conditions precedent set forth in this Section
2.01(f), the Trustee shall pay to each Seller the Aggregate Supplemental
Transfer Amount for such Loan Group used to purchase Supplemental Mortgage Loans
for such Loan Group from such Seller from those funds that were set aside in the
Pre-funding Account pursuant to Section 2.01(e). The positive difference, if
any, between the Aggregate Supplemental Transfer Amount for such Loan Group and
the Aggregate Supplemental Purchase Amount for such Loan Group shall be
reinvested by the Trustee in the Pre-funding Account and shall remain designated
as a portion of the Pre-funded Amount allocated to such Loan Group.
(g) The Trustee shall not be required to investigate or otherwise
verify compliance with the conditions set forth in the preceding paragraph,
except for its own receipt of documents specified above, and shall be entitled
to rely on the required Officer's Certificate.
Within thirty days after the final Supplemental Transfer Date, the
Depositor shall deliver to the Trustee a letter of a nationally recognized firm
of independent public accountants stating whether or not the Supplemental
Mortgage Loans conveyed on such Supplemental Transfer Date conform to the
characteristics in Section 2.01(e)(vi), (vii) and (viii) for that Loan Group.
(h) Neither the Depositor nor the Trust will acquire or hold any
Mortgage Loan that would violate the representations made by Countrywide set
forth in clause (50) of Schedule III-A hereto.
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans.
(a) The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form annexed hereto as Exhibit F-1 (an "Initial
Certification (Initial Mortgage Loans)") and declares that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files, and that it holds or will hold such other assets as are included
in the Trust Fund, in trust for the exclusive use and benefit of all present and
future Certificateholders. The Trustee acknowledges that it will maintain
possession of the Mortgage Notes in the State of California, unless otherwise
permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and Countrywide (on its own behalf and on behalf
of Park Granada, Park Monaco and Park Sienna) an Initial Certification in the
form annexed to this Agreement as Exhibit F-1. Based on its review and
examination, and only as to the documents identified in such Initial
Certification, the Trustee acknowledges that such documents appear regular on
their face and relate to the Initial Mortgage Loans. The Trustee shall be under
no duty or obligation to
57
inspect, review or examine said documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded in the real
estate records or that they are other than what they purport to be on their
face.
On or about the thirtieth (30th) day after the Closing Date, the Trustee
shall deliver to the Depositor, the Master Servicer and Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a Delay
Delivery Certification with respect to the Initial Mortgage Loans in the form
annexed hereto as Exhibit G-1 (a "Delay Delivery Certification (Initial Mortgage
Loans)"), with any applicable exceptions noted thereon.
Not later than 90 days after the Closing Date, the Trustee shall deliver
to the Depositor, the Master Servicer and Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) a Final Certification with
respect to the Initial Mortgage Loans in the form annexed hereto as Exhibit H-1
(a "Final Certification (Initial Mortgage Loans)"), with any applicable
exceptions noted thereon.
If, in the course of such review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification; provided, however that the Trustee shall not make any
determination as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or is sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates. Countrywide (on its
own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) shall
promptly correct or cure such defect within 90 days from the date it was so
notified of such defect and, if Countrywide does not correct or cure such defect
within such period, Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.03, or (b) purchase such Mortgage Loan from the Trustee within 90 days from
the date Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) was notified of such defect in writing at the Purchase
Price of such Mortgage Loan; provided, however, that in no event shall such
substitution or purchase occur more than 540 days from the Closing Date, except
that if the substitution or purchase of a Mortgage Loan pursuant to this
provision is required by reason of a delay in delivery of any documents by the
appropriate recording office, and there is a dispute between either the Master
Servicer or Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) and the Trustee over the location or status of the
recorded document, then such substitution or purchase shall occur within 720
days from the Closing Date. The Trustee shall deliver written notice to each
Rating Agency within 270 days from the Closing Date indicating each Mortgage
Loan (a) that has not been returned by the appropriate recording office or (b)
as to which there is a dispute as to location or status of such Mortgage Loan.
Such notice shall be delivered every 90 days thereafter until the related
Mortgage Loan is returned to the Trustee. Any such substitution pursuant to (a)
above or purchase pursuant to (b) above shall not be effected prior to the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05, if
any, and any substitution pursuant to (a) above shall not be effected prior to
the additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit N. No substitution is permitted to be made in any calendar
58
month after the Determination Date for such month. The Purchase Price for any
such Mortgage Loan shall be deposited by Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) in the Certificate Account
on or prior to the Distribution Account Deposit Date for the Distribution Date
in the month following the month of repurchase and, upon receipt of such deposit
and certification with respect thereto in the form of Exhibit N hereto, the
Trustee shall release the related Mortgage File to Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) and shall
execute and deliver at Countrywide's (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) request such instruments of transfer or
assignment prepared by Countrywide, in each case without recourse, as shall be
necessary to vest in Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna), or its designee, the Trustee's interest
in any Mortgage Loan released pursuant hereto. If pursuant to the foregoing
provisions Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) repurchases an Initial Mortgage Loan that is a MERS
Mortgage Loan, the Master Servicer shall either (i) cause MERS to execute and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) or its designee and shall cause such
Mortgage to be removed from registration on the MERS(R) System in accordance
with MERS' rules and regulations or (ii) cause MERS to designate on the MERS(R)
System Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco
and Park Sienna) or its designee as the beneficial holder of such Mortgage Loan.
(b) Upon delivery of the Supplemental Mortgage Loans pursuant to a
Supplemental Transfer Agreement, the Trustee shall acknowledge receipt of the
documents identified in any Supplemental Certification in the form annexed
hereto as Exhibit F-2 (an "Initial Certification (Supplemental Mortgage Loans)")
and declare that it will hold such documents and the other documents delivered
to it constituting the Mortgage Files, and that it will hold such other assets
as are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the Mortgage Notes in the State of California, unless
otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Supplemental
Transfer Date to the Depositor, the Master Servicer and Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a
Supplemental Certification in the form annexed hereto as Exhibit F-2. Based on
its review and examination, and only as to the documents identified in such
Supplemental Certification, the Trustee shall acknowledge that such documents
appear regular on their face and relate to such Supplemental Mortgage Loan. The
Trustee shall be under no duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the same
are genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On or about the twentieth (20th) day after the Supplemental Transfer
Date, the Trustee shall deliver to the Depositor, the Master Servicer and
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) a Delay Delivery Certification with respect to the Supplemental
Mortgage Loans in the form annexed hereto as Exhibit G-2 (a
59
"Delay Delivery Certification (Supplemental Mortgage Loans)"), with any
applicable exceptions noted thereon.
Not later than 90 days after the final Supplemental Transfer Date,
the Trustee shall deliver to the Depositor, the Master Servicer and Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) a
Final Certification with respect to the Supplemental Mortgage Loans in the form
annexed hereto as Exhibit H-2 (a "Final Certification (Supplemental Mortgage
Loans)"), with any applicable exceptions noted thereon.
(c) If, in the course of such review of the Mortgage Files relating
to the Supplemental Mortgage Loans, the Trustee finds any document constituting
a part of a Mortgage File which does not meet the requirements of Section 2.01,
the Trustee shall list such as an exception in the Final Certification;
provided, however that the Trustee shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and to
that Mortgage Note or (ii) any assignment is in recordable form or is sufficient
to effect the assignment of and transfer to the assignee thereof under the
mortgage to which the assignment relates. Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) shall promptly correct or
cure such defect within 90 days from the date it was so notified of such defect
and, if Countrywide does not correct or cure such defect within such period,
Countrywide (on its own behalf and on behalfof Park Granada, Park Monaco and
Park Sienna) shall either (a) substitute for the related Mortgage Loan a
Substitute Mortgage Loan, which substitution shall be accomplished in the manner
and subject to the conditions set forth in Section 2.03, or (b) purchase such
Mortgage Loan from the Trustee within 90 days from the date Countrywide (on its
own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) was
notified of such defect in writing at the Purchase Price of such Mortgage Loan;
provided, however, that in no event shall such substitution or purchase occur
more than 540 days from the Closing Date, except that if the substitution or
purchase of a Mortgage Loan pursuant to this provision is required by reason of
a delay in delivery of any documents by the appropriate recording office, and
there is a dispute between either the Master Servicer or Countrywide (on its own
behalf and on behalf of Park Granada, Park Monaco and Park Sienna) and the
Trustee over the location or status of the recorded document, then such
substitution or purchase shall occur within 720 days from the Closing Date. The
Trustee shall deliver written notice to each Rating Agency within 270 days from
the Closing Date indicating each Mortgage Loan (a) which has not been returned
by the appropriate recording office or (b) as to which there is a dispute as to
location or status of such Mortgage Loan. Such notice shall be delivered every
90 days thereafter until the related Mortgage Loan is returned to the Trustee.
Any such substitution pursuant to (a) above or purchase pursuant to (b) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05 hereof, if any, and any substitution pursuant
to (a) above shall not be effected prior to the additional delivery to the
Trustee of a Request for Release substantially in the form of Exhibit N. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. The Purchase Price for any such Mortgage Loan
shall be deposited by Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) in the Certificate Account on or prior to
the Distribution Account Deposit Date for the Distribution Date in the month
following the month of repurchase and, upon receipt of such deposit and
certification with respect thereto in the form of Exhibit N hereto, the Trustee
shall release the related Mortgage File to Countrywide (on its own behalf and on
behalf
60
of Park Granada, Park Monaco and Park Sienna) and shall execute and deliver at
Countrywide's (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) request such instruments of transfer or assignment prepared by
Countrywide, in each case without recourse, as shall be necessary to vest in
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna), or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto. If pursuant to the foregoing provisions Countrywide
(on its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna)
repurchases a Supplemental Mortgage Loan that is a MERS Mortgage Loan, the
Master Servicer shall either (i) cause MERS to execute and deliver an assignment
of the Mortgage in recordable form to transfer the Mortgage from MERS to
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna) and shall cause such Mortgage to be removed from registration on
the MERS(R) System in accordance with MERS' rules and regulations or (ii) cause
MERS to designate on the MERS(R) System Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) or its designee as the
beneficial holder of such Mortgage Loan.
(d) The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set forth in this
Agreement. The Master Servicer shall promptly deliver to the Trustee, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the possession of the
Master Servicer from time to time.
(e) It is understood and agreed that the respective obligations of each
Seller to substitute for or to purchase any Mortgage Loan sold to the Depositor
by it which does not meet the requirements of Section 2.01 above shall
constitute the sole remedy respecting such defect available to the Trustee, the
Depositor and any Certificateholder against that Seller.
SECTION 2.03. Representations, Warranties and Covenants of the Sellers and
Master Servicer.
(a) Countrywide hereby makes the representations and warranties set
forth in (i) Schedule II-A, Schedule II-B, Schedule II-C and Schedule II-D
hereto, and by this reference incorporated herein, to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date, (ii) Schedule III-A hereto,
and by this reference incorporated herein, to the Depositor, the Master Servicer
and the Trustee, as of the Closing Date, or if so specified therein, as of the
Initial Cut-off Date with respect to all of the Initial Mortgage Loans and as of
the related Supplemental Cut-off Date with respect to all of the Supplemental
Mortgage Loans, and (iii) Schedule III-B hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date, or if so specified therein, as of the Initial Cut-off Date
with respect to the Initial Mortgage Loans that are Countrywide Mortgage Loans
and as of the related Supplemental Cut-off Date with respect to the Supplemental
Mortgage Loans that are Countrywide Mortgage Loans. Park Granada hereby makes
the representations and warranties set
61
forth in (i) Schedule II-B hereto, and by this reference incorporated herein, to
the Depositor, the Master Servicer and the Trustee, as of the Closing Date and
(ii) Schedule III-C hereto, and by this reference incorporated herein, to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or if so
specified therein, as of the Initial Cut-off Date with respect to the Initial
Mortgage Loans that are Park Granada Mortgage Loans and as of the related
Supplemental Cut-off Date with respect to the Supplemental Mortgage Loans that
are Park Granada Mortgage Loans. Park Monaco hereby makes the representations
and warranties set forth in (i) Schedule II-C hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date and (ii) Schedule III-D hereto, and by this reference
incorporated herein, to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date, or if so specified therein, as of the Initial Cut-off Date
with respect to the Initial Mortgage Loans that are Park Monaco Mortgage Loans
and as of the related Supplemental Cut-off Date with respect to the Supplemental
Mortgage Loans that are Park Monaco Mortgage Loans. Park Sienna hereby makes the
representations and warranties set forth in (i) Schedule II-D hereto, and by
this reference incorporated herein, to the Depositor, the Master Servicer and
the Trustee, as of the Closing Date and (ii) Schedule III-E hereto, and by this
reference incorporated herein, to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date, or if so specified therein, as of the Initial
Cut-off Date with respect to the Initial Mortgage Loans that are Park Sienna
Mortgage Loans and as of the related Supplemental Cut-off Date with respect to
the Supplemental Mortgage Loans that are Park Sienna Mortgage Loans.
(b) The Master Servicer hereby makes the representations and warranties
set forth in Schedule IV hereto, and by this reference incorporated herein, to
the Depositor and the Trustee, as of the Closing Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty with respect to a Mortgage Loan made pursuant to
Section 2.03(a) or a breach of a representation or warranty with respect to a
Supplemental Mortgage Loan under Section 2.01(e)(i) that materially and
adversely affects the interests of the Certificateholders in that Mortgage Loan,
the party discovering such breach shall give prompt notice thereof to the other
parties, the NIM Insurer and the Swap Counterparty. Each Seller hereby covenants
that within 90 days of the earlier of its discovery or its receipt of written
notice from any party of a breach of any representation or warranty with respect
to a Mortgage Loan sold by it pursuant to Section 2.03(a) and with respect to a
breach of a representation and warranty with respect to a Supplemental Mortgage
Loan sold by it under Section 2.01(e)(i) that materially and adversely affects
the interests of the Certificateholders in that Mortgage Loan, it shall cure
such breach in all material respects, and if such breach is not so cured, shall,
(i) if such 90-day period expires prior to the second anniversary of the Closing
Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund
and substitute in its place a Substitute Mortgage Loan, in the manner and
subject to the conditions set forth in this Section; or (ii) repurchase the
affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price
in the manner set forth below; provided, however, that any such substitution
pursuant to (i) above shall not be effected prior to the delivery to the Trustee
of the Opinion of Counsel required by Section 2.05, if any, and any such
substitution pursuant to (i) above shall not be effected prior to the additional
delivery to the Trustee of a Request for Release substantially in the form of
Exhibit N and the Mortgage File for any such Substitute Mortgage Loan. The
Seller repurchasing a Mortgage Loan pursuant to this Section 2.03(c) shall
promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. With respect to the representations and
warranties described in this Section which are made to the best of a Seller's
knowledge, if it is discovered by either the Depositor, a Seller or the Trustee
that the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein, notwithstanding that
Seller's lack of knowledge with respect to the substance of such representation
or warranty, such
62
inaccuracy shall be deemed a breach of the applicable representation or
warranty. Any breach of a representation set forth in clauses (45) through (64)
of Schedule III-A with respect to a Mortgage Loan in Loan Group 1 shall be
deemed to materially and adversely affect the Certificateholders.
With respect to any Substitute Mortgage Loan or Loans sold to the
Depositor by a Seller, Countrywide (on its own behalf and on behalf of Park
Granada, Park Monaco and Park Sienna) shall deliver to the Trustee for the
benefit of the Certificateholders the Mortgage Note, the Mortgage, the related
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution is permitted to be made in
any calendar month after the Determination Date for such month. Scheduled
Payments due with respect to Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
related Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter that
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Substitute Mortgage Loan
or Loans and the Master Servicer shall deliver the amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, the Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects, and the
related Seller shall be deemed to have made with respect to such Substitute
Mortgage Loan or Loans, as of the date of substitution, the representations and
warranties made pursuant to Section 2.03(a) with respect to such Mortgage Loan.
Upon any such substitution and the deposit to the Certificate Account of the
amount required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee shall release the Mortgage
File held for the benefit of the Certificateholders relating to such Deleted
Mortgage Loan to the related Seller and shall execute and deliver at such
Seller's direction such instruments of transfer or assignment prepared by
Countrywide (on its own behalf and on behalf of Park Granada, Park Monaco and
Park Sienna), in each case without recourse, as shall be necessary to vest title
in that Seller, or its designee, the Trustee's interest in any Deleted Mortgage
Loan substituted for pursuant to this Section 2.03.
For any month in which a Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
Substitute Mortgage Loans sold to the Depositor by that Seller as of the date of
substitution is less than the aggregate Stated Principal Balance of all Deleted
Mortgage Loans repurchased by that Seller (after application of the scheduled
principal portion of the monthly payments due in the month of substitution). The
amount of such shortage (the "Substitution Adjustment Amount") plus an amount
equal to the aggregate of any unreimbursed Advances with respect to such Deleted
Mortgage Loans shall be deposited in the Certificate Account by Countrywide (on
its own behalf and on behalf of Park Granada, Park Monaco and Park Sienna) on or
before the Distribution Account Deposit Date for the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan, the
Purchase Price therefor shall be deposited in the Certificate Account pursuant
to Section 3.05 on or before the
63
Distribution Account Deposit Date for the Distribution Date in the month
following the month during which that Seller became obligated hereunder to
repurchase or replace such Mortgage Loan and upon such deposit of the Purchase
Price, the delivery of the Opinion of Counsel required by Section 2.05 and
receipt of a Request for Release in the form of Exhibit N hereto, the Trustee
shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver at
such Person's direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary to transfer
title from the Trustee. It is understood and agreed that the obligation under
this Agreement of any Person to cure, repurchase or replace any Mortgage Loan as
to which a breach has occurred and is continuing shall constitute the sole
remedy against such Persons respecting such breach available to
Certificateholders, the Depositor or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
SECTION 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect
to each Mortgage Loan as of the date of this Agreement or such other date set
forth in this Agreement that as of the Closing Date, and following the transfer
of the Mortgage Loans to it by each Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses or
counterclaims.
The Depositor hereby assigns, transfers and conveys to the Trustee all of
its rights with respect to the Mortgage Loans including, without limitation, the
representations and warranties of each Seller made pursuant to Section 2.03(a),
together with all rights of the Depositor to require a Seller to cure any breach
thereof or to repurchase or substitute for any affected Mortgage Loan in
accordance with this Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representations and warranties set forth in this Section 2.04
(referred to herein as a "breach"), which breach materially and adversely
affects the interest of the Certificateholders, the party discovering such
breach shall give prompt written notice to the others and to each Rating Agency
and the NIM Insurer.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than 90
days after the Closing Date unless Countrywide delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause any REMIC created under this Agreement to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
64
(b) Upon discovery by the Depositor, a Seller, the Master Servicer, or the
Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code, the party discovering such fact
shall promptly (and in any event within five (5) Business Days of discovery)
give written notice thereof to the other parties and the NIM Insurer. In
connection therewith, the Trustee shall require Countrywide (on its own behalf
and on behalf of Park Granada, Park Monaco and Park Sienna) at its option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to Countrywide the Mortgage Loan to be released pursuant to this
Section in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty contained
in Section 2.03.
SECTION 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing directly or indirectly the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates and to perform the duties set forth in this Agreement, to the end
that the interests of the Holders of the Certificates may be adequately and
effectively protected.
SECTION 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest possible
maturity date" for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "tax matters person" with respect to each REMIC hereunder shall be the
Trustee and the Trustee shall hold the Tax Matters Person Certificate. Each
REMIC's fiscal year shall be the calendar year.
SECTION 2.08. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the Master Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of the insurer
under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any affiliate of the
Depositor or the Trustee and prepared by the Master Servicer pursuant to this
Agreement will contain any untrue statement of a material fact or omit to state
a material fact necessary to make such information, certificate, statement or
report not misleading.
65
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and customary and usual standards of practice of prudent mortgage loan
servicers. In connection with such servicing and administration, the Master
Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02, subject to the terms of this Agreement
(i) to execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this Agreement),
(iii) to collect any Insurance Proceeds and other Liquidation Proceeds (which
for the purpose of this Section 3.01 includes any Subsequent Recoveries), and
(iv) to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan; provided that the Master Servicer
shall not take any action that is inconsistent with or prejudices the interests
of the Trust Fund or the Certificateholders in any Mortgage Loan or the rights
and interests of the Depositor, the Trustee and the Certificateholders under
this Agreement. The Master Servicer shall represent and protect the interests of
the Trust Fund in the same manner as it protects its own interests in mortgage
loans in its own portfolio in any claim, proceeding or litigation regarding a
Mortgage Loan, and shall not make or permit any modification, waiver or
amendment of any Mortgage Loan which would cause any REMIC created under this
Agreement to fail to qualify as a REMIC or result in the imposition of any tax
under section 860F(a) or section 860G(d) of the Code. Without limiting the
generality of the foregoing, the Master Servicer, in its own name or in the name
of the Depositor and the Trustee, is hereby authorized and empowered by the
Depositor and the Trustee, when the Master Servicer believes it appropriate in
its reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Master Servicer shall prepare and deliver to the
Depositor and/or the Trustee such documents requiring execution and delivery by
either or both of them as are necessary or appropriate to enable the Master
Servicer to service and administer the Mortgage Loans to the extent that the
Master Servicer is not permitted to execute and deliver such documents pursuant
to the preceding sentence. Upon receipt of such documents, the Depositor and/or
the Trustee shall execute such documents and deliver them to the Master
Servicer. The Master Servicer further is authorized and empowered by the
Trustee, on behalf of the Certificateholders and the Trustee, in its own name or
in the name of the Subservicer, when the Master Servicer or the Subservicer, as
the case may be, believes it appropriate in its best judgment to register any
Mortgage Loan on the MERS(R) System, or cause the removal from the registration
of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of
the Trustee and the Certificateholders or any of them, any and all instruments
of assignment and other comparable instruments with respect to such assignment
or re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns.
66
In accordance with the standards of the preceding paragraph, the Master
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further as
provided in Section 3.08. The costs incurred by the Master Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The Master Servicer may arrange for the subservicing of any Mortgage
Loan by a Subservicer pursuant to a subservicing agreement; provided, however,
that such subservicing arrangement and the terms of the related subservicing
agreement must provide for the servicing of such Mortgage Loans in a manner
consistent with the servicing arrangements contemplated under this Agreement;
provided, however, that the NIM Insurer shall have consented to such
subservicing agreements (which consent shall not be unreasonably withheld).
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Master Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the Master Servicer shall remain obligated and liable
to the Depositor, the Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Master Servicer alone were servicing and administering the Mortgage Loans.
All actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Master Servicer with the same
force and effect as if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the
Mortgage Loans that are received by a Subservicer regardless of whether such
payments are remitted by the Subservicer to the Master Servicer.
SECTION 3.03. Rights of the Depositor, the NIM Insurer and the Trustee in
Respect of the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer under this Agreement and may, but is not obligated to, perform,
or cause a designee to perform, any defaulted obligation of the Master Servicer
under this Agreement and in connection with any such defaulted obligation to
exercise the related rights of the Master Servicer under this Agreement;
provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. None of the Trustee, the NIM Insurer or the Depositor shall
have any responsibility or liability for any action
67
or failure to act by the Master Servicer nor shall the Trustee or the Depositor
be obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
SECTION 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer under this Agreement (including by reason of an Event of
Default or termination by the Depositor), the Trustee or its successor shall
then assume all of the rights and obligations of the Master Servicer under this
Agreement arising thereafter (except that the Trustee shall not be (i) liable
for losses of the Master Servicer pursuant to Section 3.09 or any acts or
omissions of the predecessor Master Servicer under this Agreement), (ii)
obligated to make Advances if it is prohibited from doing so by applicable law,
(iii) obligated to effectuate repurchases or substitutions of Mortgage Loans
under this Agreement including, but not limited to, repurchases or substitutions
of Mortgage Loans pursuant to Section 2.02 or 2.03, (iv) responsible for
expenses of the Master Servicer pursuant to Section 2.03 or (v) deemed to have
made any representations and warranties of the Master Servicer under this
Agreement). Any such assumption shall be subject to Section 7.02. If the Master
Servicer shall for any reason no longer be the Master Servicer (including by
reason of any Event of Default or termination by the Depositor), the Trustee or
its successor shall succeed to any rights and obligations of the Master Servicer
under each subservicing agreement.
The Master Servicer shall, upon request of the Trustee, but at the expense
of the Master Servicer, deliver to the assuming party all documents and records
relating to each subservicing agreement or substitute subservicing agreement and
the Mortgage Loans then being serviced thereunder and an accounting of amounts
collected or held by it and otherwise use its best efforts to effect the orderly
and efficient transfer of the substitute subservicing agreement to the assuming
party.
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account; Carryover Reserve Fund; Principal
Reserve Fund; the Pre-funding Account; the Capitalized
Interest Account.
(a) The Master Servicer shall make reasonable efforts in accordance with
the customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the terms and provisions of the Mortgage
Loans to the extent such procedures shall be consistent with this Agreement and
the terms and provisions of any related Required Insurance Policy. Consistent
with the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or, subject to Section 3.20, any Prepayment Charge or penalty
interest in connection with the prepayment of a Mortgage Loan and (ii) extend
the due dates for payments due on a Mortgage Note for a period not greater than
180 days; provided, however, that the Master Servicer cannot extend the maturity
of any such Mortgage Loan past the date on which the final payment is due on the
latest maturing Mortgage Loan as of the Cut-off Date. In the event of any such
arrangement, the Master Servicer shall make Advances on the related Mortgage
Loan in accordance with the provisions of Section 4.01 during the scheduled
period in accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements. 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
68
have been granted such waivers or extensions exceeds 5% of the aggregate number
of 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 no later
than two Business Days after receipt (or, if the current long-term credit rating
of Countrywide is reduced below "A-" by S&P or "A3" by Xxxxx'x, the Master
Servicer shall deposit or cause to be deposited on a daily basis within one
Business Day of receipt), except as otherwise specifically provided in this
Agreement, the following payments and collections remitted by Subservicers or
received by it in respect of Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans on or
before the Cut-off Date) and the following amounts required to be deposited
under this Agreement:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Master Servicing Fee, Prepayment Interest Excess and any
lender paid mortgage insurance premiums;
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair
of a Mortgaged Property or released to the Mortgagor in accordance with
the Master Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master Servicer or
the Depositor in connection with any losses on Permitted Investments for
which it is responsible;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.09(c) and in respect of net monthly rental income
from REO Property pursuant to Section 3.11;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to Section
4.01;
(viii) all Prepayment Charges collected; and
(ix) any other amounts required to be deposited under this
Agreement.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for such Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause funds
to be deposited into the Certificate Account in an amount required to cause an
amount of interest to be paid with respect to such Mortgage Loan
69
equal to the amount of interest that has accrued on such Mortgage Loan from the
preceding Due Date at the Mortgage Rate net of the related Master Servicing Fee.
The foregoing requirements for remittance by the Master Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption
fees, if collected, need not be remitted by the Master Servicer. In the event
that the Master Servicer shall remit any amount not required to be remitted, it
may at any time withdraw or direct the institution maintaining the Certificate
Account to withdraw such amount from the Certificate Account, any provision in
this Agreement to the contrary notwithstanding. Such withdrawal or direction may
be accomplished by delivering written notice thereof to the Trustee or such
other institution maintaining the Certificate Account which describes the
amounts deposited in error in the Certificate Account. The Master Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to this
Section. All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders until withdrawn in accordance with Section 3.08.
(c) 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, the Depositor shall deposit into the Principal Reserve Fund $100.
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. Amounts on deposit in the Principal Reserve Fund shall not be
invested.
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain in the Distribution
Account the following:
(i) the aggregate amount remitted by the Master Servicer to the Trustee
pursuant to Section 3.08(a)(ix);
(ii) any amount deposited by the Master Servicer or the Depositor pursuant
to Section 3.05(e) in connection with any losses on Permitted Investments for
which it is responsible; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not required
to be remitted, it may at any time direct the Trustee to withdraw such amount
from the Distribution Account, any provision in this Agreement to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Master Servicer.
70
(e) Each institution at which the Certificate Account, the Distribution
Account, the Pre-funding Account or the Capitalized Interest Account is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than (i) in the
case of the Certificate Account, the Pre-funding Account and the Capitalized
Interest Account, the second Business Day next preceding the related
Distribution Account Deposit Date (except that if such Permitted Investment is
an obligation of the institution that maintains such account, then such
Permitted Investment shall mature not later than the Business Day next preceding
such Distribution Account Deposit Date) and (ii) in the case of the Distribution
Account, the Business Day next preceding the Distribution Date (except that if
such Permitted Investment is an obligation of the institution that maintains
such fund or account, then such Permitted Investment shall mature not later than
such Distribution Date) and, in each case, shall not be sold or disposed of
prior to its maturity. All such Permitted Investments shall be made in the name
of the Trustee, for the benefit of the Certificateholders. All income and gain
net of any losses realized from any such investment of funds on deposit in the
Certificate Account, or the Distribution Account shall be for the benefit of the
Master Servicer as servicing compensation and shall be remitted to it monthly as
provided in this Agreement. The amount of any realized losses in the Certificate
Account or the Distribution Account incurred in any such account in respect of
any such investments shall promptly be deposited by the Master Servicer in the
Certificate Account or paid to the Trustee for deposit into the Distribution
Account, as applicable. The amount of any losses in the Pre-funding Account or
the Capitalized Interest Account incurred in respect of any such investments
shall promptly be deposited by the Depositor in the Pre-funding Account or the
Capitalized Interest Account, as applicable. All income or gain (net of any
losses) realized from any such investment of funds on deposit in the Capitalized
Interest Account shall be credited to the Capitalized Interest Account. The
Trustee in its fiduciary capacity shall not be liable for the amount of any loss
incurred in respect of any investment or lack of investment of funds held in the
Certificate Account, the Distribution Account, the Pre-funding Account or the
Capitalized Interest Account and made in accordance with this Section 3.05.
(f) The Master Servicer shall give notice to the Trustee, each Seller,
each Rating Agency and the Depositor of any proposed change of the location of
the Certificate Account prior to any change thereof. The Trustee shall give
notice to the Master Servicer, each Seller, each Rating Agency and the Depositor
of any proposed change of the location of the Distribution Account, the
Pre-funding Account, the Capitalized Interest Account or the Carryover Reserve
Fund prior to any change thereof.
(g) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the Offered Certificates, the
Carryover Reserve Fund and shall deposit $1,000 therein upon receipt from or on
behalf of the Depositor of such amount. 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.
Funds in the Carryover Reserve Fund may be invested in Permitted
Investments at the direction of the Majority of the Holders of the Class C
Certificates, which Permitted Investments shall mature not later than the
Business Day immediately preceding the first Distribution Date that follows the
date of such investment (except that if such Permitted
71
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 Holders of the Class C Certificates. In the absence of such
written direction, all funds in the Carryover Reserve Fund shall be invested by
the Trustee in The Bank of New York cash reserves. Any net investment earnings
on such amounts shall be retained therein until withdrawn as provided in Section
3.08. Any losses incurred in the 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. 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 3.05. The Carryover Reserve Fund will not constitute an asset
of any REMIC created hereunder. The Class C Certificates shall evidence
ownership of the Carryover Reserve Fund for federal tax purposes.
(h) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Pre-funding Account. On the Closing Date Countrywide
shall remit the Pre-funded Amount to the Trustee for deposit in the Pre-funding
Account. On each Supplemental Transfer Date, upon satisfaction of the conditions
for such Supplemental Transfer Date set forth in Section 2.01(e), with respect
to the related Supplemental Transfer Agreement, the Trustee shall pay to each
Seller selling Supplemental Mortgage Loans to the Depositor on such Supplemental
Transfer Date the portion of the Aggregate Supplemental Transfer Amount held in
escrow pursuant to Section 2.01(e) as payment of the purchase price for the
Supplemental Mortgage Loans sold by such Seller. If at any time the Depositor
becomes aware that the aggregate Cut-off Date Stated Principal Balance of
Supplemental Mortgage Loans reflected on any Supplemental Transfer Agreement
exceeds the actual aggregate Cut-off Date Stated Principal Balance of the
relevant Supplemental Mortgage Loans, the Depositor may so notify the Trustee
and the Trustee shall redeposit into the Pre-funding Account the excess reported
to it by the Depositor.
If any funds remain in the Pre-funding Account at the end of the Funding
Period, to the extent that they represent earnings on the amounts originally
deposited into the Pre-funding Account, the Trustee shall distribute them to the
order of the Depositor. The remaining funds shall be transferred to the
Distribution Account to be included as part of the Principal Remittance Amount
for each Loan Group.
(i) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Capitalized Interest Account. On the Closing Date,
Countrywide shall remit the aggregate Capitalized Interest Requirement to the
Trustee for deposit in the Capitalized Interest Account. On each Distribution
Account Deposit Date related to a Funding Period Distribution Date, upon
satisfaction of the conditions for such Supplemental Transfer Date set forth in
Section 2.01(e), with respect to the related Supplemental Transfer Agreement,
the Trustee shall transfer from the Capitalized Interest Account to the
Distribution Account an amount equal to the Capitalized Interest Requirement
(which, to the extent required, may include investment earnings on amounts on
deposit therein) with respect to the amount remaining in the Pre-funding Account
for the related Distribution Date as identified by Countrywide in the
Supplemental Transfer Agreement.
If any funds remain in the Capitalized Interest Account at the end of the
Funding Period, the Trustee shall make the transfer described in the preceding
paragraph if necessary for the
72
remaining Funding Period Distribution Date and the Trustee shall distribute any
remaining funds in the Capitalized Interest Account to the order of the
Depositor.
SECTION 3.06. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To the extent required by the related Mortgage Note and not violative
of current law, the Master Servicer shall establish and maintain one or more
accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by the Master Servicer) for the
payment of taxes, assessments, hazard insurance premiums or comparable items for
the account of the Mortgagors. Nothing in this Agreement shall require the
Master Servicer to compel a Mortgagor to establish an Escrow Account in
violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to reimburse
the Master Servicer out of related collections for any payments made pursuant to
Sections 3.01 (with respect to taxes and assessments and insurance premiums) and
3.09 (with respect to hazard insurance), to refund to any Mortgagors any sums
determined to be overages, to pay interest, if required by law or the terms of
the related Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow
Account or to clear and terminate the Escrow Account at the termination of this
Agreement in accordance with Section 9.01. The Escrow Accounts shall not be a
part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in Section
3.06(a) that are not timely paid by the Mortgagors on the date when the tax,
premium or other cost for which such payment is intended is due, but the Master
Servicer shall be required so to advance only to the extent that such advances,
in the good faith judgment of the Master Servicer, will be recoverable by the
Master Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
SECTION 3.07. Access to Certain Documentation and Information Regarding
the Mortgage Loans.
The Master Servicer shall afford each Seller, the Depositor, the NIM
Insurer and the Trustee reasonable access to all records and documentation
regarding the Mortgage Loans and all accounts, insurance information and other
matters relating to this Agreement, such access being afforded without charge,
but only upon reasonable request and during normal business hours at the office
designated by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder and/or Certificate Owner which is a savings
and loan association, bank or insurance company certain reports and reasonable
access to information and documentation regarding the Mortgage Loans sufficient
to permit such Certificateholder and/or Certificate Owner to comply with
applicable regulations of the OTS or other regulatory authorities with respect
to investment in the Certificates; provided that the Master Servicer shall be
entitled to be reimbursed by each such Certificateholder and/or Certificate
Owner for actual expenses incurred by the Master Servicer in providing such
reports and access. Upon request, the Master Servicer
73
shall furnish to the Trustee and the NIM Insurer its most recent publicly
available financial statements and any other information relating to its
capacity to perform its obligations under this Agreement reasonably requested by
the NIM Insurer.
SECTION 3.08. Permitted Withdrawals from the Certificate Account, the
Distribution Account, the 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
retained by the Master Servicer) the servicing compensation to which it is
entitled pursuant to Section 3.14 and to pay to the Master Servicer, as
additional servicing compensation, earnings on or investment income with
respect to funds in or credited to the Certificate Account;
(ii) to reimburse each of the Master Servicer and the Trustee for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made;
(iii) to reimburse each of the Master Servicer and the Trustee for
any Nonrecoverable Advance previously made by it;
(iv) to reimburse the Master Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed Servicing
Advances, the Master Servicer's right to reimbursement pursuant to this
clause (a) with respect to any Mortgage Loan being limited to amounts
received on such Mortgage Loan(s) that represent late recoveries of the
payments for which such advances were made pursuant to Section 3.01 or
Section 3.06 and (b) for unpaid Master Servicing Fees as provided in
Section 3.11;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02, 2.03 or 3.11, all amounts received on such Mortgage Loan
after the date of such purchase;
(vii) to reimburse the Sellers, the Master Servicer, the NIM Insurer
or the Depositor for expenses incurred by any of them and reimbursable
pursuant to Section 6.03;
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited in the Certificate Account;
(ix) on or prior to the Distribution Account Deposit Date, to
withdraw an amount equal to the Interest Remittance Amount, Principal
Remittance Amount,
74
Prepayment Charge Amount and Trustee Fee for such Distribution Date and
remit such amount to the Trustee for deposit in the Distribution Account;
and
(x) to clear and terminate the Certificate Account upon termination
of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Certificate Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders and remittance to the Swap Account, in the
manner specified in this Agreement (and to withhold from the amounts so
withdrawn, the amount of any taxes that it is authorized to withhold pursuant to
the third paragraph of Section 8.11). In addition, the Trustee may from time to
time make withdrawals from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution
Date;
(ii) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds in the
Distribution Account;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein;
(iv) to reimburse the Trustee for any unreimbursed Advances made by
it pursuant to Section 4.01(b) hereof, such right of reimbursement
pursuant to this subclause (iv) being limited to (x) amounts received on
the related Mortgage Loan(s) in respect of which any such Advance was made
and (y) amounts not otherwise reimbursed to the Trustee pursuant to
Section 3.08(a)(ii) hereof;
(v) to reimburse the Trustee for any Nonrecoverable Advance
previously made by the Trustee pursuant to Section 4.01(b) hereof, such
right of reimbursement pursuant to this subclause (v) being limited to
amounts not otherwise reimbursed to the Trustee pursuant to Section
3.08(a)(iii) hereof; and
(vi) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
(c) The Trustee shall withdraw funds from the Carryover Reserve Fund for
distribution to the LIBOR Certificates and the Class C Certificates in the
manner specified in Section 4.02(e) (and to withhold from the amounts so
withdrawn the amount of any taxes that it is authorized to retain pursuant to
the third paragraph of Section 8.11). In addition, the Trustee
75
may from time to time make withdrawals from the Carryover Reserve Fund for the
following purposes:
(i) to withdraw any amount deposited in the Carryover Reserve Fund
and not required to be deposited therein; and
(ii) to clear and terminate the Carryover Reserve Fund upon the
termination of this Agreement pursuant to Section 9.01.
(d) On the Business Day before the Class P Principal Distribution Date,
the Trustee shall transfer $100.00 from the Principal Reserve Fund to the
Distribution Account and shall distribute such amount to the Class P
Certificates on the Class P Principal Distribution Date. Following the
distributions to be made in accordance with the preceding sentence, the Trustee
shall then terminate the Principal Reserve Fund.
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall cause to be maintained, for each Mortgage
Loan, hazard insurance with extended coverage in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (y) the outstanding principal
balance of the Mortgage Loan and (z) an amount such that the proceeds of such
policy shall be sufficient to prevent the Mortgagor and/or the mortgagee from
becoming a co-insurer. Each such policy of standard hazard insurance shall
contain, or have an accompanying endorsement that contains, a standard mortgagee
clause. Any amounts collected by the Master Servicer under any such policies
(other than the amounts to be applied to the restoration or repair of the
related Mortgaged Property or amounts released to the Mortgagor in accordance
with the Master Servicer's normal servicing procedures) shall be deposited in
the Certificate Account. Any cost incurred by the Master Servicer in maintaining
any such insurance shall not, for the purpose of calculating monthly
distributions to the Certificateholders or remittances to the Trustee for their
benefit, be added to the principal balance of the Mortgage Loan, notwithstanding
that the terms of the Mortgage Loan so permit. Such costs shall be recoverable
by the Master Servicer out of late payments by the related Mortgagor or out of
proceeds of liquidation of the Mortgage Loan or Subsequent Recoveries to the
extent permitted by Section 3.08. It is understood and agreed that no earthquake
or other additional insurance is to be required of any Mortgagor or maintained
on property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special flood
hazard area and such area is participating in the national flood insurance
program, the Master Servicer shall cause flood insurance to be maintained with
respect to such Mortgage Loan. Such flood insurance shall be in an amount equal
to the least of (i) the outstanding principal balance of the related Mortgage
Loan, (ii) the replacement value of the improvements which are part of such
Mortgaged Property, and (iii) the maximum amount of such insurance available for
the related Mortgaged Property under the national flood insurance program.
(b) [Reserved].
76
(c) The Master Servicer shall not take any action which would result in
non-coverage under any applicable Primary Insurance Policy of any loss which,
but for the actions of the Master Servicer, would have been covered thereunder.
The Master Servicer shall not cancel or refuse to renew any such Primary
Insurance Policy that is in effect at the date of the initial issuance of the
Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy is
maintained with a Qualified Insurer.
Except with respect to any Lender PMI Mortgage Loans, the Master Servicer
shall not be required to maintain any Primary Insurance Policy (i) with respect
to any Mortgage Loan with a Loan-to-Value Ratio less than or equal to 80% as of
any date of determination or, based on a new appraisal, the principal balance of
such Mortgage Loan represents 80% or less of the new appraised value or (ii) if
maintaining such Primary Insurance Policy is prohibited by applicable law. With
respect to the Lender PMI Mortgage Loans, the Master Servicer shall maintain the
Primary Insurance Policy for the life of such Mortgage Loans, unless otherwise
provided for in the related Mortgage Note or prohibited by law.
The Master Servicer agrees to effect the timely payment of the premiums on
each Primary Insurance Policy, and such costs not otherwise recoverable shall be
recoverable by the Master Servicer from the related proceeds of liquidation and
Subsequent Recoveries.
(d) In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present on behalf of itself, the Trustee
and Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Master Servicer under any
Primary Insurance Policies shall be deposited in the Certificate Account.
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of such conveyance, enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing, the Master
Servicer is not required to exercise such rights with respect to a Mortgage Loan
if the Person to whom the related Mortgaged Property has been conveyed or is
proposed to be conveyed satisfies the terms and conditions contained in the
Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under such Mortgage Note or Mortgage is not otherwise so required under such
Mortgage Note or Mortgage as a condition to such transfer. In the event that the
Master Servicer is prohibited by law from enforcing any such due-on-sale clause,
or if coverage under any Required Insurance Policy would be adversely affected,
or if nonenforcement is otherwise permitted hereunder, the Master Servicer is
authorized, subject to Section 3.10(b), to take or enter into an assumption and
modification agreement from or with the person to whom such property has been or
is about to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, unless prohibited by applicable state law, the Mortgagor
remains liable thereon, provided that the Mortgage Loan shall continue to be
covered (if so covered
77
before the Master Servicer enters such agreement) by the applicable Required
Insurance Policies. The Master Servicer, subject to Section 3.10(b), is also
authorized with the prior approval of the insurers under any Required Insurance
Policies to enter into a substitution of liability agreement with such Person,
pursuant to which the original Mortgagor is released from liability and such
Person is substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to be in
default under this Section by reason of any transfer or assumption which the
Master Servicer reasonably believes it is restricted by law from preventing, for
any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.10(a), in any case in which a
Mortgaged Property has been conveyed to a Person by a Mortgagor, and such Person
is to enter into an assumption agreement or modification agreement or supplement
to the Mortgage Note or Mortgage that requires the signature of the Trustee, or
if an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Master Servicer shall prepare
and deliver or cause to be prepared and delivered to the Trustee for signature
and shall direct, in writing, the Trustee to execute the assumption agreement
with the Person to whom the Mortgaged Property is to be conveyed and such
modification agreement or supplement to the Mortgage Note or Mortgage or other
instruments as are reasonable or necessary to carry out the terms of the
Mortgage Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to such Person.
In connection with any such assumption, no material term of the Mortgage Note
may be changed. In addition, the substitute Mortgagor and the Mortgaged Property
must be acceptable to the Master Servicer in accordance with its underwriting
standards as then in effect. Together with each such substitution, assumption or
other agreement or instrument delivered to the Trustee for execution by it, the
Master Servicer shall deliver an Officer's Certificate signed by a Servicing
Officer stating that the requirements of this subsection have been met in
connection therewith. The Master Servicer shall notify the Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Trustee the original of such substitution or assumption agreement, which in the
case of the original shall be added to the related Mortgage File and shall, for
all purposes, be considered a part of such Mortgage File to the same extent as
all other documents and instruments constituting a part thereof. Any fee
collected by the Master Servicer for entering into an assumption or substitution
of liability agreement will be retained by the Master Servicer as additional
servicing compensation.
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
(a) The Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, the Master Servicer shall
follow such practices and procedures as it shall deem necessary or advisable and
as shall be normal and usual in its general mortgage servicing activities and
meet the requirements of the insurer under any Required Insurance Policy;
provided, however, that the Master Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement
78
to itself of such expenses and (ii) that such expenses will be recoverable to it
through the proceeds of liquidation of the Mortgage Loan and Subsequent
Recoveries (respecting which it shall have priority for purposes of withdrawals
from the Certificate Account). The Master Servicer shall be responsible for all
other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the proceeds of
liquidation of the Mortgage Loan and Subsequent Recoveries with respect to the
related Mortgaged Property, as provided in the definition of Liquidation
Proceeds. If the Master Servicer has knowledge that a Mortgaged Property which
the Master Servicer is contemplating acquiring in foreclosure or by deed in lieu
of foreclosure is located within a 1 mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or other
site with environmental or hazardous waste risks known to the Master Servicer,
the Master Servicer will, prior to acquiring the Mortgaged Property, consider
such risks and only take action in accordance with its established environmental
review procedures.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trustee for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. The Trustee's name shall be
placed on the title to such REO Property solely as the Trustee hereunder and not
in its individual capacity. The Master Servicer shall ensure that the title to
such REO Property references the Pooling and Servicing Agreement and the
Trustee's capacity thereunder. Pursuant to its efforts to sell such REO
Property, the Master Servicer shall either itself or through an agent selected
by the Master Servicer protect and conserve such REO Property in the same manner
and to such extent as is customary in the locality where such REO Property is
located and may, incident to its conservation and protection of the interests of
the Certificateholders, rent the same, or any part thereof, as the Master
Servicer deems to be in the best interest of the Certificateholders for the
period prior to the sale of such REO Property. The Master Servicer shall prepare
for and deliver to the Trustee a statement with respect to each REO Property
that has been rented showing the aggregate rental income received and all
expenses incurred in connection with the maintenance of such REO Property at
such times as is necessary to enable the Trustee to comply with the reporting
requirements of the REMIC Provisions. The net monthly rental income, if any,
from such REO Property shall be deposited in the Certificate Account no later
than the close of business on each Determination Date. The Master Servicer shall
perform the tax reporting and withholding required by Sections 1445 and 6050J of
the Code with respect to foreclosures and abandonments, the tax reporting
required by Section 6050H of the Code with respect to the receipt of mortgage
interest from individuals and any tax reporting required by Section 6050P of the
Code with respect to the cancellation of indebtedness by certain financial
entities, by preparing such tax and information returns as may be required, in
the form required, and delivering the same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property as
soon as practicable in a manner that maximizes the Liquidation Proceeds thereof,
but in no event later than three years after its acquisition by the Trust Fund.
In that event, the Trustee shall have been supplied with an Opinion of Counsel
to the effect that the holding by the Trust Fund of such Mortgaged Property
subsequent to a three-year period, if applicable, will not result in the
imposition of taxes on "prohibited transactions" of any REMIC hereunder as
defined in Section 860F of the Code or cause any REMIC hereunder to fail to
qualify as a REMIC at any time that any Certificates are
79
outstanding, and that the Trust Fund may continue to hold such Mortgaged
Property (subject to any conditions contained in such Opinion of Counsel) after
the expiration of such three-year period. Notwithstanding any other provision of
this Agreement, no Mortgaged Property acquired by the Trust Fund shall be rented
(or allowed to continue to be rented) or otherwise used for the production of
income by or on behalf of the Trust Fund in such a manner or pursuant to any
terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
(ii) subject any REMIC hereunder to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the Master Servicer has agreed
to indemnify and hold harmless the Trust Fund with respect to the imposition of
any such taxes.
In the event of a default on a Mortgage Loan one or more of whose obligor
is not a United States Person, as that term is defined in Section 7701(a)(30) of
the Code, in connection with any foreclosure or acquisition of a deed in lieu of
foreclosure (together, "foreclosure") in respect of such Mortgage Loan, the
Master Servicer will cause compliance with the provisions of Treasury Regulation
Section 1.1445-2(d)(3) (or any successor thereto) necessary to assure that no
withholding tax obligation arises with respect to the proceeds of such
foreclosure except to the extent, if any, that proceeds of such foreclosure are
required to be remitted to the obligors on such Mortgage Loan.
The decision of the Master Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Master Servicer that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any REO Properties,
net of reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate Account. To the
extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for such calendar month, such excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Master Servicer for any related unreimbursed Servicing
Advances and Master Servicing Fees; second, to reimburse the Master Servicer or
the Trustee for any unreimbursed Advances; third, to reimburse the Certificate
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer or the Trustee pursuant to Section
3.08(a)(iii) that related to such Mortgage Loan; fourth, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in which
such amounts are required to be distributed; and fifth, as a recovery of
principal of the Mortgage Loan. Excess Proceeds, if any, from the liquidation of
a Liquidated
80
Mortgage Loan will be retained by the Master Servicer as additional servicing
compensation pursuant to Section 3.14.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Trust Fund any Mortgage Loan which is 151
days or more delinquent at a price equal to the Purchase Price; provided,
however, that the Master Servicer may only exercise this right on or before the
next to the last day of the calendar month in which such Mortgage Loan became
151 days delinquent (such month, the "Eligible Repurchase Month"); provided
further, that any such Mortgage Loan which becomes current but thereafter
becomes delinquent may be purchased by the Master Servicer pursuant to this
Section in any ensuing Eligible Repurchase Month. The Master Servicer, in its
sole discretion, shall also have the right to purchase for its own account from
the Trust Fund at a price equal to the Purchase Price any Eligible EPD Protected
Mortgage Loan. The Master Servicer's right to purchase any such Eligible EPD
Protected Mortgage Loan shall expire on the 270th day following the date on
which such Mortgage Loan became an Eligible EPD Protected Mortgage Loan. The
Purchase Price for any Mortgage Loan purchased under this Section 3.11 shall be
deposited in the Certificate Account and the Trustee, upon receipt of a
certificate from the Master Servicer in the form of Exhibit N to this Agreement,
shall release or cause to be released to the purchaser of such Mortgage Loan the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment prepared by the purchaser of such Mortgage Loan, in each case
without recourse, as shall be necessary to vest in the purchaser of such
Mortgage Loan any Mortgage Loan released pursuant hereto and the purchaser of
such Mortgage Loan shall succeed to all the Trustee's right, title and interest
in and to such Mortgage Loan and all security and documents related thereto.
Such assignment shall be an assignment outright and not for security. The
purchaser of such Mortgage Loan shall thereupon own such Mortgage Loan, and all
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
(b) Countrywide 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) Countrywide purchases the Modified Mortgage Loan from the Trust Fund
as described below. Effective immediately after the modification, and, in any
event, on the same Business Day on which the modification occurs, all interest
of the Trustee in the Modified Mortgage Loan shall automatically be deemed
transferred and assigned to Countrywide and all benefits and burdens of
ownership thereof, including the right to accrued interest thereon from the date
of modification and the risk of default thereon, shall pass to Countrywide. The
Master Servicer shall promptly deliver to the Trustee a certification of a
Servicing Officer to the effect that all requirements of this paragraph have
been satisfied with respect to the Modified Mortgage Loan. For federal income
tax purposes, the Trustee shall account for such purchase as a prepayment in
full of the Modified Mortgage Loan.
Countrywide shall remit to the Master Servicer and the Master Service
shall deposit the Purchase Price for any Modified Mortgage Loan in the
Certificate Account pursuant to Section 3.05 within one Business Day after the
purchase of the Modified Mortgage Loan. Upon receipt by the Trustee of written
notification of any such deposit signed by a Servicing Officer, the Trustee
shall release to Countrywide the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in Countrywide any Modified Mortgage
Loan previously transferred and assigned pursuant
81
hereto. Countrywide covenants and agrees to indemnify the Trust Fund against any
liability for any "prohibited transaction" taxes and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder as a
result of any modification of a Mortgage Loan effected pursuant to this
subsection (b), any holding of a Modified Mortgage Loan by the Trust Fund or any
purchase of a Modified Mortgage Loan by Countrywide (but such obligation shall
not prevent Countrywide or any other appropriate Person from in good faith
contesting any such tax in appropriate proceedings and shall not prevent
Countrywide from withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). Countrywide shall have no right of
reimbursement for any amount paid pursuant to the foregoing indemnification,
except to the extent that the amount of any tax, interest, and penalties,
together with interest thereon, is refunded to the Trust Fund or Countrywide.
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by delivering, or causing to be delivered a "Request for Release"
substantially in the form of Exhibit N of this Agreement. Upon receipt of such
request, the Trustee shall promptly release the related Mortgage File to the
Master Servicer, and the Trustee shall at the Master Servicer's direction
execute and deliver to the Master Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Mortgage in each case provided by the Master Servicer, together
with the Mortgage Note with written evidence of cancellation on the Mortgage
Note. The Master Servicer is authorized to cause the removal from the
registration on the MERS(R) System of such Mortgage and to execute and deliver,
on behalf of the Trustee and the Certificateholders or any of them, any and all
instruments of satisfaction or cancellation or of partial or full release.
Expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor. From time to time and
as shall be appropriate for the servicing or foreclosure of any Mortgage Loan,
including for such purpose, collection under any policy of flood insurance, any
fidelity bond or errors or omissions policy, or for the purposes of effecting a
partial release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Mortgage File, the Trustee shall, upon delivery
to the Trustee of a Request for Release in the form of Exhibit M signed by a
Servicing Officer, release the Mortgage File to the Master Servicer. Subject to
the further limitations set forth below, the Master Servicer shall cause the
Mortgage File or documents so released to be returned to the Trustee when the
need therefor by the Master Servicer no longer exists, unless the Mortgage Loan
is liquidated and the proceeds thereof are deposited in the Certificate Account,
in which case the Master Servicer shall deliver to the Trustee a Request for
Release in the form of Exhibit N, signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this Agreement,
the Master Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
82
SECTION 3.13. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or which otherwise are
collected by the Master Servicer as Liquidation Proceeds, Insurance Proceeds or
Subsequent Recoveries in respect of any Mortgage Loan. All Mortgage Files and
funds collected or held by, or under the control of, the Master Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds and any Subsequent Recoveries,
including but not limited to, any funds on deposit in the Certificate Account,
shall be held by the Master Servicer for and on behalf of the Trustee and shall
be and remain the sole and exclusive property of the Trustee, subject to the
applicable provisions of this Agreement. The Master Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that are
deposited in the Certificate Account, Distribution Account or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Master Servicer shall be entitled to set off against and
deduct from any such funds any amounts that are properly due and payable to the
Master Servicer under this Agreement.
SECTION 3.14. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer shall be
entitled to retain or withdraw from the Certificate Account an amount equal to
the Master Servicing Fee; provided, that the aggregate Master Servicing Fee with
respect to any Distribution Date shall be reduced (i) by an amount equal to the
aggregate of the Prepayment Interest Shortfalls, if any, with respect to such
Distribution Date, but not by more than the Compensating Interest for that
Distribution Date, and (ii) with respect to the first Distribution Date, an
amount equal to any amount to be deposited into the Distribution Account by the
Depositor pursuant to Section 2.01(a) and not so deposited.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, assumption fees, late payment charges and all income
and gain net of any losses realized from Permitted Investments shall be retained
by the Master Servicer to the extent not required to be deposited in the
Certificate Account pursuant to Section 3.05. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its master
servicing activities hereunder (including payment of any premiums for hazard
insurance and any Primary Insurance Policy and maintenance of the other forms of
insurance coverage required by this Agreement) and shall not be entitled to
reimbursement therefor except as specifically provided in this Agreement.
83
SECTION 3.15. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders and/or Certificate Owners
and the examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer. Nothing
in this Section shall limit the obligation of the Master Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Master Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of this
Section.
The Master Servicer acknowledges that as part of its servicing activities,
the Master Servicer shall fully furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files
related to the Mortgage Loans to Equifax, Experian and Trans Union Credit
Information Company (three of the nationally recognized credit bureaus) on a
monthly basis.
SECTION 3.16. Annual Statement as to Compliance.
(a) The Master Servicer shall deliver to the Depositor and the Trustee on
or before March 15 of each year, commencing with its 2007 fiscal year, an
Officer's Certificate stating, as to the signer thereof, that (i) a review of
the activities of the Master Servicer during the preceding calendar year (or
applicable portion thereof) and of the performance of the Master Servicer under
this Agreement has been made under such officer's supervision and (ii) to the
best of such officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there has been a
failure to fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status thereof.
(b) The Master Servicer shall cause each Subservicer to deliver to the
Depositor and the Trustee on or before March 15 of each year, commencing with
its 2007 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of such Subservicer during the
preceding calendar year (or applicable portion thereof) and of the performance
of the Subservicer under the applicable Subservicing Agreement or primary
servicing agreement, has been made under such officer's supervision and (ii) to
the best of such officer's knowledge, based on such review, such Subservicer has
fulfilled all its obligations under the applicable Subservicing Agreement or
primary servicing agreement, in all material respects throughout such year (or
applicable portion thereof), or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officer and the nature and status thereof.
(c) The Trustee shall forward a copy of each such statement to each Rating
Agency.
SECTION 3.17. Errors and Omissions Insurance; Fidelity Bonds.
84
The Master Servicer shall for so long as it acts as master servicer under
this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
Master Servicer hereunder and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
comply with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. In the event
that any such policy or bond ceases to be in effect, the Master Servicer shall
obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
SECTION 3.18. Notification of Adjustments.
On each Adjustment Date, the Master Servicer shall make interest rate
adjustments for each Mortgage Loan in compliance with the requirements of the
related Mortgage and Mortgage Note and applicable regulations. The Master
Servicer shall execute and deliver the notices required by each Mortgage and
Mortgage Note and applicable regulations regarding interest rate adjustments.
The Master Servicer also shall provide timely notification to the Trustee of all
applicable data and information regarding such interest rate adjustments and the
Master Servicer's methods of implementing such interest rate adjustments. Upon
the discovery by the Master Servicer or the Trustee that the Master Servicer has
failed to adjust or has incorrectly adjusted a Mortgage Rate or a monthly
payment pursuant to the terms of the related Mortgage Note and Mortgage, the
Master Servicer shall immediately deposit in the Certificate Account from its
own funds the amount of any interest loss caused thereby without reimbursement
therefor; provided, however, the Master Servicer shall be held harmless with
respect to any interest rate adjustments made by any servicer prior to the
Master Servicer. SECTION 3.19. The Swap Contract.
Countrywide shall cause The Bank of New York to enter into the Swap
Contract Administration Agreement and shall assign all of its right, title and
interest in and to the interest rate swap transaction evidenced by the Swap
Contract to, and shall cause all of its obligations in respect of such
transaction to be assumed by, the Swap Contract Administrator, on the terms and
conditions set forth in the Swap Contract Assignment Agreement. The Trustee's
rights to receive certain proceeds of the Swap Contract as provided in the Swap
Contract Administration Agreement shall be rights of the Trustee as Swap Trustee
hereunder, shall be an asset of the Swap Trust and shall not be an asset of the
Trust Fund nor of any REMIC. The Swap Trustee shall deposit any amounts received
from time to time from the Swap Contract Administrator with respect to the Swap
Contract into the Swap Account. The Master Servicer shall deposit any amounts
received on behalf of the Swap Trustee from time to time with respect to the
Swap Contract into the Swap Account.
On the Business Day preceding each Distribution Date, the Swap Trustee
shall notify the Swap Contract Administrator of any amounts distributable to the
Covered Certificates pursuant to Section 4.02(d)(iii) through (viii) that will
remain unpaid following all distributions to be made on such Distribution Date
pursuant to Section 4.02(a) through (c).
No later than two Business Days following each Distribution Date, the
Trustee shall provide the Swap Contract Administrator with information regarding
the aggregate Class Certificate Balance of the LIBOR Certificates after all
distributions on such Distribution Date.
85
Upon the Swap Contract Administrator obtaining actual knowledge of the
rating of the Swap Counterparty falling below the Approved Ratings Threshold (as
defined in the ISDA Master Agreement) or upon the Swap Contract Administrator
obtaining actual knowledge of the rating of the Swap Counterparty falling below
the Required Ratings Threshold (as defined in the ISDA Master Agreement), the
Swap Trustee shall direct the Swap Contract Administrator to (i) demand payment
of the Delivery Amount (as defined in the ISDA Master Agreement) from the Swap
Counterparty on each Valuation Date (as defined in the ISDA Master Agreement)
and to perform its other obligations in accordance with the ISDA Master
Agreement or (ii) take such other action required under the ISDA Master
Agreement. If a Delivery Amount is demanded, the Swap Contract Administrator, in
accordance with the Swap Contract Administration Agreement, shall establish an
account to hold cash and other eligible investments pledged under the ISDA
Master Agreement. Any cash or other Eligible Collateral (as defined in the ISDA
Master Agreement) pledged under the ISDA Master Agreement shall not be part of
the Distribution Account or the Swap Account unless remitted to such accounts by
the Swap Contract Administrator in accordance with the Swap Contract
Administration Agreement. If Eligible Collateral (as defined in the ISDA Master
Agreement) with a value equal to the Delivery Amount is not delivered to the
Swap Contract Administrator by the Swap Counterparty, the Swap Trustee shall
direct the Swap Contract Administrator to notify the Swap Counterparty of such
failure.
Upon the Swap Trustee obtaining actual knowledge of an Event of Default
(as defined in the ISDA Master Agreement) or Termination Event (as defined in
the ISDA Master Agreement) for which the Swap Contract Administrator has the
right to designate an Early Termination Date (as defined in the ISDA Master
Agreement), the Swap Trustee shall act at the written direction of the Depositor
as to whether to direct the Swap Contract Administrator to designate an Early
Termination Date; provided, however, that the Swap Trustee shall provide written
notice to each Rating Agency following the Event of Default or Termination
Event. Upon the termination of the Swap Contract under the circumstances
contemplated by this Section 3.19, the Swap Trustee shall use its reasonable
best efforts to enforce the rights of the Swap Contract Administrator as may be
permitted by the terms of the ISDA Master Agreement and consistent with the
terms hereof and Countrywide shall assist the Swap Contract Administrator in
procuring a replacement swap contract with terms approximating those of the
original Swap Contract.
Any Swap Termination Payment received from the Swap Counterparty shall be
used to pay any upfront amount required under any replacement swap contract and
any excess shall be distributed to Countrywide and will not be available to make
distributions in respect of any Class of Certificates. In the event that a
replacement swap contract cannot be procured, any Swap Termination Payment
received from the Swap Counterparty in respect of the termination of the
original Swap Contract shall, in accordance with the Swap Contract
Administration Agreement, be retained by the Swap Contract Administrator and
distributed to the Swap Trustee on future Distribution Dates for deposit into
the Swap Account to the extent necessary to make distributions pursuant to
Section 4.02(d)(iii) through (viii). Any portion of such upfront amount
remaining after the Swap Contract Termination Date shall be distributed to
Countrywide and will not be available to make distributions in respect of any
Class of Certificates.
In the event that the swap counterparty in respect of a replacement swap
contract pays any upfront amount to the Swap Contract Administrator in
connection with entering into the replacement swap contract and such upfront
amount is received by the Swap Contract Administrator prior to the Distribution
Date on which any Swap Termination Payment will be
86
payable to the Swap Counterparty in respect of the original Swap Contract, a
portion of that upfront amount equal to the lesser of (x) that upfront amount
and (y) the amount of the Swap Termination Payment due to the Swap Counterparty
in respect of the original Swap Contract (the "Adjusted Replacement Upfront
Amount") shall be included in Interest Funds for Loan Group 1 and Loan Group 2
for that Distribution Date, pro rata, based upon their respective Interest Funds
for that Distribution Date, and any upfront amount in excess of the Adjusted
Replacement Upfront Amount shall be distributed to Countrywide and will not be
available to make distributions in respect of any Class of Certificates. In the
event that any upfront amount is paid to the Swap Contract Administrator by the
swap counterparty in respect of a replacement swap contract after the
Distribution Date on which any Swap Termination Payment will be payable to the
Swap Counterparty in respect of the original Swap Contract, such upfront amount
shall be retained by the Swap Contract Administrator and remitted to the Swap
Trustee on subsequent Distribution Dates up to and including the Swap Contract
Termination Date to pay any amounts distributable to the LIBOR Certificates
pursuant to Section 4.02(d)(iii) through (viii) that will remain unpaid
following all distributions to be made on such Distribution Date pursuant to
Section 4.02(a) through (c).
The Swap Counterparty shall be an express third party beneficiary of this
Agreement for the purpose of enforcing the provisions hereof to the extent of
the Swap Counterparty's rights explicitly specified herein as if a party hereto.
SECTION 3.20. Prepayment Charges.
(a) Notwithstanding anything in this Agreement to the contrary, in the
event of a Principal Prepayment in full or in part of a Mortgage Loan, the
Master Servicer may not waive any Prepayment Charge or portion thereof required
by the terms of the related Mortgage Note unless (i) such Mortgage Loan is in
default or the Master Servicer believes that such a default is imminent, and the
Master Servicer determines that such waiver would maximize recovery of
Liquidation Proceeds for such Mortgage Loan, taking into account the value of
such Prepayment Charge, or (ii) (A) the enforceability thereof is limited (1) by
bankruptcy, insolvency, moratorium, receivership, or other similar law relating
to creditors' rights generally or (2) due to acceleration in connection with a
foreclosure or other involuntary payment, or (B) the enforceability is otherwise
limited or prohibited by applicable law. In the event of a Principal Prepayment
in full or in part with respect to any Mortgage Loan, the Master Servicer shall
deliver to the Trustee an Officer's Certificate substantially in the form of
Exhibit T no later than the third Business Day following the immediately
succeeding Determination Date with a copy to the Class P Certificateholders. If
the Master Servicer has waived or does not collect all or a portion of a
Prepayment Charge relating to a Principal Prepayment in full or in part due to
any action or omission of the Master Servicer, other than as provided above, the
Master Servicer shall deliver to the Trustee, together with the Principal
Prepayment in full or in part, the amount of such Prepayment Charge (or such
portion thereof as had been waived) for deposit into the Certificate Account
(not later than 1:00 p.m. Pacific time on the immediately succeeding Master
Servicer Advance Date, in the case of such Prepayment Charge) for distribution
in accordance with the terms of this Agreement.
(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.
87
(c) Countrywide represents and warrants to the Depositor and the Trustee,
as of the Closing Date, that the information in the Prepayment Charge Schedule
(including the attached prepayment charge summary) is complete and accurate in
all material respects at the dates as of which the information is furnished and
each Prepayment Charge is permissible and enforceable in accordance with its
terms under applicable state law, except as the enforceability thereof is
limited due to acceleration in connection with a foreclosure or other
involuntary payment.
(d) Upon discovery by the Master Servicer or a Responsible Officer of the
Trustee of a breach of the foregoing clause (c) that materially and adversely
affects 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.
88
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances.
(a) The Master Servicer shall determine on or before each Master Servicer
Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make an
Advance, it shall, on or before the Master Servicer Advance Date, either (i)
deposit into the Certificate Account an amount equal to the Advance or (ii) make
an appropriate entry in its records relating to the Certificate Account that any
Amount Held for Future Distribution has been used by the Master Servicer in
discharge of its obligation to make any such Advance. Any funds so applied shall
be replaced by the Master Servicer by deposit in the Certificate Account no
later than the close of business on the next Master Servicer Advance Date. The
Master Servicer shall be entitled to be reimbursed from the Certificate Account
for all Advances of its own funds made pursuant to this Section as provided in
Section 3.08. The obligation to make Advances with respect to any Mortgage Loan
shall continue if such Mortgage Loan has been foreclosed or otherwise terminated
and the related Mortgaged Property has not been liquidated.
(b) If the Master Servicer determines that it will be unable to comply
with its obligation to make the Advances as and when described in the second
sentence of Section 4.01(a), it shall use its best efforts to give written
notice thereof to the Trustee (each such notice a "Trustee Advance Notice"; and
such notice may be given by telecopy), not later than 3:00 P.M., New York time,
on the Business Day immediately preceding the related Master Servicer Advance
Date, specifying the amount that it will be unable to deposit (each such amount
an "Advance Deficiency") and certifying that such Advance Deficiency constitutes
an Advance hereunder and is not a Nonrecoverable Advance. If the Trustee
receives a Trustee Advance Notice on or before 3:30 P.M., New York time on a
Master Servicer Advance Date, the Trustee shall, not later than 3:00 P.M., New
York time, on the related Distribution Date, deposit in the Distribution Account
an amount equal to the Advance Deficiency identified in such Trustee Advance
Notice unless it is prohibited from so doing by applicable law. Notwithstanding
the foregoing, the Trustee shall not be required to make such deposit if the
Trustee shall have received written notification from the Master Servicer that
the Master Servicer has deposited or caused to be deposited in the Certificate
Account an amount equal to such Advance Deficiency. All Advances made by the
Trustee pursuant to this Section 4.01(b) shall accrue interest on behalf of the
Trustee at the Trustee Advance Rate from and including the date such Advances
are made to but excluding the date of repayment, with such interest being an
obligation of the Master Servicer and not the Trust Fund. The Master Servicer
shall reimburse the Trustee for the amount of any Advance made by the Trustee
pursuant to this Section 4.01(b) together with accrued interest, not later than
the fifth day following the related Master Servicer Advance Date. In the event
that the Master Servicer does not reimburse the Trustee in accordance with the
requirements of the preceding sentence, the Trustee shall have the right, but
not the obligation, to immediately (a) terminate all of the rights and
obligations of the Master Servicer under this Agreement in accordance with
Section 7.01 and (b) subject to the limitations set forth in Section 3.04,
assume all of the rights and obligations of the Master Servicer hereunder.
89
(c) The Master Servicer shall, not later than the close of business on the
second Business Day immediately preceding each Distribution Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the Trustee)
that indicates (i) the Mortgage Loans with respect to which the Master Servicer
has determined that the related Scheduled Payments should be advanced and (ii)
the amount of the related Scheduled Payments. The Master Servicer shall deliver
to the Trustee on the related Master Servicer Advance Date an Officer's
Certificate of a Servicing Officer indicating the amount of any proposed Advance
determined by the Master Servicer to be a Nonrecoverable Advance.
SECTION 4.02. Priorities of Distribution.
(a) Distributions of Interest Funds. On each Distribution Date, the
Interest Funds for such Distribution Date shall be allocated by the Trustee from
the Distribution Account in the following order:
(i) from the Interest Funds for Loan Group 1 and Loan Group 2,
pro rata based on the Interest Funds for each Loan Group, to the
Swap Account, the amount of any Net Swap Payment and any Swap
Termination Payment (other than a Swap Termination Payment due to a
Swap Counterparty Trigger Event) payable to the Swap Counterparty
under the Swap Contract with respect to such Distribution Date;
(ii) concurrently:
(A) from Interest Funds for Loan Group 1, to the
Class 1-A Certificates, the Current Interest and Interest
Carry Forward Amount for such Class and such Distribution
Date; and
(B) from Interest Funds for Loan Group 2,
concurrently, to each Class of Group 2 Senior Certificates,
the Current Interest and Interest Carry Forward Amount for
each such Class and such Distribution Date, pro rata, based on
the amount of interest each such Class is entitled to receive
on that Distribution Date;
(iii) from the remaining Interest Funds for both Loan Groups
to each Class of Senior Certificates, any remaining Current Interest
and Interest Carry Forward Amount not paid pursuant to clauses
(a)(ii)(A) or (a)(ii)(B) above, pro rata, based on their respective
Class Certificate Balances, to the extent needed to pay any Current
Interest and Interest Carry Forward Amount for each such Class;
provided that Interest Funds remaining after such allocation to pay
any Current Interest and Interest Carry Forward Amount based on
their respective Class Certificate Balances, will be distributed to
each Class of Senior Certificates with respect to which there
remains any unpaid Current Interest and Interest Carry Forward
Amount (after the distribution based on their respective Class
Certificate Balances, pro rata, based on the amount of such
remaining unpaid Current Interest and Interest Carry Forward Amount;
(iv) from the remaining Interest Funds from both Loan Groups
in the following order:
90
(A) sequentially, to the Class X-0, Xxxxx X-0, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, the Current Interest for each
such Class and such Distribution Date; and
(B) any remainder as part of the Excess Cashflow.
(b) Distributions of Principal Distribution Amount. On each Distribution
Date, the Principal Distribution Amount from both Loan Groups for such
Distribution Date shall be allocated by the Trustee from the Distribution
Account in the following order of priority with all distributions pursuant to
this clause (b) being made first from the Principal Remittance Amount:
(i) For each Distribution Date prior to the Stepdown Date or
on which a Trigger Event is in effect, sequentially:
(A) concurrently:
(1) from the Principal Distribution Amount for
Loan Group 1, sequentially:
(a) to the Class A-R Certificates, until its
Class Certificate Balance is reduced to zero,
(b) to the Class 1-A Certificates, until its
Class Certificate Balance is reduced to zero;
(c) to the Classes of Group 2 Senior
Certificates (after the distribution of the
Principal Distribution Amount from Loan Group 2 as
provided in clause 4.02(b)(i)(A)(2)(a)), to be
allocated among such Classes of Certificates in the
order provided in clause 4.02(b)(iii), until their
respective Class Certificate Balances are reduced to
zero; and
(2) from the Principal Distribution Amount for
Loan Group 2, sequentially:
(a) to the Classes of Group 2 Senior
Certificates, to be allocated among such Classes of
Certificates in the order provided in clause
4.02(b)(iii), until their respective Class
Certificate Balances are reduced to zero; and
(b) to the Class 1-A Certificates (after the
distribution of the Principal Distribution Amount
from Loan Group 1 as provided in clause
4.02(b)(i)(A)(1)(b)), until its Class Certificate
Balance is reduced to zero; and
(B) sequentially, to the Class X-0, Xxxxx X-0, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero; and
91
(C) any remainder as part of the Excess Cashflow.
(ii) For each Distribution Date on or after the Stepdown Date
and so long as a Trigger Event is not in effect, 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 the Class
1-A Certificates and the Group 2 Senior Certificates,
concurrently:
(1) in an amount up to the Group 1 Senior
Principal Distribution Amount, to the Class 1-A
Certificates, until its Class Certificate Balance is
reduced to zero, and
(2) in an amount up to the Group 2 Senior
Principal Distribution Amount, to the Classes of
Group 2 Senior Certificates, to be allocated among
such Classes of Certificates in the order provided in
clause 4.02(b)(iii), until their respective Class
Certificate Balances are reduced to zero;
provided, however, that if (a) the Class Certificate
Balance of the Class 1-A Certificates or (b) the
aggregate Class Certificate Balance of the Group 2
Senior Certificates is reduced to zero, then any
remaining unpaid Senior Principal Distribution Target
Amount will be distributed pro rata (based on the
Class Certificate Balance of the Class 1-A
Certificates or the aggregate Class Certificate
Balance of the Group 2 Senior Certificates) to the
remaining Classes of Senior Certificates after
distributions from clauses 4.02(b)(ii)(A)(1) and (2)
above (and, in the case of the Group 2 Senior
Certificates, to be allocated among such Classes of
Certificates in the order provided in clause
4.02(b)(iii)), until their respective Class
Certificate Balances are reduced to zero;
(B) sequentially to the Class X-0, Xxxxx X-0, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, the Subordinated Class Principal
Distribution Target Amount for each such Class, in each case
until its Class Certificate Balance is reduced to zero; and
(C) any remainder as part of the Excess Cashflow.
(iii) For each Distribution Date, amounts in respect of
principal to be distributed to the Group 2 Senior Certificates will
be distributed in the following order:
(A) to the Class 2-A-1 Certificates, until its Class
Certificate Balance is reduced to zero;
(B) concurrently, to the Class 2-A-2A and Class
2-A-2B Certificates, pro rata, until their respective Class
Certificate Balances are reduced to zero; and
92
(C) to the Class 2-A-3 Certificates, until its Class
Certificate Balance is reduced to zero.
(c) Distributions of Excess Cashflow. With respect to any Distribution
Date, any Excess Cashflow will be paid to the Classes of Certificates in the
following order, in each case to the extent of remaining Excess Cashflow:
(i) to the Classes of LIBOR Certificates then entitled to receive
distributions in respect of principal, in an aggregate amount equal to the
Extra Principal Distribution Amount for the Loan Group payable to the
related Classes of Certificates as part of the applicable Principal
Distribution Amount pursuant to Section 4.02(b) hereof;
(ii) concurrently, to the Classes of Senior Certificates, pro rata
based on the amount of Unpaid Realized Loss Amounts for each such Class,
in each case in an amount equal to the Unpaid Realized Loss Amount for
each such Class; provided, however, that any amounts allocable to the
Class 2-A-2B Certificates will be allocated to the Class 2-A-2A
Certificates, in an amount up to the Unpaid Realized Loss Amount for such
Class;
(iii) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that
order, in each case first in an amount equal to any Interest Carry Forward
Amount for such Class and then in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(iv) to the Carryover Reserve Fund and then from the Carryover
Reserve Fund, concurrently, to the Classes of LIBOR Certificates, pro rata
based on their respective Class Certificate Balances 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 Class Certificate Balances of the Certificates will be
distributed to each Class of LIBOR Certificates with respect to which
there remains any unpaid Net Rate Carryover, pro rata, based on the amount
of such unpaid Net Rate Carryover;
(v) to the Swap Account, in an amount equal to any Swap Termination
Payment due to the Swap Counterparty as a result of a Swap Counterparty
Trigger Event;
(vi) to the Class C Certificateholders, an amount up to the Class C
Distributable Amount for such Distribution Date; and
(vii) to the Class A-R Certificates.
(d) On each Distribution Date on or prior to the Swap Contract Termination
Date, following the deposits to the Swap Account pursuant to 4.02(a)(i) and
Section 4.09 and the distributions described under Section 4.02(c), the Swap
Trustee shall distribute amounts on deposit in the Swap Account in the following
amounts and order:
(i) to the Swap Contract Administrator for payment to the Swap
Counterparty, any Net Swap Payment payable to the Swap Counterparty with
respect to such Distribution Date;
93
(ii) to the Swap Contract Administrator for payment to the Swap
Counterparty, any Swap Termination Payment (other than a Swap Termination
Payment due to a Swap Counterparty Trigger Event) payable to the Swap
Counterparty with respect to such Distribution Date;
(iii) concurrently to each Class of Senior Certificates, any
remaining Current Interest and Interest Carry Forward Amount, pro rata
based on their respective entitlements;
(iv) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that
order, in each case in an amount equal to any remaining Current Interest
and Interest Carry Forward Amount for each such Class;
(v) to the Class or Classes of LIBOR Certificates then entitled to
receive distributions in respect of principal, in an aggregate amount
equal to the Overcollateralization Deficiency Amount remaining unpaid
following the distributions described under Section 4.02(c), payable to
each such Class in the same manner in which the Extra Principal
Distribution Amount in respect of Loan Group 1 and Loan Group 2 would be
distributed to such Classes as described under Section 4.02(b);
(vi) to each Class of LIBOR Certificates, to the extent needed to
pay any remaining Net Rate Carryover for each such Class, pro rata, based
on the amount of such remaining Net Rate Carryover;
(vii) concurrently, to each Class of Senior Certificates, pro rata,
based on the remaining Unpaid Realized Loss Amounts for such Classes, in
each case in an amount equal to the remaining Unpaid Realized Loss Amount
for each such Class; provided, however, that any amounts allocable to the
Class 2-A-2B Certificates will be allocated first to the Class 2-A-2A
Certificates, in an amount up to the remaining Unpaid Realized Loss Amount
for such Class;
(viii) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that
order, in each case in an amount equal to the remaining Unpaid Realized
Loss Amount for each such Class; and
(ix) to the Swap Contract Administrator for payment to the Swap
Counterparty, any Swap Termination Payment due to a Swap Counterparty
Trigger Event payable to the Swap Counterparty with respect to such
Distribution Date.
(e) To the extent that a Class of LIBOR Certificates receives interest in
excess of the related 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. To the extent that a Class of LIBOR Certificates
receives interest in excess of the related Net Rate Cap and such interest is
paid pursuant to Section 4.02(e), such interest shall be deemed to have been
paid to the Swap Account and then paid by the Swap Account to those
Certificateholders.
94
(f) On each Distribution Date, the Prepayment Charge Amount 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.
(g) Application of Applied Realized Loss Amounts. On each Distribution
Date, the Trustee shall allocate the Applied Realized Loss Amount to reduce the
Class Certificate Balances of the Subordinated Certificates, sequentially, to
the Class X-0, Xxxxx X-0, Class M-6, Class M-5, Class M-4, Class M-3, Class M-2
and Class M-1 Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero. Thereafter, (i) if the aggregate Class
Certificate Balance of the Group 1 Senior Certificates exceeds the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans, the amount of such
excess will be applied to reduce the Class Certificate Balance of the Class
1-A-Certificates until its Class Certificate Balance has been reduced to zero,
and (ii) if the aggregate Class Certificate Balance of the Group 2 Senior
Certificates exceeds the aggregate Stated Principal Balance of the Group 2
Mortgage Loans, the amount of such excess will be applied to reduce the Class
Certificate Balance of each Class of Group 2 Senior Certificates, on a pro rata
basis according to their respective Class Certificate Balances, until the Class
Certificate Balances of such Classes have been reduced to zero except that any
amount allocated to the Class 2-A-2A Certificates will instead be allocated to
the Class 2-A-2B Certificates, until its Class Certificate Balance is reduced to
zero.
(h) Application of Subsequent Recoveries. If Subsequent Recoveries have
been received with respect to a Liquidated Mortgage Loan, the amount of such
Subsequent Recoveries will be applied, first, concurrently, to the Classes of
Senior Certificates, pro rata based on the Unpaid Realized Loss Amounts for each
Class, to increase the Class Certificate Balance of the Senior Certificates in
an amount up to the amount of Unpaid Realized Losses on each such Class of
Certificates; provided, however that any amounts allocable to the Class 2-A-2B
Certificates will be allocated to the Class 2-A-2A Certificates in an amount up
to the Unpaid Realized Loss Amount for that Class and, second, to the Classes of
Subordinated Certificates in the order of payment priority, to increase the
Class Certificate Balance of each Class of Subordinated Certificates to which
Realized Losses have been allocated, but in each case by not more than the
amount of Unpaid Realized Losses on that Class of Certificates. Holders of such
Certificates will not be entitled to any payment in respect of Current Interest
on the amount of such increases for any Interest Accrual Period preceding the
Distribution Date on which such increase occurs. Any such increases shall be
applied pro rata to the Certificate Balance of each Certificate of such Class.
SECTION 4.03. [Reserved].
SECTION 4.04. [Reserved].
SECTION 4.05. [Reserved].
SECTION 4.06. Monthly Statements to Certificateholders.
(a) Concurrently with each distribution on a Distribution Date, the
Trustee will forward by mail to each Rating Agency and make available to
Certificateholders on the Trustee's website
(xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx) a statement generally setting forth the
information contained in Exhibit U.
95
(b) The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness and accuracy
of the information provided by the Master Servicer.
(c) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day prior to
the related Distribution Date), the Master Servicer shall deliver to the Trustee
(which delivery may be by electronic data transmission) a report in
substantially the form set forth as Schedule VI hereto.
(d) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in items (1), (2) and (7) of Exhibit U aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as from time to
time in effect.
SECTION 4.07. Determination of Pass-Through Rates for COFI Certificates.
The Pass-Through Rate for each Class of COFI Certificates for each
Interest Accrual Period after the initial Interest Accrual Period shall be
determined by the Trustee as provided below on the basis of the Index and the
applicable formulae appearing in footnotes corresponding to the COFI
Certificates in the table relating to the Certificates in the Preliminary
Statement.
Except as provided below, with respect to each Interest Accrual Period
following the initial Interest Accrual Period, the Trustee shall not later than
two Business Days prior to such Interest Accrual Period but following the
publication of the applicable Index determine the Pass-Through Rate at which
interest shall accrue in respect of the COFI Certificates during the related
Interest Accrual Period.
Except as provided below, the Index to be used in determining the
respective Pass-Through Rates for the COFI Certificates for a particular
Interest Accrual Period shall be COFI for the second calendar month preceding
the Outside Reference Date for such Interest Accrual Period. If at the Outside
Reference Date for any Interest Accrual Period, COFI for the second calendar
month preceding such Outside Reference Date has not been published, the Trustee
shall use COFI for the third calendar month preceding such Outside Reference
Date. If COFI for neither the second nor third calendar months preceding any
Outside Reference Date has been published on or before the related Outside
Reference Date, the Index for such Interest Accrual Period and for all
subsequent Interest Accrual Periods shall be the National Cost of Funds Index
for the third calendar month preceding such Interest Accrual Period (or the
fourth preceding calendar month if such National Cost of Funds Index for the
third preceding calendar month has not been published by such Outside Reference
Date). In the event that the National Cost of Funds Index for neither the third
nor fourth calendar months preceding an Interest Accrual Period has been
published on or before the related Outside Reference Date, then for such
Interest Accrual Period and for each succeeding Interest Accrual Period, the
Index shall be LIBOR, determined in the manner set forth below.
96
With respect to any Interest Accrual Period for which the applicable Index
is LIBOR, LIBOR for such Interest Accrual Period will be established by the
Trustee on the related Interest Determination Date as provided in Section 4.08.
In determining LIBOR and any Pass-Through Rate for the COFI Certificates
or any Reserve Interest Rate, the Trustee may conclusively rely and shall be
protected in relying upon the offered quotations (whether written, oral or on
the Reuters Screen) from the Reference Banks or the New York City banks as to
LIBOR or the Reserve Interest Rate, as appropriate, in effect from time to time.
The Trustee shall not have any liability or responsibility to any Person for (i)
the Trustee's selection of New York City banks for purposes of determining any
Reserve Interest Rate or (ii) its inability, following a good-faith reasonable
effort, to obtain such quotations from the Reference Banks or the New York City
banks or to determine such arithmetic mean, all as provided for in this Section
4.07.
The establishment of LIBOR and each Pass-Through Rate for the COFI
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
SECTION 4.08. Determination of Pass-Through Rates for LIBOR Certificates.
(a) On each Interest Determination Date so long as any LIBOR Certificates
are outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as quoted on the Bloomberg Terminal as of each LIBOR
Determination Date.
(b) If on any Interest Determination Date, LIBOR cannot be determined as
provided in paragraph (A) of this Section 4.08, the Trustee shall either (i)
request each Reference Bank to inform the Trustee of the quotation offered by
its principal London office for making one-month United States dollar deposits
in leading banks in the London interbank market, as of 11:00 a.m. (London time)
on such Interest Determination Date or (ii) in lieu of making any such request,
rely on such Reference Bank quotations that appear at such time on the Reuters
Screen LIBO Page (as defined in the International Swap Dealers Association Inc.
Code of Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition),
to the extent available. LIBOR for the next Interest Accrual Period will be
established by the Trustee on each interest Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next applicable
Interest Accrual Period shall be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the Reserve
Interest Rate. The "Reserve Interest Rate" shall be the rate per annum
which the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/32%) of the
one-month United States dollar lending rates that New York City banks
selected by the Trustee are
97
quoting, on the relevant Interest Determination Date, to the principal
London offices of at least two of the Reference Banks to which such
quotations are, in the opinion of the Trustee, being so made, or (ii) in
the event that the Trustee can determine no such arithmetic mean, the
lowest one-month United States dollar lending rate which New York City
banks selected by the Trustee are quoting on such Interest Determination
Date to leading European banks.
(iii) If on any Interest Determination Date the Trustee is required
but is unable to determine the Reserve Interest Rate in the manner
provided in paragraph (b) above, LIBOR for the related Classes of
Certificates shall be LIBOR as determined on the preceding applicable
Interest Determination Date.
Until all of the LIBOR Certificates are paid in full, the Trustee will at
all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each Interest Determination Date. The Master Servicer
initially shall designate the Reference Banks. Each "Reference Bank" shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Trustee and shall have an established place of business in
London. If any such Reference Bank should be unwilling or unable to act as such
or if the Master Servicer should terminate its appointment as Reference Bank,
the Trustee shall promptly appoint or cause to be appointed another Reference
Bank. The Trustee shall have no liability or responsibility to any Person for
(i) the selection of any Reference Bank for purposes of determining LIBOR or
(ii) any inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each Interest
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR Certificates,
any Interest Settlement Rate, or any Reserve Interest Rate, the Trustee may
conclusively rely and shall be protected in relying upon the offered quotations
(whether written, oral or on the Dow Xxxxx Markets) from the BBA designated
banks, the Reference Banks or the New York City banks as to LIBOR, the Interest
Settlement Rate or the Reserve Interest Rate, as appropriate, in effect from
time to time. The Trustee shall not have any liability or responsibility to any
Person for (i) the Trustee's selection of New York City banks for purposes of
determining any Reserve Interest Rate or (ii) its inability, following a
good-faith reasonable effort, to obtain such quotations from, the BBA designated
banks, the Reference Banks or the New York City banks or to determine such
arithmetic mean, all as provided for in this Section 4.08.
The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
SECTION 4.09. Swap Trust and Swap Account.
98
On the Closing Date, there is hereby established a separate trust (the
"Swap Trust"), the assets of which shall consist of the Trustee's rights and
obligations under the Swap Administration Agreement. The Swap Trust shall be
maintained by the Swap Trustee, who initially, shall be the Trustee. The Swap
Trustee shall hold the assets of the Swap Trust in trust for the benefit of the
Holders of the LIBOR Certificates and the Swap Counterparty. No later than the
Closing Date, the Swap Trustee shall establish and maintain a separate,
segregated trust account to be held in the Swap Trust, titled, "Swap Account,
The Bank of New York, as Swap Trustee, in trust for the Swap Counterparty and
the registered holders of CWALT, Inc., Mortgage Pass-Through Certificates,
Series 2006-OC10." Such account shall be an Eligible Account and funds on
deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including, without limitation, other moneys
of the Trustee held pursuant to this Agreement. Amounts therein shall be held
uninvested. Funds on deposit in the Swap Account shall be distributed in the
amounts and in the order of priority described under Section 4.02(d). For
federal income tax purposes, the Swap Trust, including the Swap Account, shall
be owned by the Class C Certificates.
On each Distribution Date, the Trustee shall make a deposit to the Swap
Account pursuant to Section 4.02(a)(i), and to the extent that the amount of
such deposit is insufficient to pay any Net Swap Payment and/or Swap Termination
Payment (other than a Swap Termination Payment due to a Swap Counterparty
Trigger Event) due to the Swap Counterparty with respect to such Distribution
Date, the Trustee shall withdraw, out of amounts on deposit in the Distribution
Account in respect of the Principal Remittance Amount for each Loan Group, pro
rata on the basis of those respective Principal Remittance Amounts, such
additional amount as is necessary to cover the remaining portion of any such Net
Swap Payment and/or Swap Termination Payment (other than a Swap Termination
Payment due to a Swap Counterparty Trigger Event) due to the Swap Counterparty
with respect to such Distribution Date.
99
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates shall be substantially in the forms attached
hereto as exhibits. The Certificates shall be issuable in registered form, in
the minimum dollar denominations, integral dollar multiples in excess thereof
and aggregate dollar denominations as set forth in the following table:
Integral Multiples in Original Class Certificate
Class Minimum Denomination Excess of Minimum Balance
------------------------------- ---------------------------- ---------------------------- ----------------------------
1-A $25,000 $1 $165,209,000.00
2-A-1 $25,000 $1 $235,018,000.00
2-A-2A $25,000 $1 $266,090,000.00
2-A-2B $25,000 $1 $29,566,000.00
2-A-3 $25,000 $1 $50,926,000.00
M-1 $25,000 $1 $17,781,000.00
M-2 $25,000 $1 $14,952,000.00
M-3 $25,000 $1 $4,849,000.00
M-4 $25,000 $1 $4,849,000.00
M-5 $25,000 $1 $4,041,000.00
M-6 $25,000 $1 $4,041,000.00
M-7 $25,000 $1 $4,041,000.00
M-8 $25,000 $1 $4,041,000.00
A-R $99.95(1) N/A $100.00
C N/A N/A N/A
P (2) (2) $100.00
(1) The Tax Matters Person Certificate may be issued in a denomination of
$0.05.
(2) The Class P Certificates are issuable in minimum notional amounts equal to
a 20% Percentage Interest and any amount in excess thereof.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if (i) such Holder has
so notified the Trustee at least five Business Days prior to the related Record
Date and (ii) such Holder shall hold (A) a Notional Amount Certificate, (B) 100%
of the Class Certificate Balance of any Class of Certificates or (C)
Certificates of any Class with aggregate principal Denominations of not less
than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the countersignature and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any
100
benefit under this Agreement, or be valid for any purpose, unless countersigned
by the Trustee by manual signature, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their countersignature. On the Closing Date, the
Trustee shall countersign the Certificates to be issued at the direction of the
Depositor, or any affiliate of the Depositor.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate transfers.
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.06, a Certificate Register for the Trust Fund
in which, subject to the provisions of subsections (b) and (c) below and to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
provided in this Agreement. Upon surrender for registration of transfer of any
Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the holder thereof or his
attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer in substantially the forms
set forth in Exhibit J-2 (the "Transferor Certificate") and (i) deliver a letter
in substantially the form of either Exhibit K (the "Investment Letter") or
000
Xxxxxxx X-0 (xxx "Rule 144A Letter") or (ii) there shall be delivered to the
Trustee at the expense of the transferor an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act; provided,
however, that in the case of the delivery of an Investment Letter in connection
with the transfer of any Class C or Class P Certificate to a transferee that is
formed with the purpose of issuing notes backed by such Class C or Class P
Certificate, as the case may be, clause (b) and (c) of the form of Investment
Letter shall not be applicable and shall be deleted by such transferee. The
Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Trustee and the Master Servicer shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor, the Sellers, the NIM Insurer and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit K or Exhibit
L-1, or in the event such Certificate is a Residual Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that (x) such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or a plan or arrangement subject to Section 4975
of the Code, nor a person acting on behalf of any such plan or arrangement or
using the assets of any such plan or arrangement to effect such transfer or (y)
in the case of a Certificate that is an ERISA-Restricted Certificate and that
has been the subject of an ERISA-Qualifying Underwriting, a representation that
the transferee is an insurance company which is purchasing such Certificates
with funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60 or (ii)
in the case of any ERISA-Restricted Certificate presented for registration in
the name of an employee benefit plan or arrangement subject to ERISA or a plan
or arrangement subject to Section 4975 of the Code (or comparable provisions of
any subsequent enactments), or a trustee or any other person acting on behalf of
any such plan or arrangement, or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund,
addressed to the Trustee and the Master Servicer to the effect that the purchase
and holding of such ERISA-Restricted Certificate will not result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Master Servicer to any obligation in
addition to those expressly undertaken in this Agreement or to any liability
(such Opinion of Counsel, a "Benefit Plan Opinion"). For purposes of the
preceding
102
sentence, with respect to an ERISA-Restricted Certificate that is not a Residual
Certificate, in the event the representation letter or Benefit Plan Opinion
referred to in the preceding sentence is not so furnished, one of the
representations in clause (i), as appropriate, shall be deemed to have been made
to the Trustee by the transferee's (including an initial acquiror's) acceptance
of the ERISA-Restricted Certificates. Notwithstanding anything else to the
contrary in this Agreement, any purported transfer of an ERISA-Restricted
Certificate to or on behalf of an employee benefit plan or arrangement subject
to ERISA or to Section 4975 of the Code without the delivery to the Trustee of a
Benefit Plan Opinion of Counsel satisfactory to the Trustee as described above
shall be void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact not
permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
So long as the Swap Contract and Swap Trust are in effect, no transfer of
a Covered Certificate (other than a transfer of a Covered Certificate to an
affiliate of the Depositor (either directly or through a nominee) in connection
with the initial issuance of the Certificates) shall be made unless the Trustee
shall have received a representation letter from the transferee of such Covered
Certificate substantially in the form of Exhibit L-2 to the effect that (i) such
transferee is not a Plan, or (ii) the purchase and holding of the Covered
Certificate satisfies the requirements for exemptive relief under XXXX 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23, the service provider exemption
provided under Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code
or a similar exemption. In the event that such representation letter is not
delivered, one of the foregoing representations, as appropriate, shall be deemed
to have been made by the transferee's (including an initial acquiror's)
acceptance of the Covered Certificate. In the event that such representation is
violated, such transfer or acquisition shall be void and of no effect.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) Except in connection with (i) the registration of the Tax
Matters Person Certificate in the name of the Trustee or (ii) any
registration in the name of, or transfer of a Residual Certificate to, an
affiliate of the Depositor (either directly or through a nominee) on or
about the Closing Date, no Ownership Interest in a Residual Certificate
may be registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate unless
the Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form
attached hereto as Exhibit I.
103
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee and to provide to the Trustee a certificate
substantially in the form attached hereto as Exhibit J-1 stating that it
has no knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter, if
required. The Trustee shall be entitled but not obligated to recover from
any Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as
it became other than a Permitted Transferee, all payments made on such
Residual Certificate at and after either such time. Any such payments so
recovered by the Trustee shall be paid and delivered by the Trustee to the
last preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trust Fund, the Trustee, the Master Servicer or
any Seller, to the effect that the elimination of such restrictions will not
cause any REMIC hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel furnished to
the Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer
104
of a Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.02 in connection with transfer shall be at the
expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) after the occurrence of an Event of
Default, Certificate Owners representing at least 51% of the Certificate Balance
of the Book-Entry Certificates together advise the Trustee and the Depository
through the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Master Servicer, the Depositor nor the Trustee shall
be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Master Servicer shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references in this Agreement to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
105
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Master Servicer and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Master Servicer, the NIM Insurer, the Trustee and any agent of the
Master Servicer, the NIM 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 neither the Master Servicer, the NIM Insurer, the
Trustee nor any agent of the Master Servicer, the NIM Insurer or the Trustee
shall be affected by any notice to the contrary.
SECTION 5.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders and/or Certificate Owners (a) request
such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders and/or Certificate Owners propose to
transmit, or if the Depositor or Master Servicer shall request such information
in writing from the Trustee, then the Trustee shall, within ten Business Days
after the receipt of such request, (x) provide the Depositor, the Master
Servicer or such Certificateholders and/or Certificate Owners at such
recipients' expense the most recent list of the Certificateholders of such Trust
Fund held by the Trustee, if any, and (y) assist the Depositor, the Master
Servicer or such Certificateholders and/or Certificate Owners at such
recipients' expense with obtaining from the Depository a list of the related
Depository Participants acting on behalf of Certificate Owners of Book Entry
Certificates. The Depositor and every Certificateholder and Certificate Owner,
by receiving and holding a Certificate or beneficial interest therein, agree
that the Trustee shall not be held accountable by reason of the disclosure of
any such information as to the list of the
106
Certificateholders and/or Depository Participants hereunder, regardless of the
source from which such information was derived.
SECTION 5.06. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates may
be surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
107
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
with this Agreement only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them in this Agreement.
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor will keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement. The Master Servicer will keep in effect its
existence, rights and franchises as a limited partnership under the laws of the
United States or under the laws of one of the states thereof and will obtain and
preserve its qualification or registration to do business as a foreign
partnership in each jurisdiction in which such qualification or registration is
or shall be necessary to protect the validity and enforceability of this
Agreement or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any Person into which the Depositor or the Master Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything in this Agreement to the
contrary notwithstanding; provided, however, that the successor or surviving
Person to the Master Servicer shall be qualified to service mortgage loans on
behalf of, FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Master Servicer, the Master Servicer shall provide (x)
written notice to the Depositor of any successor pursuant to this Section and
(y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a replacement Master Servicer.
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers, the
Master Servicer, the NIM Insurer and Others.
None of the Depositor, the Master Servicer, the NIM Insurer or any Seller
or any of the directors, officers, employees or agents of the Depositor, the
Master Servicer, the NIM Insurer or any Seller shall be under any liability to
the Certificateholders for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Master Servicer, any Seller or any such Person against any breach of
representations or warranties made
108
by it in this Agreement or protect the Depositor, the Master Servicer, any
Seller or any such Person from any liability which would otherwise be imposed by
reasons of willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder. The Depositor, the Master Servicer, the NIM Insurer, each Seller and
any director, officer, employee or agent of the Depositor, the Master Servicer,
the NIM Insurer or each Seller may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under this Agreement. The Depositor, the Master Servicer, the
NIM Insurer, each Seller and any director, officer, employee or agent of the
Depositor, the Master Servicer, the NIM Insurer or any Seller shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Master Servicer, the NIM Insurer or any
Seller shall be under any obligation to appear in, prosecute or defend any legal
action that is not incidental to its respective duties hereunder and which in
its opinion may involve it in any expense or liability; provided, however, that
any of the Depositor, the Master Servicer, the NIM Insurer or any Seller may in
its discretion undertake any such action that it may deem necessary or desirable
in respect of this Agreement and the rights and duties of the parties hereto and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer, the NIM Insurer and each Seller shall be
entitled to be reimbursed therefor out of the Certificate Account.
SECTION 6.04. Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer 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
or (b) upon determination that its duties hereunder are no longer permissible
under applicable law. Any such determination under clause (b) permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
to such effect delivered to the Trustee. No resignation of the Master Servicer
shall become effective until the Trustee or a successor master servicer shall
have assumed the Master Servicer's responsibilities, duties, liabilities (other
than those liabilities arising prior to the appointment of such successor) and
obligations under this Agreement and the Depositor shall have received the
information described in the following sentence. As a condition to the
effectiveness of any such resignation, at least 15 calendar days prior to the
effective date of such resignation, the Master Servicer shall provide (x)
written notice to the Depositor of any successor pursuant to this Section and
(y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
the resignation of the Master Servicer.
109
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default," wherever used in this Agreement, means any one of the
following events:
(i) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment required to be made under the
terms of this Agreement, which failure shall continue unremedied for five
days after the date upon which written notice of such failure shall have
been given to the Master Servicer by the Trustee, the NIM Insurer or the
Depositor or to the Master Servicer, the NIM Insurer and the Trustee by
the Holders of Certificates having not less than 25% of the Voting Rights
evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer contained in this Agreement (except with respect to a
failure related to a Limited Exchange Act Reporting Obligation), which
failure materially affects the rights of Certificateholders, that failure
continues unremedied for a period of 60 days after the date on which
written notice of such failure shall have been given to the Master
Servicer by the Trustee, the NIM Insurer or the Depositor, or to the
Master Servicer and the Trustee by the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates;
provided, however, that the sixty day cure period shall not apply to the
initial delivery of the Mortgage File for Delay Delivery Mortgage Loans
nor the failure to substitute or repurchase in lieu of delivery; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of, or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
110
(vi) the Master Servicer shall fail to reimburse in full the Trustee
within five days of the Master Servicer Advance Date for any Advance made
by the Trustee pursuant to Section 4.01(b) together with accrued and
unpaid interest.
If an Event of Default described in clauses (i) to (vi) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trustee may, or, if an Event of
Default described in clauses (i) to (v) of this Section shall occur, then, and
in each and every such case, so long as such Event of Default shall not have
been remedied, at the direction of either the NIM Insurer or the Holders of
Certificates evidencing not less than 66-2/3% of the Voting Rights, evidenced by
the Certificates; the Trustee shall by notice in writing to the Master Servicer
(with a copy to each Rating Agency and the Depositor), terminate all of the
rights and obligations of the Master Servicer under this Agreement and in and to
the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. In addition, if during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Master Servicer shall fail to observe or perform any of the
obligations that constitute a Limited Exchange Act Reporting Obligation or the
obligations set forth in Section 3.16(a) or Section 11.01(a)(1) and (2), and
such failure continues for the lesser of 10 calendar days or such period in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions), so long as such failure shall not have been
remedied, the Trustee shall, but only at the direction of the Depositor,
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
its rights as a Certificateholder hereunder. The Depositor shall not be entitled
to terminate the rights and obligations of the Master Servicer if a failure of
the Master Servicer to identify a Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB was attributable
solely to the role or functions of such Subcontractor with respect to mortgage
loans other than the Mortgage Loans.
On and after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer hereunder, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee.
The Trustee shall thereupon make any Advance which the Master Servicer failed to
make subject to Section 4.01 whether or not the obligations of the Master
Servicer have been terminated pursuant to this Section. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Master Servicer
to pay amounts owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be credited
to the Certificate Account, or thereafter be received with respect to the
Mortgage Loans.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due prior to the
notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3.08(a)(i)
through
111
(viii), and any other amounts payable to such Master Servicer hereunder the
entitlement to which arose prior to the termination of its activities under this
Agreement.
If the Master Servicer is terminated, the Trustee shall provide the
Depositor in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a successor master servicer in the event the Trustee should succeed to the
duties of the Master Servicer as set forth herein.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 3.04, be the successor to the Master Servicer in its
capacity as master servicer under this Agreement and the transactions set forth
or provided for in this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions of this Agreement and applicable law
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Master Servicer would have been entitled to charge
to the Certificate Account or Distribution Account if the Master Servicer had
continued to act hereunder. Notwithstanding the foregoing, if the Trustee has
become the successor to the Master Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4.01 or if it is
otherwise unable to so act, (i) appoint any established mortgage loan servicing
institution reasonably acceptable to the NIM Insurer (as evidenced by the prior
written consent of the NIM Insurer), or (ii) if it is unable for 60 days to
appoint a successor servicer reasonably acceptable to the NIM Insurer, petition
a court of competent jurisdiction to appoint any established mortgage loan
servicing institution, the appointment of which does not adversely affect the
then-current rating of the Certificates and the NIM Insurer guaranteed notes
(without giving any effect to any policy or guaranty provided by the NIM
Insurer) by each Rating Agency as the successor to the Master Servicer hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer hereunder. Any successor to the Master
Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least $15,000,000,
and which is willing to service the Mortgage Loans and (i) executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Master Servicer
(other than liabilities of the Master Servicer under Section 6.03 incurred prior
to termination of the Master Servicer under Section 7.01), with like effect as
if originally named as a party to this Agreement; and provided further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation and (ii) provides to the
Depositor in writing, fifteen (15) days prior to the effective date of such
appointment, and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by the Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to a
replacement master servicer. The Trustee shall provide written notice to the
Depositor of such successor pursuant to this Section. Pending appointment of a
successor to the Master Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to Section 3.04, act in such
112
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of the
Master Servicing Fee permitted the Master Servicer hereunder. The Trustee and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. Neither the Trustee nor any
other successor master servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof or any failure to perform, or any delay in
performing, any duties or responsibilities hereunder, in either case caused by
the failure of the Master Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give notice
to the NIM Insurer and the Mortgagors of such change of servicer and shall,
during the term of its service as master servicer maintain in force the policy
or policies that the Master Servicer is required to maintain pursuant to Section
3.09.
In connection with the termination or resignation of the Master Servicer
hereunder, either (i) the successor Master Servicer, including the Trustee if
the Trustee is acting as successor Master Servicer, shall represent and warrant
that it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor Master Servicer shall cooperate with the successor Master Servicer
either (x) in causing MERS to execute and deliver an assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Trustee and to execute
and deliver such other notices, documents and other instruments as may be
necessary or desirable to effect a transfer of such Mortgage Loan or servicing
of such Mortgage Loan on the MERS(R) System to the successor Master Servicer or
(y) in causing MERS to designate on the MERS(R) System the successor Master
Servicer as the servicer of such Mortgage Loan. The predecessor Master Servicer
shall file or cause to be filed any such assignment in the appropriate recording
office. The successor Master Servicer shall cause such assignment to be
delivered to the Trustee promptly upon receipt of the original with evidence of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
113
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that the Trustee shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) unless an Event of Default known to the Trustee shall have
occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against
the Trustee and the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be finally proven that the Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee under
this Agreement; and
(iv) without in any way limiting the provisions of this Section 8.01
or Section 8.02, the Trustee shall be entitled to rely conclusively on the
information delivered to it by the Master Servicer in a Trustee Advance
Notice in determining whether it is required
114
to make an Advance under Section 4.01(b), shall have no responsibility to
ascertain or confirm any information contained in any Trustee Advance
Notice, and shall have no obligation to make any Advance under Section
4.01(b) in the absence of a Trustee Advance Notice or actual knowledge of
a Responsible Officer of the Trustee that (A) such Advance was not made by
the Master Servicer and (B) such Advance is not a Nonrecoverable Advance.
The Trustee hereby represents, warrants, covenants and agrees that, except
as permitted by Article IX hereof, it shall not cause the Trust Fund to
consolidate or amalgamate with, or merge with or into, or transfer all or
substantially all of the Trust Fund to, another Person.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties and the Trustee
shall have no responsibility to ascertain or confirm the genuineness of
any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants of its selection and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
the NIM Insurer or Holders of Certificates evidencing not less than 25% of
the Voting Rights allocated to each Class of Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers hereunder
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not assured
to it;
115
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of the NIM Insurer or any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
the NIM Insurer or such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which may be incurred therein
or thereby.
The Depositor hereby directs the Trustee to execute, deliver and
perform its obligations under the Swap Administration Agreement (in its capacity
as Swap Trustee). The Sellers, the Depositor, the Master Servicer and the
Holders of the LIBOR Certificates by their acceptance of such Certificates
acknowledge and agree that the Trustee shall execute, deliver and perform its
obligations under the Swap Administration Agreement and shall do so solely in
its capacity as Swap Trustee, as the case may be, and not in its individual
capacity. Every provision of this Agreement relating to the conduct or affecting
the liability of or affording protection to the Trustee shall apply to the
Trustee's execution of the Swap Administration Agreement in its capacity as Swap
Trustee, and the performance of its duties and satisfaction of its obligations
thereunder.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained in this Agreement and in the Certificates shall be
taken as the statements of the Depositor or a Seller, as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or the Master Servicer of any funds paid
to the Depositor or the Master Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from the Certificate Account by the Depositor or the
Master Servicer.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights as it would have if it were not
the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Distribution Account on each Distribution Date an
amount equal to the Trustee Fee for such Distribution Date. The Trustee and any
director, officer, employee or agent of the Trustee shall be indemnified by the
Master Servicer and held harmless against any loss, liability or
116
expense (including reasonable attorney's fees) (i) incurred in connection with
any claim or legal action relating to (a) this Agreement, (b) the Certificates
or (c) in connection with the performance of any of the Trustee's duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from any
error in any tax or information return prepared by the Master Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Trustee hereunder. Without limiting the foregoing, the Master
Servicer covenants and agrees, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any such expense, disbursement or
advance as may arise from the Trustee's negligence, bad faith or willful
misconduct, to pay or reimburse the Trustee, for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that the
Trustee must engage such persons to perform acts or services hereunder and (C)
printing and engraving expenses in connection with preparing any Definitive
Certificates. Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee,
Registrar, Tax Matters Person or Paying Agent hereunder or for any other
expenses.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce or withdraw their respective
then current ratings of the Certificates (or having provided such security from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 8.06, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07. The entity serving as Trustee may have normal banking and trust
relationships with the Depositor and its affiliates or the Master Servicer and
its affiliates; provided, however, that such entity cannot be an affiliate of
the Master Servicer other than the Trustee in its role as successor to the
Master Servicer.
SECTION 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to
117
Section 8.08, such resignation is to take effect, and acceptance by a successor
trustee in accordance with Section 8.08 meeting the qualifications set forth in
Section 8.06. If no successor trustee meeting such qualifications shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice or resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
As a condition to the effectiveness of any such resignation, at least 15
calendar days prior to the effective date of such resignation, the Trustee shall
provide (x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably satisfactory to
the Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
the resignation of the Trustee.
If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof and shall fail to resign after
written request thereto by the NIM Insurer or the Depositor, (ii) the Trustee
shall become incapable of acting, or shall be adjudged as bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a
tax is imposed with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund is located and the imposition of such tax would be avoided by
the appointment of a different trustee, or (iv) during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Trustee fails to comply with its obligations under the last sentence
of Section 7.01, in the preceding paragraph, Section 8.09 or Article XI and such
failure is not remedied within the lesser of 10 calendar days or such period in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions), then, in the case of clauses (i) through (iii),
the Depositor, the NIM Insurer or the Master Servicer, and in the case of clause
(iv), the Depositor, may remove the Trustee and appoint a successor trustee,
reasonably acceptable to the NIM Insurer, by written instrument, in triplicate,
one copy of which instrument shall be delivered to the Trustee, one copy of
which shall be delivered to the Master Servicer, one copy of which shall be
delivered to the NIM Insurer and one copy of which shall be delivered to the
successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments signed by such Holders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered by the
successor Trustee to the Master Servicer, one complete set to the Trustee so
removed, one complete set to the NIM Insurer and one complete set to the
successor so appointed. Notice of any removal of the Trustee shall be given to
each Rating Agency by the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.08.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and the
Master Servicer an instrument
118
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee in this Agreement. The
Depositor, the Master Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee all
such rights, powers, duties, and obligations. In addition, if a Swap Contract is
still outstanding, the Person appointed as successor trustee shall execute,
acknowledge and deliver to the predecessor trustee, Countrywide and the Master
Servicer an instrument accepting the appointment as successor Swap Contract
Administrator under the Swap Contract Administration Agreement.
No successor trustee shall accept appointment as provided in this Section
8.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06 hereof, is reasonably acceptable
to the NIM Insurer, its appointment shall not adversely affect the then-current
ratings of the Certificates and has provided to the Depositor in writing and in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to the NIM Insurer and all Holders of Certificates. If the Depositor
fails to mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.06 without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything in this Agreement
to the contrary notwithstanding.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Trustee, the Trustee shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Trustee.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Master Servicer and the
119
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee and
reasonably acceptable to the NIM Insurer to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the Trust
Fund or any part thereof, whichever is applicable, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Master Servicer and the Trustee may consider necessary or
desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in the case an
Event of Default shall have occurred and be continuing, the Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the applicable Trust Fund
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder and such appointment
shall not, and shall not be deemed to, constitute any such separate
trustee or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(iv) The Master Servicer, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and indemnification
to any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided
120
therein, subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee and a copy thereof given to the Master Servicer
and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC
election is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of any such REMIC and
that in such capacity it shall: (a) prepare and file, or cause to be prepared
and filed, in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file or cause to be prepared and filed with the
Internal Revenue Service and applicable state or local tax authorities income
tax or information returns for each taxable year with respect to any such REMIC,
containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby; (b)
within thirty days of the Closing Date, furnish or cause to be furnished to the
Internal Revenue Service, on Forms 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make or cause to be made elections that such assets be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and, if
necessary, state tax authorities, all information returns and reports as and
when required to be provided to them in accordance with the REMIC Provisions,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption; (e) provide information necessary for the
computation of tax imposed on the transfer of a Residual Certificate to a Person
that is not a Permitted Transferee, or an agent (including a broker, nominee or
other middleman) of a Non-Permitted Transferee, or a pass-through entity in
which a Non-Permitted Transferee is the record holder of an interest (the
reasonable cost of computing and furnishing such information may be charged to
the Person liable for such tax); (f) to the extent that they are under its
control conduct matters relating to such assets at all times that any
Certificates are outstanding so as to maintain the status as a REMIC under the
REMIC Provisions; (g) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the tax status of any REMIC;
(h) pay, from
121
the sources specified in the third paragraph of this Section 8.11, the amount of
any federal or state tax, including prohibited transaction taxes as described
below, imposed on any such REMIC prior to its termination when and as the same
shall be due and payable (but such obligation shall not prevent the Trustee or
any other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Trustee from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings); (i) ensure
that federal, state or local income tax or information returns shall be signed
by the Trustee or such other person as may be required to sign such returns by
the Code or state or local laws, regulations or rules; (j) maintain records
relating to any such REMIC, including but not limited to the income, expenses,
assets and liabilities thereof and the fair market value and adjusted basis of
the assets determined at such intervals as may be required by the Code, as may
be necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, represent any such
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of any such REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any such REMIC, and otherwise act on
behalf of any such REMIC in relation to any tax matter or controversy involving
it.
In order to enable the Trustee to perform its duties as set forth in
this Agreement, the Depositor shall provide, or cause to be provided, to the
Trustee within ten (10) days after the Closing Date all information or data that
the Trustee requests in writing and determines to be relevant for tax purposes
to the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, reasonably request
in order to enable the Trustee to perform its duties as set forth in this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide, or to cause to be provided, accurate information or data to the
Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of
any REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c) of
the Code, on any contribution to any REMIC hereunder after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including,
without limitation, any minimum tax imposed upon any REMIC hereunder pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by the
Trustee of any of its obligations under this Agreement, (ii) the Master
Servicer, in the case of any such minimum tax, or if such tax arises out of or
results from a breach by the Master Servicer or a Seller of any of their
obligations under this Agreement, (iii) any Seller, if any such tax arises out
of or results from that Seller's obligation to repurchase a Mortgage Loan
pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or in the event
that the Trustee, the Master Servicer or any Seller fails to honor its
obligations under the preceding clauses (i),(ii) or (iii), any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 3.08(b).
122
The Trustee shall treat the Carryover Reserve Fund and the Swap
Trust, including the Swap Account, as an outside reserve fund within the meaning
of Treasury Regulation 1.860G-2(h), neither of which is an asset of any REMIC
created hereunder. The Carryover Reserve Fund shall be treated as owned by the
Holders of the Class C Certificates, and the Swap Trust, including the Swap
Account, shall be treated as owned by the Holders of the Class C Certificates.
The Trustee shall treat the rights of the Holders of the LIBOR Certificates and
the Class C Certificates to receive payments from the Carryover Reserve Fund or
the Swap Trust, including the Swap Account, as applicable, as rights and
obligations with respect to notional principal contracts written by (i) the
Holders of the Class C Certificates in respect of any Net Rate Carryover
distributed pursuant to Section 4.02(c)(vi) herein and (ii) the Swap
Counterparty in respect of any Net Rate Carryover funded by the Swap Contract
and in respect of any residual payments from such Swap Contract received by the
Class C Certificates. Thus, the LIBOR Certificates and the Class C Certificates
shall be treated as representing ownership of Master REMIC regular interests
coupled with contractual rights and obligations within the meaning of Treasury
Regulation 1.860G-2(i). For U.S. federal income tax purposes, in order to
determine the issue price of a REMIC regular interest underlying a Master REMIC
Certificate, the Trustee shall treat any obligation (or deemed obligation) to
make payments under the Swap Contract undertaken by the holder of such Master
REMIC Certificate, as part of the consideration paid by the Certificateholder
for the underlying REMIC regular interest. The total deemed obligation for all
Certificateholders shall be $775,000. The trustee shall treat any amount payable
to a Class C Certificateholder as first deposited in the Carryover Reserve Fund.
In addition, to the extent the interest otherwise payable to a Certificateholder
is reduced for amounts payable with respect to a Swap Contract, the Trustee, for
federal income tax purposes, shall treat the amount of such reduction as first
payable to the Certificateholder as interest and as then payable by the
Certificateholder with respect to a notional principal contract. To the extent
the amount payable with respect to the Swap Contract exceeds the aggregate of
the reductions described in the immediate sentence, the Trustee, for federal
income tax purposes, shall treat such excess as Realized Losses from Mortgage
Loans and to the extent such Realized Losses (if they had occurred) would be
allocated to a Certificateholder, the Trustee shall treat such amount as first
payable to the Certificateholder as principal and as then payable by the
Certificateholder with respect to a notional principal contract. For this
purpose, the amount of interest otherwise payable to a Certificateholder is
computed as if the Net Rate Cap was the applicable Tax Net Rate Cap.
Solely for income tax purposes, any differences in the distributions
to a Certificateholder (positive or negative) that would result from the
application of the Strip REMIC Cap rather than the applicable Net Rate Cap shall
be treated by the Trustee as reconciled among the Certificates by swap payments
made pursuant to notional principal contracts entered into among the
Certificateholders.
SECTION 8.12. Monitoring of Significance Percentage.
With respect to each Distribution Date, the Trustee shall calculate
the "significance percentage" (as defined in Item 1115 of Regulation AB) of each
derivative instrument, if any, based on the aggregate Class Certificate Balance
of the related Classes of Covered Certificates for such derivative instrument
and Distribution Date (after all distributions to be made thereon on such
Distribution Date) and based on the methodology provided in writing by or on
behalf of Countrywide no later than the fifth Business Day preceding such
Distribution
123
Date. On each Distribution Date, the Trustee shall provide to Countrywide a
written report (which written report may include similar information with
respect to other derivative instruments relating to securitization transactions
sponsored by Countrywide) specifying the "significance percentage" of each
derivative instrument, if any, for that Distribution Date. If the "significance
percentage" of any derivative instrument exceeds 7.0% with respect to any
Distribution Date, the Trustee shall make a separate notation thereof in the
written report described in the preceding sentence. Such written report may
contain such assumptions and disclaimers as are deemed necessary and appropriate
by the Trustee.
124
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Mortgage
Loans.
Subject to Section 9.03 and Section 9.04, the obligations and
responsibilities of the Depositor, the Sellers, the Master Servicer and the
Trustee created hereby with respect to the Trust Fund shall terminate upon the
earliest of (a) the purchase by the Master Servicer or NIM Insurer (the party
exercising such purchase option, the "Terminator") of all of the Mortgage Loans
(and REO Properties) at a price (the "Termination Price") equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of an REO Property), (ii) accrued interest thereon at the applicable
Mortgage Rate (or, if such repurchase is effected by the Master Servicer, at the
applicable Adjusted Mortgage Rate), (iii) the appraised value of any REO
Property (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the Terminator
and the Trustee 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,
(b) the purchase by the Winning Bidder of all of the Mortgage Loans (and REO
Properties) remaining in the Trust Fund after a Successful Auction is conducted
pursuant to Section 9.04 and the related auction proceeds are distributed
pursuant to Section 9.02(c) and (c) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and (ii) the
distribution to the Certificateholders of all amounts required to be distributed
to them pursuant to this Agreement, as applicable. In no event shall the trusts
created hereby continue beyond the earlier of (i) the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living on the
date hereof and (ii) the Latest Possible Maturity Date.
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 Pool Stated Principal Balance, at the time of any
such repurchase, is less than or equal to ten percent (10%) of the Cut-off Date
Pool Principal Balance and (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.
The preceding notwithstanding, on any Distribution Date on which each of
the Master Servicer and the NIM Insurer shall have the option to purchase all
the Mortgage Loans (and REO Properties) remaining in the Trust Fund pursuant to
this Section 9.01, the NIM Insurer's purchase option shall require the prior
written consent of the Master Servicer.
The Swap Trust shall terminate on the earliest of (i) the Swap Contract
Termination Date, (ii) the reduction of the aggregate Class Certificate Balance
of the LIBOR Certificates to zero and (iii) the termination of this Agreement.
SECTION 9.02. Final Distribution on the Certificates.
125
(a) Timing of Notice of Final Distribution, Auction or Optional
Termination.
(i) If on any Determination Date, the Master Servicer determines
that there are no Outstanding Mortgage Loans and no other funds or assets
in the Trust Fund other than the funds in the Certificate Account, then
the Master Servicer shall direct the Trustee promptly to send a final
distribution notice to each Certificateholder in accordance with Section
9.02(b). In the event such notice is given, the Master Servicer shall
cause all funds in the Certificate Account to be remitted to the Trustee
for deposit in the Distribution Account on or before the Business Day
prior to the applicable Distribution Date, net of any amounts permitted to
be withdrawn pursuant to Section 3.08(a). Upon such final deposit with
respect to the Trust Fund and the receipt by the Trustee of a Request for
Release therefor, the Trustee shall promptly release to the Master
Servicer the Mortgage Files for the Mortgage Loans.
(ii) If the Directing Certificateholder chooses to exercise its
right to cause an auction pursuant to Section 9.04, then the Directing
Certificateholder shall provide written notice to the Master Servicer no
later than the 1st day of the calendar month in which such auction is to
be conducted. If a Successful Auction is held pursuant to the requirements
of Section 9.04, then the Trustee shall distribute the proceeds of the
Successful Auction that have been remitted to the Distribution Account to
the Certificateholders pursuant to Sections 4.02 and 9.04 hereof on the
Distribution Date in the calendar month immediately following the calendar
month in which the Successful Auction occurs.
(iii) If the Directing Certificateholder does not exercise its right
to cause an auction pursuant to Section 9.04 and the Terminator (after
prior written notice to the Master Servicer if the Terminator is the NIM
Insurer) elects to terminate the Trust Fund pursuant to Section 9.01, then
at least 20 days prior to the date notice is to be mailed to
Certificateholders in accordance with Section 9.02(b), the Terminator
shall notify the Depositor and the Trustee of (a) its election to
terminate the Trust Fund, (b) the Distribution Date on which it intends to
terminate the Trust Fund pursuant to Section 9.01 and (c) the applicable
purchase price of the Mortgage Loans and REO Properties. In the event such
notice is given, Terminator shall remit to the Master Servicer, on or
before the Business Day prior to the final Distribution Date, for deposit
into the Certificate Account, the Termination Price. The Master Servicer
shall cause all funds in the Certificate Account, including the
Termination Price, net of any amounts permitted to be withdrawn pursuant
to Section 3.08(a), to be remitted to the Trustee for deposit in the
Distribution Account on or before the Business Day prior to the applicable
Distribution Date. Upon such final deposit with respect to the Trust Fund
and the receipt by the Trustee of a Request for Release therefor, the
Trustee shall promptly release to the Master Servicer the Mortgage Files
for the Mortgage Loans.
(b) Timing of Notice to Certificateholders of Termination. Notice of any
termination of the Trust Fund (whether because of a Successful Auction, Optional
Termination or otherwise), specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by letter
to Certificateholders mailed not earlier than the 10th day and no later than the
15th day of the month next preceding the month of such final distribution. Any
such notice shall specify (i)
126
the Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of the Certificates at the office therein
designated, (ii) the amount of such final distribution, (iii) the location of
the office or agency at which such presentation and surrender must be made, and
(iv) that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Master Servicer will give such
notice to each Rating Agency and the Swap Counterparty at the time such notice
is given to Certificateholders.
(c) Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case on
the final Distribution Date and in the order set forth in Section 4.02 (and with
respect to the Class C Certificates after a Successful Auction, Section 9.04(g)
and (k)), in proportion to their respective Percentage Interests, with respect
to Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates, the Certificate Balance thereof plus accrued interest
thereon (or on its Notional Amount, if applicable) in the case of an interest
bearing Certificate and (ii) as to the Residual Certificates, the amount, if
any, which remains on deposit in the Distribution Account (other than the
amounts retained to meet claims) after application pursuant to clause (i) above.
Notwithstanding the reduction of the Class Certificate Balance of any Class of
Certificates to zero, such Class will be outstanding hereunder (solely for the
purpose of receiving distributions and not for any other purpose) until the
termination of the respective obligations and responsibilities of the Depositor,
each Seller, the Master Servicer and the Trustee hereunder in accordance with
Article IX.
(d) In the event that any affected Certificateholders shall not surrender
their respective Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
then the Class A-R Certificateholders shall be entitled to all unclaimed funds
and other assets of the Trust Fund which remain subject to this Agreement.
SECTION 9.03. Additional Termination Requirements.
(a) In the event the Terminator exercises its purchase option as provided
in Section 9.01 or there is a Successful Auction pursuant to Section 9.04, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the Terminator (or the Directing Certificateholder, in the
case of a Successful Auction), to the effect that the failure to comply with the
requirements of this Section 9.03 will not (i) result in the imposition of taxes
on "prohibited transactions" on any REMIC as defined in section 860F of the
Code, or (ii) cause any REMIC created hereunder to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
127
(1) The Master Servicer shall establish a 90-day liquidation
period and notify the Trustee thereof, which shall in turn specify the
first day of such period in a statement attached to the Trust Fund's final
Tax Return pursuant to Treasury Regulation Section 1.860F-1. The Master
Servicer shall prepare a plan of complete liquidation and shall otherwise
satisfy all the requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder, as evidenced by an Opinion of
Counsel delivered to the Trustee and the Depositor obtained at the expense
of the Terminator (or the Directing Certificateholder, in the case of a
Successful Auction); and
(2) Within 90 days after the time of adoption of such a plan
of complete liquidation, the Trustee shall sell all of the assets of the
Trust Fund to the Terminator (or the Winning Bidder in the case of a
Successful Auction) for cash in accordance with Section 9.01 and, if
applicable, Section 9.04.
(b) The Trustee, as agent for any REMIC created hereunder, hereby agrees
to adopt and sign such a plan of complete liquidation upon the written request
of the Master Servicer, and the receipt of the Opinion of Counsel referred to in
Section 9.03(a)(1) and to take such other action in connection therewith as may
be reasonably requested by the Terminator or the Directing Certificateholder, as
applicable.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Master Servicer to prepare and the Trustee to adopt and sign a
plan of complete liquidation.
SECTION 9.04. Auction of the Mortgage Loans and REO Properties.
(a) On or after the Optional Termination Date, the Holder of the largest
Percentage Interest in the Class C Certificates (the "Directing
Certificateholder"), at its option, may by written instruction direct the
Trustee to solicit bids in a commercially reasonable manner from Qualified
Bidders for the purchase of the Mortgage Loans and any REO Properties owned by
the Trust Fund. The Directing Certificateholder shall provide written notice to
the Master Servicer as provided in Section 9.02(a)(ii). Any such direction by
the Directing Certificateholder shall (i) be made in writing and (ii) include
contact information for the Directing Certificateholder. Upon receipt of any
direction from the Directing Certificateholder meeting the requirements of the
immediately preceding sentence, the Trustee shall commence the auction process
described in this Section 9.04. The Trustee may engage a financial advisor,
which financial advisor may be Countrywide or one of its affiliates, in order to
perform any of the duties of the Trustee specified in Section 9.04. To
effectuate such sale, the Trustee (or such financial advisor) shall follow the
procedures specified in Section 9.04(b) below. The Trustee shall facilitate the
sale of the assets in the Trust Fund to the Winning Bidder so long as the
Trustee (or any financial advisor on its behalf) has received at least three
bids from Qualified Bidders and at least one such bid is at least equal to the
Acceptable Bid Amount. In the event the auction is not a Successful Auction, the
Trustee shall repeat this process as directed by the Directing Certificateholder
until a Successful Auction is conducted or the Terminator purchases all of the
Mortgage Loans and REO Properties pursuant to Section 9.01. The Trustee shall be
reimbursed for its reasonable costs, including expenses associated with engaging
any financial advisor, from the Directing Certificateholder if the auction is
not a Successful Auction, and, if the auction is a Successful Auction, from the
proceeds of the auction before the proceeds are distributed to
Certificateholders.
128
The Trustee, upon inquiry from the Master Servicer, agrees to provide the
Master Servicer with the Percentage Interest of Class C Certificates held by the
Directing Certificateholder.
If Countrywide or any of its affiliates is the Directing
Certificateholder, such Directing Certificateholder shall not have the right to
direct the Trustee to solicit bids for the purchase of the Mortgage Loans and
any REO Properties owned by the Trust Fund.
(b) The Trustee (or any financial advisor on its behalf) shall solicit
bids for the purchase of assets owned by the Trust Fund as provided in Section
9.04(a) not later than two Business Days following receipt of the Directing
Certificateholder's written instruction by contacting by telephone or in writing
at least three Qualified Bidders and requesting that each Qualified Bidder bid
on the Mortgage Loans and REO Properties owned by the Trust Fund (on a
non-recourse basis with no representations or warranties of any nature
whatsoever made by the Trustee (or such financial advisor)) and providing to the
Qualified Bidder any information relating to the Mortgage Loans and REO
Properties owned by the Trust Fund reasonably requested by such Qualified
Bidder, subject to the Qualified Bidder's written agreement not to use such
information in the purchase or sale of Certificates (it being understood no
Qualified Bidder shall be obligated to submit a bid or take any other action in
connection with any auction). The Master Servicer shall cooperate with the
Trustee (and any financial advisor on its behalf) during the auction process. At
1:00 p.m. New York time on the second Business Day after the date on which bids
are last solicited (such second day, the "Bid Determination Date"), the Trustee
(or any financial advisor on its behalf) shall determine the highest bid based
on the bids received by the Trustee (or any financial advisor on its behalf) on
or before such time.
(c) If the highest of the bids that are submitted by Qualified Bidders is
less than the Minimum Auction Amount, then the Trustee shall promptly inform the
Directing Certificateholder of the amount of the shortfall and indicate that the
Directing Certificateholder must notify the Trustee within 24 hours whether it
will contribute the amount of such difference (such difference being the
"Auction Supplement Amount") so that the auction will be a Successful Auction.
If the highest of the bids that are submitted by Qualified Bidders is equal to
or greater than the Minimum Auction Amount, or if the Directing
Certificateholder notifies the Trustee within 24 hours of its receipt of notice
as described in the previous sentence that it will contribute the Auction
Supplement Amount, then the Trustee (or any financial advisor on its behalf)
shall notify promptly (but in any event no later than 3:00 p.m. New York time on
the Business Day following the Bid Determination Date) the Winning Bidder that
its bid was the highest bid and shall provide wiring instructions for payment of
the bid amount into the Certificate Account by 12:00 p.m. New York time on the
second Business Day following the Bid Determination Date and, if applicable,
provide the Directing Certificateholder with wiring instructions for payment of
the Auction Supplement Amount into the Certificate Account by such time.
(d) If such Winning Bidder does not wire the bid amount so that it is
received in the Certificate Account in immediately available funds by 12:00 p.m.
New York time on the second Business Day following the Bid Determination Date,
the Trustee shall repeat the process specified in the preceding paragraph with
respect to the second highest bid, but only if such bid is at least the Minimum
Auction Amount or the Directing Certificateholder agrees to pay the new Auction
Supplement Amount. If no other bids are available to be accepted pursuant to the
129
preceding sentence, or if the amount remitted by the Winning Bidder plus any
Auction Supplement Amount remitted by the Directing Certificateholder is less
than the Minimum Auction Amount, then the auction shall be considered to have
failed for all purposes.
(e) The Trustee shall not be liable with regard to the selection or
engagement of, or for any act or omission of, a financial advisor pursuant to
this Section 9.04 if the Trustee engages Countrywide to be such financial
advisor.
(f) In the event of a Successful Auction and so long as the Winning Bidder
has wired its bid amount (and the Directing Certificateholder has wired any
Auction Supplement Amount, if applicable) to the Certificate Account as provided
above, then the Trustee shall promptly convey to the Winning Bidder the Mortgage
Loans and REO Properties owned by the Trust Fund. The Master Servicer shall take
all reasonable actions requested by the Trustee to effect such conveyance,
including remitting to the Distribution Account from the Certificate Account, on
the Business Day prior to the Distribution Date on which final distribution on
the Certificates is required to be paid under this Agreement, all amounts on
deposit in the Certificate Account, net of any amounts permitted to be withdrawn
pursuant to Section 3.08(a) and amounts owing to the Trustee in reimbursement of
its reasonable costs, including expenses associated with engaging any financial
advisor, incurred in connection with the auction process. Such amounts owed to
the Trustee shall be withdrawn from the Certificate Account by the Master
Servicer and paid to the Trustee.
(g) Any amount paid by the Winning Bidder in excess of the Minimum Auction
Amount shall be distributed by the Trustee pro rata to the Class C Certificates
on the Distribution Date on which the final distribution on the Certificates is
made.
(h) In the event of a Successful Auction and to the extent the Swap
Contract is still outstanding, the Directing Certificateholder shall either:
(i) if any Swap Termination Payment would be payable by the Swap
Contract Administrator to the Swap Counterparty were the Swap Contract to
be terminated following final distribution on the Certificates, either:
(A) pay to the Swap Contract Administrator any such Swap
Termination Payment; or
(B) accept assignment of the Swap Contract to the extent that
the Directing Certificateholder is an acceptable counterparty for
the Swap Counterparty;
(ii) if any Swap Termination Payment would be payable by the Swap
Counterparty to the Swap Contract Administrator were the Swap Contract to
be terminated following final distribution on the Certificates, either
(A) (1) if the Directing Certificateholder does not own 100%
of the Class C Certificates, accept assignment of the Swap Contract
to the extent that the Directing Certificateholder is an acceptable
counterparty for the Swap Counterparty and pay to the Swap Contract
Administrator the Swap Termination
130
Payment that would be owed to the Swap Contact Administrator by the
Swap Counterparty if the Swap Contract were terminated by the Swap
Contract Administrator following distribution on the Certificates or
(2) if the Directing Certificateholder owns 100% of the Class C
Certificates, accept assignment of the Swap Contract to the extent
that the Directing Certificateholder is an acceptable counterparty
for the Swap Counterparty; or
(B) instruct the Swap Contract Administrator to accept from
the Swap Counterparty any Swap Termination Payment that would be
owed to the Swap Contract Administrator.
(i) Any amounts paid to the Swap Contract Administrator pursuant to
subsection (h)(ii) above shall be distributed to the Class C Certificates, pro
rata, based on entitlement, by the Swap Contract Administrator.
(j) The Master Servicer may purchase the Mortgage Loans and REO Properties
owned by the Trust Fund for its own account pursuant to Section 9.01 or consent
to the NIM Insurer's purchase of the Mortgage Loans and REO Properties owned by
the Trust Fund pursuant to Section 9.01 only if (1) the Directing
Certificateholder chooses not to request an auction as described above or if the
immediately preceding auction is unsuccessful or (2) the Master Servicer
notifies the Directing Certificateholder no later than 30 days prior to the date
on which the Master Servicer or the NIM Insurer, as applicable, intends to
effect the purchase of the Mortgage Loans and REO Properties owned by the Trust
Fund and the Directing Certificateholder does not direct the Trustee to conduct
an auction prior to the end of that 30-day period.
(k) If the Directing Certificateholder pays any Auction Supplement Amount
pursuant to Section 9.04(c) or any Swap Termination Payment pursuant to Section
9.04(h)(i)(A), on the final Distribution Date any amounts to be distributed to
the Class C Certificates pursuant to Section 4.02 will be distributed as
follows, first to the Directing Certificateholder, in an amount up to the sum of
such Auction Supplement Amount and such Swap Termination Payment and second to
the Class C Certificates, pro rata. For federal income tax purposes, such
Auction Supplement Amount and such Swap Termination Payment so distributed shall
be deemed paid pro rata to the Class C Certificates, and the portion of such
amounts deemed distributed to holders of the Class C Certificates other than the
Directing Certificateholder shall be deemed paid from such other holders to the
Directing Certificateholder.
131
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, each
Seller, the Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision in this Agreement or to supplement any provision in this
Agreement which may be inconsistent with any other provision in this Agreement,
(iii) to conform this Agreement to the Prospectus and Prospectus Supplement
provided to investors in connection with the initial offering of the
Certificates, (iv) to add to the duties of the Depositor, any Seller or the
Master Servicer, (v) to modify, alter, amend, add to or rescind any of the terms
or provisions contained in this Agreement to comply with any rules or
regulations promulgated by the Securities and Exchange Commission from time to
time, (vi) to add any other provisions with respect to matters or questions
arising hereunder or (vii) to modify, alter, amend, add to or rescind any of the
terms or provisions contained in this Agreement; provided that any action
pursuant to clauses (vi) or (vii) above shall not, as evidenced by an Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee or the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall be deemed not to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading or withdrawal of
the respective ratings then assigned to the Certificates; it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent a
determination only as to the credit issues affecting any such rating.
Notwithstanding the foregoing, no amendment that significantly changes the
permitted activities of the trust created by this Agreement may be made without
the consent of a Majority in Interest of each Class of Certificates affected by
such amendment. Each party to this Agreement hereby agrees that it will
cooperate with each other party in amending this Agreement pursuant to clause
(v) above. The Trustee, each Seller, the Depositor and the Master Servicer also
may at any time and from time to time amend this Agreement without the consent
of the Certificateholders to modify, eliminate or add to any of its provisions
to such extent as shall be necessary or helpful to (i) maintain the
qualification of any REMIC as a REMIC under the Code, (ii) avoid or minimize the
risk of the imposition of any tax on any REMIC pursuant to the Code that would
be a claim at any time prior to the final redemption of the Certificates or
(iii) comply with any other requirements of the Code, provided that the Trustee
has been provided an Opinion of Counsel, which opinion shall be an expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time by the Depositor,
each Seller, the Master Servicer and the Trustee with the consent of the Holders
of a Majority in Interest of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
132
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i),
without the consent of the Holders of Certificates of such Class evidencing, as
to such Class, Percentage Interests aggregating 66-2/3% or (iii) reduce the
aforesaid percentages of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, no amendment
shall adversely affect in any material respect the Swap Counterparty without the
prior written consent of the Swap Counterparty, which consent shall not be
unreasonably withheld. Countrywide shall provide the Swap Counterparty with
prior written notice of any proposed material amendment of this Agreement.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any REMIC or the Certificateholders or cause any REMIC
to fail to qualify as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder, the Swap Counterparty and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
SECTION 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Master Servicer at its expense, but only upon direction by
the Trustee accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as in
this Agreement provided and for other purposes, this Agreement may be executed
simultaneously in any number
133
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same instrument.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Intention of Parties.
(a) It is the express intent of the parties hereto that the conveyance of
the (i) Mortgage Loans by the Sellers to the Depositor and (ii) Trust Fund by
the Depositor to the Trustee each be, and be construed as, an absolute sale
thereof to the Trustee. It is, further, not the intention of the parties that
such conveyances be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of each Seller or the Depositor, as the case may be, or if for any
other reason this Agreement is held or deemed to create a security interest in
either such assets, then (i) this Agreement shall be deemed to be a security
agreement (within the meaning of the Uniform Commercial Code of the State of New
York) with respect to all such assets and security interests and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant pursuant to the terms of this Agreement (a) by each Seller to the
Depositor or (b) by the Depositor to the Trustee, for the benefit of the
Certificateholders and the Swap Counterparty, of a security interest in all of
the assets that constitute the Trust Fund, whether now owned or hereafter
acquired.
Each Seller and the Depositor for the benefit of the Certificateholders
and the Swap Counterparty shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Trust Fund, such security interest
would be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. The Depositor shall arrange for filing any Uniform Commercial Code
continuation statements in connection with any security interest granted or
assigned to the Trustee for the benefit of the Certificateholders and the Swap
Counterparty.
(b) The Depositor hereby represents that:
(i) This Agreement creates a valid and continuing security interest
(as defined in the Uniform Commercial Code as enacted in the State of New
York (the "NY UCC")) in the Mortgage Notes in favor of the Trustee, which
security interest is prior to all other liens, and is enforceable as such
as against creditors of and purchasers from the Depositor.
134
(ii) The Mortgage Notes constitutes "instruments" within the meaning
of the NY UCC.
(iii) Immediately prior to the assignment of each Mortgage Loan to
the Trustee, the Depositor owns and has good and marketable title to such
Mortgage Loan free and clear of any lien, claim or encumbrance of any
Person.
(iv) The Depositor has received all consents and approvals required
by the terms of the Mortgage Loans to the sale of the Mortgage Loans
hereunder to the Trustee.
(v) All original executed copies of each Mortgage Note that are
required to be delivered to the Trustee pursuant to Section 2.01 have been
delivered to the Trustee.
(vi) Other than the security interest granted to the Trustee
pursuant to this Agreement, the Depositor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Mortgage
Loans. The Depositor has not authorized the filing of and is not aware of
any financing statements against the Depositor that include a description
of collateral covering the Mortgage Loans other than any financing
statement relating to the security interest granted to the Trustee
hereunder or that has been terminated. The Depositor is not aware of any
judgment or tax lien filings against the Depositor.
(c) The Master Servicer shall take such action as is reasonably necessary
to maintain the perfection and priority of the security interest of the Trustee
in the Mortgage Loans; provided, however, that the obligation to deliver the
Mortgage File to the Trustee pursuant to Section 2.01 shall be solely the
Depositor's obligation and the Master Servicer shall not be responsible for the
safekeeping of the Mortgage Files by the Trustee.
(d) It is understood and agreed that the representations and warranties
set forth in subsection (b) above shall survive delivery of the Mortgage Files
to the Trustee. Upon discovery by the Depositor or the Trustee of a breach of
any of the foregoing representations and warranties set forth in subsection (b)
above, which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency and the Swap Counterparty with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the Trustee
and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03;
135
5. The final payment to Certificateholders; and
6. Any rating action involving the long-term credit rating of Countrywide,
which notice shall be made by first class mail within two Business Days after
the Trustee gains actual knowledge of such a rating action.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.16;
3. Each annual independent public accountants' servicing report described
in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
(b) All directions, demands and notices under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered by first
class mail, by courier or by facsimile transmission to (a) in the case of the
Depositor, CWALT, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number: (000) 000-0000, Attention: Xxxx Xxxxx, (b) in the case of
Countrywide, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, facsimile number: (000) 000-0000, Attention: Xxxx Xxxxx, or
such other address as may be hereafter furnished to the Depositor and the
Trustee by Countrywide in writing, (c) in the case of Park Granada, Park Granada
LLC, c/o Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, facsimile number: (000) 000-0000, Attention: Xxxx Xxxxx or
such other address as may be hereafter furnished to the Depositor and the
Trustee by Park Granada in writing, (d) in the case of Park Monaco Inc., c/o
Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, facsimile number: (000) 000-0000, Attention: Xxxx Xxxxx or such other
address as may be hereafter furnished to the Depositor and the Trustee by Park
Monaco in writing, (e) in the case of Park Sienna LLC, c/o Countrywide Financial
Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number:
(000) 000-0000, Attention: Xxxx Xxxxx or such other address as may be hereafter
furnished to the Depositor and the Trustee by Park Sienna in writing, (f) in the
case of the Master Servicer, Countrywide Home Loans Servicing LP, 000
Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, facsimile number (000) 000-0000,
Attention: Xxxx Xxxx, or such other address as may be hereafter furnished to the
Depositor and the Trustee by the Master Servicer in writing, (g) in the case of
the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx
00000, facsimile number: (000) 000-0000, Attention: Mortgage-Backed Securities
Group, CWALT, Inc. Series 2006-OC10, or such other address as the Trustee may
hereafter furnish to the Depositor or Master Servicer, (h) in the case of the
Rating Agencies, the address specified therefor in the definition corresponding
to the name of such Rating Agency, (i) in the case of the Swap Counterparty,
Xxxxxx Brothers Special Financing Inc. c/x Xxxxxx Brothers Inc. Transaction
Management Group, Corporate Advisory Division, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, facsimile number (000) 000-0000, Attention: Documentation Manager, or
such other address as may be hereafter furnished by the Swap Counterparty.
Notices to Certificateholders shall be
136
deemed given when mailed, first class postage prepaid, to their respective
addresses appearing in the Certificate Register.
SECTION 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders of the
Certificates.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 6.02, this Agreement may not be assigned by the
Master Servicer without the prior written consent of the Trustee and the
Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created by this Agreement, or otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided in
this Agreement) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
set forth in this Agreement or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision of this Agreement.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as provided in this Agreement, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference
137
to any other such Holder or to enforce any right under this Agreement, except in
the manner provided in this Agreement and for the common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 10.08, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Subservicer to permit any representative of the
Depositor or the Trustee during the Master Servicer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Master Servicer relating to the Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by the Depositor or the Trustee and to discuss its affairs,
finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Master
Servicer hereby authorizes said accountants to discuss with such representative
such affairs, finances and accounts), all at such reasonable times and as often
as may be reasonably requested. Any out-of-pocket expense incident to the
exercise by the Depositor or the Trustee of any right under this Section 10.09
shall be borne by the party requesting such inspection; all other such expenses
shall be borne by the Master Servicer or the related Subservicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 10.11. [Reserved].
SECTION 10.12. Protection of Assets.
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the Trust Fund created
by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets; or
(iii) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
SECTION 10.13. Rights of NIM Insurer
138
(a) The rights of the NIM Insurer under this Agreement shall exist only so
long as either:
(1) the notes certain, payments on which are guaranteed by the NIM
Insurer, remain outstanding or
(2) the NIM Insurer is owed amounts paid by it with respect to that
guaranty.
(b) The rights of the NIM Insurer under this Agreement are exercisable by
the NIM Insurer only so long as no default by the NIM Insurer under its guaranty
of certain payments under notes backed or secured by the Class C or Class P
Certificates has occurred and is continuing. If the NIM Insurer is the subject
of any insolvency proceeding, the rights of the NIM Insurer under this Agreement
will be exercisable by the NIM Insurer only so long as:
(1) the obligations of the NIM Insurer under its guaranty of notes
backed or secured by the Class C or Class P Certificates have not been
disavowed and
(2) Countrywide and the Trustee have received reasonable assurances
that the NIM Insurer will be able to satisfy its obligations under its
guaranty of notes backed or secured by the Class C or Class P
Certificates.
(c) The NIM Insurer is a third party beneficiary of this Agreement to the
same extent as if it were a party to this Agreement and may enforce any of those
rights under this Agreement.
(d) A copy of any documents of any nature required by this Agreement to be
delivered by the Trustee, or to the Trustee or the Rating Agencies, shall in
each case at the same time also be delivered to the NIM Insurer. Any notices
required to be given by the Trustee, or to the Trustee or the Rating Agencies,
shall in each case at the same time also be given to the NIM Insurer. If the
Trustee receives a notice or document that is required hereunder to be delivered
to the NIM Insurer, and if such notice or document does not indicate that a copy
thereof has been previously sent to the NIM Insurer, the Trustee shall send the
NIM Insurer a copy of such notice or document. If such document is an Opinion of
Counsel, the NIM Insurer shall be an addressee thereof or such Opinion of
Counsel shall contain language permitting the NIM Insurer to rely thereon as if
the NIM Insurer were an addressee thereof.
(e) Anything in this Agreement that is conditioned on not resulting in the
downgrading or withdrawal of the ratings then assigned to the Certificates by
the Rating Agencies shall also be conditioned on not resulting in the
downgrading or withdrawal of the ratings then assigned by the Rating Agencies to
the notes backed or secured by the Class C or Class P Certificates (without
giving effect to any policy or guaranty provided by the NIM Insurer).
ARTICLE XI
EXCHANGE ACT REPORTING
SECTION 11.01. Filing Obligations.
The Master Servicer, the Trustee and each Seller shall reasonably
cooperate with the Depositor in connection with the satisfaction of the
Depositor's reporting requirements under the
139
Exchange Act with respect to the Trust Fund. In addition to the information
specified below, if so requested by the Depositor for the purpose of satisfying
its reporting obligation under the Exchange Act, the Master Servicer, the
Trustee and each Seller shall (and the Master Servicer shall cause each
Subservicer to) provide the Depositor with (a) such information which is
available to such Person without unreasonable effort or expense and within such
timeframe as may be reasonably requested by the Depositor to comply with the
Depositor's reporting obligations under the Exchange Act and (b) to the extent
such Person is a party (and the Depositor is not a party) to any agreement or
amendment required to be filed, copies of such agreement or amendment in
XXXXX-compatible form.
SECTION 11.02. Form 10-D Filings.
(a) In accordance with the Exchange Act, the Trustee shall prepare for
filing and file within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act) with the Commission with respect to
the Trust Fund, a Form 10-D with copies of the Monthly Statement and, to the
extent delivered to the Trustee, no later than 10 days following the
Distribution Date, such other information identified by the Depositor or the
Master Servicer, in writing, to be filed with the Commission (such other
information, the "Additional Designated Information"). If the Depositor or
Master Servicer directs that any Additional Designated Information is to be
filed with any Form 10-D, the Depositor or Master Servicer, as the case may be,
shall specify the Item on Form 10-D to which such information is responsive and,
with respect to any Exhibit to be filed on Form 10-D, the Exhibit number. Any
information to be filed on Form 10-D shall be delivered to the Trustee in
XXXXX-compatible form or as otherwise agreed upon by the Trustee and the
Depositor or the Master Servicer, as the case may be, at the Depositor's
expense, and any necessary conversion to XXXXX-compatible format will be at the
Depositor's expense. At the reasonable request of, and in accordance with the
reasonable directions of, the Depositor or the Master Servicer, subject to the
two preceding sentences, the Trustee shall prepare for filing and file an
amendment to any Form 10-D previously filed with the Commission with respect to
the Trust Fund. The Master Servicer shall sign the Form 10-D filed on behalf of
the Trust Fund.
(b) No later than each Distribution Date, each of the Master Servicer and
the Trustee shall notify (and the Master Servicer shall cause any Subservicer to
notify) the Depositor and the Master Servicer of any Form 10-D Disclosure Item,
together with a description of any such Form 10-D Disclosure Item in form and
substance reasonably acceptable to the Depositor. In addition to such
information as the Master Servicer and the Trustee are obligated to provide
pursuant to other provisions of this Agreement, if so requested by the
Depositor, each of the Master Servicer and the Trustee shall provide such
information which is available to the Master Servicer and the Trustee, as
applicable, without unreasonable effort or expense regarding the performance or
servicing of the Mortgage Loans (in the case of the Trustee, based on the
information provided by the Master Servicer) as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121 of
Regulation AB. Such information shall be provided concurrently with the delivery
of the reports specified in Section 4.06(c) in the case of the Master Servicer
and the Monthly Statement in the case of the Trustee, commencing with the first
such report due not less than five Business Days following such request.
(c) The Trustee shall not have any responsibility to file any items (other
than those generated by it) that have not been received in a format suitable (or
readily convertible into a
140
format suitable) for electronic filing via the XXXXX system and shall not have
any responsibility to convert any such items to such format (other than those
items generated by it or that are readily convertible to such format). The
Trustee shall have no liability to the Certificateholders, the Trust Fund, the
Master Servicer, the Depositor or the NIM Insurer with respect to any failure to
properly prepare or file any of Form 10-D to the extent that such failure is not
the result of any negligence, bad faith or willful misconduct on its part.
SECTION 11.03. Form 8-K Filings.
The Master Servicer shall prepare and file on behalf of the Trust Fund any
Form 8-K required by the Exchange Act. Each Form 8-K must be signed by the
Master Servicer. Each of the Master Servicer (and the Master Servicer shall
cause any Subservicer to promptly notify), and the Trustee shall promptly notify
the Depositor and the Master Servicer (if the notifying party is not the Master
Servicer), but in no event later than one (1) Business Day after its occurrence,
of any Reportable Event of which it has actual knowledge. Each Person shall be
deemed to have actual knowledge of any such event to the extent that it relates
to such Person or any action or failure to act by such Person. Concurrently with
any Supplemental Transfer, Countrywide shall notify the Depositor and the Master
Servicer, if any material pool characteristic of the actual asset pool at the
time of issuance of the Certificates differs by 5% or more (other than as a
result of the pool assets converting into cash in accordance with their terms)
from the description of the asset pool in the Prospectus Supplement.
SECTION 11.04. Form 10-K Filings.
Prior to March 30th of each year, commencing in 2007 (or such earlier date
as may be required by the Exchange Act), the Depositor shall prepare and file on
behalf of the Trust Fund a Form 10-K, in form and substance as required by the
Exchange Act. A senior officer in charge of the servicing function of the Master
Servicer shall sign each Form 10-K filed on behalf of the Trust Fund. Such Form
10-K shall include as exhibits each (i) annual compliance statement described
under Section 3.16, (ii) annual report on assessments of compliance with
servicing criteria described under Section 11.07 and (iii) accountant's report
described under Section 11.07. Each Form 10-K shall also include any
Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in
Section 11.05.
If the Item 1119 Parties listed on Exhibit X have changed since the
Closing Date, no later than March 1 of each year, the Master Servicer shall
provide each of the Master Servicer (and the Master Servicer shall provide any
Subservicer) and the Trustee with an updated Exhibit X setting forth the Item
1119 Parties. No later than March 15 of each year, commencing in 2007, the
Master Servicer and the Trustee shall notify (and the Master Servicer shall
cause any Subservicer to notify) the Depositor and the Master Servicer of any
Form 10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the Depositor.
Additionally, each of the Master Servicer and the Trustee shall provide, and
shall cause each Reporting Subcontractor retained by the Master Servicer or the
Trustee, as applicable, and in the case of the Master Servicer shall cause each
Subservicer, to provide, the following information no later than March 15 of
each year in which a Form 10-K is required to be filed on behalf of the Trust
Fund: (i) if such Person's report on assessment of compliance with servicing
criteria described under Section 11.07 or related registered public accounting
firm attestation report described under Section 11.07 identifies any material
instance
141
of noncompliance, notification of such instance of noncompliance and (ii) if any
such Person's report on assessment of compliance with the Servicing Criteria or
related registered public accounting firm attestation report is not provided to
be filed as an exhibit to such Form 10-K, information detailing the explanation
why such report is not included.
SECTION 11.05. Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2007, the Master Servicer and the Trustee shall (unless
such person is the Certifying Person), and the Master Servicer shall cause each
Subservicer to, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification
(the "Certifying Person") a certification (each, a "Performance Certification"),
in the form attached hereto as Exhibit V-1 (in the case of a Subservicer or any
reporting Subcontractor of the Master Servicer or a Subservicer) and Exhibit V-2
(in the case of the Trustee or any reporting Subcontractor of the Trustee), on
which the Certifying Person, the entity for which the Certifying Person acts as
an officer, and such entity's officers, directors and Affiliates (collectively
with the Certifying Person, "Certification Parties") can reasonably rely. The
senior officer in charge of the servicing function of the Master Servicer shall
serve as the Certifying Person on behalf of the Trust Fund. Neither the Master
Servicer nor the Depositor will request delivery of a certification under this
clause unless the Depositor is required under the Exchange Act to file an annual
report on Form 10-K with respect to the Trust Fund. In the event that prior to
the filing date of the Form 10-K in March of each year, the Trustee or the
Depositor has actual knowledge of information material to the Xxxxxxxx-Xxxxx
Certification, the Trustee or the Depositor, as the case may be, shall promptly
notify the Master Servicer and the Depositor. The respective parties hereto
agree to cooperate with all reasonable requests made by any Certifying Person or
Certification Party in connection with such Person's attempt to conduct any due
diligence that such Person reasonably believes to be appropriate in order to
allow it to deliver any Xxxxxxxx-Xxxxx Certification or portion thereof with
respect to the Trust Fund.
SECTION 11.06. Form 15 Filing.
Prior to January 30 of the first year in which the Depositor is able to do
so under applicable law, the Depositor shall file a Form 15 relating to the
automatic suspension of reporting in respect of the Trust Fund under the
Exchange Act.
SECTION 11.07. Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing in 2007:
(1) Each of the Master Servicer and the Trustee shall deliver to the
Depositor and the Master Servicer a report (in form and substance reasonably
satisfactory to the Depositor) regarding the Master Servicer's or the Trustee's,
as applicable, assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB. Such report shall be signed
by an authorized officer of such Person and shall address each of the Servicing
Criteria
142
specified on a certification substantially in the form of Exhibit W hereto
delivered to the Depositor concurrently with the execution of this Agreement. To
the extent any of the Servicing Criteria are not applicable to such Person, with
respect to asset-backed securities transactions taken as a whole involving such
Person and that are backed by the same asset type backing the Certificates, such
report shall include such a statement to that effect. The Depositor and the
Master Servicer, and each of their respective officers and directors shall be
entitled to rely on upon each such servicing criteria assessment.
(2) Each of the Master Servicer and the Trustee shall deliver to the
Depositor and the Master Servicer a report of a registered public accounting
firm reasonably acceptable to the Depositor that attests to, and reports on, the
assessment of compliance made by Master Servicer or the Trustee, as applicable,
and delivered pursuant to the preceding paragraphs. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act, including, without limitation that in the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Such report must be available for general use and not contain
restricted use language. To the extent any of the Servicing Criteria are not
applicable to such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a statement that
that effect.
(3) The Master Servicer shall cause each Subservicer and each Reporting
Subcontractor to deliver to the Depositor an assessment of compliance and
accountant's attestation as and when provided in paragraphs (a) and (b) of this
Section 11.07.
(4) The Trustee shall cause each Reporting Subcontractor to deliver to the
Depositor and the Master Servicer an assessment of compliance and accountant's
attestation as and when provided in paragraphs (a) and (b) of this Section.
(5) The Master Servicer and the Trustee shall execute (and the Master
Servicer shall cause each Subservicer to execute, and the Master Servicer and
the Trustee shall cause each Reporting Subcontractor to execute) a reliance
certificate to enable the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 3.16, (ii) annual report on
assessments of compliance with servicing criteria provided pursuant to this
Section 11.07 and (iii) accountant's report provided pursuant to this Section
11.07 and shall include a certification that each such annual compliance
statement or report discloses any deficiencies or defaults described to the
registered public accountants of such Person to enable such accountants to
render the certificates provided for in this Section 11.07. In the event the
Master Servicer, any Subservicer, the Trustee or Reporting Subcontractor is
terminated or resigns during the term of this Agreement, such Person shall
provide a certification to the Certifying Person pursuant to this Section 11.07
with respect to the period of time it was subject to this Agreement or provided
services with respect to the Trust Fund, the Certificates or the Mortgage Loans.
(b) In the event the Master Servicer, any Subservicer, the Trustee or
Reporting Subcontractor is terminated or resigns during the term of this
Agreement, such Person shall provide documents and information required by this
Section 11.07 with respect to the period of time it was subject to this
Agreement or provided services with respect to the Trust Fund, the Certificates
or the Mortgage Loans.
143
(c) Each assessment of compliance provided by a Subservicer pursuant to
Section 11.07(a)(3) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit W hereto delivered to the
Depositor concurrently with the execution of this Agreement or, in the case of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant to
Section 11.07(a)(3) or (4) need not address any elements of the Servicing
Criteria other than those specified by the Master Servicer or the Trustee, as
applicable, pursuant to Section 11.07(a)(1).
SECTION 11.08. Use of Subservicers and Subcontractors.
(a) The Master Servicer shall cause any Subservicer used by the Master
Servicer (or by any Subservicer) for the benefit of the Depositor to comply with
the provisions of Section 3.16 and this Article XI to the same extent as if such
Subservicer were the Master Servicer (except with respect to the Master
Servicer's duties with respect to preparing and filing any Exchange Act Reports
or as the Certifying Person). The Master Servicer shall be responsible for
obtaining from each Subservicer and delivering to the Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
3.16, any assessment of compliance and attestation required to be delivered by
such Subservicer under Section 11.07 and any certification required to be
delivered to the Certifying Person under Section 11.05 as and when required to
be delivered. As a condition to the succession to any Subservicer as subservicer
under this Agreement by any Person (i) into which such Subservicer may be merged
or consolidated, or (ii) which may be appointed as a successor to any
Subservicer, the Master Servicer shall provide to the Depositor, at least 15
calendar days prior to the effective date of such succession or appointment, (x)
written notice to the Depositor of such succession or appointment and (y) in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K.
(b) It shall not be necessary for the Master Servicer, any Subservicer or
the Trustee to seek the consent of the Depositor or any other party hereto to
the utilization of any Subcontractor. The Master Servicer or the Trustee, as
applicable, shall promptly upon request provide to the Depositor (or any
designee of the Depositor, such as the Master Servicer or administrator) a
written description (in form and substance satisfactory to the Depositor) of the
role and function of each Subcontractor utilized by such Person (or in the case
of the Master Servicer or any Subservicer), specifying (i) the identity of each
such Subcontractor, (ii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to be a
Reporting Subcontractor, the Master Servicer or the Trustee, as applicable,
shall cause any such Subcontractor used by such Person (or in the case of the
Master Servicer or any Subservicer) for the benefit of the Depositor to comply
with the provisions of Sections 11.07 and 11.09 of this Agreement to the same
extent as if such Subcontractor were the Master Servicer (except with respect to
the Master Servicer's duties with respect to preparing and filing any Exchange
Act Reports or as the Certifying Person) or the Trustee, as applicable. The
Master Servicer or the
144
Trustee, as applicable, shall be responsible for obtaining from each
Subcontractor and delivering to the Depositor and the Master Servicer, any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 11.05 and Section 11.07, in each case as and when
required to be delivered.
SECTION 11.09. Amendments.
In the event the parties to this Agreement desire to further clarify or
amend any provision of this Article XI, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
XI pursuant to Section 10.01, which amendment shall not require any Opinion of
Counsel or Rating Agency confirmations or the consent of any Certificateholder
or the NIM Insurer. If, during the period that the Depositor is required to file
Exchange Act Reports with respect to the Trust Fund, the Master Servicer is no
longer an Affiliate of the Depositor, the Depositor shall assume the obligations
and responsibilities of the Master Servicer in this Article XI with respect to
the preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Master Servicer satisfactory to the Depositor, and such Master Servicer has
agreed to provide a Xxxxxxxx-Xxxxx Certification to the Depositor substantially
in the form of Exhibit Y and the certifications referred to in Section 11.07.
SECTION 11.10. Reconciliation of Accounts.
Any reconciliation of Accounts performed by any party hereto, or any
Subservicer or Subcontractor shall be prepared no later than 45 calendar days
after the bank statement cutoff date.
* * * * * *
145
IN WITNESS WHEREOF, the Depositor, the Trustee, the Sellers and the Master
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CWALT, INC.,
as Depositor
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS, INC.,
as a Seller
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
PARK GRANADA LLC,
as a Seller
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Assistant Vice President
PARK MONACO INC.,
as a Seller
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
PARK SIENNA LLC,
as a Seller
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Senior Vice President
Acknowledged solely with respect to
the Trustee's obligations under
Section 4.01(b):
THE BANK OF NEW YORK, in its
individual capacity
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
[Delivered at Closing to Trustee]
S-I-1
SCHEDULE II-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Countrywide
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II-A to the Depositor,
the Master Servicer and the Trustee, as of the Closing Date or if so specified
herein, as of the Initial Cut-off Date. Capitalized terms used but not otherwise
defined in this Schedule II-A shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") relating
to the above-referenced Series, among Countrywide Home Loans, Inc., as a seller,
Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC,
as a seller, CWALT, Inc., as depositor, Countrywide Home Loans Servicing LP, as
master servicer and The Bank of New York, as trustee.
(1) Countrywide is duly organized as a New York corporation and is
validly existing and in good standing under the laws of the State of New
York and is duly authorized and qualified to transact any and all business
contemplated by the Pooling and Servicing Agreement to be conducted by
Countrywide in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to perform any of its obligations
under the Pooling and Servicing Agreement and each Supplemental Transfer
Agreement in accordance with the terms thereof.
(2) Countrywide has the full corporate power and authority to sell
each Countrywide Mortgage Loan, and to execute, deliver and perform, and
to enter into and consummate the transactions contemplated by the Pooling
and Servicing Agreement and each Supplemental Transfer Agreement and has
duly authorized by all necessary corporate action on the part of
Countrywide the execution, delivery and performance of the Pooling and
Servicing Agreement and each Supplemental Transfer Agreement; and the
Pooling and Servicing Agreement and each Supplemental Transfer Agreement,
assuming the due authorization, execution and delivery thereof by the
other parties thereto, constitutes a legal, valid and binding obligation
of Countrywide, enforceable against Countrywide in accordance with its
terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement and each Supplemental Transfer Agreement by Countrywide , the
sale of the
S-II-A-1
Countrywide Mortgage Loans by Countrywide under the Pooling and Servicing
Agreement and each Supplemental Transfer Agreement, the consummation of
any other of the transactions contemplated by the Pooling and Servicing
Agreement, and the fulfillment of or compliance with the terms thereof are
in the ordinary course of business of Countrywide and will not (A) result
in a material breach of any term or provision of the charter or by-laws of
Countrywide or (B) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which Countrywide
is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Countrywide of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over Countrywide; and Countrywide is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair
Countrywide's ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
(4) Countrywide is an approved servicer of conventional mortgage
loans for FNMA or FHLMC and is a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act.
(5) No litigation is pending or, to the best of Countrywide's
knowledge, threatened, against Countrywide that would materially and
adversely affect the execution, delivery or enforceability of the Pooling
and Servicing Agreement or the ability of Countrywide to sell the
Countrywide Mortgage Loans or to perform any of its other obligations
under the Pooling and Servicing Agreement in accordance with the terms
thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide of, or compliance by Countrywide with, the
Pooling and Servicing Agreement or the consummation of the transactions
contemplated thereby, or if any such consent, approval, authorization or
order is required, Countrywide has obtained the same.
(7) Countrywide intends to treat the transfer of the Countrywide
Mortgage Loans to the Depositor as a sale of the Countrywide Mortgage
Loans for all tax, accounting and regulatory purposes.
(8) Countrywide is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans in the Trust Fund
for as long as such Mortgage Loans are registered with MERS.
S-II-A-2
SCHEDULE II-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Park Granada
Park Granada LLC ("Park Granada") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-B to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date or if so specified herein, as of the Initial Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-B shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Granada, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC,
as a seller, Countrywide Home Loans, Inc., as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank of New
York, as trustee.
(1) Park Granada is a limited liability company duly formed and validly
existing and in good standing under the laws of the State of Delaware.
(2) Park Granada has the full corporate power and authority to sell each
Park Granada Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and each Supplemental Transfer Agreement and has duly authorized by
all necessary corporate action on the part of Park Granada the execution,
delivery and performance of the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement; and the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a legal, valid
and binding obligation of Park Granada, enforceable against Park Granada in
accordance with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement by Park Granada, the sale of the Park
Granada Mortgage Loans by Park Granada under the Pooling and Servicing Agreement
and each Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Granada and will not (A) result in a material breach of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Granada or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Granada is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Granada of any
court,
S-II-B-1
regulatory body, administrative agency or governmental body having jurisdiction
over Park Granada; and Park Granada is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair Park Granada's ability to perform or meet any of
its obligations under the Pooling and Servicing Agreement.
(4) No litigation is pending or, to the best of Park Granada's knowledge,
threatened, against Park Granada that would materially and adversely affect the
execution, delivery or enforceability of the Pooling and Servicing Agreement or
the ability of Park Granada to sell the Park Granada Mortgage Loans or to
perform any of its other obligations under the Pooling and Servicing Agreement
in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by Park
Granada of, or compliance by Park Granada with, the Pooling and Servicing
Agreement or the consummation of the transactions contemplated thereby, or if
any such consent, approval, authorization or order is required, Park Granada has
obtained the same.
(6) Park Granada intends to treat the transfer of the Park Granada Mortgage
Loans to the Depositor as a sale of the Park Granada Mortgage Loans for all tax,
accounting and regulatory purposes.
S-II-B-2
SCHEDULE II-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Park Monaco
Park Monaco Inc. ("Park Monaco") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-C to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date or if so specified herein, as of the Initial Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-C shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Monaco, as a seller, Countrywide, as a seller, Park Granada LLC, as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park Monaco is a corporation duly formed and validly existing and in
good standing under the laws of the State of Delaware.
(2) Park Monaco has the full corporate power and authority to sell each
Park Monaco Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and each Supplemental Transfer Agreement and has duly authorized by
all necessary corporate action on the part of Park Monaco the execution,
delivery and performance of the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement; and the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a legal, valid
and binding obligation of Park Monaco, enforceable against Park Monaco in
accordance with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement by Park Monaco, the sale of the Park Monaco
Mortgage Loans by Park Monaco under the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Monaco and will not (A) result in a material breach of any
term or provision of the charter or by-laws of Park Monaco or (B) materially
conflict with, result in a material breach, violation or acceleration of, or
result in a material default under, the terms of any other material agreement or
instrument to which Park Monaco is a party or by which it may be bound, or (C)
constitute a material violation of any statute, order or regulation applicable
to Park Monaco of any court, regulatory body, administrative agency or
governmental
S-II-C-1
body having jurisdiction over Park Monaco; and Park Monaco is not in breach or
violation of any material indenture or other material agreement or instrument,
or in violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction over it
which breach or violation may materially impair Park Monaco's ability to perform
or meet any of its obligations under the Pooling and Servicing Agreement.
(4) No litigation is pending or, to the best of Park Monaco's knowledge,
threatened, against Park Monaco that would materially and adversely affect the
execution, delivery or enforceability of the Pooling and Servicing Agreement or
the ability of Park Monaco to sell the Park Monaco Mortgage Loans or to perform
any of its other obligations under the Pooling and Servicing Agreement in
accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Monaco of, or compliance by Park Monaco with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Monaco has obtained the same.
(6) Park Monaco intends to treat the transfer of the Park Monaco Mortgage
Loans to the Depositor as a sale of the Park Monaco Mortgage Loans for all tax,
accounting and regulatory purposes.
S-II-C-2
SCHEDULE II-D
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Park Sienna
Park Sienna LLC ("Park Sienna") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set forth
in this Schedule II-D to the Depositor, the Master Servicer and the Trustee, as
of the Closing Date or if so specified herein, as of the Initial Cut-off Date.
Capitalized terms used but not otherwise defined in this Schedule II-D shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Park Sienna, as a seller, Countrywide, as a seller, Park Granada LLC, as a
seller, Park Monaco Inc., as a seller, Countrywide Home Loans Servicing LP, as
master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Park Sienna is a limited liability company duly formed and validly
existing and in good standing under the laws of the State of Delaware.
(2) Park Sienna has the full corporate power and authority to sell each
Park Sienna Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and each Supplemental Transfer Agreement and has duly authorized by
all necessary corporate action on the part of Park Sienna the execution,
delivery and performance of the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement; and the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement, assuming the due authorization, execution
and delivery thereof by the other parties thereto, constitutes a legal, valid
and binding obligation of Park Sienna, enforceable against Park Sienna in
accordance with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement and
each Supplemental Transfer Agreement by Park Sienna, the sale of the Park Sienna
Mortgage Loans by Park Sienna under the Pooling and Servicing Agreement and each
Supplemental Transfer Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Sienna and will not (A) result in a material breach of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Sienna or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Sienna is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Sienna of any
court, regulatory
S-II-D-1
body, administrative agency or governmental body having jurisdiction over Park
Sienna; and Park Sienna is not in breach or violation of any material indenture
or other material agreement or instrument, or in violation of any statute, order
or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation may
materially impair Park Sienna's ability to perform or meet any of its
obligations under the Pooling and Servicing Agreement.
(4) No litigation is pending or, to the best of Park Sienna's knowledge,
threatened, against Park Sienna that would materially and adversely affect the
execution, delivery or enforceability of the Pooling and Servicing Agreement or
the ability of Park Sienna to sell the Park Sienna Mortgage Loans or to perform
any of its other obligations under the Pooling and Servicing Agreement in
accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Park Sienna of, or compliance by Park Sienna with, the Pooling
and Servicing Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
Park Sienna has obtained the same.
(6) Park Sienna intends to treat the transfer of the Park Sienna Mortgage
Loans to the Depositor as a sale of the Park Sienna Mortgage Loans for all tax,
accounting and regulatory purposes.
S-II-D-2
SCHEDULE III-A
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Countrywide as to all of the Mortgage Loans
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule III-A to the
Depositor, the Master Servicer and the Trustee, with respect to all of the
Initial Mortgage Loans as of the Closing Date, or if so specified herein, as of
the Initial Cut-off Date, and, with respect to all of the Supplemental Mortgage
Loans, as of the related Supplemental Transfer Date, or if so specified herein,
as of the related Supplemental Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule III-A shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Countrywide, as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWALT, Inc., as depositor, and The Bank of New York, as trustee.
(1) The information set forth on Schedule I to the Pooling and Servicing
Agreement with respect to each Initial Mortgage Loan is true and correct in all
material respects as of the Closing Date and, with respect to each Supplemental
Mortgage Loan, is true and correct in all material respects as of the related
Supplemental Transfer Date.
(2) As of the Closing Date, all payments due with respect to each Initial
Mortgage Loan prior to the Initial Cut-off Date have been made. As of each
Supplemental Transfer Date, all payments due with respect to each related
Supplemental Mortgage Loan prior to the related Supplemental Cut-off Date will
have been made as of each Supplemental Cut-off Date.
(3) No Mortgage Loan had a Loan-to-Value Ratio at origination in excess of
100.00%.
(4) Each Mortgage is a valid and enforceable first lien on the Mortgaged
Property subject only to (a) the lien of non delinquent current real property
taxes and assessments, (b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of recording of
such Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally or specifically reflected in the appraisal made
in connection with the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage.
(5) [Reserved].
(6) There is no delinquent tax or assessment lien against any Mortgaged
Property.
S-III-A-1
(7) There is no valid offset, defense or counterclaim to any Mortgage Note
or Mortgage, including the obligation of the Mortgagor to pay the unpaid
principal of or interest on such Mortgage Note.
(8) There are no mechanics' liens or claims for work, labor or material
affecting any Mortgaged Property which are or may be a lien prior to, or equal
with, the lien of such Mortgage, except those which are insured against by the
title insurance policy referred to in item (12) below.
(9) As of the Closing Date with respect to the Initial Mortgage Loans and
as of the related Supplemental Transfer Date with respect to the Supplemental
Mortgage Loans, to the best of Countrywide's knowledge, each Mortgaged Property
is free of material damage and in good repair.
(10) Each Mortgage Loan at origination complied in all material respects
with applicable local, state and federal laws, including, without limitation,
usury, equal credit opportunity, predatory and abusive lending laws, real estate
settlement procedures, truth-in-lending and disclosure laws, and consummation of
the transactions contemplated hereby will not involve the violation of any such
laws.
(11) As of the Closing Date with respect to the Initial Mortgage Loans and
as of the related Supplemental Transfer Date with respect to the Supplemental
Mortgage Loans, neither Countrywide nor any prior holder of any Mortgage has
modified the Mortgage in any material respect (except that a Mortgage Loan may
have been modified by a written instrument which has been recorded or submitted
for recordation, if necessary, to protect the interests of the
Certificateholders and the original or a copy of which has been delivered to the
Trustee); satisfied, cancelled or subordinated such Mortgage in whole or in
part; released the related Mortgaged Property in whole or in part from the lien
of such Mortgage; or executed any instrument of release, cancellation,
modification or satisfaction with respect thereto.
(12) A lender's policy of title insurance together with a condominium
endorsement and extended coverage endorsement, if applicable, in an amount at
least equal to the Cut-off Date Stated Principal Balance of each such Mortgage
Loan or a commitment (binder) to issue the same was effective on the date of the
origination of each Mortgage Loan, each such policy is valid and remains in full
force and effect, and each such policy was issued by a title insurer qualified
to do business in the jurisdiction where the Mortgaged Property is located and
acceptable to FNMA or FHLMC and is in a form acceptable to FNMA or FHLMC, which
policy insures Countrywide and successor owners of indebtedness secured by the
insured Mortgage, as to the first priority lien of the Mortgage subject to the
exceptions set forth in paragraph (4) above and against any loss by reason of
the invalidity or unenforceability of the lien resulting from the provisions of
the Mortgage providing for adjustment in the mortgage interest rate and/or
monthly payment; to the best of Countrywide's knowledge, no claims have been
made under such mortgage title insurance policy and no prior holder of the
related Mortgage, including Countrywide, has done, by act or omission, anything
which would impair the coverage of such mortgage title insurance policy.
S-III-A-2
(13) With respect to each Mortgage Loan, all mortgage rate and payment
adjustments, if any, made on or prior to the Cut-off Date have been made in
accordance with the terms of the related Mortgage Note or subsequent
modifications, if any, and applicable law.
(14) Each Mortgage Loan was originated (within the meaning of Section
3(a)(41) of the Securities Exchange Act of 1934, as amended) by an entity that
satisfied at the time of origination the requirements of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended.
(15) To the best of Countrywide's knowledge, all of the improvements which
were included for the purpose of determining the Appraised Value of the
Mortgaged Property lie wholly within the boundaries and building restriction
lines of such property, and no improvements on adjoining properties encroach
upon the Mortgaged Property.
(16) To the best of Countrywide's knowledge, no improvement located on or
being part of the Mortgaged Property is in violation of any applicable zoning
law or regulation. To the best of Countrywide's knowledge, all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities, unless the lack thereof would not have a material
adverse effect on the value of such Mortgaged Property, and the Mortgaged
Property is lawfully occupied under applicable law.
(17) Each Mortgage Note and the related Mortgage are genuine, and each is
the legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms and under applicable law. To the best of Countrywide's
knowledge, all parties to the Mortgage Note and the Mortgage had legal capacity
to execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(18) The proceeds of the Mortgage Loans have been fully disbursed, there
is no requirement for future advances thereunder and any and all requirements as
to completion of any on-site or off-site improvements and as to disbursements of
any escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making, or closing or recording the Mortgage Loans were paid.
(19) The related Mortgage contains customary and enforceable provisions
which render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure.
(20) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in such Mortgage, and no fees or
expenses are or will become payable by the Certificateholders to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor.
S-III-A-3
(21) Each Mortgage Note and each Mortgage is in substantially one of the
forms acceptable to FNMA or FHLMC, with such riders as have been acceptable to
FNMA or FHLMC, as the case may be.
(22) There exist no deficiencies with respect to escrow deposits and
payments, if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other charges
or payments due Countrywide have been capitalized under the Mortgage or the
related Mortgage Note.
(23) The origination, underwriting and collection practices used by
Countrywide with respect to each Mortgage Loan have been in all respects legal,
prudent and customary in the mortgage lending and servicing business.
(24) There is no pledged account or other security other than real estate
securing the Mortgagor's obligations in respect of any Mortgage Loan.
(25) No Mortgage Loan has a shared appreciation feature, or other
contingent interest feature.
(26) Each Mortgage Loan contains a customary "due on sale" clause.
(27) As of the Closing Date, 66.07% and 72.88% of the Initial Mortgage
Loans in Loan Group 1 and Loan Group 2, respectively, provide for a prepayment
penalty.
(28) Except for 40 and 54 Mortgage Loans in Loan Group 1 and Loan Group 2,
respectively, each Mortgage Loan that had a Loan-to-Value Ratio at origination
in excess of 80% is the subject of a Primary Insurance Policy that insures that
portion of the principal balance equal to a specified percentage times the sum
of the remaining principal balance of the related Mortgage Loan, the accrued
interest thereon and the related foreclosure expenses. The specified coverage
percentage for mortgage loans with terms to maturity between 25 and 30 years is
12% for Loan-to-Value Ratios between 80.01% and 85.00%, 25% for Loan-to-Value
Ratios between 85.01% and 90.00%, 30% for Loan-to-Value Ratios between 90.01%
and 95.00% and 35% for Loan-to-Value Ratios between 95.01% and 100%. The
specified coverage percentage for mortgage loans with terms to maturity of up to
20 years ranges from 6% to 12% for Loan-to-Value Ratios between 80.01% and
85.00%, from 12% to 20% for Loan-to-Value Ratios between 85.01% and 90.00% and
from 20% to 25% for Loan-to-Value Ratios between 90.01% and 95.00%. Each such
Primary Insurance Policy is issued by a Qualified Insurer. All provisions of any
such Primary Insurance Policy have been and are being complied with, any such
policy is in full force and effect, and all premiums due thereunder have been
paid. Any Mortgage subject to any such Primary Insurance Policy obligates either
the Mortgagor or the mortgagee thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith, subject, in each case, to the
provisions of Section 3.09(b) of the Pooling and Servicing Agreement. The
Mortgage Rate for each Mortgage Loan is net of any such insurance premium.
(29) As of the Closing Date or the related Supplemental Transfer Date, as
applicable, the improvements upon each Mortgaged Property are covered by a valid
and existing hazard insurance policy with a generally acceptable carrier that
provides for fire and extended coverage and coverage for such other hazards as
are customary in the area where the Mortgaged Property
S-III-A-4
is located in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing such Mortgage Loan or (ii) the
greater of (a) the outstanding principal balance of the Mortgage Loan and (b) an
amount such that the proceeds of such policy shall be sufficient to prevent the
Mortgagor and/or the mortgagee from becoming a co-insurer. If the Mortgaged
Property is a condominium unit, it is included under the coverage afforded by a
blanket policy for the condominium unit. All such individual insurance policies
and all flood policies referred to in item (30) below contain a standard
mortgagee clause naming Countrywide or the original mortgagee, and its
successors in interest, as mortgagee, and Countrywide has received no notice
that any premiums due and payable thereon have not been paid; the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance including
flood insurance at the Mortgagor's cost and expense, and upon the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
(30) If the Mortgaged Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy in a form meeting the requirements of the
current guidelines of the Flood Insurance Administration is in effect with
respect to such Mortgaged Property with a generally acceptable carrier in an
amount representing coverage not less than the least of (A) the original
outstanding principal balance of the Mortgage Loan, (B) the minimum amount
required to compensate for damage or loss on a replacement cost basis, or (C)
the maximum amount of insurance that is available under the Flood Disaster
Protection Act of 1973, as amended.
(31) To the best of Countrywide's knowledge, there is no proceeding
occurring, pending or threatened for the total or partial condemnation of the
Mortgaged Property.
(32) There is no material monetary default existing under any Mortgage or
the related Mortgage Note and, to the best of Countrywide's knowledge, there is
no material event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration under the Mortgage or the related Mortgage
Note; and Countrywide has not waived any default, breach, violation or event of
acceleration.
(33) Each Mortgaged Property is improved by a one- to four-family
residential dwelling including condominium units and dwelling units in PUDs,
which, to the best of Countrywide's knowledge, does not include cooperatives or
mobile homes and does not constitute other than real property under state law.
(34) Each Mortgage Loan is being master serviced by the Master Servicer.
(35) Any future advances made prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage, and
the secured principal amount, as consolidated, bears a single interest rate and
single repayment term reflected on the Mortgage Loan Schedule. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan. The Mortgage Note does not permit or obligate the Master Servicer to make
future advances to the Mortgagor at the option of the Mortgagor.
S-III-A-5
(36) All taxes, governmental assessments, insurance premiums, water, sewer
and municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, or an escrow of funds has been established
in an amount sufficient to pay for every such item which remains unpaid and
which has been assessed, but is not yet due and payable. Except for (A) payments
in the nature of escrow payments, and (B) interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is
later, to the day which precedes by one month the Due 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.
(37) Approximately 13.63% of the Initial Mortgage Loans in Loan Group 1
and 20.47% of the Mortgage Loans in Loan Group 2 were underwritten in all
material respects in accordance with Countrywide's underwriting guidelines as
set forth in the Prospectus Supplement. Approximately 36.33% of the Initial
Mortgage Loans in Loan Group 1 and 36.35% of the Mortgage Loans in Loan Group 2
were underwritten in all material respects in accordance with Decision One
Mortgage Company LLC's underwriting guidelines as set forth in the Prospectus
Supplement. Each of the remaining Initial Mortgage Loans were underwritten in
all material respects in accordance with the procedures set forth in the
Prospectus under "Loan Program- Underwriting Standards".
(38) Other than with respect to any Streamlined Documentation Mortgage
Loan as to which the loan-to-value ratio of the related Original Mortgage Loan
was less than 90% at the time of the origination of such Original Mortgage Loan,
prior to the approval of the Mortgage Loan application, an appraisal of the
related Mortgaged Property was obtained from a qualified appraiser, duly
appointed by the originator, who had no interest, direct or indirect, in the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan; such appraisal is in a form acceptable to FNMA and FHLMC.
(39) None of the Initial Mortgage Loans is a graduated payment mortgage
loan or a growing equity mortgage loan, and none of the Initial Mortgage Loans
is subject to a buydown or similar arrangement.
(40) Any leasehold estate securing a Mortgage Loan has a term of not less
than five years in excess of the term of the related Mortgage Loan.
(41) The Mortgage Loans were selected from among the outstanding fixed and
adjustable-rate one- to four-family mortgage loans in the portfolios of the
Sellers at the Closing Date as to which the representations and warranties made
as to the Mortgage Loans set forth in this Schedule III can be made. Such
selection was not made in a manner intended to adversely affect the interests of
Certificateholders.
(42) Each Initial Mortgage Loan has a payment date on or before the Due
Date in the month of the first Distribution Date.
S-III-A-6
(43) With respect to any Mortgage Loan as to which an affidavit has been
delivered to the Trustee certifying that the original Mortgage Note is a Lost
Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement
of such Mortgage Loan or of the related Mortgage by or on behalf of the Trustee
will not be materially adversely affected by the absence of the original
Mortgage Note. A "Lost Mortgage Note" is a Mortgage Note the original of which
was permanently lost or destroyed and has not been replaced.
(44) The Mortgage Loans, individually and in the aggregate, conform in all
material respects to the descriptions thereof in the Prospectus Supplement.
(45) No Mortgage Loan originated prior to October 1, 2002 will impose
prepayment penalties for a term in excess of five years after origination.
(46) With respect to any Mortgage Loan that contains a provision
permitting imposition of a penalty upon a prepayment prior to maturity: (a) the
Mortgage Loan provides some benefit to the borrower in exchange for accepting
such prepayment penalty; (b) the Mortgage Loan's originator had a written policy
of offering the borrower, or requiring third-party brokers to offer the
borrower, the option of obtaining a Mortgage Loan that did not require payment
of such a penalty; (c) the prepayment penalty was adequately disclosed to the
borrower pursuant to applicable state and federal law; (d) the Mortgage Loan
does not provide for prepayment penalty for a term in excess of five years; in
each case unless the loan was modified to reduce the prepayment period to no
more than three years from the date of the note and the borrower was notified in
writing of such reduction in prepayment period; and (e) such prepayment penalty
will not be imposed in any instance where the Mortgage Loan is accelerated or
paid off in connection with the workout of a delinquent mortgage or due to the
borrower's default, notwithstanding that the terms of the Mortgage Loan or state
or federal law might permit the imposition of such penalty.
(47) The Master Servicer has fully furnished, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files
related to the Mortgage Loans in Loan Group 1 to Equifax, Experian and Trans
Union Credit Information Company (three of the nationally recognized credit
bureaus) on a monthly basis.
(48) The original principal balances of all of the Mortgage Loan in Loan
Group 1 are within the dollar amount limits of Xxxxxxx Mac and Xxxxxx Mae for
conforming one- to four-family mortgage loans.
(49) No Mortgage Loan originated between October 1, 2002 and March 7, 2003
is subject to the Georgia Fair Lending Act, as amended. No Mortgage Loan
originated between October 1, 2002 and March 7, 2003 is secured by a Mortgaged
Property located in the state of Georgia, and there is no Mortgage Loan
originated on or after March 7, 2003 that is a "high cost home loan" as defined
under the Georgia Fair Lending Act.
(50) None of the Mortgage Loans are "high cost" loans as defined by
applicable predatory and abusive lending laws.
S-III-A-7
(51) None of the Mortgage Loans are covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA").
(52) No Mortgage Loan is a "High-Cost Home Loan" as defined in the New
Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.).
(53) No Mortgage Loan is a "High-Cost Home Loan" as defined in the New
Mexico Home Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx.
xx.xx. 58-21a-1 et seq.).
(54) No Mortgage Loan is a "High-Cost Home Mortgage Loan" as defined in
the Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
(Mass. Gen. Law ch. 183C).
(55) No Mortgage Loan originated on or after January 1, 2005 is a
"High-Cost Home Loan" as defined in the Indiana Home Loan Practices Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9).
(56) All of the Mortgage Loans were originated in compliance with all
applicable laws, including, but not limited to, all applicable anti-predatory
and abusive lending laws.
(57) No Mortgage Loan is a High Cost Loan or Covered Loan, as applicable,
and with respect to the foregoing, the terms "High Cost Loan" and "Covered Loan"
have the meaning assigned to them in the then current Standard & Poor's
LEVELS(R) Version 5.7 Glossary Revised, Appendix E which is attached hereto as
Exhibit Q (the "Glossary") where (x) a "High Cost Loan" is each loan identified
in the column "Category under applicable anti-predatory lending law" of the
table entitled "Standard & Poor's High Cost Loan Categorization" in the Glossary
as each such loan is defined in the applicable anti-predatory lending law of the
State or jurisdiction specified in such table and (y) a "Covered Loan" is each
loan identified in the column "Category under applicable anti-predatory lending
law" of the table entitled "Standard & Poor's Covered Loan Categorization" in
the Glossary as each such loan is defined in the applicable anti-predatory
lending law of the State or jurisdiction specified in such table.
(58) No Mortgage Loan originated between October 1, 2002 and March 7, 2003
is subject to the Georgia Fair Lending Act, as amended. No Mortgage Loan
originated between October 1, 2002 and March 7, 2003 is secured by a Mortgaged
Property located in the state of Georgia, and there is no Mortgage Loan
originated on or after March 7, 2003 that is a "high cost home loan" as defined
under the Georgia Fair Lending Act.
(59) No Mortgagor related to a Mortgage Loan in Loan Group 1 was required
to purchase any single premium credit insurance policy (e.g., life, disability,
accident, unemployment, or health insurance product) or debt cancellation
agreement as a condition of obtaining the extension of credit; no Mortgagor
related to a Mortgage Loan in Loan Group 1 obtained a prepaid single-premium
credit insurance policy (e.g., life, disability, accident, unemployment,
mortgage or health insurance) in connection with the origination of such
Mortgage Loan; no proceeds from any Mortgage Loan in Loan Group 1 were used to
purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination or, or as a condition to closing, such
Mortgage Loan.
S-III-A-8
(60) With respect to all of the Mortgage Loans in Loan Group 1 originated
on or after November 1, 2006, if the related Mortgage Loan or the related
Mortgage Note, or any document relating to the loan transaction, contains a
mandatory arbitration clause (that is, a clause that requires the borrower to
submit to arbitration to resolve any dispute arising out of or relating in any
way to the mortgage loan transaction), Countrywide will (i) notify the related
borrower in writing within 60 days after the Closing Date that none of the
related seller, the related servicer or any subsequent party that acquires an
interest in the Mortgage Loan or services the Mortgage Loan will enforce the
arbitration clause against the borrower, but that the borrower will continue to
have the right to submit a dispute to arbitration and (ii) place a copy of that
notice in the Mortgage File; neither the related mortgage nor the related
mortgage note requires the borrower to submit to arbitration to resolve any
dispute arising out of or relating in any way to the mortgage loan transaction.
(61) The originator of each Mortgage Loan in Loan Group 1 offered the
related borrower mortgage loan products offered by such Mortgage Loan's
originator, or any affiliate of such Mortgage Loan's originator, for which the
borrower qualified.
(62) The methodology used in underwriting the extension of credit for each
Mortgage Loan in Loan Group 1 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 the reasonable ability to
make timely payments on the Mortgage Loan.
(63) No borrower under a Mortgage Loan in Loan Group 1 was charged "points
and fees" in an amount greater than (a) $1,000 or (b) 5% of the principal amount
of such Mortgage Loan, whichever is greater. For purposes of this
representation, "points and fees" (x) include origination, underwriting, broker
and finder's fees and charges that the lender imposed as a condition of making
the Mortgage Loan, whether they are paid to the lender or a third party; and (y)
exclude bona fide discount points, fees paid for actual services rendered in
connection with the origination of the Mortgage Loan (such as attorneys' fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections); the cost of mortgage insurance or credit-risk price adjustments;
the costs of title, hazard, and flood insurance policies; state and local
transfer taxes or fees; escrow deposits for the future payment of taxes and
insurance premiums; and other miscellaneous fees and charges that, in total, do
not exceed 0.25 percent of the loan amount.
(64) As of the Closing Date with respect to the Mortgage Loans in Loan
Group 1, the related Supplemental Transfer Date with respect to any Supplemental
Mortgage Loans, if any, or the applicable date of substitution with respect to
any Substitute Mortgage Loan, none of the Mortgaged Properties is a mobile home
or a manufactured housing unit that is not considered or classified as part of
the real estate under the laws of the jurisdiction in which it is located.
S-III-A-9
SCHEDULE III-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Countrywide as to the Countrywide Mortgage
Loans
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule III-B to the
Depositor, the Master Servicer and the Trustee, with respect to the Countrywide
Mortgage Loans as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule III-B shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") relating
to the above-referenced Series, among Countrywide, as a seller, Park Granada
LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller,
Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Countrywide Mortgage Loan
to the Depositor, Countrywide had good title to, and was the sole owner of, such
Countrywide Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE III-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Park Granada as to the
Park Granada Mortgage Loans
Park Granada LLC ("Park Granada") hereby makes the representations and
warranties set forth in this Schedule III-C to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Granada Mortgage Loans as of
the Closing Date. Capitalized terms used but not otherwise defined in this
Schedule III-C shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller, Park
Granada LLC, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc., as
depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Park Granada Mortgage Loan
to the Depositor, Park Granada had good title to, and was the sole owner of,
such Park Granada Mortgage Loan free and clear of any pledge, lien, encumbrance
or security interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
same pursuant to the Pooling and Servicing Agreement.
S-III-C-1
SCHEDULE III-D
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Park Monaco as to the
Park Monaco Mortgage Loans
Park Monaco Inc. ("Park Monaco") hereby makes the representations and
warranties set forth in this Schedule III-D to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Monaco Mortgage Loans as of
the Closing Date, or if so specified herein, as of the Cut-off Date. Capitalized
terms used but not otherwise defined in this Schedule III-D shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") relating to the above-referenced Series, among
Countrywide Home Loans, Inc., as a seller, Park Monaco, as a seller, Park
Granada LLC, as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank of New
York, as trustee.
(1) Immediately prior to the assignment of each Park Monaco Mortgage Loan
to the Depositor, Park Monaco had good title to, and was the sole owner of, such
Park Monaco Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
same pursuant to the Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE III-E
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of Park Sienna as to the
Park Sienna Mortgage Loans
Park Sienna LLC ("Park Sienna") hereby makes the representations and
warranties set forth in this Schedule III-E to the Depositor, the Master
Servicer and the Trustee, with respect to the Park Sienna Mortgage Loans as of
the Closing Date, or if so specified herein, as of the Cut-off Date. Capitalized
terms used but not otherwise defined in this Schedule III-E shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") relating to the above-referenced Series, among
Countrywide Home Loans, Inc., as a seller, Park Sienna LLC, as a seller, Park
Monaco Inc., as a seller, Park Granada LLC, as a seller, Countrywide Home Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank of New
York, as trustee.
(1) Immediately prior to the assignment of each Park Sienna Mortgage Loan
to the Depositor, Park Sienna had good title to, and was the sole owner of, such
Park Sienna Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign the
same pursuant to the Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE IV
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2006-OC10
Representations and Warranties of the Master Servicer
Countrywide Home Loans Servicing LP ("Countrywide Servicing") hereby makes
the representations and warranties set forth in this Schedule IV to the
Depositor, the Sellers and the Trustee, as of the Closing Date. Capitalized
terms used but not otherwise defined in this Schedule IV shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") relating to the above-referenced Series, among Countrywide
Home Loans, Inc., as a seller, Park Granada LLC, as a seller, Park Monaco Inc.,
as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP,
as master servicer, CWALT, Inc., as depositor, and The Bank of New York, as
trustee.
(1) Countrywide Servicing is duly organized as a limited partnership and
is validly existing and in good standing under the laws of the State of Texas
and is duly authorized and qualified to transact any and all business
contemplated by the Pooling and Servicing Agreement to be conducted by
Countrywide Servicing in any state in which a Mortgaged Property is located or
is otherwise not required under applicable law to effect such qualification and,
in any event, is in compliance with the doing business laws of any such state,
to the extent necessary to perform any of its obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(2) Countrywide Servicing has the full partnership power and authority to
service each Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and has duly authorized by all necessary partnership action on the
part of Countrywide Servicing the execution, delivery and performance of the
Pooling and Servicing Agreement; and the Pooling and Servicing Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of
Countrywide Servicing, enforceable against Countrywide Servicing in accordance
with its terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws relating
to creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Countrywide Servicing, the servicing of the Mortgage Loans by Countrywide
Servicing under the Pooling and Servicing Agreement, the consummation of any
other of the transactions contemplated by the Pooling and Servicing Agreement,
and the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of Countrywide Servicing and will not (A) result in a
material breach of any term or provision of the certificate of limited
partnership, partnership agreement or other organizational document of
Countrywide Servicing or
S-IV-1
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any other
material agreement or instrument to which Countrywide Servicing is a party or by
which it may be bound, or (C) constitute a material violation of any statute,
order or regulation applicable to Countrywide Servicing of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
Countrywide Servicing; and Countrywide Servicing is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair the ability of Countrywide Servicing
to perform or meet any of its obligations under the Pooling and Servicing
Agreement.
(4) Countrywide Servicing is an approved servicer of conventional mortgage
loans for FNMA or FHLMC and is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act.
(5) No litigation is pending or, to the best of Countrywide Servicing's
knowledge, threatened, against Countrywide Servicing that would materially and
adversely affect the execution, delivery or enforceability of the Pooling and
Servicing Agreement or the ability of Countrywide Servicing to service the
Mortgage Loans or to perform any of its other obligations under the Pooling and
Servicing Agreement in accordance with the terms thereof.
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide Servicing of, or compliance by Countrywide Servicing
with, the Pooling and Servicing Agreement or the consummation of the
transactions contemplated thereby, or if any such consent, approval,
authorization or order is required, Countrywide Servicing has obtained the same.
(7) Countrywide Servicing is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans are registered with MERS.
S-IV-2
SCHEDULE V
Principal Balances Schedule
*[Attached to Prospectus Supplement, if applicable.]
S-V-1
SCHEDULE VI
Form of Monthly Master Servicer Report
===============================================================================================================
LOAN LEVEL REPORTING SYSTEM
---------------------------------------------------------------------------------------------------------------
DATABASE STRUCTURE
---------------------------------------------------------------------------------------------------------------
[MONTH, YEAR]
--------------------------- ----------------------- -------------------- -------------------- -----------------
Field Number Field Name Field Type Field Width Dec
--------------------------- ----------------------- -------------------- -------------------- -----------------
1 INVNUM Numeric 4
--------------------------- ----------------------- -------------------- -------------------- -----------------
2 INVBLK Numeric 4
--------------------------- ----------------------- -------------------- -------------------- -----------------
3 INACNU Character 8
--------------------------- ----------------------- -------------------- -------------------- -----------------
4 BEGSCH Numeric 15 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
5 SCHPRN Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
6 TADPRN Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
7 LIQEPB Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
8 ACTCOD Numeric 11
--------------------------- ----------------------- -------------------- -------------------- -----------------
9 ACTDAT Numeric 4
--------------------------- ----------------------- -------------------- -------------------- -----------------
10 INTPMT Numeric 8
--------------------------- ----------------------- -------------------- -------------------- -----------------
11 PRNPMT Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
12 ENDSCH Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
13 SCHNOT Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
14 SCHPAS Numeric 7 3
--------------------------- ----------------------- -------------------- -------------------- -----------------
15 PRINPT Numeric 7 3
--------------------------- ----------------------- -------------------- -------------------- -----------------
16 PRIBAL Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
17 LPIDTE Numeric 13 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
18 DELPRN Numeric 7
--------------------------- ----------------------- -------------------- -------------------- -----------------
19 PPDPRN Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
20 DELPRN Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
21 NXTCHG Numeric 8
--------------------------- ----------------------- -------------------- -------------------- -----------------
22 ARMNOT Numeric 7 3
--------------------------- ----------------------- -------------------- -------------------- -----------------
23 ARMPAS Numeric 7 3
--------------------------- ----------------------- -------------------- -------------------- -----------------
24 ARMPMT Numeric 11 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
25 ZZTYPE Character 2
--------------------------- ----------------------- -------------------- -------------------- -----------------
26 ISSUID Character 1
--------------------------- ----------------------- -------------------- -------------------- -----------------
27 KEYNAME Character 8
--------------------------- ----------------------- -------------------- -------------------- -----------------
TOTAL 240
--------------------------- ----------------------- -------------------- -------------------- -----------------
Suggested Format: DBASE file
Modem transmission
=========================== ======================= ==================== ==================== =================
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").]
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR ARRANGEMENT
SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF COUNSEL IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION
SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE
OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL OWNER'S ACCEPTANCE OF ITS
INTEREST IN A CERTIFICATE OF THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR
TO A PERSON INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balance of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage
A-2
Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park Granada"), Park
Monaco, Inc., as a seller ("Park Monaco"), and Park Sienna LLC, as a seller
("Park Sienna" and, together with CHL, Park Granada and Park Monaco, the
"Sellers"), Countrywide Home Loans Servicing LP, as master servicer (the "Master
Servicer"), and The Bank of New York, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code, and will not subject the Trustee or the Master Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Master Servicer or the Trust
Fund. Unless the transferee delivers the Opinion of Counsel described above,
such representation shall be deemed to have been made to the Trustee by the
Transferee's acceptance of a Certificate of this Class and by a beneficial
owner's acceptance of its interest in a Certificate of this Class.
Notwithstanding anything else to the contrary herein, until such certificate has
been the subject of an ERISA-Qualifying Underwriting, any purported transfer of
a Certificate of this Class to, or to a person investing assets of, an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By
---------------------------------------------
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
B-1
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR
A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
B-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balance of
all Certificates of the Class to which this Certificate
B-3
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by CWALT, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Countrywide Home Loans, Inc., as a seller ("CHL"), Park Granada
LLC, as a seller ("Park Granada"), Park Monaco, Inc., as a seller ("Park
Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and, together with
CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a transfer is
to be made within three years from the date of the initial issuance of
Certificates pursuant hereto, there shall also be delivered (except in the case
of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee an
Opinion of Counsel that such transfer may be made pursuant to an exemption from
the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Sellers, the Master
Servicer or the Depositor. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.]
[No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, (ii) if such certificate has been the subject of an
ERISA-Qualifying Underwriting and the transferee is an insurance company, a
representation that the transferee is purchasing such Certificate with funds
contained in an "insurance company general account" (as such term is defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and
that the purchase and holding of such Certificate satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, or (iii) in the case of
any such Certificate presented for registration in the name of an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code (or comparable provisions
B-4
of any subsequent enactments), a trustee of any such benefit plan or arrangement
or any other person acting on behalf of any such benefit plan or arrangement, an
Opinion of Counsel satisfactory to the Trustee to the effect that the purchase
and holding of such Certificate will not result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code, and will not subject the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Trust Fund. Notwithstanding anything else to
the contrary herein, any purported transfer of a Certificate of this Class to or
on behalf of an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code without the opinion of counsel satisfactory
to the Trustee as described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By
--------------------------------------------
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
B-6
EXHIBIT C-1
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR
A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class A-R
evidencing the distributions allocable to the Class A-R Certificates with
respect to a Trust Fund consisting primarily of a pool of conventional
mortgage loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that _______________ is the registered owner of the
Percentage Interest (obtained by dividing the Denomination of this Certificate
by the aggregate Initial Certificate Balance of all Certificates of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust Fund consisting of the Mortgage Loans deposited by CWALT, Inc. (the
C-1-2
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Countrywide Home Loans, Inc., as a seller ("CHL"), Park Granada
LLC, as a seller ("Park Granada"), Park Monaco, Inc., as a seller ("Park
Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and, together with
CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class A-R Certificate
at the Corporate Trust Office or the office or agency maintained by the Trustee
in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section 4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
certificate has been the subject of an ERISA-Qualifying Underwriting and the
transferee is an insurance company, a representation that the transferee is
purchasing such Certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60, or (iii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class A-R Certificate to or on behalf of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code without the
opinion of counsel satisfactory to the Trustee as described above shall be void
and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed to
be bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest in
this Class A-R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class A-R Certificate may be transferred without
C-1-3
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge that
the proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class A-R Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
C-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-1-5
EXHIBIT C-2
[FORM OF CLASS P CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
THIS CLASS P CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE
EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CLASS P CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON BEHALF OF
OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO EFFECT THE
TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR
A PLAN
C-2-1
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
C-2-2
Certificate No. :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
ISIN :
Interest Rate :
Maturity Date :
CWALT, INC.
Alternative Loan Trust 200____-____
Mortgage Pass-Through Certificates, Series 200____-____
evidencing a percentage interest in the distributions allocable to the
Class P Certificates with respect to a Trust Fund consisting primarily of
a pool of conventional mortgage loans (the "Mortgage Loans") secured by
first and second liens on one- to four-family residential properties
CWALT, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amount of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park
C-2-3
Granada LLC, as a seller ("Park Granada"), Park Monaco, Inc., as a seller ("Park
Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and, together with
CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class P
Certificates on such Distribution Date pursuant to Section 4.02 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month immediately preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold 100% of a Class
of Regular Certificates or of Certificates with an aggregate Initial Certificate
Balance of $1,000,000 or more, or, if not, by check mailed by first class mail
to the address of such Certificateholder appearing in the Certificate Register.
The final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the Corporate Trust Office
or such other location specified in the notice to Certificateholders of such
final distribution.
No transfer of a Class P Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under the Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer. In the
event that such a transfer is to be made within two years from the date of the
initial issuance of Certificates, there shall also be delivered (except in the
case of a transfer pursuant to Rule 144A of the Regulations promulgated pursuant
to the Act) to the Trustee an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Master Servicer or the Depositor. The Holder hereof desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the
C-2-4
Certificate and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of a Class P Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of a
Class P Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan or arrangement subject to Section 4975
of the Code, or a person acting on behalf of or investing plan assets of any
such benefit plan or arrangement, which representation letter shall not be an
expense of the Trustee, the Master Servicer or the Trust Fund, (ii) if such
Class P Certificate has been the subject of an ERISA-Qualifying Underwriting and
the transferee is an insurance company, a representation that the transferee is
purchasing such Class P Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Class P Certificate satisfy the requirements for exemptive
relief under Sections I and III of PTCE 95-60, or (iii) in the case of a Class P
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Trustee or the Master Servicer to any obligation
in addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer of
a Class P Certificate to or on behalf of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code without the
opinion of counsel satisfactory to the Trustee as described above shall be void
and of no effect.
This Class P Certificate may not be pledged or used as collateral for any
other obligation if it would cause any portion of the Trust Fund to be treated
as a taxable mortgage pool under Section 7701(i) of the Code.
Each Holder of this Class P Certificate will be deemed to have agreed to
be bound by the transfer restrictions set forth in the Agreement and all other
terms and provisions of the Agreement.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
C-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Name:
Title:
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-2-6
EXHIBIT C-3
[FORM OF CLASS C CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE "CODE").
THIS CLASS C CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES TO THE
EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CLASS C CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS C CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION THAT DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE NOR A PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR ARRANGEMENT OR USING THE ASSETS OF THAT PLAN OR ARRANGEMENT TO EFFECT
THAT TRANSFER, OR (B) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF
THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN SUBJECT TO SECTION 4975 OF THE
CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.
C-3-1
Certificate No. :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
ISIN :
Interest Rate :
Maturity Date :
CWALT, INC.
Alternative Loan Trust 200____-____
Mortgage Pass-Through Certificates, Series 200____-____
evidencing a percentage interest in the distributions allocable to the
Class C Certificates with respect to a Trust Fund consisting primarily of
a pool of conventional mortgage loans (the "Mortgage Loans") secured by
first and second liens on one- to four-family residential properties
CWALT, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Master Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amount of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park Granada"), Park
Monaco, Inc., as a seller ("Park Monaco"), and Park Sienna LLC, as a seller
("Park Sienna" and,
C-3-2
together with CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide
Home Loans Servicing LP, as master servicer (the "Master Servicer"), and The
Bank of New York, as trustee (the "Trustee"). To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the applicable Record Date in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Class C
Certificates on such Distribution Date pursuant to Section 4.02 of the
Agreement. The Record Date applicable to each Distribution Date is the last
Business Day of the month immediately preceding such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall hold 100% of a Class
of Regular Certificates or of Certificates with an aggregate Initial Certificate
Balance of $1,000,000 or more, or, if not, by check mailed by first class mail
to the address of such Certificateholder appearing in the Certificate Register.
The final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the Corporate Trust Office
or such other location specified in the notice to Certificateholders of such
final distribution.
No transfer of a Class C Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under the Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer. In the
event that such a transfer is to be made within two years from the date of the
initial issuance of Certificates, there shall also be delivered (except in the
case of a transfer pursuant to Rule 144A of the Regulations promulgated pursuant
to the Act) to the Trustee an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Master Servicer or the Depositor. The Holder hereof desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
No transfer of a Class C Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee,
to the effect that such transferee is not an employee benefit plan subject to
section 406 of ERISA or a plan subject to section 4975 of the Code, or a Person
acting on behalf of any such plan or using the assets of any such plan, or (ii)
in the case of any Class C Certificate presented for registration in the name of
an employee benefit plan subject to ERISA, or a plan subject to section 4975 of
the Code (or comparable provisions of any subsequent enactments), or a trustee
of any such plan or any
C-3-3
other person acting on behalf of or investing plan assets of any such plan, an
Opinion of Counsel satisfactory to the Trustee to the effect that the purchase
or holding of such Class C Certificate will not result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trustee to any obligation in addition to those expressly undertaken
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee. Notwithstanding anything else to the contrary herein, any purported
transfer of a Class C Certificate to or on behalf of an employee benefit plan
subject to section 406 of ERISA or a plan subject to section 4975 of the Code
without the delivery to the Trustee of an Opinion of Counsel satisfactory to the
Trustee as described above shall be void and of no effect.
This Class C Certificate may not be pledged or used as collateral for any
other obligation if it would cause any portion of the Trust Fund to be treated
as a taxable mortgage pool under Section 7701(i) of the Code.
Each Holder of this Class C Certificate will be deemed to have agreed to
be bound by the transfer restrictions set forth in the Agreement and all other
terms and provisions of the Agreement.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless the certificate of authentication hereon has
been manually executed by an authorized officer of the Trustee.
* * *
C-3-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Name:
Title:
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-3-5
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTION IN RESPECT OF PRINCIPAL.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR ARRANGEMENT
SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF COUNSEL IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION
SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE
OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL OWNER'S ACCEPTANCE OF ITS
INTEREST IN A CERTIFICATE OF THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO, OR
A PERSON INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
of all Certificates
of this Class : $
CUSIP :
Interest Rate : Interest Only
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
CWALT, Inc., as Depositor
The Notional Amount of this certificate at any time, may be less than the
Notional Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amount of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was created
D-2
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park Granada"), Park
Monaco, Inc., as a seller ("Park Monaco"), and Park Sienna LLC, as a seller
("Park Sienna" and, together with CHL, Park Granada and Park Monaco, the
"Sellers"), Countrywide Home Loans Servicing LP, as master servicer (the "Master
Servicer"), and The Bank of New York, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not result
in a non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code, and will not subject the Trustee or the Master Servicer to any
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee, the Master Servicer or the Trust
Fund. When the transferee delivers the Opinion of Counsel described above, such
representation shall be deemed to have been made to the Trustee by the
Transferee's acceptance of a Certificate of this Class and by a beneficial
owner's acceptance of its interest in a Certificate of this Class.
Notwithstanding anything else to the contrary herein, until such certificate has
been the subject of an ERISA-Qualifying Underwriting, any purported transfer of
a Certificate of this Class to, or a person investing assets of, an employee
benefit plan subject to ERISA or a plan or arrangement subject to Section 4975
of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By
----------------------------------
Countersigned:
By
-------------------------------------
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
D-4
EXHIBIT E
[FORM OF] REVERSE OF CERTIFICATES
CWALT, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as CWALT, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such day is not a Business Day, the Business Day
immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer and the
E-1
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office or the office or agency maintained by the
Trustee in New York, New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Sellers and the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the Pool Stated Principal Balance is
less than or equal to 10% of the Cut-off Date Pool Principal Balance, the Master
Servicer will have the option, subject to the limitations set forth in the
Agreement, to repurchase, in whole, from the Trust Fund all remaining Mortgage
Loans and all property acquired in respect of the Mortgage Loans at a purchase
price determined as provided in the Agreement. In the event that no such
optional termination occurs, the obligations and responsibilities created by the
Agreement will terminate upon the later of the maturity or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund or the disposition of all property in respect thereof and the
distribution to Certificateholders of all amounts required to be distributed
pursuant to the Agreement. In no event, however, will the trust created by the
Agreement continue beyond the
E-2
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-3
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto _________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
__________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, ______________________________________________
______________________________________________________________________________
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number __________, or, if mailed by check, to _______________________.
______________________________________________________________________________
_____________________________________________________________________________.
Applicable statements should be mailed to ___________________________________,
______________________________________________________________________________
_____________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
E-4
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary public in
and for said State, personally appeared _____________________________________,
known to me who, being by me duly sworn, did depose and say that he executed the
foregoing instrument.
______________________________________
Notary Public
[Notarial Seal]
E-5
EXHIBIT F-1
[FORM OF] INITIAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
________________________
________________________
Re: Pooling and Servicing Agreement among CWALT,
Inc., as Depositor, Countrywide Home Loans,
Inc. ("Countrywide"), as a Seller, Park Granada
LLC, as a Seller, Park Monaco, Inc., as a
Seller, Park Sienna LLC, as a Seller,
Countrywide Home Loans Servicing LP, as Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series
200_-_
-------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that, as to each Initial Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full or
listed on the attached schedule) it has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay to
the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from Countrywide stating that the original
Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement.
F-1-1
The Trustee makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any of the documents contained in
each Mortgage File of any of the Initial Mortgage Loans identified on the
Mortgage Loan Schedule, or (ii) the collectability, insurability, effectiveness
or suitability of any such Initial Mortgage Loan.
F-1-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Name:
Title:
F-1-3
EXHIBIT F-2
[FORM OF] INITIAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
_______________________
_______________________
Re: Pooling and Servicing Agreement among CWALT,
Inc., as Depositor, Countrywide Home Loans,
Inc., as a Seller, Park Granada LLC, as a
Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, and The Bank
of New York, as Trustee, Mortgage Pass-Through
Certificates, Series 20__-__ and the
Supplemental Transfer Agreement dated as of
[month] ____, 200_ among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc., as a
Seller, Park Granada LLC, as a Seller, Park
Monaco, Inc., as a Seller, Park Sienna LLC, as
a Seller, and The Bank of New York, as Trustee
___________________________
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") and the Supplemental
Transfer Agreement, dated as of [month] ____, 200_, the undersigned, as Trustee,
hereby certifies that, as to each Supplemental Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Supplemental Mortgage Loan paid in full
or listed on the attached schedule) it has received:
(i) (a) the original Mortgage Note endorsed in the following form: "Pay to
the order of __________, without recourse" or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Seller stating that the original
Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments).
F-2-1
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Supplemental Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Supplemental Mortgage
Loan.
F-2-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------------
Name:
Title:
F-2-3
EXHIBIT G-1
[FORM OF] DELAY DELIVERY CERTIFICATION
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
---------------------
---------------------
Re: Pooling and Servicing Agreement among
CWALT, Inc., as Depositor, Countrywide
Home Loans, Inc. ("Countrywide"), as a
Seller, Park Granada LLC, as a Seller,
Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home
Loans Servicing LP, as Master Servicer,
and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates,
Series 200_-_
-------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to the
above-referenced series, with the schedule of exceptions attached thereto (the
"Schedule A"), delivered by the undersigned, as Trustee, on the Closing Date in
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"). The undersigned hereby
certifies that, as to each Delay Delivery Initial Mortgage Loan listed on
Schedule A attached hereto (other than any Initial Mortgage Loan paid in full or
listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by Countrywide or the
originator of such Mortgage Loan, without recourse in the following
form: "Pay to the order of _______________ without recourse", with
all intervening endorsements that show a complete chain of
endorsement from the originator to Countrywide, or, if the original
Mortgage Note has been lost or destroyed and not replaced, an
original lost note affidavit from Countrywide, stating that the
original Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Initial Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of
G-1-1
the MIN of the Initial Mortgage Loan and language indicating that
the Initial Mortgage Loan is a MOM Loan if the Initial Mortgage Loan
is a MOM Loan, with evidence of recording indicated thereon, or a
copy of the Mortgage certified by the public recording office in
which such Mortgage has been recorded];
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in the
case of each Initial Mortgage Loan with respect to property located
in the State of California that is not a MERS Mortgage Loan, a duly
executed assignment of the Mortgage in blank (each such assignment,
when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or, in
the event such original title policy has not been received from the
insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company, with the original policy of
title insurance to be delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan Countrywide cannot deliver the original recorded Mortgage or all
interim recorded assignments of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment or
assignments of the Mortgage, as applicable, each certified by Countrywide, the
applicable title company, escrow agent or attorney, or the originator of such
Initial Mortgage Loan, as the case may be, to be a true and complete copy of the
original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Article I of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and
G-1-2
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Initial Mortgage Loans
identified on the [Mortgage Loan Schedule][Loan Number and Borrower
Identification Mortgage Loan Schedule] or (ii) the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan.
G-1-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------------
Name:
Title:
G-1-4
EXHIBIT G-2
[FORM OF] DELAY DELIVERY CERTIFICATION
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
Re: Pooling and Servicing Agreement among CWALT,
Inc., as Depositor, Countrywide Home Loans,
Inc., as a Seller, Park Granada LLC, as a
Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, and The Bank
of New York, as Trustee, Mortgage Pass-Through
Certificates, Series 20__-__ and the
Supplemental Transfer Agreement dated as of
[month] ____, 200_ among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc., as a
Seller, Park Granada LLC, as a Seller, Park
Monaco, Inc., as a Seller, Park Sienna LLC, as
a Seller, and The Bank of New York, as Trustee
_____________________________
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to the
above-referenced series, with the schedule of exceptions attached thereto (the
"Schedule A"), delivered by the undersigned, as Trustee, on [month] __, 200_
(such date being the related "Supplemental Transfer Date" in accordance with
Section 2.02 of the above-captioned Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"). The undersigned hereby certifies that, as to
each Delay Delivery Supplemental Mortgage Loan listed on Schedule A attached
hereto (other than any Supplemental Mortgage Loan paid in full or listed on
Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the originator
of such Mortgage Loan, without recourse in the following form: "Pay
to the order of _______________ without recourse", with all
intervening endorsements that show a complete chain of endorsement
from the originator to the Seller, or, if the
G-2-1
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Seller, stating that the
original Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(ii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Supplemental Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of the MIN of the
Supplemental Mortgage Loan and language indicating that the
Supplemental Mortgage Loan is a MOM Loan if the Supplemental
Mortgage Loan is a MOM Loan, with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded];
(iii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in the
case of each Supplemental Mortgage Loan with respect to property
located in the State of California that is not a MERS Mortgage Loan,
a duly executed assignment of the Mortgage in blank (each such
assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS Mortgage
Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or, in
the event such original title policy has not been received from the
insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company, with the original policy of
title insurance to be delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Seller cannot deliver the original recorded Mortgage or all
interim recorded assignments of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment or
assignments of the Mortgage, as applicable, each certified by the Seller, the
applicable title company, escrow agent or attorney, or the originator of such
Supplemental
G-2-2
Mortgage Loan, as the case may be, to be a true and complete copy of the
original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Supplemental Mortgage Loan, and (ii) the information set forth in items (i),
(iv), (v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Supplemental Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
G-2-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------
Name:
Title:
G-2-4
EXHIBIT H-1
[FORM OF] FINAL CERTIFICATION OF TRUSTEE
(INITIAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
___________________________
___________________________
Re: Pooling and Servicing Agreement among CWALT,
Inc., as Depositor, Countrywide Home Loans,
Inc. ("Countrywide"), as a Seller, Park Granada
LLC, as a Seller, Park Monaco, Inc., as a
Seller, Park Sienna LLC, as a Seller,
Countrywide Home Loans Servicing LP, as Master
Servicer, and The Bank of New York, as Trustee,
Mortgage Pass-Through Certificates, Series
200_-_
------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Initial Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Initial Mortgage Loan paid in full or
listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by Countrywide or the
originator of such Mortgage Loan, without recourse in the following
form: "Pay to the order of _______________ without recourse", with
all intervening endorsements that show a complete chain of
endorsement from the originator to Countrywide, or, if the original
Mortgage Note has been lost or destroyed and not replaced, an
original lost note affidavit from Countrywide, stating that the
original Mortgage Note was lost or destroyed, together with a copy
of the related Mortgage Note;
(ii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Initial Mortgage Loan that is
H-1-1
a MERS Mortgage Loan, the original Mortgage, noting thereon the
presence of the MIN of the Mortgage Loan and language indicating
that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM
Loan, with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which such
Mortgage has been recorded];
(iii) in the case of each Initial Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in the
case of each Initial Mortgage Loan with respect to property located
in the State of California that is not a MERS Mortgage Loan, a duly
executed assignment of the Mortgage in blank (each such assignment,
when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which such assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each Initial Mortgage
Loan that is a MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or, in
the event such original title policy has not been received from the
insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company, with the original policy of
title insurance to be delivered within one year of the Closing Date.
In the event that in connection with any Initial Mortgage Loan that is not
a MERS Mortgage Loan Countrywide cannot deliver the original recorded Mortgage
or all interim recorded assignments of the Mortgage satisfying the requirements
of clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment or
assignments of the Mortgage, as applicable, each certified by Countrywide, the
applicable title company, escrow agent or attorney, or the originator of such
Initial Mortgage Loan, as the case may be, to be a true and complete copy of the
original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Initial Mortgage Loan, and (ii) the information set forth in items (i), (iv),
(v), (vi), (viii), (xi) and (xiv) of the definition of the
H-1-2
"Mortgage Loan Schedule" in Article I of the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Initial Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such Initial
Mortgage Loan.
H-1-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By :
---------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
[FORM OF] FINAL CERTIFICATION OF TRUSTEE
(SUPPLEMENTAL MORTGAGE LOANS)
[date]
[Depositor]
[Master Servicer]
[Countrywide]
__________________________
__________________________
Re: Pooling and Servicing Agreement among CWALT,
Inc., as Depositor, Countrywide Home Loans,
Inc., as a Seller, Park Granada LLC, as a
Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, and The Bank
of New York, as Trustee, Mortgage Pass-Through
Certificates, Series 20__-__ and the
Supplemental Transfer Agreement dated as of
[month] ____, 200_ among CWALT, Inc., as
Depositor, Countrywide Home Loans, Inc., as a
Seller, Park Granada LLC, as a Seller, Park
Monaco, Inc., as a Seller, Park Sienna LLC, as
a Seller, and The Bank of New York, as Trustee
_____________________________
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Supplemental Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Supplemental Mortgage Loan paid in
full or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the originator
of such Mortgage Loan, without recourse in the following form: "Pay
to the order of _______________ without recourse", with all
intervening endorsements that show a complete chain of endorsement
from the originator to the Seller, or, if the original Mortgage Note
has been lost or destroyed and not replaced, an original
H-2-1
lost note affidavit from the Seller, stating that the original
Mortgage Note was lost or destroyed, together with a copy of the
related Mortgage Note;
(ii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, [and in the case of
each Supplemental Mortgage Loan that is a MERS Mortgage Loan, the
original Mortgage, noting thereon the presence of the MIN of the
Mortgage Loan and language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by
the public recording office in which such Mortgage has been
recorded];
(iii) in the case of each Supplemental Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to "The
Bank of New York, as trustee under the Pooling and Servicing
Agreement dated as of [month] 1, 2004, without recourse", or, in the
case of each Supplemental Mortgage Loan with respect to property
located in the State of California that is not a MERS Mortgage Loan,
a duly executed assignment of the Mortgage in blank (each such
assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each Supplemental
Mortgage Loan that is a MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or, in
the event such original title policy has not been received from the
insurer, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company, with the original policy of
title insurance to be delivered within one year of the Closing Date.
In the event that in connection with any Supplemental Mortgage Loan that
is not a MERS Mortgage Loan the Seller cannot deliver the original recorded
Mortgage or all interim recorded assignments of the Mortgage satisfying the
requirements of clause (ii), (iii) or (iv), as applicable, the Trustee has
received, in lieu thereof, a true and complete copy of such Mortgage and/or such
assignment or assignments of the Mortgage, as applicable, each certified by the
Seller, the applicable title company, escrow agent or attorney, or the
originator of such Supplemental Mortgage Loan, as the case may be, to be a true
and complete copy of the original Mortgage or assignment of Mortgage submitted
for recording.
H-2-2
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Supplemental Mortgage Loan, and (ii) the information set forth in items (i),
(iv), (v), (vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Supplemental Mortgage Loans identified on the [Mortgage Loan Schedule][Loan
Number and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Supplemental Mortgage Loan.
H-2-3
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
as Trustee
By :
---------------------------------------
Name:
Title:
H-2-4
EXHIBIT I
[FORM OF] TRANSFER AFFIDAVIT
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
------
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement, dated as of _________ __, 2___
(the "Agreement"), by and among CWALT, Inc., as depositor (the "Depositor"),
Countrywide Home Loans, Inc. (the "Company"), as a Seller, Park Granada LLC, as
a Seller, Park Monaco, Inc., as a Seller, Park Sienna LLC, as a Seller (and
together with the Company, Park Granada and Park Monaco, the "Sellers"),
Countrywide Home Loans Servicing LP, as Master Servicer and The Bank of New
York, as Trustee. Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee is not an employee benefit plan that is subject to
Title I of ERISA or to section 4975 of the Internal Revenue Code of 1986, nor is
it acting on behalf of or with plan assets of any such plan. The Transferee is,
as of the date hereof, and will be, as of the date of the Transfer, a Permitted
Transferee. The Transferee will endeavor to remain a Permitted Transferee for so
long as it retains its Ownership Interest in the Certificate. The Transferee is
acquiring its Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an
I-1
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.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J-1 to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to which
the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Class A-R Certificates.
8. The Transferee's taxpayer identification number is
______________.
9. The Transferee is a U.S. Person as defined in Code section
7701(a)(30) and, unless the Transferor (or any subsequent transferor) expressly
waives such requirement, will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
10. The Transferee is aware that the Class A-R Certificates may be
"noneconomic residual interests" within the meaning of Treasury Regulation
Section 1.860E-1(c) and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax. In addition, as the Holder of a
I-2
noneconomic residual interest, the Transferee may incur tax liabilities in
excess of any cash flows generated by the interest and the Transferee hereby
represents that it intends to pay taxes associated with holding the residual
interest as they become due.
11. The Transferee has provided financial statements or other
financial information requested by the Transferor in connection with the
transfer of the Certificate to permit the Transferor to assess the financial
capability of the Transferee to pay such taxes. The Transferee historically has
paid its debts as they have come due and intends to pay its debts as they come
due in the future.
12. Unless the Transferor (or any subsequent transferor) expressly
waives such requirement, the Transferee (and any subsequent transferee)
certifies (or will certify), respectively, that the transfer satisfies either
the "Asset Test" imposed by Treasury Regulation ss. 1.860E-1(c)(5) or the
"Formula Test" imposed by Treasury Regulation ss. 1.860E-1(c)(7).
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf by its duly authorized officer, this_____ day of
___________, 2___.
PRINT NAME OF TRANSFEREE
By:
----------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
______________________________________________
[Assistant] Secretary
Personally appeared before me the above-named _____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the _____________________________ of the Transferee, and acknowledged that
he executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed and sworn before me this _____ day of _________, 20__.
_____________________________________
NOTARY PUBLIC
My Commission expires the
___ day of ________________, 20__
I-4
WAIVER OF REQUIREMENT THAT TRANSFEREE CERTIFIES TRANSFER OF CERTIFICATE
SATISFIES CERTAIN REGULATORY "SAFE HARBORS"
The Transferor hereby waives the requirement that the Transferee
certify that the transfer of the Certificate satisfies either the "Asset Test"
imposed by Treasury Regulation ss. 1.860E-1(c)(5) or the "Formula Test" imposed
by Treasury Regulation ss. 1.860E-1(c)(7).
CWALT, INC.
By: ________________________________
Name:
Title:
I-5
EXHIBIT 1 to
EXHIBIT I
Certain Definitions
"Asset Test": A transfer satisfies the Asset Test if: (i) At the
time of the transfer, and at the close of each of the transferee's two fiscal
years preceding the transferee's fiscal year of transfer, the transferee's gross
assets for financial reporting purposes exceed $100 million and its net assets
for financial reporting purposes exceed $10 million. The gross assets and net
assets of a transferee do not include any obligation of any "related person" or
any other asset if a principal purpose for holding or acquiring the other asset
is to permit the transferee to satisfy such monetary conditions; (ii) The
transferee must be an "eligible corporation" and must agree in writing that any
subsequent transfer of the interest will be to another eligible corporation in a
transaction that satisfies paragraphs 9 through 11 of this Transfer Affidavit
and the Asset Test. A transfer fails to meet the Asset Test if the transferor
knows, or has reason to know, that the transferee will not honor the
restrictions on subsequent transfers of the Certificate; and (iii) A reasonable
person would not conclude, based on the facts and circumstances known to the
transferor on or before the date of the transfer, that the taxes associated with
the Certificate will not be paid. The consideration given to the transferee to
acquire the Certificate is only one factor to be considered, but the transferor
will be deemed to know that the transferee cannot or will not pay if the amount
of consideration is so low compared to the liabilities assumed that a reasonable
person would conclude that the taxes associated with holding the Certificate
will not be paid. For purposes of applying the Asset Test, (i) an "eligible
corporation" means any domestic C corporation (as defined in section 1361(a)(2)
of the Code) other than (A) a corporation which is exempt from, or is not
subject to, tax under section 11 of the Code, (B) an entity described in section
851(a) or 856(a) of the Code, (C) A REMIC, or (D) an organization to which part
I of subchapter T of chapter 1 of subtitle A of the Code applies; (ii) a
"related person" is any person that (A) bears a relationship to the transferee
enumerated in section 267(b) or 707(b)(1) of the Code, using "20 percent"
instead of "50 percent" where it appears under the provisions, or (B) is under
common control (within the meaning of section 52(a) and (b)) with the
transferee.
"Formula Test": A transfer satisfies the formula test if the present
value of the anticipated tax liabilities associated with holding the Certificate
does not exceed the sum of (i) the present value of any consideration given to
the transferee to acquire the Certificate; (ii) the present value of the
expected future distributions on the Certificate; and (iii) the present value of
the anticipated tax savings associated with holding the Certificate as the
issuing REMIC generates losses. For purposes of applying the Formula Test: (i)
The transferee is assumed to pay tax at a rate equal to the highest rate of tax
specified in section 11(b)(1) of the Code. If the transferee has been subject to
the alternative minimum tax under section 55 of the Code in the preceding two
years and will compute its taxable income in the current taxable year using the
alternative minimum tax rate, then the tax rate specified in section 55(b)(1)(B)
of the Code may be used in lieu of the highest rate specified in section
11(b)(1) of the Code; (ii) The transfer must satisfy paragraph 9 of the Transfer
Affidavit; and (iii) Present values are computed using a
I-6
discount rate equal to the Federal short-term rate prescribed by section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
taxpayer.
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an "electing large partnership" as
defined in section 775 of the Code, (vi) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other entity
(treated as a corporation or a partnership for federal income tax purposes)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, or an estate whose income from sources
without the United States is includible in gross income for United States
federal income tax purposes regardless of its connection with the conduct of a
trade or business within the United States, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have authority to control all
substantial decisions of the trustor unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI, and (vii) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Class A-R
Certificate to such Person may cause any REMIC formed under the Agreement to
fail to qualify as a REMIC at any time that any Certificates are Outstanding.
The terms "United States," "State" and "International Organization" shall have
the meanings set forth in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-7
EXHIBIT 2 to
EXHIBIT I
Section 5.02(c) of the Agreement
--------------------------------
(c) Each Person who has or who acquires any Ownership Interest in a
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(1) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(2) Except in connection with (i) the registration of the Tax
Matters Person Certificate in the name of the Trustee or (ii) any
registration in the name of, or transfer of a Class A-R Certificate to, an
affiliate of the Depositor (either directly or through a nominee) in
connection with the initial issuance of the Certificates, no Ownership
Interest in a Class A-R Certificate may be registered on the Closing Date
or thereafter transferred, and the Trustee shall not register the Transfer
of any Class A-R Certificate unless, the Trustee shall have been furnished
with an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached hereto as Exhibit I.
(3) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class A-R Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Class A-R Certificate and (C)
not to Transfer its Ownership Interest in a Class A-R Certificate, or to
cause the Transfer of an Ownership Interest in a Class A-R Certificate to
any other Person, if it has actual knowledge that such Person is not a
Permitted Transferee.
(4) Any attempted or purported Transfer of any Ownership Interest in
a Class A-R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class A-R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class A-R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class A-R
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit and Transferor
Certificate. The Trustee shall be entitled but not obligated to recover
from any Holder of a Class A-R Certificate that was in fact not a
Permitted
I-8
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 Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Class A-R Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Class A-R Certificate set forth
in this section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Class A-R Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trustee, the Sellers or the Master
Servicer, to the effect that the elimination of such restrictions will not cause
any constituent REMIC of any REMIC formed hereunder to fail to qualify as a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another Person.
Each Person holding or acquiring any ownership Interest in a Class A-R
Certificate hereby consents to any amendment of this Agreement that, based on an
Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Class A-R
Certificate is not transferred, directly or indirectly, to a Person that is not
a Permitted Transferee and (b) to provide for a means to compel the Transfer of
a Class A-R Certificate that is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
I-9
EXHIBIT J-1
[FORM OF] TRANSFEROR CERTIFICATE
(RESIDUAL)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re:CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
--------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that to the extent we are disposing of a Class A-R Certificate, we have
no knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
_______________________________
Print Name of Transferor
By:
-----------------------------------
Authorized Officer
J-1-1
EXHIBIT J-2
[FORM OF] TRANSFEROR CERTIFICATE
(PRIVATE)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re:CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
--------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act.
Very truly yours,
____________________________
Print Name of Transferor
By:
---------------------------------
Authorized Officer
J-2-1
EXHIBIT K
[FORM OF] INVESTMENT LETTER (NON-RULE 144A)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
--------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of or
investing the assets of any such benefit plan or arrangement to effect such
acquisition or (ii) if the Certificates have been the subject of an
ERISA-Qualifying Underwriting and we are an insurance company, we are purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and the purchase and holding of such
Certificates satisfy the requirements for exemptive relief under Sections I and
III of PTCE 95-60,
K-1
(e) we are acquiring the Certificates for investment for our own account and not
with a view to any distribution of such Certificates (but without prejudice to
our right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
__________________________________
Print Name of Transferee
By:
--------------------------------
Authorized Officer
K-2
EXHIBIT L-1
[FORM OF] RULE 144A LETTER
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
-------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of or
investing the assets of any such benefit plan or arrangement to effect such
acquisition or (ii) if the Certificates have been the subject of an
ERISA-Qualifying Underwriting and we are an insurance company, we are purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and the purchase and holding of such
Certificates satisfy the requirements for exemptive relief under Sections I and
III of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or
L-1-1
otherwise disposed of the Certificates, any interest in the Certificates or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
Very truly yours,
__________________________________
Print Name of Transferee
By:
--------------------------------
Authorized Officer
L-1-2
ANNEX 1 TO EXHIBIT L-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis either at least $100,000 in securities or, if
Buyer is a dealer, Buyer must own and/or invest on a discretionary basis at
least $10,000,000 in securities (except for the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined
by a State or Federal authority having supervision over any such
institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
L-1-3
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors
Act of 1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned,
L-1-4
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
--------------------------------------------
Print Name of Buyer
By:
-----------------------------------------
Name:
Title:
Date:
--------------------------------------
L-1-5
ANNEX 2 TO EXHIBIT L-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933, as amended ("Rule 144A") because Buyer
is part of a Family of Investment Companies (as defined below), is such an
officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is
an investment company registered under the Investment Company Act of 1940,
as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year. For purposes of determining the
amount of securities owned by the Buyer or the Buyer's Family of
Investment Companies, the cost of such securities was used, except (i)
where the Buyer or the Buyer's Family of Investment Companies reports its
securities holdings in its financial statements on the basis of their
market value, and (ii) no current information with respect to the cost of
those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $_____ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_____ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
L-1-6
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of
the Buyer's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank deposit
notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of
the Certificates will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.
--------------------------------------------
Print Name of Buyer or Adviser
By:
-----------------------------------------
Name:
Title:
IF AN ADVISER:
--------------------------------------------
Print Name of Buyer
Date:
--------------------------------------
X-0-0
XXXXXXX X-0
[FORM OF] ERISA LETTER (COVERED CERTIFICATES)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
-----------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates, we certify
that we are not, and are not acquiring the Certificates on behalf of or with
plan assets of an "employee benefit plan" as defined in section 3(3) of ERISA
that is subject to Title I of ERISA, a "plan" as defined in section 4975 of the
Code that is subject to section 4975 of the Code, or any person investing on
behalf of or with plan assets (as defined in 29 CFR ss.2510.3-101 or otherwise
under ERISA) of such an employee benefit plan or plan, or (ii) the purchase and
holding of the Certificates satisfy the requirements for exemptive relief under
XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or a similar
exemption. We understand that, in the event that such representation is
violated, such transfer or acquisition shall be void and of no effect.
Very truly yours,
__________________________________
Print Name of Transferee
By:
--------------------------------
Authorized Officer
L-2-1
[FORM OF] REQUEST FOR RELEASE
(for Trustee)
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
Name of Mortgagor: _______________________________________________
Servicer Loan No.: _______________________________________________
Trustee
Name: _______________________________________________
Address: _______________________________________________
_______________________________________________
_______________________________________________
Trustee
Mortgage File No.: _______________________________________________
The undersigned Master Servicer hereby acknowledges that it has
received from The Bank of New York, as Trustee for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, the documents
referred to below (the "Documents"). All capitalized terms not otherwise
defined in this Request for Release shall have the meanings given them in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series among the Trustee, Countrywide Home
Loans, Inc., as a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as
a Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP,
as Master Servicer and CWALT, Inc., as Depositor.
( ) Mortgage Note dated _______________, 20__, in the original
principal sum of $___________, made by ____________________________,
payable to, or endorsed to the order of, the Trustee.
( ) Mortgage recorded on __________________ as instrument no.
______________________ in the County Recorder's Office of the County
of _________________________, State of _______________________ in
book/reel/docket _________________________ of official records at
page/image _________________________________________.
M-1
( ) Deed of Trust recorded on ______________________ as instrument no.
___________ in the County Recorder's Office of the County of
__________________________, State of _____________________ in
book/reel/docket _________________________ of official records at
page/image ____________________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_____________________ as instrument no. __________________ in the
County Recorder's Office of the County of _____________________,
State of ___________________ in book/reel/docket ________________ of
official records at page/image ______________________________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( )_________________________________________________________________
( )_________________________________________________________________
( )_________________________________________________________________
( )_________________________________________________________________
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions
nor shall the Servicer assert or seek to assert any claims or rights
of setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the
need therefor no longer exists, unless the Mortgage Loan relating to
the Documents has been liquidated and the proceeds thereof have been
remitted to the Certificate Account and except as expressly provided
in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Master Servicer shall at all times be earmarked for the account of
the Trustee, and the Master Servicer shall keep the Documents and
any proceeds separate and distinct from all other property in the
Master Servicer's possession, custody or control.
M-2
COUNTRYWIDE HOME LOANS
SERVICING LP
By____________________________________
Its___________________________________
Date:_________________, 20__
M-3
EXHIBIT N
[FORM OF] REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York Attn: Mortgage Custody
Services
Re: The Pooling & Servicing Agreement dated [month] 1, 200_, among
Countrywide Home Loans, Inc., as a Seller, Park Granada LLC, as
a Seller, Park Monaco, Inc., as a Seller, Park Sienna LLC, as a
Seller, Countrywide Home Loans Servicing LP, as Master
Servicer, CWALT, Inc. and The Bank of New York, as Trustee
---------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Trustee for CWALT, Inc., we request the release of the Mortgage Loan
File for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
1. Mortgage Loan paid in full (Countrywide Home Loans, Inc.
hereby certifies that all amounts have been received).
2. Mortgage Loan Liquidated (Countrywide Home Loans, Inc.
hereby certifies that all proceeds of foreclosure,
insurance, or other liquidation have been finally received).
3. Mortgage Loan in Foreclosure.
4. Other (explain):
If item 1 or 2 above is checked, and if all or part of the Mortgage
File was previously released to us, please release to us our previous receipt
on file with you, as well as any additional documents in your possession
relating to the above-specified Mortgage Loan. If item 3 or 4 is checked,
upon return of all of the above documents to you as Trustee, please
acknowledge your receipt by signing in the space indicated below, and
returning this form.
N-1
COUNTRYWIDE HOME LOANS, INC.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
Date:______________________________________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________________________________
Name:______________________________________________
Title:_____________________________________________
Date:______________________________________________
N-2
EXHIBIT O
[Reserved.]
O-1
EXHIBIT P
[FORM OF] SUPPLEMENTAL TRANSFER AGREEMENT
THIS SUPPLEMENTAL TRANSFER AGREEMENT, dated as of ____________, 200_
(this "Supplemental Transfer Agreement"), among CWALT, INC., a Delaware
corporation, as depositor (the "Depositor"), COUNTRYWIDE HOME LOANS, INC.
("CHL"), a New York corporation, as a seller (a "Seller"), PARK GRANADA LLC
("Park Granada"), a Delaware limited liability company, as a seller (a
"Seller"), PARK MONACO INC. ("Park Monaco"), a Delaware limited liability
corporation, as a seller (a "Seller"), PARK SIENNA LLC ("Park Sienna"), a
Delaware limited liability company, as a seller (a "Seller" and together with
CHL, Park Granada and Park Monaco, the "Sellers") under the Pooling and
Servicing Agreement referred to below, and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee");
WHEREAS, the Depositor, the Sellers, the Trustee and Countrywide Home
Loans Servicing LP, as Master Servicer, have entered in the Pooling and
Servicing Agreement, dated as of [month] 1, 2003 (the "Pooling and Servicing
Agreement"), in relation to the Alternative Loan Trust 200_-_, Mortgage
Pass-Through Certificates, Series 200_-_;
WHEREAS, Section 2.01(e) of the Pooling and Servicing Agreement
provides for the parties hereto to enter into this Supplemental Transfer
Agreement in accordance with the terms and conditions of the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt and adequacy of which are hereby
acknowledged the parties hereto agree as follows:
(a) The "Supplemental Transfer Date" with respect to this
Supplemental Transfer Agreement shall be ________, 200_.
(b) The "Aggregate Supplemental Purchase Amount" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Supplemental Loan
Account.
(c) The "Capitalized Interest Requirement" with respect to this
Supplemental Transfer Agreement shall be $________; provided, however, that
such amount shall not exceed the amount on deposit in the Capitalized Interest
Account.
(d) [Reserved]
(e) In case any provision of this Supplemental Transfer Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions or obligations shall not in any way
be affected or impaired thereby.
P-1
(f) In the event of any conflict between the provisions of this
Supplemental Transfer Agreement and the Pooling and Servicing Agreement, the
provisions of the Pooling and Servicing Agreement shall prevail.
(g) This Supplemental Transfer Agreement shall be governed by, and
shall be construed and enforced in accordance with the laws of the State of
New York.
(h) The Supplemental Transfer Agreement may be executed in one or
more counterparts, each of which so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
P-2
IN WITNESS WHEREOF, the parties to this Supplemental Transfer
Agreement have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
CWALT, INC.,
as Depositor
By:___________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.,
as Seller
By:___________________________________
Name:
Title:
PARK GRANADA LLC,
as a Seller
By:___________________________________
Name:
Title:
PARK MONACO, INC.,
as a Seller
By:___________________________________
Name:
Title:
P-3
PARK SIENNA LLC,
as a Seller
By:___________________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By:___________________________________
Name:
Title:
Acknowledged and Agreed:
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: _____________________________
Name:
Title:
P-4
EXHIBIT Q
GLOSSARY of TERMS for STANDARD & POOR'S LEVELS(R)
VERSION 5.7 FILE FORMAT
APPENDIX E - Standard & Poor's Predatory Lending Categories
-----------------------------------------------------------
Standard & Poor's has categorized loans governed by anti-predatory lending
laws in the Jurisdictions listed below into three categories based upon a
combination of factors that include (a) the risk exposure associated with the
assignee liability and (b) the tests and thresholds set forth in those laws.
Note that certain loans classified by the relevant statute as Covered are
included in Standard & Poor's High Cost Loan Category because they included
thresholds and tests that are typical of what is generally considered High
Cost by the industry.
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
------------------ -------------------------------------------- -------------------------
Date Anti-Predatory Lending Law
---- --------------------------
---------------------------------------------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. Code High Cost Home Loan
Xxx. xx.xx. 00-00-000 et seq.
Effective July 16, 2003
---------------------------------------------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code xx.xx. Covered Loan
757.01 et seq.
Effective June 2, 2003
---------------------------------------------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Stat. Covered Loan
Xxx. xx.xx. 5-3.5-101 et seq.
Effective for covered loans offered or
entered into on or after January 1, 2003.
Other provisions of the Act took effect on
June 7, 2002
---------------------------------------------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan Lending Practices High Cost Home Loan
Act, Conn. Gen. Stat. xx.xx. 36a-746 et seq.
Effective October 1, 2001
---------------------------------------------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Code xx.xx. Covered Loan
26-1151.01 et seq.
Effective for loans closed on or after
January 28, 2003
---------------------------------------------------------------------------------------------------------------------
Q-1
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
------------------ -------------------------------------------- -------------------------
Date Anti-Predatory Lending Law
---- --------------------------
---------------------------------------------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. High Cost Home Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
Georgia as amended (Mar. 7, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. High Cost Home Loan
- current) 7-6A-1 et seq.
Effective for loans closed on or after
March 7, 2003
---------------------------------------------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity Protection Act of High Cost Loan
1994, 15 U.S.C. ss. 1639, 12 C.F.R. xx.xx.
226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
---------------------------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. Comp. Stat. tit. High Risk Home Loan
815, xx.xx. 137/5 et seq.
Effective January 1, 2004 (prior to this date,
regulations under Residential Mortgage License
Act effective from May 14, 2001)
---------------------------------------------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. xx.xx. High Loan to Value Consumer
16a-1-101 et seq. Loan (id. ss. 16a-3-207) and;
-------------------------------
Sections 16a-1-301 and 16a-3-207 became High APR Consumer Loan (id.
effective April 14, 1999; Section 16a-3-308a ss. 16a-3-308a)
became effective July 1, 1999
---------------------------------------------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home Loan Act, High Cost Home Loan
Ky. Rev. Stat. xx.xx. 360.100 et seq.
Effective June 24, 2003
---------------------------------------------------------------------------------------------------------------------
Q-2
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
------------------ -------------------------------------------- -------------------------
Date Anti-Predatory Lending Law
---- --------------------------
---------------------------------------------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, High Rate High Fee Mortgage
xx.xx. 8-101 et seq.
Effective September 29, 1995 and as amended
from time to time
---------------------------------------------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. xx.xx. 32.00 High Cost Home Loan
et seq. and 209 C.M.R. xx.xx. 40.01 et seq.
Effective March 22, 2001 and amended from
time to time
---------------------------------------------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. xx.xx. Home Loan
598D.010 et seq.
Effective October 1, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of High Cost Home Loan
2002, N.J. Rev. Stat. xx.xx. 46:10B-22 et
seq.
Effective for loans closed on or after
November 27, 2003
---------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. High Cost Home Loan
xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004; Revised as
of February 26, 2004
---------------------------------------------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or after
April 1, 2003
---------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home High Cost Home Loan
Loans, N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
---------------------------------------------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various sections of the Covered Loan
Ohio Code), Ohio Rev. Code Xxx.
---------------------------------------------------------------------------------------------------------------------
Q-3
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
------------------ -------------------------------------------- -------------------------
Date Anti-Predatory Lending Law
---- --------------------------
---------------------------------------------------------------------------------------------------------------------
xx.xx. 1349.25 et seq.
Effective May 24, 2002
---------------------------------------------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
---------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10
et seq.
Effective for loans taken on or after
January 1, 2004
---------------------------------------------------------------------------------------------------------------------
West Virginia West Virginia Residential Mortgage Lender, West Virginia Mortgage Loan
Broker and Servicer Act, W. Va. Code Xxx. Act Loan
xx.xx. 31-17-1 et seq.
Effective June 5, 2002
---------------------------------------------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
---------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
------------------ -------------------------------------------- -------------------------
Date Anti-Predatory Lending Law
---- --------------------------
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. Covered Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Covered Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 et seq.
Effective November 27, 2003 - July 5, 2004
---------------------------------------------------------------------------------------------------------------------
Q-4
Standard & Poor's Covered Loan Categorization
---------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
------------------ -------------------------------------------- -------------------------
Date Anti-Predatory Lending Law
---- --------------------------
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. Home Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 et seq.
-- ---
Effective for loans closed on or after
November 27, 2003
---------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. Home Loan
xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
---------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Consumer Home Loan
Loans, N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
---------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10
et seq.
Effective for loans taken on or after January
1, 2004
---------------------------------------------------------------------------------------------------------------------
Q-5
EXHIBIT R
[FORM OF] SWAP CONTRACT
Delivered to the Trustee at closing and on file with the Trustee.
R-1
EXHIBIT S-1
[FORM OF] SWAP CONTRACT ASSIGNMENT AGREEMENT
Delivered to the Trustee at closing and on file with the Trustee.
X-0-0
XXXXXXX X-0
[FORM OF] SWAP CONTRACT ADMINISTRATION AGREEMENT
Delivered to the Trustee at closing and on file with the Trustee.
S-2-1
EXHIBIT T
[FORM OF] OFFICER'S CERTIFICATE WITH RESPECT TO PREPAYMENTS
MORTGAGE BACKED CERTIFICATES,
Series 200_-__
[Date]
Via Facsimile
____________________________,
as Trustee
_____________________________
_____________________________
Dear Sir or Madam:
Reference is made to the Pooling and Servicing Agreement, dated as of
_________, 200_, (the "Pooling and Servicing Agreement") among [CWALT, Inc.],
as Depositor, [Countrywide Home Loans, Inc.], as a Seller, [Park Granada LLC],
as a Seller, [Park Monaco Inc.], as a Seller, [Park Sienna LLC], as a Seller,
[Countrywide Home Loans Servicing LP], as Master Servicer and
__________________, as Trustee. Capitalized terms used herein shall have the
meanings ascribed to such terms in the Pooling and Servicing Agreement.
__________________ hereby certifies that he/she is a Servicing
Officer, holding the office set forth beneath his/her name and hereby further
certifies as follows:
With respect to the Distribution Date in _________ 200_ and each
Mortgage Loan set forth in the attached schedule:
1. A Principal Prepayment in full or in part was received
during the related Prepayment Period;
2. Any Prepayment Charge due under the terms of the Mortgage
Note with respect to such Principal Prepayment was or was not, as indicated on
the attached schedule using "Yes" or "No", received from the Mortgagor and
deposited in the Certificate Account;
3. As to each Mortgage Loan set forth on the attached
schedule for which all or part of the Prepayment Charge required in connection
with the Principal Prepayment was waived by the Master Servicer, such waiver
was, as indicated on the attached schedule, based upon:
(i) the Master Servicer's determination that such
waiver would maximize recovery of Liquidation Proceeds for such
Mortgage Loan, taking into account the value of such Prepayment
Charge, or
(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
T-1
acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited
by applicable law; and
4. We certify that all amounts due in connection with the
waiver of a Prepayment Charge inconsistent with clause 3 above which are
required to be deposited by the Master Servicer pursuant to Section 3.19 of
the Pooling and Servicing Agreement, have been or will be so deposited.
[COUNTRYWIDE HOME LOANS, INC.],
as Master Servicer
T-2
SCHEDULE OF MORTGAGE LOANS FOR WHICH A PREPAYMENT WAS RECEIVED
DURING THE RELATED PREPAYMENT PERIOD
------------------------------------------------------------------------------
Loan Number Clause 2: Yes/No Clause 3: (i) or (ii)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
T-3
EXHIBIT U
MONTHLY STATEMENT
[On file with Trustee]
U-1
EXHIBIT V-1
[FORM OF] PERFORMANCE CERTIFICATION
(Servicer)
[On file with Trustee]
V-1-1
EXHIBIT V-2
[FORM OF] PERFORMANCE CERTIFICATION
(Trustee)
[On file with Trustee]
V-2-1
EXHIBIT W
[FORM OF]
SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE STATEMENT
The assessment of compliance to be delivered by [the Master
Servicer] [Trustee] [Name of Subservicer] shall address, at a minimum, the
criteria identified as below as "Applicable Servicing Criteria":
-----------------------------------------------------------------------------------------------------------------
Servicing Criteria Applicable Servicing
Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
General Servicing Considerations
--------------------- ----------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
--------------------- ----------------------
If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance
1122(d)(1)(ii) with such servicing activities.
--------------------- ----------------------
Any requirements in the transaction agreements to maintain
1122(d)(1)(iii) a back-up servicer for the mortgage loans are maintained.
--------------------- ----------------------
A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance with
1122(d)(1)(iv) the terms of the transaction agreements.
--------------------- ----------------------
Cash Collection and Administration
--------------------- ----------------------
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of
1122(d)(2)(i) days specified in the transaction agreements.
--------------------- ----------------------
Disbursements made via wire transfer on behalf of an
1122(d)(2)(ii) obligor or to an investor are made only by
--------------------- ----------------------
W-1
-----------------------------------------------------------------------------------------------------------------
Servicing Criteria Applicable Servicing
Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
authorized personnel.
--------------------- ----------------------
Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the
1122(d)(2)(iii) transaction agreements.
--------------------- ----------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
transaction
1122(d)(2)(iv) agreements.
--------------------- ----------------------
Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion,
"federally insured depository institution" with respect
to a foreign financial institution means a foreign
financial institution that meets the requirements of
1122(d)(2)(v) Rule 13k-1(b)(1) of the Securities Exchange Act.
--------------------- ----------------------
Unissued checks are safeguarded so as to prevent unauthorized
1122(d)(2)(vi) access.
--------------------- ----------------------
Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank
statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed
and approved by someone other than the person who
prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling
items are resolved within 90 calendar days of their
original identification, or such other number of
1122(d)(2)(vii) days specified in the transaction agreements.
--------------------- ----------------------
Investor Remittances and Reporting
--------------------- ----------------------
1122(d)(3)(i) Reports to investors, including those to be filed
--------------------- ----------------------
W-2
-----------------------------------------------------------------------------------------------------------------
Servicing Criteria Applicable Servicing
Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
with the Commission, are maintained in accordance with
the transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
--------------------- ----------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
1122(d)(3)(ii)
--------------------- ----------------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or
such other number of days specified in the transaction
1122(d)(3)(iii) agreements.
--------------------- ----------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment,
1122(d)(3)(iv) or custodial bank statements.
--------------------- ----------------------
Pool Asset Administration
--------------------- ----------------------
Collateral or security on mortgage loans is maintained
as required by the transaction agreements or related
1122(d)(4)(i) mortgage loan documents.
--------------------- ----------------------
Mortgage loan and related documents are safeguarded as
1122(d)(4)(ii) required by the transaction agreements.
--------------------- ----------------------
Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
1122(d)(4)(iii) agreements.
--------------------- ----------------------
Payments on mortgage loans, including any payoffs, made
in accordance with the related mortgage loan documents
1122(d)(4)(iv) are posted to the
--------------------- ----------------------
W-3
-----------------------------------------------------------------------------------------------------------------
Servicing Criteria Applicable Servicing
Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
Servicer's obligor records maintained no more than
two business days after receipt, or such other number
of days specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in accordance with the related mortgage
loan documents.
--------------------- ----------------------
The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an
1122(d)(4)(v) obligor's unpaid principal balance.
--------------------- ----------------------
Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements
1122(d)(4)(vi) and related pool asset documents.
--------------------- ----------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by the
1122(d)(4)(vii) transaction agreements.
--------------------- ----------------------
Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such records
are maintained on at least a monthly basis, or such
other period specified in the transaction agreements,
and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone
calls, letters and payment rescheduling plans in cases
where delinquency is deemed temporary (e.g., illness
1122(d)(4)(viii) or unemployment).
--------------------- ----------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) the related mortgage loan documents.
--------------------- ----------------------
Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
1122(d)(4)(x) accordance with the obligor's
--------------------- ----------------------
W-4
-----------------------------------------------------------------------------------------------------------------
Servicing Criteria Applicable Servicing
Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
mortgage loan documents, on at least an annual basis,
or such other period specified in the transaction
agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such
funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans,
or such other number of days specified in the
transaction agreements.
--------------------- ----------------------
Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such
other number of days specified in the transaction
1122(d)(4)(xi) agreements.
--------------------- ----------------------
Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the obligor,
unless the late payment was due to the obligor's error or
1122(d)(4)(xii) omission.
--------------------- ----------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
1122(d)(4)(xiii) specified in the transaction agreements.
--------------------- ----------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements.
--------------------- ----------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation
1122(d)(4)(xv) AB, is maintained as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
W-5
[NAME OF MASTER SERVICER] [NAME OF
TRUSTEE] [NAME OF CO-TRUSTEE]
[NAME OF SUBSERVICER]
Date: ______________________________
By: ________________________________
Name:
Title:
W-6
EXHIBIT X
[FORM OF] LIST OF ITEM 1119 PARTIES
ALTERNATIVE LOAN TRUST 200_-__
MORTGAGE PASS-THROUGH CERTIFICATES,
Series 200_-__
[Date]
------------------------------------------------------------------------------
Party Contact Information
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
X-1
EXHIBIT Y
FORM OF XXXXXXXX-XXXXX CERTIFICATION
(REPLACEMENT OF MASTER SERVICER)
Y-1
