EXHIBIT 99.1
------------
6
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 March 1, 2005
----------------------------------
ALTERNATIVE LOAN TRUST 2005-10CB
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-10CB
Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans.................................48
SECTION 2.02. Acceptance by Trustee of the Mortgage Loans..................55
SECTION 2.03. Representations, Warranties and Covenants of the Sellers
and Master Servicer..........................................59
SECTION 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans...........................................62
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions................................................62
SECTION 2.06. Execution and Delivery of Certificates.......................63
SECTION 2.07. REMIC Matters................................................63
SECTION 2.08. Covenants of the Master Servicer.............................63
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Master Servicer to Service Mortgage Loans....................64
SECTION 3.02. Subservicing; Enforcement of the Obligations of
Subservicers.................................................65
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of
the Master Servicer..........................................65
SECTION 3.04. Trustee to Act as Master Servicer............................66
SECTION 3.05. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account; Supplemental Loan
Account; Capitalized Interest Account; Reserve Funds.........66
SECTION 3.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..............................................71
SECTION 3.07. Access to Certain Documentation and Information
Regarding the Mortgage Loans.................................71
SECTION 3.08. Permitted Withdrawals from the Certificate Account and
the Distribution Account.....................................72
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies...........................................74
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption
Agreements...................................................75
SECTION 3.11. Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.......................................76
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files..............80
SECTION 3.13. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee..........................81
i
SECTION 3.14. Servicing Compensation.......................................81
SECTION 3.15. Access to Certain Documentation..............................82
SECTION 3.16. Annual Statement as to Compliance............................82
SECTION 3.17. Annual Independent Public Accountants' Servicing
Statement; Financial Statements..............................82
SECTION 3.18. Errors and Omissions Insurance; Fidelity Bonds...............83
SECTION 3.19. Cap Contracts................................................83
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances.....................................................85
SECTION 4.02. Priorities of Distribution...................................86
SECTION 4.03. [Reserved]...................................................91
SECTION 4.04. Allocation of Realized Losses................................91
SECTION 4.05. Cross-Collateralization......................................92
SECTION 4.06. Monthly Statements to Certificateholders.....................93
SECTION 4.07. Determination of Pass-Through Rates for COFI
Certificates.................................................95
SECTION 4.08. Determination of Pass-Through Rates for LIBOR
Certificates.................................................96
SECTION 4.09. Distributions from the Reserve Funds.........................98
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.............................................99
SECTION 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.....................................99
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...........104
SECTION 5.04. Persons Deemed Owners.......................................104
SECTION 5.05. Access to List of Certificateholders' Names and
Addresses...................................................104
SECTION 5.06. Maintenance of Office or Agency.............................105
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master
Servicer....................................................106
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer....................................................106
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers,
the Master Servicer and Others..............................106
SECTION 6.04. Limitation on Resignation of Master Servicer................107
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default...........................................108
SECTION 7.02. Trustee to Act; Appointment of Successor....................109
SECTION 7.03. Notification to Certificateholders..........................111
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee...........................................112
SECTION 8.02. Certain Matters Affecting the Trustee.......................113
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.......114
SECTION 8.04. Trustee May Own Certificates................................114
SECTION 8.05. Trustee's Fees and Expenses.................................114
SECTION 8.06. Eligibility Requirements for Trustee........................115
SECTION 8.07. Resignation and Removal of Trustee..........................115
SECTION 8.08. Successor Trustee...........................................116
SECTION 8.09. Merger or Consolidation of Trustee..........................116
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee...............117
SECTION 8.11. Tax Matters.................................................118
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Mortgage
Loans.......................................................121
SECTION 9.02. Final Distribution on the Certificates......................121
SECTION 9.03. Additional Termination Requirements.........................122
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment...................................................X-1
SECTION 10.02. Recordation of Agreement; Counterparts......................X-2
SECTION 10.03. Governing Law...............................................X-3
SECTION 10.04. Intention of Parties........................................X-3
SECTION 10.05. Notices.....................................................X-3
SECTION 10.06. Severability of Provisions..................................X-5
SECTION 10.07. Assignment..................................................X-5
SECTION 10.08. Limitation on Rights of Certificateholders..................X-5
SECTION 10.09. Inspection and Audit Rights.................................X-6
SECTION 10.10. Certificates Nonassessable and Fully Paid...................X-6
SECTION 10.11. [Reserved]..................................................X-6
SECTION 10.12. Protection of Assets........................................X-6
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 Inc.. S-II-C-1
Schedule II-D Representations and Warranties of Park Sienna LLC.. S-II-D-1
Schedule III-A: Representations and Warranties of Countrywide as
to the Mortgage Loans.............................. S-III-A-1
Schedule III-B: Representations and Warranties of Countrywide as
to the Countrywide Mortgage Loans.................. S-III-B-1
Schedule III-C: Representations and Warranties of Park Granada as
to the Park Granada Mortgage Loans................. S-III-C-1
Schedule III-D Representations and Warranties of Park Monaco Inc.
as to the Park Monaco Inc. Mortgage Loans.......... S-III-D-1
Schedule III-E Representations and Warranties of Park Sienna LLC
as to the Park Sienna LLC Mortgage Loans........... S-III-E-1
Schedule IV: Representations and Warranties of the Master
Servicer........................................... S-IV-1
Schedule V: Principal Balance Schedules (if applicable)........ S-V-1
Schedule VI: Form of Monthly Master Servicer Report............. S-VI-1
EXHIBITS
Exhibit A: Form of Senior Certificate (excluding Notional
Amount Certificates)............................... A-1
Exhibit B: Form of Subordinated Certificate................... B-1
Exhibit C: Form of Class A-R Certificate...................... C-1
Exhibit D: Form of Notional Amount Certificate................ D-1
Exhibit E: Form of Reverse of Certificates.................... E-1
Exhibit F-1: Form of Initial Certification of Trustee (Initial
Mortgage Loans).................................... F-1
Exhibit F-2: Form of Initial Certification of Trustee
(Supplemental Mortgage Loans)...................... F-2
Exhibit G-1: Form of Delay Delivery Certification of Trustee
(Initial Mortgage Loans)........................... G-1
Exhibit G-2: Form of Delay Delivery Certification of Trustee
(Supplemental Mortgage Loans)...................... G-2
Exhibit H-1: Form of Final Certification of Trustee (Initial
Mortgage Loans).................................... X-0
Xxxxxxx X-0: Form of Final Certification of Trustee
(Supplemental Mortgage Loans)...................... H-2
Exhibit I: Form of Transfer Affidavit......................... I-1
Exhibit J-1: Form of Transferor Certificate (Residual).......... X-0
Xxxxxxx X-0: Form of Transferor Certificate (Private)........... J-2
Exhibit K: Form of Investment Letter [Non-Rule 144A].......... K-1
Exhibit L: Form of Rule 144A Letter........................... L-1
Exhibit M: Form of Request for Release (for Trustee).......... M-1
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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 5.6b Glossary
Revised, Appendix E................................ Q-1
Exhibit R: Form of Cap Contract............................... R-1
Exhibit S: Form of Assignment Agreement....................... S-1
v
THIS POOLING AND SERVICING AGREEMENT, dated as of March 1, 2005, among
CWALT, INC., a Delaware corporation, as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC. ("Countrywide"), a New York corporation, as a
seller (a "Seller"), PARK GRANADA LLC ("Park Granada"), a Delaware limited
liability company, as a seller (a "Seller"), PARK MONACO INC. ("Park Monaco"),
a Delaware limited liability 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 herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. For federal income tax purposes,
the Trust Fund (other than the Supplemental Loan Account, the Capitalized
Interest Account, the Cap Contracts and the Reserve Funds) will consist of
three real estate mortgage investment conduits (each a "REMIC" or, in the
alternative, the "Lower Tier REMIC," the "Middle Tier REMIC" and the "Master
REMIC," respectively). Each Certificate, other than the Class A-R Certificate,
will represent ownership of one or more regular interests in the Master REMIC
for purposes of the REMIC Provisions. The Class A-R Certificate will represent
ownership of the sole class of residual interest in each of the Lower Tier
REMIC, the Middle Tier REMIC and the Master REMIC. The Master REMIC will hold
as assets the several classes of uncertificated Middle Tier REMIC Interests
(other than the Class MT-A-R Interest). The Middle Tier REMIC will hold as
assets the several classes of uncertificated Lower Tier REMIC Interests (other
than the Class LT-A-R Interest). Each Middle Tier REMIC Interest (other than
the Class MT-A-R Interest) is hereby designated as a regular interest in the
Middle Tier REMIC. The Lower Tier REMIC will hold as assets all property of
the Trust Fund (other than the Supplemental Loan Account, the Capitalized
Interest Account, the Cap Contracts and the Reserve Funds). Each Lower Tier
REMIC Interest (other than the Class LT-A-R Interest) is hereby designated as
a regular interest in the Lower Tier REMIC. The latest possible maturity date
of all REMIC regular interests created herein shall be the Latest Possible
Maturity Date.
1
The following table sets forth characteristics of the Master REMIC
Certificates, together with the minimum denominations and integral multiples
in excess thereof in which such Classes shall be issuable (except that one
Certificate of each Class of Certificates may be issued in a different amount
and, in addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
===============================================================================
Integral
Initial Class Pass-Through Multiples in
Class Certificate Rate Minimum Excess of
Designation Balance (per annum) Denomination Minimum
-------------------------------------------------------------------------------
Class 1-A-1 $615,724,400.00 (1) $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class 1-A-2 $100,000,000.00 (2) $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class 1-A-3 (3) (4) $25,000.00(5) $1,000.00(5)
-------------------------------------------------------------------------------
Class 1-A-4 (6) (7) $25,000.00(5) $1,000.00(5)
-------------------------------------------------------------------------------
Class 1-A-5 $93,690,100.00 5.50% $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class 1-A-6 $86,000,000.00 5.50% $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class 1-A-7 $50,000,000.00 5.50% $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class 1-A-8 $32,500,000.00 5.50% $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class 1-A-9 $5,715,900.00 5.50% $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class 1-A-10 $10,431,000.00 5.50% $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class 2-A-1 $95,554,400.00 5.00% $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class PO $5,764,059.00 (8) $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class A-R(9) $100.00 5.50% $100.00(10) $100.00(10)
-------------------------------------------------------------------------------
Class M $22,308,000.00 (11) $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class B-1 $9,152,000.00 (11) $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class B-2 $5,720,000.00 (11) $25,000.00 $1,000.00
-------------------------------------------------------------------------------
Class B-3 $5,148,000.00 (11) $100,000.00 $1,000.00
-------------------------------------------------------------------------------
Class B-4 $3,432,000.00 (11) $100,000.00 $1,000.00
-------------------------------------------------------------------------------
Class B-5 $2,860,040.00 (11) $100,000.00 $1,000.00
===============================================================================
------------------------------------------
(1) The Class 1-A-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of LIBOR plus 0.50%, subject to a
maximum and minimum Pass-Through Rate of 5.50% and 0.50% per annum,
respectively. The Pass-Through Rate for the Class 1-A-1 Certificates
during the initial Interest Accrual Period is 3.35% per annum. For
federal income tax purposes, any entitlements of these certificates to
interest in excess of 5.50% per annum shall be treated as described in
Section 8.11.
2
(2) The Class 1-A-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of LIBOR plus 0.45%, subject to a
maximum and minimum Pass-Through Rate of 5.50% and 0.45% per annum,
respectively. The Pass-Through Rate for the Class 1-A-2 Certificates
during the initial Interest Accrual Period is 3.30% per annum. For
federal income tax purposes, any entitlements of these certificates to
interest in excess of 5.50% per annum shall be treated as described in
Section 8.11.
(3) The Class 1-A-3 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount (initially, $715,724,400.00).
(4) The Class 1-A-3 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of 5.00% minus LIBOR, subject to a
maximum and minimum Pass-Through Rate of 5.00% and 0.00% per annum,
respectively. The Pass-Through Rate for the Class 1-A-3 Certificates
during the initial Interest Accrual Period is 2.15% per annum.
(5) Minimum denomination is based on the Notional Amount of such Class.
(6) The Class 1-A-4 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its Notional
Amount (initially, $100,000,000.00).
(7) The Class 1-A-4 Certificates will bear interest during each Interest
Accrual Period at a per annum rate of 5.05% minus LIBOR, subject to a
maximum and minimum Pass-Through Rate of 0.05% and 0.00% per annum,
respectively. The Pass-Through Rate for the Class 1-A-4 Certificates
during the initial Interest Accrual Period is 0.05% per annum.
(8) The Class PO Certificates are Principal Only Certificates and will not
receive any distributions of interest.
(9) The Class A-R Certificates represent the sole Class of residual interest
in each REMIC.
(10) The Class A-R Certificates shall be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of $0.01.
(11) The Pass-Through Rate for each Class of Subordinated Certificates (the
"Subordinate Pass-Through Rate") for the Interest Accrual Period related
to any Distribution Date will be a per annum rate equal to (a) the sum
of the following for each Loan Group: the related Required Coupon
multiplied by the excess of the Loan Group Principal Balance of that
Loan Group as of the Due Date in the month preceding the month of that
Distribution Date (after giving effect to Principal Prepayments received
in the Prepayment Period related to that prior Due Date) over the
aggregate Class Certificate Balance of the related Senior Certificate
Group immediately prior to that Distribution Date, divided by (b) the
aggregate of the Class Certificate Balances of the Subordinated
Certificates immediately prior to that Distribution Date. The
Pass-Through Rate for each Class of Subordinated
3
Certificates for the Interest Accrual Period related to the first
Distribution Date will be 5.4563% per annum.
4
The following table specifies the class designation, interest rate, and
principal amount for each class of Middle Tier REMIC Interests:
--------------------------------------------------------------------------------
Middle Tier REMIC Initial Principal Interest Rate Corresponding
Interest Balance Master REMIC
Certificate
--------------------------------------------------------------------------------
MT-1-A-1 $615,724,400.00 5.50% Class 1-A-1, Class
1-A-3 (1)
--------------------------------------------------------------------------------
MT-1-A-2 $100,000,000.00 5.50% Class1-A-2, Class
1-A-3, Class 1-A-4
(2)(3)
--------------------------------------------------------------------------------
MT-1-A-5 $93,690,100.00 5.50% Class 1-A-5
--------------------------------------------------------------------------------
MT-1-A-6 $86,000,000.00 5.50% Class 1-A-6
--------------------------------------------------------------------------------
MT-1-A-7 $50,000,000.00 5.50% Class 1-A-7
--------------------------------------------------------------------------------
MT-1-A-8 $32,500,000.00 5.50% Class 1-A-8
--------------------------------------------------------------------------------
MT-1-A-9 $5,715,900.00 5.50% Class 1-A-9
--------------------------------------------------------------------------------
MT-1-A-10 $10,431,000.00 5.50% Class 1-A-10
--------------------------------------------------------------------------------
MT-2-A-1 $95,554,400.00 5.00% Class 2-A-1
--------------------------------------------------------------------------------
MT-1-$100 $100.00 5.50% Class A-R
--------------------------------------------------------------------------------
MT-PO $5,764,059.00 (4) Class PO
--------------------------------------------------------------------------------
MT-M $22,308,000.00 (5) Class M
--------------------------------------------------------------------------------
MT-B-1 $9,152,000.00 (5) Class B-1
--------------------------------------------------------------------------------
MT-B-2 $5,720,000.00 (5) Class B-2
--------------------------------------------------------------------------------
MT-B-3 $5,148,000.00 (5) Class B-3
--------------------------------------------------------------------------------
MT-B-4 $3,432,000.00 (5) Class B-4
--------------------------------------------------------------------------------
MT-B-5 $2,860,040.00 (5) Class B-5
--------------------------------------------------------------------------------
MT-A-R (6) (6) N/A
--------------------------------------------------------------------------------
(1) For each Distribution Date, the Class 1-A-3 Certificates are entitled to a
portion of the interest payable on the Class MT-1-A-1 Middle Tier REMIC
Interest. Specifically, for each such
5
Distribution Date, the Class 1-A-3 Certificates are entitled to the interest
payable on the Class MT-1-A-1 Middle Tier REMIC at a per annum rate equal to
5.00% minus LIBOR, but not less than 0.00%.
(2) For each Distribution Date, the Class 1-A-3 Certificates are entitled to a
portion of the interest payable on the Class MT-1-A-2 Middle Tier REMIC
Interest. Specifically, for each such Distribution Date, the Class 1-A-3
Certificates are entitled to the interest payable on the Class MT-1-A-2 Middle
Tier REMIC at a per annum rate equal to 5.00% minus LIBOR, but not less than
0.00%.
(3) For each Distribution Date, the Class 1-A-4 Certificates are entitled to a
portion of the interest payable on the Class MT-1-A-2 Middle Tier REMIC
Interest. Specifically, for each such Distribution Date, the Class 1-A-4
Certificates are entitled to the interest payable on the Class MT-1-A-2 Middle
Tier REMIC at a per annum rate equal to 5.05% minus LIBOR but not more than
0.05% and not less than 0.00%.
(4) The Class MT-PO Middle Tier REMIC Interest makes no interest payments. For
each Distribution Date it is entitled to the principal distributions made with
respect to the Class LT-PO-1 and Class LT-PO-2 Lower Tier interests.
(5) The Subordinate Pass-Through Rate.
(6) The MT-A-R is the sole class of residual interest in the Middle Tier
REMIC. It pays no interest or principal.
On each Distribution Date, interest shall be payable on the Middle Tier
REMIC Interests according the formulas described above, and principal,
Realized Losses and Subsequent Recoveries shall be allocated among the Middle
Tier REMIC Interests in the same manner that such items are allocated among
their corresponding Certificate Classes.
The following table specifies the class designation, interest rate, and
principal amount for each class of Lower Tier REMIC Interests:
Lower Tier REMIC Interests
--------------------------
-------------------------------------------------------------------------------
Lower Tier Initial Class
REMIC Class Principal Class Corresponding Loan
Designation Balance Interest Rate Group
-------------------------------------------------------------------------------
LT-A-1 (1) 5.50% 1
-------------------------------------------------------------------------------
LT-B-1 (1) 5.50% 1
-------------------------------------------------------------------------------
LT-C-1 (1) 5.50% 1
-------------------------------------------------------------------------------
LT-PO-1 $5,568,463.00 (2) 1
-------------------------------------------------------------------------------
LT-A-2 (1) 5.00% 2
-------------------------------------------------------------------------------
LT-B-2 (1) 5.00% 2
-------------------------------------------------------------------------------
LT-C-2 (1) 5.00% 2
-------------------------------------------------------------------------------
LT-PO-2 $195,596.00 (2) 2
-------------------------------------------------------------------------------
6
-------------------------------------------------------------------------------
LT-A-R (3) (3) N/A
-------------------------------------------------------------------------------
(1) Each Class A Lower Tier REMIC Interest will have an Initial Principal
Balance equal to 0.9% of the Subordinated Portion of its Corresponding
Loan Group. Each Class B Lower Tier REMIC Interest will have an Initial
Principal Balance equal to 0.1% of the Subordinated Portion of its
Corresponding Loan Group. Each Class C Lower Tier REMIC Interest will
have an Initial Principal Balance in an amount equal to the excess of
its Corresponding Loan Group principal balance (as increased by the
amount in the Supplemental Loan Account allocated to the Loan Group and
as reduced by the Loan Group's corresponding PO Balance) over the
initial aggregate principal balances of the Class A and Class B Lower
Tier REMIC Interests corresponding to such Loan Group. Hereafter, the
Class A, Class B and Class C Lower Tier REMIC Interests are referred to
as "Tracking Interests."
(2) This Class of Lower Tier REMIC Interest does not pay any interest.
(3) The Class LT-A-R Interest is the sole class of residual interest in the
Lower Tier REMIC. It does not pay any interest or principal.
On each Distribution Date, the Available Funds shall be distributed with
respect to the the Lower Tier REMIC Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each Lower
Tier REMIC Interest at the rate, or according to the formulas, described
above.
(2) Initial Allocations of Realized Losses and Principal.
(a) The Trustee shall first allocate the Realized Losses on the
Group 1 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 1 Mortgage Loans
attributable to any related Subsequent Recoveries), and distribute
the principal on the Group 1 Mortgage Loans between the Class
LT-1-PO Interest and the Class LT-1 Tracking Interests in the same
manner that such amounts are allocated to or distributed between
(a) the Class PO-1 Component and (b) the remaining Group 1 Senior
Certificates and the Assumed Balance of the Class Certificate
Balance of each Class of Subordinated Certificates related to the
Group 1 Mortgage Loans.
(b) The Trustee shall first allocate the Realized Losses on the
Group 2 Mortgage Loans (including any reductions in previously
allocated Realized Losses on the Group 2 Mortgage Loans
attributable to any related Subsequent Recoveries), and distribute
the principal on the Group 2 Mortgage Loans between the Class
LT-2-PO Interest and the Class LT-2 Tracking Interests in the same
manner that such amounts are allocated to or distributed between
(a) the Class PO-2 Component and (b) the remaining Group 2 Senior
Certificates and the Assumed Balance of the Class Certificate
Balance of each Class of Subordinated Certificates related to the
Group 2 Mortgage Loans.
7
(3) Subsequent Allocations. Amounts allocated to the Tracking Interests
of each Group in accordance with Paragraph 2, above, shall be further
allocated as described below.
(4) Principal, if no Cross-Over Situation Exists. If no Cross-Over
Situation exists with respect to any Class of Tracking Interests, Principal
Amounts allocated with respect to each Loan Group in accordance with Paragraph
2, shall be further allocated: first to cause the Loan Group's corresponding
Class A and Class B Tracking Interests to equal, respectively, 0.9% of the
Subordinated Portion and 0.1% of the Subordinated Portion; and second to the
Loan Group's corresponding Class C Tracking Interest;
(5) Principal, if a Cross-Over Situation Exists. If a Cross-Over
Situation exists with respect to the Class A and Class B Tracking Interests:
(a) If the Calculation Rate in respect of the outstanding Class A
and Class B Tracking Interests is less than the Subordinate
Pass-Through Rate, Principal Relocation Payments will be made
proportionately to the outstanding Class A Tracking Interests
prior to any other Principal Distributions from each such Loan
Group.
(b) If the Calculation Rate in respect of the outstanding Class A
and Class B Tracking Interests is greater than the Subordinate
Pass-Through Rate, Principal Relocation Payments will be made
proportionately to the outstanding Class B Tracking Interests
prior to any other Principal Distributions from each such Loan
Group.
In each case, Principal Relocation Payments will be made so as to cause
the Calculation Rate in respect of the outstanding Class A and Class B
Tracking Interests to equal the Subordinate Pass-Through Rate. With respect to
each Loan Group, if (and to the extent that) the sum of (a) the principal
payments comprising the Principal Remittance Amount received during the Due
Period (as adjusted for amounts allocated to the Group's PO component) and (b)
the Realized Losses (as adjusted for amounts allocated to the Group's PO
component), are insufficient to make the necessary reductions of principal on
the Class A and Class B Tracking Interests, then interest will be added to the
Loan Group's Class C Tracking Interest.
(c) The outstanding aggregate Class A and Class B Tracking
Interests for all Loan Groups will not be reduced below 1 percent
of the excess of (i) the aggregate outstanding Principal Balances
of all Loan Groups (as adjusted for amounts allocated to the
Groups' PO components) as of the end of any Due Period over (ii)
the aggregate Class Certificate Balance of the Senior Certificates
for all Loan Groups as of the related Distribution Date (after
taking into account distributions of principal on such
Distribution Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the Class A and Class B Tracking Interests of a
Loan Group, and if the Loan Group's Class C Tracking Interest has already been
reduced to zero, then the excess principal from that Loan Group (as adjusted
for amounts allocated to the Groups' PO components) will be paid to the Class
C Tracking Interests of the other Loan Groups, the aggregate Class A and Class
B
8
Tracking Interests of which are less than one percent of the Subordinated
Portion. If the Loan Group corresponding to the Class C Tracking Interest that
receives such payment has a weighted average Adjusted Net Mortgage Rate below
the weighted average Adjusted Net Mortgage Rate of the Loan Group making the
payment, then the payment will be treated by the Tracking as a Realized Loss.
Conversely, if the Loan Group corresponding to the Class C Tracking Interest
that receives such payment has a weighted average Adjusted Net Mortgage Rate
above the weighted average Adjusted Net Mortgage Rate of the Loan Group making
the payment, then the payment will be treated by the Lower Tier REMIC as a
reimbursement for prior Realized Losses.
9
Set forth below are designations of Classes or Components of
Certificates and other defined terms to the categories used herein:
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...............Class PO Certificates.
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
Designation Component Balance Pass-Through Rate
----------- ----------------- -----------------
Class PO-1 Component $5,568,463 (1)
Class PO-2 Component $195,596 (1)
(1) This component does not bear interest.
Delay Certificates...................All interest-bearing Classes of Certificates other than the Non-Delay
Certificates, if any.
ERISA-Restricted Certificates........The Residual Certificates and Private Certificates; until an ERISA-Qualifying
Underwriting has occurred with respect to such Class, the Class PO
Certificates; and any Certificate of a Class that ceases to satisfy
the applicable rating requirement under an Underwriter's Exemption.
Floating Rate Certificates...........Class 1-A-1 and Class 1-A-2 Certificates.
Group 1 Senior Certificates..........Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4, Class 1-A-5,
Class 1-A-6, Class 1-A-7, Class 1-A-8, Class 1-A-9, Class 1-A-10 and
Class A-R Certificates and the Class PO-1 Component.
Group 1 Certificates.................Group 1 Senior Certificates and the portions of the Subordinated Certificates
related to Loan Group 1.
10
Group 2 Senior Certificates..........Class 2-A-1 Certificates and the Class PO-2 Component.
Group 2 Certificates.................Group 2 Senior Certificates and the portions of the
Subordinated Certificates related to Loan Group 2.
Inverse Floating Rate Certificates...Class 1-A-3 and Class 1-A-4 Certificates.
LIBOR Certificates...................Floating Rate Certificates and Inverse Floating Rate Certificates.
Non-Delay Certificates...............LIBOR Certificates.
Notional Amount Certificates.........Class 1-A-3 and Class 1-A-4 Certificates.
Notional Amount Components...........None.
Offered Certificates.................All Classes of Certificates other than the Private Certificates.
Physical Certificates................Private Certificates and the Residual Certificates.
Planned Principal Classes............None.
Principal Only Certificates..........Class PO Certificates.
Private Certificates.................Class B-3, Class B-4 and Class B-5 Certificates.
Rating Agencies......................S&P and Xxxxx'x.
Regular Certificates.................All Classes of Certificates, other than the Residual Certificates.
Residual Certificates................Class A-R Certificates.
Senior Certificate Group.............The Group 1 Senior Certificates or the Group 2 Senior Certificates,
as applicable.
Senior Certificates..................Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4, Class 1-A-5,
Class 1-A-6, Class 1-A-7, Class 1-A-8, Class 1-A-9, Class 1-A-10,
Class 2-A-1, Class PO and Class A-R Certificates.
Subordinated Certificates............Class M, Class B-1, Class B-2, Class B-3, Class B-4 and Class B-5
Certificates.
Targeted Principal Classes...........None.
Underwriters ........................Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc., and
UBS Securities LLC.
11
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
If the aggregate Stated Principal Balance of the Initial Mortgage Loans
in either Loan Group on the Closing Date is equal to or greater than the
aggregate Class Certificate Balance of the Certificates in the related
Certificate Group as of such date, all references herein to "Aggregate
Supplemental Purchase Amount", "Aggregate Supplemental Transfer Amount",
"Capitalized Interest Account", "Capitalized Interest Requirement",
"Conveyance Period", "Conveyance Period Distribution Date", "Remaining Non-PO
Supplemental Loan Amount", "Remaining PO Supplemental Loan Amount",
"Supplemental Amount", "Supplemental Cut-off Date", "Supplemental Loan
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.
12
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: With respect to any Class of Accrual Certificates or any
Accrual Components and any Distribution Date prior to the related Accrual
Termination Date, the amount allocable to interest on such Class of Accrual
Certificates or Accrual Components with respect to such Distribution Date
pursuant to Section 4.02(a).
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the Basic 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 sum of the Trustee Fee
Rate and the Basic Master Servicing Fee Rate. For purposes of determining
whether any Substitute Mortgage Loan is a Discount Mortgage Loan or a
Non-Discount Mortgage Loan and for purposes of calculating the applicable PO
Percentage and the applicable Non-PO Percentage, with respect to each Mortgage
Loan in the related Loan Group, and the Excess Master Servicing Fee, each
Substitute Mortgage Loan shall be deemed to have an Adjusted Net Mortgage Rate
equal to the Adjusted Net Mortgage Rate of the Deleted Mortgage Loan for which
it is substituted.
Advance: As to a Loan Group, the payment required to be made by the
Master Servicer with respect to any Distribution Date pursuant to Section
4.01, the amount of any such payment being equal to the aggregate of payments
of principal and interest (net of the Basic Master Servicing Fee and, for so
long as Countrywide Home Loans Servicing LP is the Master Servicer, the
related Excess 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 a 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 Planned Balance: With respect to any group of Planned
Principal Classes or Components and any Distribution Date, the amount set
forth for such group for such Distribution Date in Schedule V hereto.
00
Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxx Xxxxxx: 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.
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 Supplemental Loan Account allocated to purchasing Supplemental
Mortgage Loans for such Loan Group.
Aggregate Targeted Balance: With respect to any group of Targeted
Principal Classes or Components and any Distribution Date, the amount set
forth for such group for such Distribution Date in Schedule V hereto.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Allocable Share: As to any Distribution Date and any Mortgage Loan (i)
with respect to each Class PO Component Certificates, zero and (ii) with
respect to each other Class of Certificates the product of (a) the lesser of
(I) the ratio that the related Required Coupon bears to the Adjusted Net
Mortgage Rate of such Mortgage Loan and (II) one, multiplied by (b) the ratio
that the amount calculated with respect to such Distribution Date (A) with
respect to the Senior Certificates of the related Senior Certificate Group,
pursuant to clause (i) of the definition of Class Optimal Interest
Distribution Amount (without giving effect to any reduction of such amount
pursuant to Section 4.02 (d)) and (B) with respect to the Subordinated
Certificates, pursuant to the definition of Assumed Interest Amount or after a
Senior Termination Date pursuant to clause (i) of the definition of Class
Optimal Interest Distribution Amount (without giving effect to any reduction
of such amount pursuant to Section 4.02(d)) bears to the amount calculated
with respect to such Distribution Date for each Class of Certificates pursuant
to clause (i) of the definition of Class Optimal Interest Distribution Amount
(without giving effect to any reduction of such amount pursuant to Section
4.02(d)) or the definition of Assumed Interest Amount, as applicable.
Amount Available for Senior Principal: As to any Distribution Date and
any Loan Group, Available Funds for such Distribution Date and Loan Group,
reduced by the aggregate amount distributable (or allocable to the Accrual
Amount, if applicable) on such Distribution Date in respect of interest on the
related Senior Certificates pursuant to Section 4.02(a).
Amount Held for Future Distribution: As to any Distribution Date and
Mortgage Loans in a Loan Group, the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date on account
of (i) Principal Prepayments received after the related Prepayment Period and
Liquidation Proceeds and Subsequent Recoveries received in the month
14
of such Distribution Date relating to such Loan Group and (ii) all Scheduled
Payments due after the related Due Date relating to such Loan Group.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
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 sale price of 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 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.
Assignment Agreement: The Class 1-A-1 Cap Contract Assignment
Agreement or the Class 1-A-2 Cap Contract Assignment Agreement , as
applicable.
Assumed Balance: With respect to any Distribution Date, Class of
Subordinated Certificates and Loan Group, each such Class' pro rata interest
(based on their respective Class Certificate Balances) in such Loan Group
equal to the product of the Subordinated Percentage for such Loan Group as of
such Distribution Date and the aggregate of the applicable Non-PO Percentage
of the Stated Principal Balance of each Mortgage Loan in such Loan Group as of
the Due Date occurring in the month preceding the month of such Distribution
Date (after giving effect to Principal Prepayments received in the Prepayment
Period related to that Due Date).
Assumed Interest Amount: With respect to any Distribution Date and Class
of Subordinated Certificates, one month's interest accrued during the related
Interest Accrual Period at the Pass-Through Rate for such Class on the
applicable Assumed Balance immediately prior to that Distribution Date.
Available Funds: As to any Distribution Date and Mortgage Loans in a
Loan Group, the sum of (a) the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date, including
any Subsequent Recoveries, in respect of such Mortgage Loans, net of the
related Amount Held for Future Distribution and net of amounts permitted to be
withdrawn from the Certificate Account pursuant to clauses (i) - (viii),
inclusive, of Section 3.08(a) in respect of such Mortgage Loans and amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses
(i) - (v), inclusive, of Section 3.08(b) in respect of such Mortgage Loans,
(b) the amount of the related Advance, (c) in connection with Defective
Mortgage Loans in such Loan Group, as applicable, the aggregate of the
Purchase Prices and
15
Substitution Adjustment Amounts deposited on the related Distribution Account
Deposit Date, (d) with respect to each Loan Group, on each Conveyance Period
Distribution Date, the amount, if any, transferred from the Capitalized
Interest Account in respect of the applicable Capitalized Interest Requirement
with respect to the Mortgage Loans in such Loan Group, and (e) with respect to
each Loan Group, on the last Conveyance Period Distribution Date, the amount,
if any, transferred from the Supplemental Loan Account representing the
applicable Remaining Non-PO Supplemental Loan Amount for such Loan Group and
the applicable Remaining PO Supplemental Loan Amount for such Loan Group, if
any; provided, however, that on a Senior Termination Date, Available Funds
with respect to the Loan Group relating to the remaining Senior Certificate
Group shall include the Available Funds from the other Loan Group after all
distributions are made on the Senior Certificates of the other Senior
Certificate Group and on any Distribution Date thereafter, Available Funds
shall be calculated based upon all the Mortgage Loans in the Mortgage Pool, as
opposed to the Mortgage Loans in the related Loan Group.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Basic 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 Basic 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.
Basic Master Servicing Fee Rate: With respect to each Mortgage Loan,
0.25% per annum.
Blanket Mortgage: The mortgage or mortgages encumbering the Cooperative
Property.
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
State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Calculation Rate: For each Distribution Date, the product of (i) 10 and
(ii) the weighted average rate of the outstanding Class A and Class B
Interests, treating each Class A Interest as capped at zero or reduced by a
fixed percentage of 100% of the interest accruing on such Class A Interest.
Cap Contract Counterparty: The Class 1-A-1 Cap Contract Counterparty
or the Class 1-A-2 Cap Contract Counterparty, as applicable.
Cap Contracts: Each of the Class 1-A-1 Cap Contract and the Class
1-A-2 Cap Contract.
Capitalized Interest Account: The separate Eligible Account designated
as such and created and maintained by the Trustee pursuant to Section 3.05(h)
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(h) hereof,
16
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 Conveyance Period
Distribution Date and Loan Group, the excess, if any, of (a) the sum of (1)
the amount calculated pursuant to clause (i) of the definition of Class
Optimal Interest Distribution Amount for each Class of Certificates
(including, with respect to the Subordinated Certificates, the related Assumed
Balance of each such Class) 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 such 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) minus (2) any related reductions
required by Section 4.02(d) hereof minus (3) the related Excess Master
Servicing Fee. On the Closing Date, the amount deposited in the Capitalized
Interest Account shall be $24.08, of which $0.14 shall be allocated to Loan
Group 1 and $23.94 shall be allocated to Loan Group 2.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Account: The separate Eligible Account or Accounts created
and maintained by the Master Servicer pursuant to Section 3.05 with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of Certificateholders and designated "Countrywide Home
Loans Servicing LP, in trust for the registered holders of Alternative Loan
Trust 2005-10CB, Mortgage Pass-Through Certificates Series 2005-10CB."
Certificate Balance: With respect to any Certificate, other than a
Notional Amount Certificates, at any date, the maximum dollar amount of
principal to which the Holder thereof is then entitled hereunder, such amount
being equal to the Denomination thereof (A) plus any increase in the
Certificate Balance of such Certificate pursuant to Section 4.02 due to the
receipt of Subsequent Recoveries, (B) minus the sum of (i) all distributions
of principal previously made with respect thereto and (ii) all Realized Losses
allocated thereto and, in the case of any Subordinated Certificates, all other
reductions in Certificate Balance previously allocated thereto pursuant to
Section 4.03 and (C) in the case of any Class of Accrual Certificates,
increased by the Accrual Amount added to the Class Certificate Balance of such
Class prior to such date. The Notional Amount Certificates have no Certificate
Balances.
Certificate Group: The Group 1 Certificates or Group 2 Certificates, as
the context requires.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate. For the purposes
of this Agreement, in order for a Certificate Owner to enforce any of its
rights hereunder, 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
hereof.
17
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
hereof (other than the second sentence of Section 10.01 hereof) that requires
the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to
rely conclusively on a certification of the Depositor or any affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
Class: All Certificates bearing the same Class designation as set forth
in the Preliminary Statement.
Class 1-A-1 Cap Confirmation: With respect to the Class 1-A-1
Certificates, the Confirmation (reference #737800B/737801B) dated March 3,
2005, evidencing a transaction between the Class 1-A-1 Cap Contract
Counterparty and Countrywide Home Loans, Inc., or its relevant affiliate.
Class 1-A-1 Cap Contract: With respect to the Class 1-A-1 Certificates,
the transaction evidenced by the related Confirmation (as assigned to the
Trustee pursuant to the related Assignment Agreement), a form of which is
attached hereto as Exhibit R.
Class 1-A-1 Cap Contract Counterparty: Xxxxxxx'x Bank PLC and its
successors and its successors.
Class 1-A-1 Cap Contract Assignment Agreement: With respect to the Class
1-A-1 Certificates, the agreement, dated as of the Closing Date, among
Deutsche Bank AG, New York Branch, the Trustee and the Class 1-A-1 Cap
Contract Counterparty, a form of which is attached hereto as Exhibit S.
Class 1-A-1 Reserve Fund: The separate fund created and initially
maintained by the Trustee pursuant to Section 3.05(h) in the name of the
Trustee for the benefit of the Holders of the Class 1-A-1 Certificates and
designated "The Bank of New York in trust for registered holders of CWALT,
Inc., Alternative Loan Trust 2005-10CB, Mortgage Pass-Through Certificates,
Series 2005-10CB." Funds in the Class 1-A-1 Reserve Fund shall be held in
trust for the Holders of the Class 1-A-1 Certificates for the uses and
purposes set forth in this Agreement.
Class 1-A-1 Supplemental Amount: As to the Class 1-A-1 Certificates and
any Distribution Date, the product of (x) the excess, if any, of the lesser of
(i) LIBOR + 0.50% and (ii) 9.50%, over 5.50%, (y) the Class Certificate
Balance of the Class 1-A-1 Certificates immediately prior to that Distribution
Date and (z) one-twelfth.
18
Class 1-A-2 Cap Confirmation: With respect to the Class 1-A-2
Certificates, the Confirmation (reference #757419B) dated March 28, 2005,
evidencing a transaction between the Class 1-A-2 Cap Contract Counterparty and
Countrywide Home Loans, Inc., or its relevant affiliate.
Class 1-A-2 Cap Contract: With respect to the Class 1-A-2 Certificates,
the transaction evidenced by the related Confirmation (as assigned to the
Trustee pursuant to the related Assignment Agreement), a form of which is
attached hereto as Exhibit R.
Class 1-A-2 Cap Contract Counterparty: Xxxxxxx'x Bank PLC and its
successors and its successors.
Class 1-A-2 Cap Contract Assignment Agreement: With respect to the Class
1-A-2 Certificates, the agreement, dated as of the Closing Date, among
Deutsche Bank AG, New York Branch, the Trustee and the Class 1-A-2 Cap
Contract Counterparty, a form of which is attached hereto as Exhibit S.
Class 1-A-2 Reserve Fund: The separate fund created and initially
maintained by the Trustee pursuant to Section 3.05(h) in the name of the
Trustee for the benefit of the Holders of the Class 1-A-2 Certificates and
designated "The Bank of New York in trust for registered holders of CWALT,
Inc., Alternative Loan Trust 2005-10CB, Mortgage Pass-Through Certificates,
Series 2005-10CB." Funds in the Class 1-A-2 Reserve Fund shall be held in
trust for the Holders of the Class 1-A-2 Certificates for the uses and
purposes set forth in this Agreement.
Class 1-A-2 Supplemental Amount: As to the Class 1-A-2 Certificates and
any Distribution Date, the product of (x) the excess, if any, of the lesser of
(i) LIBOR + 0.45% and (ii) 9.50%, over 5.50%, (y) the Class Certificate
Balance of the Class 1-A-2 Certificates immediately prior to that Distribution
Date and (z) one-twelfth.
Class Certificate Balance: With respect to any Class and as to any date
of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or Component, the sum of (i) one
month's interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class on the related Class Certificate Balance,
Component Balance, Notional Amount or Component Notional Amount, as
applicable, subject to reduction as provided in Section 4.02(d) and (ii) any
Class Unpaid Interest Amounts for such Class or Component.
Class PO Component: The Class PO-1 Component or the Class PO-2
Component, as applicable.
19
Class PO Deferred Amount: As to any Distribution Date and Loan Group,
the aggregate of the applicable PO Percentage of each Realized Loss on a
Discount Mortgage Loan in that Loan Group to be allocated to the related Class
PO Component on such Distribution Date on or prior to the Senior Credit
Support Depletion Date or previously allocated to that Class PO Component and
not yet paid to the Holders of the Class PO Certificates.
Class Subordination Percentage: With respect to any Distribution Date
and each Class of Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Certificate Balance of such Class of Certificates
immediately prior to such Distribution Date divided by (b) the aggregate of
the Class Certificate Balances immediately prior to such Distribution Date of
all Classes of Certificates.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
Closing Date: March 30, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: The Monthly Weighted Average Cost of Funds Index for the
Eleventh District Savings Institutions published by the Federal Home Loan
Bank of San Francisco.
COFI Certificates: As specified in the Preliminary Statement.
Compensating Interest: As to any Distribution Date and Loan Group, an
amount equal to the product of one-twelfth of 0.125% and the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the prior
calendar month.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Component and any Distribution
Date, the Initial Component Balance thereof on the Closing Date, (A) plus any
increase in the Component Balance of such Component pursuant to Section 4.02
due to the receipt of Subsequent Recoveries, (B) minus the sum of all amounts
applied in reduction of the principal balance of such Component and Realized
Losses allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Confirmation: The Class 1-A-1 Cap Confirmation or the Class 1-A-2 Cap
Confirmation, as applicable.
20
Conveyance Period: The period from the Closing Date until the earliest
of (i) the date on which the amount on deposit in the Supplemental Loan
Account for each Loan Group is less than $150,000, or (ii) an Event of Default
occurs or (iii) April 30, 2005.
Conveyance Period Distribution Date: Each Distribution Date during the
Conveyance Period and, if the Conveyance Period ends after the Distribution
Date in a month, the immediately succeeding Distribution Date.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of New York at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, 0X, Xxx
Xxxx, Xxx Xxxx 00000 (Attn: Mortgage-Backed Securities Group, CWALT, Inc.
Series 2005-10CB, 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.
Cross-Over Situation: For any Distribution Date and for each Loan Group
(after taking into account principal distributions on such Distribution Date)
a situation in which the Class A and Class B Interests corresponding to any
Loan Group are in the aggregate less than 1% of the Subordinate Portion of the
Loan Group to which they correspond.
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 the
Initial Cut-off Date Pool Principal Balance plus the amount, if any, deposited
in the Supplemental Loan Account on the Closing Date.
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Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan which 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.
Deceased Holder: Not applicable.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any
Scheduled Payment that results in a permanent forgiveness of principal, which
valuation or reduction results from an order of such court which is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: As defined in Section 2.02(a) hereof.
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to Trustee on the Closing
Date 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 as of the Closing Date and 90% of
the Supplemental Mortgage Loans in each Loan Group conveyed on a Supplemental
Transfer Date. To the extent that Countrywide Home Loans Servicing LP 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 Home Loans Servicing LP 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) hereof.
Denomination: With respect to each Certificate, the amount set forth on
the face thereof 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.
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
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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
which is two Business Days preceding such Distribution Date.
Discount Mortgage Loan: Any Mortgage Loan in a Loan Group with an
Adjusted Net Mortgage Rate that is less than the Required Coupon for that Loan
Group.
Distribution 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 2005-10CB Mortgage
Pass-Through Certificates, Series 2005-10CB." 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 April 2005.
Due Date: With respect to any Distribution Date, the first day of the
month in which that Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company, the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of Moody's or Fitch and one of the two highest
short-term ratings of S&P, if S&P is a Rating Agency, at the time any amounts
are held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC
(to the limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such 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
23
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 hereof.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.06(a) hereof.
Event of Default: As defined in Section 7.01 hereof.
Excess Master Servicing Fee: As to any Distribution Date, an amount
equal to the aggregate of the Excess Master Servicing Fee Amount.
Excess Master Servicing Fee Amount: As to each Non-Discount Mortgage
Loan in a Loan Group 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 related Excess Master Servicing Fee Rate multiplied by the
Stated Principal Balance of such Mortgage Loan.
Excess Master Servicing Fee Rate: As to any Non-Discount Mortgage Loan
in a Loan Group, the excess of (x) the Adjusted Net Mortgage Rate of such
Non-Discount Mortgage Loan over (y) the related Required Coupon. As to any
Discount Mortgage Loan, 0.00%.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds received with
respect to such Mortgage Loan during the calendar month in which such Mortgage
Loan became a Liquidated Mortgage Loan plus any Subsequent Recoveries received
with respect to such Mortgage Loan, net of any amounts previously reimbursed
to the Master Servicer as Nonrecoverable Advance(s) with respect to such
Mortgage Loan pursuant to Section 3.08(a)(iii), exceeds (i) the unpaid
principal balance of such Liquidated Mortgage Loan as of the Due Date in the
month in which such Mortgage Loan became a Liquidated Mortgage Loan plus (ii)
accrued interest at the Mortgage Rate from the Due Date as to which interest
was last paid or advanced (and not reimbursed) to Certificateholders up to the
Due Date applicable to the Distribution Date immediately following the
calendar month during which such liquidation occurred.
Expense Rate: As to each Mortgage Loan, the sum of the Basic Master
Servicing Fee Rate, the related Excess Master Servicing Fee Rate and the
Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
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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 thereto.
Final Certification: As defined in Section 2.02(a) hereof.
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 thereto.
Group A Priority Amount: As to any Distribution Date, the amount equal
to the sum of (i) the product of (A) the Scheduled Principal Distribution
Amount for Loan Group 1, (B) the Shift Percentage and (C) the Group A Priority
Percentage and (ii) the product of (A) the Unscheduled Principal Distribution
Amount for Loan Group 1, (B) the Shift Percentage and (C) the Group A Priority
Percentage.
Group B Priority Amount: As to any Distribution Date, the amount equal
to the product of (A) the excess, if any, of (1) the Senior Principal
Distribution Amount for Loan Group 1 over (2) the Group A Priority Amount, (B)
the Shift Percentage and (C) the Group B Priority Percentage.
Group A Priority Percentage: As to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate Class
Certificate Balance of the Class 1-A-5 and Class 1-A-9 Certificates
immediately prior to such Distribution Date, and the denominator of which is
equal to the aggregate of the applicable Non-PO Percentage of the Stated
Principal Balance of each Mortgage Loan in Loan Group 1 as of the Due Date in
the month preceding the month of such Distribution Date (after giving effect
to Principal Prepayments received in the Prepayment Period related to that
prior Due Date).
Group B Priority Percentage: As to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of (x)
$145,000,000 and (y) the aggregate Class Certificate Balance of the Class
1-A-6, Class 1-A-7, Class 1-A-8 and Class 1-A-10 Certificates immediately
prior to such Distribution Date, and the denominator of which is equal to the
aggregate Class Certificate Balance of the Class 1-A-1, Class 1-A-2, Class
1-A-6, Class 1-A-7, Class 1-A-8 and Class 1-A-10 Certificates immediately
prior to such Distribution Date.
Group 1 Senior Certificates: As specified in the Preliminary Statement.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
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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) hereof.
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) March 1,
2005.
Initial Cut-off Date Pool Principal Balance: $1,143,999,025.36.
Initial Mortgage Loan: 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.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for any
Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates, its corresponding Subsidiary 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
Subsidiary REMIC Regular Interest and any Distribution Date, the one month
period commencing on the 25th day of the month preceding the month in which
such Distribution Date occurs and ending on the 24th day of the month in which
such Distribution Date occurs.
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.
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.
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Lender PMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the borrower) acquires the Primary Insurance Policy and charges
the related borrower an interest premium.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 4.08.
LIBOR Certificates: As specified in the Preliminary Statement.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which 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 Basic Master Servicing Fees,
Servicing Advances and Advances.
Living Holders: Not applicable.
Loan Group: Any of Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans identified as Loan Group 1 Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Loan Group 2 Mortgage
Loans on the Mortgage Loan Schedule.
Loan Group Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal Balance of the Mortgage Loans in that
Loan Group as of the Due Date in the month preceding the month of the
Distribution Date, after giving effect to Principal Prepayments received in
the Prepayment Period related to such Due Date, plus the amount, if any, on
deposit in the Supplemental Loan Account allocated to that Loan Group.
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 such 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.
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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.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
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.
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 hereof
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage 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
28
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 hereto as Schedule I, setting forth the following information with
respect to each Mortgage Loan by Loan Group:
(i) the loan number;
(ii) the Mortgagor's name and the street address of the Mortgaged
Property, including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is either
(a) a detached single family dwelling (b) a dwelling in a de
minimis PUD, (c) a condominium unit or PUD (other than a de
minimis PUD), (d) a two- to four-unit residential property or (e)
a Cooperative Unit;
(xi) the Mortgage Rate;
(xii) 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;
(xiii) the purpose for the Mortgage Loan;
(xiv) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xv) a code indicating whether the Mortgage Loan is a Countrywide
Mortgage Loan, a Park Granada Mortgage Loan, a Park Monaco
Mortgage Loan or a Park Sienna Mortgage Loan; and
(xvi) 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 the
29
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 hereof 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 Rate: The annual rate of interest borne by a Mortgage Note from
time to time, net of any interest premium charged by the mortgagee to obtain
or maintain any Primary Insurance Policy.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of
Funds Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net Prepayment Interest Shortfalls: As to any Distribution Date and Loan
Group, the amount by which the aggregate of Prepayment Interest Shortfalls for
such Loan Group during the related Prepayment Period exceeds an amount equal
to the sum of (a) the Compensating Interest for such Loan Group and
Distribution Date and (b) the excess of the Compensating Interest for the
other Loan Group for such Distribution Date over the Prepayment Interest
Shortfalls experienced by the Mortgage Loans in such other Loan Group during
such Prepayment Period.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Discount Mortgage Loan: Any Mortgage Loan in a Loan Group with an
Adjusted Net Mortgage Rate that is greater than or equal to the Required
Coupon for such Loan Group.
Non-PO Formula Principal Amount: As to any Distribution Date and Loan
Group, the sum of (i) the sum of (x) the applicable Non-PO Percentage 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 the related Loan Group on the related
Due Date, (b) the Stated Principal Balance of each Mortgage Loan in the
related Loan Group that was repurchased by a Seller or purchased by the Master
Servicer pursuant to this Agreement as of such Distribution Date, (c) the
Substitution Adjustment Amount in connection with any Deleted Mortgage Loan in
such Loan Group received with respect to such Distribution Date, (d) any
Insurance Proceeds or Liquidation Proceeds allocable to recoveries of
principal of Mortgage Loans in the related Loan Group that are not yet
Liquidated Mortgage Loans received during the calendar month preceding the
month of such Distribution Date, (e) with respect to
30
each Mortgage Loan in a Loan Group that became a Liquidated Mortgage Loan
during the calendar month preceding the month of such Distribution Date, the
amount of the Liquidation Proceeds allocable to principal received during the
calendar month preceding the month of such Distribution Date with respect to
such Mortgage Loan and (f) all Principal Prepayments for such Loan Group
received during the related Prepayment Period and (y) on the last Conveyance
Period Distribution Date, the amounts remaining in the Supplemental Loan
Account allocated to that Loan Group other than the related Remaining PO
Supplemental Loan Amount and (ii) (A) any Subsequent Recoveries received on
the Mortgage Loans in that Loan Group during the calendar month preceding the
month of such Distribution Date, or (B) with respect to Subsequent Recoveries
attributable to a Discount Mortgage Loan which incurred a Realized Loss after
the Senior Credit Support Depletion Date, the Non-PO Percentage of any
Subsequent Recoveries received during the calendar month preceding the month
of such Distribution Date.
Non-PO Percentage: As to any Discount Mortgage Loan in a Loan Group, a
fraction (expressed as a percentage) the numerator of which is the Adjusted
Net Mortgage Rate of such Discount Mortgage Loan and the denominator of which
is the Required Coupon for such Loan Group. As to any Non-Discount Mortgage
Loan, 100%.
Non-PO Pool Balance: As to any Loan Group and any Due Date, the amount
equal to the excess, if any, of (i) the aggregate Stated Principal Balance of
all Mortgage Loans in the related Loan Group over (ii) the sum of the PO
Percentage of the Stated Principal Balance of each Discount Mortgage Loan in
that Loan Group.
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, Subsequent
Recoveries 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: For the Class 1-A-3 Certificates for any Distribution
Date, an amount equal to the aggregate Class Certificate Balance of the Class
1-A-1 and Class 1-A-2 Certificates immediately prior to such Distribution
Date. For the Class 1-A-4 Certificates for any Distribution Date, an amount
equal to the Class Certificate Balance of the Class 1-A-2 Certificates
immediately prior to such Distribution Date.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) in the case of the Depositor,
signed by the Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President (however denominated), an
Assistant Vice President, the Treasurer, the Secretary, or one of the
Assistant Treasurers or Assistant Secretaries of the Depositor, (ii) in the
case of the Master Servicer, signed by the President, an Executive Vice
President, a Vice President, an Assistant Vice President, the Treasurer, or
one of the Assistant Treasurers or Assistant
31
Secretaries of Countrywide GP, Inc., its general partner or (iii) if provided
for in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
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 the Depositor and the Master Servicer, (ii) not have
any direct financial interest in the Depositor or the Master Servicer or in
any affiliate of either, and (iii) not be connected with the Depositor or the
Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Optional Termination: The termination of the trust created hereunder in
connection with the purchase of the Mortgage Loans pursuant to Section 9.01(a)
hereof.
Original Applicable Credit Support Percentage: With respect to each of
the following Classes of Subordinated Certificates, the corresponding
percentage described below, as of the Closing Date:
Class M...........1.95%
Class B-1.........0.80%
Class B-2.........0.50%
Class B-3.........0.45%
Class B-4.........0.30%
Class B-5.........0.25%
Original Mortgage Loan: The mortgage loan refinanced in connection
with the origination of a Refinancing Mortgage Loan.
Original Subordinate Principal Balance: On or prior to a Senior
Termination Date, the Subordinated Percentage for a Loan Group of the
aggregate of the applicable Non-PO Percentage of the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group, in each case as of
the Cut-off Date; or if such date is after a Senior Termination Date, the
aggregate of the Class Certificate Balances of the Subordinated Certificates
as of the Closing Date.
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
32
(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 as of the last day of the Prepayment Period
related to such Due Date and which did not become a Liquidated Mortgage Loan
prior to such Due Date.
Overcollateralized Group: As defined in Section 4.05.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial.
Park Granada: Park Granada LLC, a Delaware limited liability company,
and its successors and assigns, in its capacity as the seller of the Park
Granada Mortgage Loans to the Depositor.
Park Granada Mortgage Loans: The Mortgage Loans identified as such on
the Mortgage Loan Schedule for which Park Granada is the applicable Seller.
Park Monaco: Park Monaco Inc., a Delaware limited liability
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 Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
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.
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;
33
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency, or such lower
rating as will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each
Rating Agency, or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state
thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial
paper and/or long term unsecured debt obligations of such
depository institution or trust company (or in the case of the
principal depository institution in a holding company system, the
commercial paper or long-term unsecured debt obligations of such
holding company, but only if Xxxxx'x is not a Rating Agency) are
then rated one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or
such lower ratings as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by
either Rating Agency;
(v) repurchase obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (iv) above;
(vi) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if Fitch is a Rating
Agency and has not rated the portfolio, the highest rating
assigned by Moody's) and restricted to obligations issued or
guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United
States of America and repurchase agreements collateralized by such
obligations; and
(vii) such other relatively risk free investments bearing interest
or sold at a discount acceptable to each Rating Agency as will not
result in the downgrading or withdrawal of the rating then
assigned to the Certificates by either Rating Agency, as evidenced
by a signed writing delivered by each Rating Agency
provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
34
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(1) of the
Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in Section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, or an estate or
trust whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust
unless such Person has furnished the transferor and the Trustee with a duly
completed Internal Revenue Service Form W-8ECI or any applicable successor
form, and (vii) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any REMIC hereunder to fail to qualify as
a REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Balance: With respect to any group of Planned Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule
V hereto, the Aggregate Planned Balance for such group and Distribution Date.
With respect to any other Planned Principal Class or Component and any
Distribution Date appearing in Schedule V hereto, the applicable amount
appearing opposite such Distribution Date for such Class or Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Planned Principal Components: As specified in the Preliminary
Statement.
PO Formula Principal Amount: As to any Distribution Date and Class PO
Component, the sum of (i) the sum of (x) the applicable PO Percentage 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 the related Loan Group on the related
Due Date, (b) the Stated Principal Balance of each Mortgage Loan in the
related Loan Group that was repurchased by a 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
the related Loan Group received with respect to such
35
Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds
allocable to recoveries of principal of Mortgage Loans in the related Loan
Group that are not yet Liquidated Mortgage Loans received during the calendar
month preceding the month of such Distribution Date, (e) with respect to each
Mortgage Loan in the related Loan Group that became a Liquidated Mortgage Loan
during the month preceding the calendar month of such Distribution Date, the
amount of Liquidation Proceeds allocable to principal received with respect to
such Mortgage Loan during the month preceding the month of such Distribution
Date with respect to such Mortgage Loan, and (f) all Principal Prepayments
with respect to the Mortgage Loans in the related Loan Group received during
the related Prepayment Period, and (y) on the last Conveyance Period
Distribution Date the related Remaining PO Supplemental Loan Amount and (ii)
with respect to Subsequent Recoveries attributable to a Discount Mortgage Loan
which incurred a Realized Loss after the Senior Credit Support Depletion Date,
the PO Percentage of any Subsequent Recoveries received during the calendar
month preceding the month of such Distribution Date.
PO Percentage: As to any Discount Mortgage Loan in a Loan Group, a
fraction (expressed as a percentage) the numerator of which is the excess of
the Required Coupon for such Loan Group over the Adjusted Net Mortgage Rate of
such Discount Mortgage Loan and the denominator of which is such Required
Coupon. As to any Non-Discount Mortgage Loan, 0%.
PO Sublimit: With respect to Loan Group 1, $1,125,422. With respect to
Loan Group 2, $8,473.
Pool Characteristics: With respect to the Mortgage Loans as of the
Cut-off Date, the characteristics set forth in the sixth bullet point under
"The Mortgage Pool--Conveyance of Supplemental Mortgage Loans" for such Loan
Group set forth on pages S-36 and S-37 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
Supplemental Loan Account, exclusive of any investment income included
therein.
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 March 1, 2005) and on or before the last
day of the month preceding the month of such Distribution Date, the amount, if
any, by which one month's interest at the related Mortgage Rate, net of the
Basic Master Servicing Fee Rate and the related Excess Master Servicing Fee
Rate, on such Principal Prepayment exceeds the amount of interest paid in
connection with such Principal Prepayment.
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Prepayment Period: As to any Distribution Date and related Due Date, the
period from the 16th day of the calendar month immediately preceding the month
of such Distribution Date (or, in the case of the first Distribution Date,
from March 1, 2005) through the 15th day of the calendar month of such
Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Prime Rate: The prime commercial lending rate of The Bank of New York,
as publicly announced to be in effect from time to time. The Prime Rate shall
be adjusted automatically, without notice, on the effective date of any change
in such prime commercial lending rate. The Prime Rate is not necessarily The
Bank of New York's lowest rate of interest.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance
with the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Relocation Payment: A payment from any Loan Group to a
Subsidiary REMIC Regular Interest other than a Regular Interest corresponding
to that Loan Group as provided in the Preliminary Statement. Principal
Relocation Payments from a Loan Group shall be made of the amounts in respect
of principal from the Mortgage Loans of the Loan Group and shall include a
proportionate allocation of the Realized Losses from the Mortgage Loans of the
Loan Group.
Private Certificate: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date, the Subordinated Principal
Distribution Amount and any Class of Subordinated Certificates, the portion of
the Subordinated Principal Distribution Amount allocable to such Class, equal
to the product of the Subordinated Principal Distribution Amount on such
Distribution Date and a fraction, the numerator of which is the related Class
Certificate Balance thereof and the denominator of which is the aggregate of
the Class Certificate Balances of the Subordinated Certificates.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Prospectus: The Prospectus dated September 23, 2004 generally relating
to mortgage pass-through certificates to be sold by the Depositor.
Prospectus Supplement: The Prospectus Supplement dated March 28, 2005
relating to the Offered Certificates.
37
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by a Seller pursuant to Section 2.02 or 2.03 hereof 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 hereof that arises out of a violation of any
predatory or abusive lending law with respect to the related Mortgage Loan.
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and
each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to write the insurance provided by the insurance policy issued by it, approved
as a FNMA-approved mortgage insurer and having a claims paying ability rating
of at least "AA" or equivalent rating by a nationally recognized statistical
rating organization. Any replacement insurer with respect to a Mortgage Loan
must have at least as high a claims paying ability rating as the insurer it
replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein
to a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of 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. With respect to each
Mortgage Loan which has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
38
To the extent the Master Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of the Realized Loss with respect to
that Mortgage Loan will be reduced by 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, the close of
business on the last Business Day of the month preceding the month in which
such Distribution Date occurs.
Reference Bank: As defined in Section 4.07.
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Servicemembers Civil Relief Act and similar state or
local laws.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
Remaining Non-PO Supplemental Loan Amount: With respect to each Class PO
Component and the last Conveyance Period Distribution Date, the excess of the
amount on deposit in the Supplemental Loan Account allocated to the related
Loan Group on such date over the Remaining PO Supplemental Loan Amount for the
related Loan Group.
Remaining PO Supplemental Loan Amount: With respect to each Loan Group
and the last Conveyance Period Distribution Date, the excess of the PO
Sublimit for that Loan Group over the product of the applicable PO Percentage
of the Stated Principal Balance of each Supplemental Mortgage Loan as of the
related Supplemental Cut-off Date added to that Loan Group.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
39
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Coupon: With respect to the Mortgage Loans in Loan Group 1,
5.50% per annum and with respect to the Mortgage Loans in Loan Group 2, 5.00%
per annum.
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.
Reserve Funds: The Class 1-A-1 Reserve Fund and the Class 1-A-2
Reserve Fund.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Restricted Classes: As defined in Section 4.02(e).
Scheduled Balances: With respect to any Planned Principal Classes or
Components and Targeted Principal Classes or Components set forth in the
Preliminary Statement and any Distribution Date, the amount set forth on
Schedule V hereto for those Classes or Components and Distribution Date.
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 herein, 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.
Scheduled Principal Distribution Amount: As to any Distribution Date and
Loan Group, an amount equal to the Non-PO Percentage of all amounts described
in subclauses (a) through (d) of clause (i) of the definition of "Non-PO
Formula Principal Amount" for such Distribution Date.
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide, Park Granada, Park Monaco or Park Sienna, as
applicable.
Senior Certificate Group: As specified in the Preliminary Statement.
Senior Certificates: As specified in the Preliminary Statement.
40
Senior Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of Subordinated Certificates has been
reduced to zero.
Senior Percentage: As to any Senior Certificate Group and Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate Class Certificate Balance of such Senior Certificate Group (other
than the related Class PO Component) immediately prior to such Distribution
Date and the denominator of which is the aggregate of the applicable Non-PO
Percentage of the Stated Principal Balance of each Mortgage Loan in the
related Loan Group, in each case, as of the Due Date occurring in the month
prior to the month of such Distribution Date (after giving effect to Principal
Prepayments received in the Prepayment Period related to that Due Date);
provided, however, that on any Distribution Date after a Senior Termination
Date, the Senior Percentage for the remaining Senior Certificate Group is the
percentage equivalent of a fraction, the numerator of which is the aggregate
Class Certificate Balance of such remaining Senior Certificate Group
immediately prior to such Distribution Date (other than the related Class PO
Component) and the denominator of which is the aggregate of the Class
Certificate Balances of all Classes of Certificates (other than the Class PO
Certificates), immediately prior to such Distribution Date.
Senior Prepayment Percentage: As to a Senior Certificate Group and any
Distribution Date during the five years beginning on the first Distribution
Date, 100%. The Senior Prepayment Percentage for any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in
the first year thereafter, the related Senior Percentage plus 70% of the
related Subordinated Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the related Senior Percentage
plus 60% of the related Subordinated Percentage for such Distribution Date;
for any Distribution Date in the third year thereafter, the related Senior
Percentage plus 40% of the related Subordinated Percentage for such
Distribution Date; for any Distribution Date in the fourth year thereafter,
the related Senior Percentage plus 20% of the related Subordinated Percentage
for such Distribution Date; and for any Distribution Date thereafter, the
related Senior Percentage for such Distribution Date (unless on any
Distribution Date the Senior Percentage exceeds the initial Senior Percentage
of such Senior Certificate Group, in which case the Senior Prepayment
Percentage for each loan group for such Distribution Date will once again
equal 100%). Notwithstanding the foregoing, no decrease in any Senior
Prepayment Percentage will occur unless both of the Senior Step Down
Conditions are satisfied with respect to all of the Loan Groups.
Senior Principal Distribution Amount: As to any Distribution Date and
Senior Certificate Group, the sum of (i) the related Senior Percentage of (x)
the applicable Non-PO Percentage of all amounts described in subclauses (a)
through (d) of clause (i) of the definition of "Non-PO Formula Principal
Amount" with respect to the related Loan Group for such Distribution Date, and
(y) on the last Conveyance Period Distribution Date, the Remaining Non-PO
Supplemental Loan Amount with respect to the related Loan Group, (ii) with
respect to any Mortgage Loan in the related Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the lesser of (x) the related Senior Percentage of the
applicable Non-PO Percentage of the Stated Principal Balance of such Mortgage
Loan and (y) the related Senior Prepayment Percentage of the applicable Non-PO
Percentage of the amount of the Liquidation Proceeds allocable to principal
received with respect to such
41
Mortgage Loan, and (iii) the sum of (x) the related Senior Prepayment
Percentage of the applicable Non-PO Percentage of the amounts described in
subclause (f) of clause (i) of the definition of "Non-PO Formula Principal
Amount" with respect to the related Loan Group for such Distribution Date plus
(y) on the last Conveyance Period Distribution Date, the amount, if any, of
the Remaining Non-PO Supplemental Loan Amount with respect to the related Loan
Group not applied in clause (i) hereof plus (z) the related Senior Prepayment
Percentage of any Subsequent Recoveries on the Mortgage Loans in the related
Loan Group described in clause (ii) of the definition of "Non-PO Formula
Principal Amount" for such Distribution Date; provided, however, on any
Distribution Date after a Senior Termination Date, the Senior Principal
Distribution Amount for the remaining Senior Certificate Group will be
calculated pursuant to the above formula based on all the Mortgage Loans in
the Mortgage Pool, as opposed to the Mortgage Loans in the related Loan Group
and, if such Distribution Date is a Senior Termination Date, shall be reduced
by the amount of the principal distribution made pursuant to (a) if the Group
1 Senior Certificates are reduced to zero on such date, Section
4.02(a)(1)(iv)(y), or (b) if the Group 2 Senior Certificates are reduced to
zero on such date, Section 4.02(a)(2)(iv)(y).
Senior Step Down Conditions: With respect to each Loan Group: (i) the
outstanding principal balance of all Mortgage Loans in a Loan Group delinquent
60 days or more (including Mortgage Loans in foreclosure, REO Property and
Mortgage Loans the mortgagors of which are in bankruptcy) (averaged over the
preceding six month period), as a percentage of (a) if such date is on or
prior to a Senior Termination Date, the Subordinated Percentage for such Loan
Group of the aggregate of the applicable Non-PO Percentage of the aggregate
Stated Principal Balance of the Mortgage Loans in that Loan Group, or (b) if
such date is after a Senior Termination Date, the aggregate Class Certificate
Balance of the Subordinated Certificates immediately prior to such
Distribution Date, does not equal or exceed 50%, and (ii) cumulative Realized
Losses on the Mortgage Loans in each Loan Group do not exceed: (a) commencing
with the Distribution Date on the fifth anniversary of the first Distribution
Date, 30% of the Original Subordinate Principal Balance, (b) commencing with
the Distribution Date on the sixth anniversary of the first Distribution Date,
35% of the Original Subordinate Principal Balance, (c) commencing with the
Distribution Date on the seventh anniversary of the first Distribution Date,
40% of the Original Subordinate Principal Balance, (d) commencing with the
Distribution Date on the eighth anniversary of the first Distribution Date,
45% of the Original Subordinate Principal Balance, and (e) commencing with the
Distribution Date on the ninth anniversary of the first Distribution Date, 50%
of the Original Subordinate Principal Balance.
Senior Termination Date: For a Loan Group, the Distribution Date on
which the aggregate Class Certificate Balance of the related Senior
Certificate Group (other than the related Class PO Component) has been reduced
to zero.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations, including, but not limited to, the cost of (i)
the preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.09.
42
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: As to any Distribution Date occurring during the five
years beginning on the first Distribution Date, 0%. For any Distribution Date
occurring on or after the fifth anniversary of the first Distribution Date as
follows: for any Distribution Date in the first year thereafter, 30%; for any
Distribution Date in the second year thereafter, 40%; for any Distribution
Date in the third year thereafter, 60%; for any Distribution Date in the
fourth year thereafter, 80%; and for any Distribution Date thereafter, 100%.
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.
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 its amortization schedule at that time relating thereto (before
any adjustment to the amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to the sum of: (i) any
previous partial Principal Prepayments and the payment of principal due on
such Due Date, irrespective of any delinquency in payment by the related
Mortgagor and (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.
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.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Portion: For any Distribution Date and for each Loan Group,
the excess of the Loan Group Principal Balance of such Loan Group for such
Distribution Date over the aggregate Class Certificate Balance of the Senior
Certificates in the related Senior Certificate Group immediately prior to such
Distribution Date.
Subordinated Percentage: As to any Loan Group and Distribution Date on
or prior to a Senior Termination Date, 100% minus the Senior Percentage for
the Senior Certificate Group relating to such Loan Group for such Distribution
Date. As to any Distribution Date after a Senior Termination Date, 100% minus
the Senior Percentage for such Distribution Date.
43
Subordinated Prepayment Percentage: As to any Distribution Date and
Loan Group, 100% minus the related Senior Prepayment Percentage for such
Distribution Date.
Subordinated Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the excess of (A) the
sum, not less than zero, of the sum of (i) the Subordinated Percentage of the
applicable Non-PO Percentage for such Loan Group of all amounts described in
subclauses (a) through (d) of clause (i) of the definition of "Non-PO Formula
Principal Amount" for such Distribution Date, (ii) with respect to each
Mortgage Loan that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the applicable Non-PO
Percentage of the amount of the Liquidation Proceeds allocated to principal
received with respect thereto remaining after application thereof pursuant to
clause (ii) of the definition of Senior Principal Distribution Amount, up to
the Subordinated Percentage for such Loan Group of the applicable Non-PO
Percentage of the Stated Principal Balance of such Mortgage Loan, (iii) the
Subordinated Prepayment Percentage of the applicable Non-PO Percentage of all
amounts described in subclause (f) of clause (i) of the definition of "Non-PO
Formula Principal Amount" for such Loan Group and Distribution Date, and (iv)
the related Subordinated Prepayment Percentage of any Subsequent Recoveries
described in clause (ii) of the definition of "Non-PO Formula Principal
Amount" for such Distribution Date, over (B) the amount of any payments in
respect of Class PO Deferred Amounts for the related Class PO Component on the
related Distribution Date, provided, however, that on any Distribution Date
after a Senior Termination Date, the Subordinated Principal Distribution
Amount will not be calculated by Loan Group but will equal the amount
calculated pursuant to the formula set forth above based on the applicable
Subordinated Percentage for the Subordinated Certificates for such
Distribution Date with respect to all of the Mortgage Loans as opposed to the
Mortgage Loans in the related Loan Group.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, unexpected amounts received by the Master Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.08) specifically
related to such Liquidated Mortgage Loan.
Subservicer: Any person to whom the Master Servicer has contracted for
the servicing of all or a portion of the Mortgage Loans pursuant to
Section 3.02 hereof.
Subsidiary REMIC: As described in the Preliminary Statement.
Subsidiary REMIC Interest: Any one of the Subsidiary REMIC Interests or
the SR-A-R Interest.
Subsidiary REMIC Regular Interest: Any one of the "regular interests"
in the Subsidiary REMIC described in the Preliminary Statement.
Substitute Mortgage Loan: A Mortgage Loan substituted by a Seller for a
Deleted Mortgage Loan which must, on the date of such substitution, as
confirmed in a Request for 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
44
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) not be a Cooperative Loan
unless the Deleted Mortgage Loan was a Cooperative Loan and (vi) comply with
each representation and warranty set forth in Section 2.03 hereof.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03.
Supplemental Amount: The amount deposited in the Supplemental Loan
Account on the Closing Date, which shall equal $974.64, of which $30.85 shall
be allocated to Loan Group 1 and $943.79 shall be allocated to Loan Group 2.
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 Loan 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 2005-10CB,
Mortgage Pass-Through Certificates, Series 2005-10CB." Funds in the
Supplemental Loan 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 Supplemental Loan
Account shall be for the account of the Depositor.
Supplemental Mortgage Loan: Any Mortgage Loan other than an Initial
Mortgage Loan 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.
Targeted Balance: With respect to any group of Targeted Principal
Classes or Components in the aggregate and any Distribution Date appearing in
Schedule V hereto, the Aggregate Targeted Balance for such group and
Distribution Date. With respect to any other Targeted Principal Class or
Component and any Distribution Date appearing in Schedule V
45
hereto, the applicable amount appearing opposite such Distribution Date for
such Class or Component.
Targeted Principal Classes: As specified in the Preliminary Statement.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)1T. Initially, the Tax Matters Person
shall be the Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trust Fund: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loans and all interest and principal received on or with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance thereof; (ii) the Certificate Account, the
Distribution Account, the Supplemental Loan Account, the Capitalized Interest
Account, the Reserve Funds and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) the Cap Contracts; (iv)
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise; and (v) 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 hereunder, 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 sum of (i) the Pool Stated Principal
Balance plus (ii) any amounts remaining in the Supplemental Loan Account
(excluding any investment earnings thereon) with respect to such Distribution
Date.
Trustee Fee Rate: With respect to each Mortgage Loan, the per annum rate
agreed upon in writing on or prior to the Closing Date by the Trustee and the
Depositor.
Undercollateralized Group: As defined in Section 4.05.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Underwriters: As specified in the Preliminary Statement.
46
Unscheduled Principal Distribution Amount: As to any Distribution Date
and Loan Group, an amount equal to the sum of (i) with respect to each
Mortgage Loan in that Loan Group that became a Liquidated Mortgage Loan during
the calendar month preceding the month of such Distribution Date, the Non-PO
Percentage of the Liquidation Proceeds allocable to principal received with
respect to such Mortgage Loan, (ii) the applicable Non-PO Percentage of the
amount described in subclause (f) of clause (i) of the definition of "Non-PO
Formula Principal Amount" for such Loan Group and Distribution Date and (iii)
any Subsequent Recoveries described in clause (ii) of the definition of
"Non-PO Formula Principal Amount" for such Loan Group and Distribution Date.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates, if any (such Voting Rights to be allocated among
the holders of Certificates of each such Class in accordance with their
respective Percentage Interests), and (b) the remaining Voting Rights (or 100%
of the Voting Rights if there is no Class of Notional Amount Certificates)
shall be allocated among Holders of the remaining Classes of Certificates in
proportion to the Certificate Balances of their respective Certificates on
such date.
47
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:
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(i) (A) the original Mortgage Note endorsed by manual or
facsimile signature in blank in the following form: "Pay to the
order of ____________ without recourse," with all intervening
endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such
endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note); or
(B) with respect to any Lost Mortgage Note, a lost note
affidavit from Countrywide stating that the original Mortgage Note
was lost or destroyed, together with a copy of such Mortgage Note;
(ii) except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or a
copy of such Mortgage certified by Countrywide as being a true and
complete copy of the Mortgage (or, in the case of a Mortgage for
which the related Mortgaged Property is located in the
Commonwealth of Puerto Rico, a true copy of the Mortgage certified
as such by the applicable notary) and in the case of each MERS
Mortgage Loan, the original Mortgage, noting the presence of the
MIN of the Mortgage Loans and either language indicating that the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or
if the Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment thereof to MERS, with
evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage
has been recorded;
(iii) in the case of each Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage (which
may be included in a blanket assignment or assignments), together
with, except as provided below, all interim recorded assignments
of such mortgage (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect the
assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public
recording office, such assignment of the Mortgage may exclude the
information to be provided by the recording office; provided,
further, that such assignment of Mortgage need not be delivered in
the case of a Mortgage for which the related Mortgaged Property is
located in the Commonwealth of Puerto Rico;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
(v) except as provided below, the original or duplicate
original lender's title policy or a printout of the electronic
equivalent and all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
49
(A) The Coop Shares, together with a stock power in blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
(E) The executed UCC-1 financing statement with evidence of
recording thereon which have been filed in all places required to
perfect the 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, (b) all interim recorded assignments or (c) the lender's title
policy (together with all riders thereto) satisfying the requirements of
clause (ii), (iii) or (v) above, respectively, concurrently with the execution
and delivery hereof because such document or documents have not been returned
from the applicable public recording office in the case of clause (ii) or
(iii) above, or because the title policy has not been delivered to either the
Master Servicer or the Depositor by the applicable title insurer in the case
of clause (v) above, the Depositor shall promptly deliver to the Trustee, in
the case of clause (ii) or (iii) above, such original Mortgage or such interim
assignment, as the case may be, with evidence of recording indicated thereon
upon receipt thereof from the public recording office, or a copy thereof,
certified, if appropriate, by the relevant recording office, but in no event
shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or,
in the case of clause (v) above, no later than 120 days following the Closing
Date; provided, however, in the event the Depositor is unable to deliver by
such date each Mortgage and each such interim assignment by reason of the fact
that any such documents have not been returned by the appropriate recording
office, or, in the case of each such interim
50
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 thirty (30) days thereafter, the Trustee shall (i) as
the assignee thereof, affix the following language to each assignment of
Mortgage: "CWALT Series 2005-10CB, The Bank of New York, as trustee", (ii)
cause such assignment to be in proper form for recording in the appropriate
public office for real property records and (iii) cause to be delivered for
recording in the appropriate public office for real property records the
assignments of the Mortgages to the Trustee, except that, with respect to any
assignments of Mortgage as to which the Trustee has not received the
information required to prepare such assignment in recordable form, the
Trustee's obligation to do so and to deliver the same for such recording shall
be as soon as practicable after receipt of such information and in any event
within thirty (30) days after receipt thereof and that the Trustee need not
cause to be recorded any assignment which relates to a Mortgage Loan (a) the
Mortgaged Property and Mortgage File relating to which are located in
California or (b) in any other jurisdiction (including Puerto Rico) under the
laws of which in the opinion of counsel the recordation of such assignment is
not necessary to protect the Trustee's and the Certificateholders' interest in
the related Mortgage Loan.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee, will deposit in the Certificate Account the portion of such payment
that is required to be deposited in the Certificate Account pursuant to
Section 3.05 hereof.
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 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
51
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.
Notwithstanding anything to the contrary in this Agreement, within
twenty (20) days after a Supplemental Transfer Date with respect to all of the
Supplemental Mortgage Loans sold to the Depositor on such Supplemental
Transfer Date, Countrywide (on its own behalf and on behalf of Park Granada,
Park Monaco and Park Sienna) shall either (i) deliver to the Depositor, or at
the Depositor's direction, to the Trustee or other designee of the Depositor
the Mortgage File as required pursuant to this Section 2.01 for each Delay
Delivery Mortgage Loan or (ii) (A) substitute a Substitute Mortgage Loan for
the Delay Delivery Mortgage Loan or (B) repurchase the Delay Delivery Mortgage
Loan, which substitution or repurchase shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 (treating each Delay
Delivery Mortgage Loan as a Deleted Mortgage Loan for purposes of such Section
2.03); provided, however, that if Countrywide fails to deliver a Mortgage File
for any Delay Delivery Mortgage Loan within the twenty (20) 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 twenty (20) day period the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such
twenty (20) 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
52
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 Conveyance 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
Supplemental Loan Account an amount equal to the Aggregate Supplemental
Purchase Amount.
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 Underwriters 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 Underwriters 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;
53
(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) the aggregate of the PO Percentages of the Stated Principal
Balance of all Supplemental Mortgage Loans in a Loan Group shall not exceed
the PO Sublimit for that Loan Group;
(viii) 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.
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 a Loan Group used to purchase
Supplemental Mortgage Loans from such Seller from those funds that were set
aside in the Supplemental Loan Account pursuant to Section 2.01(e). The
positive difference, if any, between the Aggregate Supplemental Transfer
Amount for a Loan Group and the Aggregate Supplemental Purchase Amount for
that Loan Group shall be reinvested by the Trustee in the Supplemental Loan
Account and shall remain designated as a portion of the Supplemental Loan
Amount allocated to the applicable Loan Group.
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.
54
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.
(g) 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 (47) 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 and declares
that it holds and will hold such documents and the other documents delivered
to it constituting the Mortgage Files, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive use
and benefit of all present and future Certificateholders. The Trustee
acknowledges that it will maintain possession of the Mortgage Notes in the
State of California, unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) an Initial Certification
in the form annexed hereto as Exhibit F-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 such Initial 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 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, 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, 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 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
55
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) 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 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 an Mortgage Loan that is a MERS Mortgage
Loan, the Master Servicer shall either (i) cause MERS to execute and deliver
an assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS to Countrywide (on its own behalf and on behalf of Park Granada, Park
Monaco and Park Sienna) or its designee and shall cause such Initial 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.
56
(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 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, 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, 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 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
57
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 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
herein. 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
58
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.
(f) [Reserved].
(g) [Reserved].
(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 clauses (50) and (51) of Schedule III-A hereto.
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 the 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 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.
59
(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. 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) which 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
hereof, if any, and any such substitution pursuant to (i) above shall not be
effected prior to the additional delivery to the Trustee of a Request for
Release substantially in the form of Exhibit N and the Mortgage File for any
such Substitute Mortgage Loan. The Seller repurchasing a Mortgage Loan
pursuant to this Section 2.03(c) shall promptly reimburse the Master Servicer
and the Trustee for any expenses reasonably incurred by the Master Servicer or
the Trustee in respect of enforcing the remedies for such breach. With respect
to the representations and warranties described in this Section which are made
to the best of a Seller's knowledge, if it is discovered by either the
Depositor, a Seller or the Trustee that the substance of such representation
and warranty is inaccurate and such inaccuracy materially and adversely
affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein, notwithstanding that Seller's lack of knowledge
with respect to the substance of such representation or warranty, such
inaccuracy shall be deemed a breach of the applicable representation or
warranty. Any breach of a representation set forth in clauses (44), (45),
(46), (47), (48), (49), (50), (51), (52), (53) or (54) of Schedule III-A with
respect to a Mortgage Loan in Loan Group 1 and Loan Group 2 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
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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 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.
61
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 Initial Mortgage Loan as of the date hereof or such other date set
forth herein that as of the Closing Date, and following the transfer of the
Initial Mortgage Loans to it by each Seller, the Depositor had good title to
the Initial Mortgage Loans and the Mortgage Notes were subject to no offsets,
defenses or counterclaims.
The Depositor hereby assigns, transfers and conveys to the Trustee all
of its rights with respect to the Mortgage Loans including, without
limitation, the representations and warranties of each Seller made pursuant to
Section 2.03(a) hereof, together with all rights of the Depositor to require a
Seller to cure any breach thereof or to repurchase or substitute for any
affected Mortgage Loan in accordance with this Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representations and warranties set forth in this Section 2.04
(referred to herein as a "breach"), which breach materially and adversely
affects the interest of the Certificateholders, the party discovering such
breach shall give prompt written notice to the others and to each Rating
Agency.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than
90 days after the Closing Date unless Countrywide delivers to the Trustee an
Opinion of Counsel, which Opinion of Counsel shall not be at the expense of
either the Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions after the Startup
Date, as defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively,
or (ii) cause each REMIC created hereunder to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, a Seller, the Master Servicer, or
the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five (5) Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require Countrywide (on its own behalf and on
behalf of Park Granada, Park Monaco and Park Sienna) at its option, to either
(i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to Countrywide the Mortgage Loan to be released pursuant hereto in
the same manner, and on the
62
same terms and conditions, as it would a Mortgage Loan repurchased for breach
of a representation or warranty contained in Section 2.03.
SECTION 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates and to perform the duties set forth in this
Agreement to the best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
SECTION 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created hereby. The "Startup Day" for purposes of the REMIC Provisions shall
be the Closing Date. The "tax matters person" with respect to each REMIC
hereunder shall be the Trustee and the Trustee shall hold the Tax Matters
Person Certificate. Each REMIC's fiscal year shall be the calendar year.
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.
63
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 hereof, subject to the terms
hereof (i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds and other Liquidation
Proceeds (which for the purpose of this Section 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 hereunder to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or Section 860G(d)
of the Code. Without limiting the generality of the foregoing, the Master
Servicer, in its own name or in the name of the Depositor and the Trustee, is
hereby authorized and empowered by the Depositor and the Trustee, when the
Master Servicer believes it appropriate in its reasonable judgment, to execute
and deliver, on behalf of the Trustee, the Depositor, the Certificateholders
or any of them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge and all other comparable instruments,
with respect to the Mortgage Loans, and with respect to the Mortgaged
Properties held for the benefit of the Certificateholders. The Master Servicer
shall prepare and deliver to the Depositor and/or the Trustee such documents
requiring execution and delivery by either or both of them as are necessary or
appropriate to enable the Master Servicer to service and administer the
Mortgage Loans to the extent that the Master Servicer is not permitted to
execute and deliver such documents pursuant to the preceding sentence. Upon
receipt of such documents, the Depositor and/or the Trustee shall execute such
documents and deliver them to the Master Servicer. The Master Servicer further
is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Subservicer, when the Master Servicer or the Subservicer, as the case may be,
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee
and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns.
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In accordance with the standards of the preceding paragraph, the Master
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further
as provided in Section 3.08. The costs incurred by the Master Servicer, if
any, in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to
the Stated Principal Balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit.
SECTION 3.02. Subservicing; Enforcement of the Obligations of
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 hereunder. Unless the
context otherwise requires, references in this Agreement to actions taken or
to be taken by the Master Servicer in servicing the Mortgage Loans include
actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing agreement, any of
the provisions of this Agreement relating to agreements or arrangements
between the Master Servicer and a Subservicer or reference to actions taken
through a Subservicer or otherwise, the Master Servicer shall remain obligated
and liable to the Depositor, the Trustee and the Certificateholders for the
servicing and administration of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or
liability by virtue of such subservicing agreements or arrangements or by
virtue of indemnification from the Subservicer and to the same extent and
under the same terms and conditions as if the Master Servicer alone were
servicing and administering the Mortgage Loans. All actions of each
Subservicer performed pursuant to the related subservicing agreement shall be
performed as an agent of the Master Servicer with the same force and effect as
if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be deemed
to have received any collections, recoveries or payments with respect to the
Mortgage Loans that are received by a Subservicer regardless of whether such
payments are remitted by the Subservicer to the Master Servicer.
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of the
Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue
of such performance by the Depositor or its designee. Neither the Trustee nor
the Depositor shall have any responsibility or liability for any action or
failure to act by the Master Servicer nor shall the
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Trustee or the Depositor be obligated to supervise the performance of the
Master Servicer hereunder or otherwise.
SECTION 3.04. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default),
the Trustee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Master Servicer pursuant
to Section 3.09 hereof or any acts or omissions of the predecessor Master
Servicer hereunder), (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or
2.03 hereof, (iv) responsible for expenses of the Master Servicer pursuant to
Section 2.03 or (v) deemed to have made any representations and warranties of
the Master Servicer hereunder). Any such assumption shall be subject to
Section 7.02 hereof. If the Master Servicer shall for any reason no longer be
the Master Servicer (including by reason of any Event of Default), the Trustee
or its successor shall succeed to any rights and obligations of the Master
Servicer under each subservicing agreement; provided, however, that, if
Countrywide Home Loans Servicing LP shall no longer be the Master Servicer,
Countrywide Home Loans Servicing LP shall thereafter continue to be entitled
to receive the Excess Master Servicing Fee, and any successor servicer shall
be entitled to receive only the Basic Master Servicing Fee.
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; Supplemental Loan Account; Capitalized Interest Account;
Reserve Funds.
(a) The Master Servicer shall make reasonable efforts in accordance with
the customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the terms and provisions of the Mortgage
Loans to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Mortgage Note for a period not greater than 180
days; provided, however, that the Master Servicer cannot extend the maturity
of any such Mortgage Loan past the date on which the final payment is due on
the latest maturing Mortgage Loan as of the Cut-off Date. In the event of any
such arrangement, the Master Servicer shall make Advances on the related
Mortgage Loan in accordance with the provisions of Section 4.01 during the
scheduled period in accordance with the amortization schedule of such Mortgage
Loan without modification thereof by reason of such
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arrangements. The Master Servicer shall not be required to institute or join
in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law.
(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
herein, the following payments and collections remitted by Subservicers or
received by it in respect of Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans on
or before the Cut-off Date) and the following amounts required to be deposited
hereunder:
(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 Basic Master Servicing Fee, Prepayment Interest Excess and
any lender-paid mortgage insurance premiums and, for so long as
Countrywide Home Loans Servicing LP is the Master Servicer, the related
Excess Master Servicing Fee;
(iii) all Insurance Proceeds, Subsequent Recoveries and
Liquidation Proceeds, other than proceeds to be applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Master Servicer's normal servicing
procedures;
(iv) any amount required to be deposited by the Master Servicer or
the Depositor pursuant to Section 3.05(e) in connection with any losses
on Permitted Investments for which it is responsible;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.09(c) and in respect of net monthly rental income
from REO Property pursuant to Section 3.11 hereof;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to Section
4.01; and
(viii) any other amounts required to be deposited hereunder.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for such Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Master Servicer shall cause
funds to be deposited into the Certificate Account in an amount required to
cause an amount of interest to be paid with respect to such Mortgage Loan
equal to the amount of interest that has accrued on such Mortgage Loan from
the preceding Due
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Date at the Mortgage Rate net of the Basic Master Servicing Fee and, for so
long as Countrywide Home Loans Servicing LP is the Master Servicer, the
related Excess Master Servicing Fee.
The foregoing requirements for remittance by the Master Servicer shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of prepayment penalties,
late payment charges or assumption fees, if collected, need not be remitted by
the Master Servicer. In the event that the Master Servicer shall remit any
amount not required to be remitted, it may at any time withdraw or direct the
institution maintaining the Certificate Account to withdraw such amount from
the Certificate Account, any provision herein 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 (other
than any funds attributed to any Excess Master Servicing Fee) until withdrawn
in accordance with Section 3.08.
(c) [Reserved].
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein 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 herein 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
(other than any funds attributed to any Excess Master Servicing Fee) until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.08. In no event shall the Trustee incur liability for withdrawals
from the Distribution Account at the direction of the Master Servicer.
(e) Each institution at which the Certificate Account, the Supplemental
Loan Account, the Capitalized Interest Account or the Distribution Account is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than (i) in
the case of the Certificate Account, the Supplemental Loan Account or the
Capitalized Interest Account, the second Business Day next preceding the
related
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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. Each institution at which the
Supplemental Loan Account is maintained shall invest the funds therein in
Permitted Investments that satisfy the requirements of category (vi) of the
definition thereof, which do not represent a direct issuance from the
respective obligor and which mature and shall be reinvested daily. 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 herein. 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 Supplemental Loan
Account or the Capitalized Interest Account incurred in respect of any such
investments shall promptly be deposited by the Depositor in the Supplemental
Loan 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 Capitalized Interest
Account, the Supplemental Loan Account or the Distribution Account and made in
accordance with this Section 3.05.
(f) The Master Servicer shall give notice to the Trustee, each Seller,
each Rating Agency and the Depositor of any proposed change of the location of
the Certificate Account prior to any change thereof. The Trustee shall give
notice to the Master Servicer, each Seller, each Rating Agency and the
Depositor of any proposed change of the location of the Distribution Account,
the Capitalized Interest Account, the Supplemental Loan Account or the Reserve
Funds prior to any change thereof.
(g) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Supplemental Loan Account. On the Closing Date
Countrywide shall remit the Supplemental Amount to the Trustee for deposit in
the Supplemental Loan 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
Cut-off Date Stated Principal Balance of Supplemental Mortgage Loans reflected
on any Supplemental Transfer Agreement exceeds the actual 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
Supplemental Loan Account the excess reported to it by the Depositor.
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If any funds remain in the Supplemental Loan Account at the end of the
Conveyance Period, to the extent that they represent earnings on the amounts
originally deposited into the Supplemental Loan 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 principal
distributions to the Class PO Certificates, to the extent of the Remaining PO
Supplemental Loan Amount and to the other Classes of Senior Certificates, to
the extent of the Remaining Non-PO Supplemental Loan Amount, as applicable.
(h) 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 Conveyance 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
Supplemental Loan 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 Conveyance Period, the Trustee shall make the transfer described in the
preceding paragraph if necessary for the remaining Conveyance Period
Distribution Date and the Trustee shall distribute any remaining funds in the
Capitalized Interest Account to the order of the Depositor.
(i) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the Class 1-A-1 and Class
1-A-2 Certificates, respectively, the Class 1-A-1 Reserve Fund and the Class
1-A-2 Reserve Fund, and shall deposit $1,000 in each account upon receipt from
or on behalf of the Depositor of such amount. All funds on deposit in the
Reserve Funds shall be held separate and apart from, and shall not be
commingled with, any other moneys, including without limitation, other moneys
held by the Trustee pursuant to this Agreement.
On each Distribution Date, the Trustee shall deposit into each Reserve
Fund all amounts received in respect of the applicable Cap Contract for the
related Interest Accrual Period. The Trustee shall make withdrawals from the
Reserve Funds to make distributions pursuant to Section 4.09 exclusively
(other than as expressly provided for in Section 3.08).
Funds in the Reserve Funds may be invested in Permitted Investments at
the direction of Deutsche Bank AG, New York Branch, which Permitted
Investments shall mature not later than the Business Day immediately preceding
the first Distribution Date that follows the date of such investment (except
that if such Permitted Investment is an obligation of the institution that
maintains the Reserve Funds, 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 1-A-1 and Class 1-A-2
Certificates. In the absence of such written direction, all funds in the
Reserve Funds shall be invested by the Trustee in The Bank of New York cash
reserves. Any
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net investment earnings on such amounts shall be retained therein until
withdrawn as provided in Section 3.08. Any losses incurred in the Reserve
Funds in respect of any such investments shall be charged against amounts on
deposit in the Reserve Funds (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 Reserve Funds and
made in accordance with this Section 3.05. The Reserve Funds will not
constitute an asset of any REMIC created hereunder.
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 herein 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 hereof (with respect to taxes and assessments and
insurance premiums) and 3.09 hereof (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 hereof. 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 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
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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.
If Countrywide Home Loans Servicing LP is not acting as Master Servicer,
the successor Master Servicer shall provide Countrywide Home Loans Servicing
LP with such information as may be necessary to verify the amount of the
Excess Master Servicing Fee for each Distribution Date. If a question should
arise as to the proper amount of the Excess Master Servicing Fee, the
successor Master Servicer shall provide Countrywide Home Loans Servicing LP
with access to such books and records and personnel of the successor Master
Servicer as may be necessary to establish the proper amount of the Excess
Master Servicing Fee.
SECTION 3.08. Permitted Withdrawals from the Certificate Account and the
Distribution Account.
(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) which 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 Basic Master
Servicing Fees as provided in Section 3.11 hereof;
(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 thereon after the
date of such purchase;
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(vii) to reimburse the Sellers, the Master Servicer or the
Depositor for expenses incurred by any of them and reimbursable pursuant
to Section 6.03 hereof;
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to
withdraw an amount equal to the related Available Funds and the Trustee
Fee (and, if Countrywide Home Loans Servicing LP is not the Master
Servicer, an amount equal to the Excess Master Servicing 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 hereof.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Certificate
Account pursuant to subclause (iii), the Master Servicer shall deliver to the
Trustee an Officer's Certificate of a Servicing Officer indicating the amount
of any previous Advance determined by the Master Servicer to be a
Nonrecoverable Advance and identifying the related Mortgage Loans(s), and
their respective portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders, in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that
it is authorized to withhold pursuant to the last 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;
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(vi) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01 hereof; and
(vii) if Countrywide Home Loans Servicing LP is not the Master
Servicer, to pay to Countrywide Home Loans Servicing LP the Excess
Master Servicing Fee for the related Distribution Date.
(c) The Trustee shall withdraw funds from the Reserve Funds for
distribution to the Class 1-A-1 and Class 1-A-2 Certificates, as
applicable, in the manner specified in Section 4.09 (and to withhold
from the amounts so withdrawn the amount of any taxes that it is
authorized to retain pursuant to the last paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Reserve Funds for the following purposes:
(viii) to withdraw any amount deposited in the Reserve Funds and
not required to be deposited therein; and
(ix) to clear and terminate the Class Reserve Funds upon the
earlier of (x) the reduction of the Class Certificate Balance of the
Class 1-A-1 or Class 1-A-2 Certificates, as applicable, to zero and (y)
the termination of this Agreement pursuant to Section 9.01.
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall cause to be maintained, for each Mortgage
Loan, hazard insurance with extended coverage in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (y) the outstanding
principal balance of the Mortgage Loan and (z) an amount such that the
proceeds of such policy shall be sufficient to prevent the Mortgagor and/or
the mortgagee from becoming a co-insurer. Each such policy of standard hazard
insurance shall contain, or have an accompanying endorsement that contains, a
standard mortgagee clause. Any amounts collected by the Master Servicer under
any such policies (other than the amounts to be applied to the restoration or
repair of the related Mortgaged Property or amounts released to the Mortgagor
in accordance with the Master Servicer's normal servicing procedures) shall be
deposited in the Certificate Account. Any cost incurred by the Master Servicer
in maintaining any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to the Trustee
for their benefit, be added to the principal balance of the Mortgage Loan,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs
shall be recoverable by the Master Servicer out of late payments by the
related Mortgagor or out of Liquidation Proceeds or Subsequent Recoveries to
the extent permitted by Section 3.08 hereof. It is understood and agreed that
no earthquake or other additional insurance is to be required of any Mortgagor
or maintained on property acquired in respect of a Mortgage other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged
Property is located at the time of origination of the Mortgage Loan in a
federally designated special flood hazard area and such area is participating
in the national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such flood
insurance shall be in an amount
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equal to the least of (i) the outstanding principal balance of the related
Mortgage Loan, (ii) the replacement value of the improvements which are part
of such Mortgaged Property, and (iii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood
insurance program.
(b) The Master Servicer shall not take any action which would result in
non-coverage under any applicable Primary Insurance Policy of any loss which,
but for the actions of the Master Servicer, would have been covered
thereunder. The Master Servicer shall not cancel or refuse to renew any such
Primary Insurance Policy that is in effect at the date of the initial issuance
of the Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed policy
is maintained with a Qualified Insurer.
Except with respect to any Lender PMI Mortgage Loans, the Master
Servicer shall not be required to maintain any Primary Insurance Policy (i)
with respect to any Mortgage Loan with a Loan-to-Value Ratio less than or
equal to 80% as of any date of determination or, based on a new appraisal, the
principal balance of such Mortgage Loan represents 80% or less of the new
appraised value or (ii) if maintaining such Primary Insurance Policy is
prohibited by applicable law. With respect to the Lender PMI Mortgage Loans,
the Master Servicer shall maintain the Primary Insurance Policy for the life
of such Mortgage Loans, unless otherwise provided for in the related Mortgage
Note or prohibited by law.
The Master Servicer agrees to effect the timely payment of the premiums
on each Primary Insurance Policy, and such costs not otherwise recoverable
shall be recoverable by the Master Servicer from the related liquidation
proceeds and Subsequent Recoveries.
(c) In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present on behalf of itself, the Trustee
and Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Master Servicer under
any Primary Insurance Policies shall be deposited in the Certificate Account.
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of such conveyance, enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing, the Master
Servicer is not required to exercise such rights with respect to a Mortgage
Loan if the Person to whom the related Mortgaged Property has been conveyed or
is proposed to be conveyed satisfies the terms and conditions contained in the
Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under such Mortgage Note or Mortgage is not otherwise so required under such
Mortgage Note or Mortgage as a condition to such transfer. In the event that
the Master Servicer is prohibited by law from enforcing any such due-on-sale
clause, or if coverage under any
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Required Insurance Policy would be adversely affected, or if nonenforcement is
otherwise permitted hereunder, the Master Servicer is authorized, subject to
Section 3.10(b), to take or enter into an assumption and modification
agreement from or with the person to whom such property has been or is about
to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, unless prohibited by applicable state law, the Mortgagor
remains liable thereon, provided that the Mortgage Loan shall continue to be
covered (if so covered before the Master Servicer enters such agreement) by
the applicable Required Insurance Policies. The Master Servicer, subject to
Section 3.10(b), is also authorized with the prior approval of the insurers
under any Required Insurance Policies to enter into a substitution of
liability agreement with such Person, pursuant to which the original Mortgagor
is released from liability and such Person is substituted as Mortgagor and
becomes liable under the Mortgage Note. Notwithstanding the foregoing, the
Master Servicer shall not be deemed to be in default under this Section by
reason of any transfer or assumption which the Master Servicer reasonably
believes it is restricted by law from preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.10(a) hereof, in any case in which
a Mortgaged Property has been conveyed to a Person by a Mortgagor, and such
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver or cause to be prepared and delivered to
the Trustee for signature and shall direct, in writing, the Trustee to execute
the assumption agreement with the Person to whom the Mortgaged Property is to
be conveyed and such modification agreement or supplement to the Mortgage Note
or Mortgage or other instruments as are reasonable or necessary to carry out
the terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such Person. In connection with any such assumption, no material
term of the Mortgage Note 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
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for collection of delinquent payments. In connection with such foreclosure or
other conversion, the Master Servicer shall follow such practices and
procedures as it shall deem necessary or advisable and as shall be normal and
usual in its general mortgage servicing activities and meet the requirements
of the insurer under any Required Insurance Policy; provided, however, that
the Master Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after reimbursement
to itself of such expenses and (ii) that such expenses will be recoverable to
it through Liquidation Proceeds (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 liquidation proceeds and Subsequent Recoveries
with respect to the related Mortgaged Property, as provided in the definition
of Liquidation Proceeds. If the Master Servicer has knowledge that a Mortgaged
Property which the Master Servicer is contemplating acquiring in foreclosure
or by deed in lieu of foreclosure is located within a 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
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maximizes the Liquidation Proceeds thereof, but in no event later than three
years after its acquisition by the Trust Fund. In that event, the Trustee
shall have been supplied with an Opinion of Counsel to the effect that the
holding by the Trust Fund of such Mortgaged Property subsequent to a
three-year period, if applicable, will not result in the imposition of taxes
on "prohibited transactions" of any REMIC hereunder as defined in section 860F
of the Code or cause any REMIC hereunder to fail to qualify as a REMIC at any
time that any Certificates are outstanding, 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 Basic 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 Basic Master Servicing Fees; second, to reimburse the
Master Servicer for any unreimbursed Advances; third, to reimburse the
Certificate Account for any Nonrecoverable Advances (or portions thereof) that
were previously
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withdrawn by the Master Servicer pursuant to Section 3.08(a)(iii) that related
to such Mortgage Loan; fourth, to accrued and unpaid interest (to the extent
no Advance has been made for such amount or any such Advance has been
reimbursed) on the Mortgage Loan or related REO Property, at the Adjusted Net
Mortgage Rate to the Due Date occurring in the month in which such amounts are
required to be distributed; and fifth, as a recovery of principal of the
Mortgage Loan. Excess Proceeds, if any, from the liquidation of a Liquidated
Mortgage Loan will be retained by the Master Servicer as additional servicing
compensation pursuant to Section 3.14.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Trust Fund any Mortgage Loan which is
151 days or more delinquent at a price equal to the Purchase Price; provided,
however, that the Master Servicer may only exercise this right on or before
the next to the last day of the calendar month in which such Mortgage Loan
became 151 days delinquent (such month, the "Eligible Repurchase Month");
provided further, that any such Mortgage Loan which becomes current but
thereafter becomes delinquent may be purchased by the Master Servicer pursuant
to this Section in any ensuing Eligible Repurchase Month. The Purchase Price
for any Mortgage Loan purchased hereunder 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 hereto, shall release or cause to be
released to the purchaser of such Mortgage Loan the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment prepared
by the purchaser of such Mortgage Loan, in each case without recourse, as
shall be necessary to vest in the purchaser of such Mortgage Loan any Mortgage
Loan released pursuant hereto and the purchaser of such Mortgage Loan shall
succeed to all the Trustee's right, title and interest in and to such Mortgage
Loan and all security and documents related thereto. Such assignment shall be
an assignment outright and not for security. The purchaser of such Mortgage
Loan shall thereupon own such Mortgage Loan, and all security and documents,
free of any further obligation to the Trustee or the Certificateholders with
respect thereto.
(b) The Master Servicer may agree to a modification of any Mortgage Loan
(the "Modified Mortgage Loan") if (i) the modification is in lieu of a
refinancing and (ii) the Mortgage Rate on the Modified Mortgage Loan is
approximately a prevailing market rate for newly-originated mortgage loans
having similar terms and (iii) the Master Servicer purchases the Modified
Mortgage Loan from the Trust Fund as described below. Effective immediately
after the modification, and, in any event, on the same Business Day on which
the modification occurs, all interest of the Trustee in the Modified Mortgage
Loan shall automatically be deemed transferred and assigned to the Master
Servicer and all benefits and burdens of ownership thereof, including the
right to accrued interest thereon from the date of modification and the risk
of default thereon, shall pass to the Master Servicer. The Master Servicer
shall promptly deliver to the Trustee a certification of a Servicing Officer
to the effect that all requirements of this paragraph have been satisfied with
respect to the Modified Mortgage Loan. For federal income tax purposes, the
Trustee shall account for such purchase as a prepayment in full of the
Modified Mortgage Loan.
The Master Servicer shall deposit the Purchase Price for any Modified
Mortgage Loan in the Certificate Account pursuant to Section 3.05 within one
Business Day after the purchase of the Modified Mortgage Loan. Upon receipt by
the Trustee of written notification of any such deposit signed by a Servicing
Officer, the Trustee shall release to the Master Servicer the related
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Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in
the Master Servicer any Modified Mortgage Loan previously transferred and
assigned pursuant hereto. The Master Servicer covenants and agrees to
indemnify the Trust Fund against any liability for any "prohibited
transaction" taxes and any related interest, additions, and penalties imposed
on the Trust Fund established hereunder as a result of any modification of a
Mortgage Loan effected pursuant to this subsection (b), any holding of a
Modified Mortgage Loan by the Trust Fund or any purchase of a Modified
Mortgage Loan by the Master Servicer (but such obligation shall not prevent
the Master Servicer or any other appropriate Person from in good faith
contesting any such tax in appropriate proceedings and shall not prevent the
Master Servicer from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The Master Servicer shall have no
right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest,
and penalties, together with interest thereon, is refunded to the Trust Fund
or the Master Servicer.
SECTION 3.12. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately
notify the Trustee by delivering, or causing to be delivered a "Request for
Release" substantially in the form of Exhibit N. Upon receipt of such request,
the Trustee shall promptly release the related Mortgage File to the Master
Servicer, and the Trustee shall at the Master Servicer's direction execute and
deliver to the Master Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage in each case provided by the Master
Servicer, together with the Mortgage Note with written evidence of
cancellation thereon. The Master Servicer is authorized to cause the removal
from the registration on the MERS System of such Mortgage and to execute and
deliver, on behalf of the Trustee and the Certificateholders or any of them,
any and all instruments of satisfaction or cancellation or of partial or full
release. Expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the related Mortgagor. From
time to time and as shall be appropriate for the servicing or foreclosure of
any Mortgage Loan, including for such purpose, collection under any policy of
flood insurance, any fidelity bond or errors or omissions policy, or for the
purposes of effecting a partial release of any Mortgaged Property from the
lien of the Mortgage or the making of any corrections to the Mortgage Note or
the Mortgage or any of the other documents included in the Mortgage File, the
Trustee shall, upon delivery to the Trustee of a Request for Release in the
form of Exhibit M signed by a Servicing Officer, release the Mortgage File to
the Master Servicer. Subject to the further limitations set forth below, the
Master Servicer shall cause the Mortgage File or documents so released to be
returned to the Trustee when the need therefor by the Master Servicer no
longer exists, unless the Mortgage Loan is liquidated and the proceeds thereof
are deposited in the Certificate Account, in which case the Master Servicer
shall deliver to the Trustee a Request for Release in the form of Exhibit N,
signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver or cause to be delivered to the
Trustee, for signature, as appropriate, any court pleadings, requests
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for trustee's sale or other documents necessary to effectuate such foreclosure
or any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
SECTION 3.13. Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or which otherwise
are collected by the Master Servicer as Liquidation Proceeds, Insurance
Proceeds or Subsequent Recoveries in respect of any Mortgage Loan. All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds and any
Subsequent 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 sum of the Basic Master Servicing Fee and the Excess Master Servicing
Fee; provided, that the aggregate Basic Master Servicing Fee with respect to
any Distribution Date shall be reduced (i) by an amount equal to the aggregate
of the Prepayment Interest Shortfalls on all of the Mortgage Loans, if any,
with respect to such Distribution Date, but not to exceed the Compensating
Interest for such Distribution Date, and (ii) with respect to the first
Distribution Date, an amount equal to any amount to be deposited into the
Distribution Account by the Depositor pursuant to Section 2.01(a) and not so
deposited; provided further, that if a successor to Countrywide Home Loans
Servicing LP shall be appointed as Master Servicer for any reason, the Excess
Master Servicing Fee for each Distribution Date following such appointment
shall be paid, pursuant to this Section 3.14, to Countrywide Home Loans
Servicing LP pursuant to Section 3.08(b)(vii) hereof, and not to such
successor to the Master Servicer.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, prepayment penalties, assumption fees, late
payment charges and all income and gain net
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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 hereof. The Master Servicer shall be required
to pay all expenses incurred by it in connection with its master servicing
activities hereunder (including payment of any premiums for hazard insurance
and any Primary Insurance Policy and maintenance of the other forms of
insurance coverage required by this Agreement) and shall not be entitled to
reimbursement therefor except as specifically provided in this Agreement.
SECTION 3.15. Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising 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.
As part of its servicing activities, the Master Servicer shall furnish
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable or
unfavorable) on its borrower credit files related to the Mortgage Loans to the
nationally recognized credit bureaus on a monthly basis.
SECTION 3.16. Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee on or
before 80 days after the end of the Master Servicer's fiscal year, commencing
with its 2005 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer during the
preceding calendar year and of the performance of the Master Servicer under
this Agreement has been made under such officer's supervision and (ii) to the
best of such officer's knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. The Trustee shall forward a copy of each such statement to each
Rating Agency.
SECTION 3.17. Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 80 days after the end of the Master Servicer's fiscal year,
commencing with its 2005 fiscal year, the Master Servicer at its expense shall
cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, a
Seller or any affiliate thereof) which is a member of the American Institute
of Certified Public Accountants to furnish a statement to the Trustee and the
Depositor to the effect
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that such firm has examined certain documents and records relating to the
servicing of the Mortgage Loans under this Agreement or of mortgage loans
under pooling and servicing agreements substantially similar to this Agreement
(such statement to have attached thereto a schedule setting forth the pooling
and servicing agreements covered thereby) and that, on the basis of such
examination, conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FNMA and FHLMC, such servicing has been conducted in compliance
with such pooling and servicing agreements except for such significant
exceptions or errors in records that, in the opinion of such firm, the Uniform
Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FNMA and FHLMC requires it to report. In rendering such
statement, such firm may rely, as to matters relating to direct servicing of
mortgage loans by Subservicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FNMA and FHLMC (rendered within one year of such statement) of independent
public accountants with respect to the related Subservicer. Copies of such
statement shall be provided by the Trustee to any Certificateholder or
Certificate Owner upon request at the Master Servicer's expense, provided that
such statement is delivered by the Master Servicer to the Trustee.
SECTION 3.18. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall for so long as it acts as master servicer
under this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA or FHLMC for
persons performing servicing for mortgage loans purchased by FNMA or FHLMC. In
the event that any such policy or bond ceases to be in effect, the Master
Servicer shall obtain a comparable replacement policy or bond from an insurer
or issuer, meeting the requirements set forth above as of the date of such
replacement.
SECTION 3.19. Cap Contracts.
The Master Servicer shall cause Deutsche Bank AG, New York Branch (or
its relevant affiliate) to assign all of its right, title and interest in and
to the Cap Contracts to, and shall cause all of Deutsche Bank AG, New York
Branch's obligations in respect of such transactions to be assumed by, the
Trustee on behalf of the Trust Fund, on the terms and conditions set forth in
the Assignment Agreements. Each of the Cap Contracts will be an asset of the
Trust Fund but will not be an asset of any REMIC. The Master Servicer, on
behalf of the Trustee, shall cause to be deposited (x) any amounts received
from time to time with respect to the Class 1-A-1 Cap Contract into the Class
1-A-1 Reserve Fund and (y) any amounts received from time to time with respect
to the Class 1-A-2 Cap Contract into the Class 1-A-2 Reserve Fund
The Master Servicer, on behalf of the Trustee, shall prepare and deliver
any notices required to be delivered under the Cap Contracts.
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The Master Servicer, on behalf of the Trustee, shall act as calculation
agent and/or shall terminate the Cap Contracts, in each case upon the
occurrence of certain events of default or termination events to the extent
specified thereunder. Upon any such termination, the Class 1-A-1 Cap Contract
Counterparty and/or the Class 1-A-2 Cap Contract Counterparty, as applicable,
will be obligated to pay the Trustee, for the benefit of the Trust Fund, an
amount in respect of such termination. Any amounts received by the Trustee for
the benefit of the Trust Fund in respect of the termination of the Class 1-A-1
Cap Contract shall be deposited and held in the Class 1-A-1 Reserve Fund and
applied on future Distribution Dates to pay any Class 1-A-1 Supplemental
Amount on the Class 1-A-1 Certificates. Any amounts received by the Trustee
for the benefit of the Trust Fund in respect of the termination of the Class
1-A-2 Cap Contract shall be deposited and held in the Class 1-A-2 Reserve Fund
and applied on future Distribution Dates to pay any Class 1-A-2 Supplemental
Amount on the Class 1-A-2 Certificates.
Any amounts remaining in the Class 1-A-1 Reserve Fund on the
Distribution Date immediately following the earlier of (x) the Class 1-A-1 Cap
Contract Scheduled Termination Date and (y) the date on which the Class
Certificate Balance of the Class 1-A-1 Certificates has been reduced to zero,
will be distributed to Deutsche Bank AG, New York Branch, and will not be
available for payment of the Class 1-A-1 Supplemental Amount on the Class
1-A-1 Certificates. Any amounts remaining in the Class 1-A-2 Reserve Fund,
after the Class Certificate Balance of the Class 1-A-2 Certificates has been
reduced to zero, will be distributed to Deutsche Bank AG, New York Branch.
Any amounts received under the Class 1-A-2 Cap Contract that would
result in an interest and yield supplement amount on the Class 1-A-2
Certificates at a per annum rate greater than 9.50% will be deposited by the
trustee in the Class 1-A-2 Reserve Fund, and may be used on future
Distribution Dates to pay any Class 1-A-2 Supplemental Amounts not covered by
the Class 1-A-2 Cap Contract until the Class Certificate Balance of the Class
1-A-2 Certificates is reduced to zero.
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ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
SECTION 4.01. Advances.
(a) The Master Servicer shall determine on or before each Master
Servicer Advance Date whether it is required to make an Advance pursuant to
the definition thereof. If the Master Servicer determines it is required to
make an Advance, it shall, on or before the Master Servicer Advance Date,
either (i) deposit into the Certificate Account an amount equal to the Advance
or (ii) make an appropriate entry in its records relating to the Certificate
Account that any Amount Held for Future Distribution has been used by the
Master Servicer in discharge of its obligation to make any such Advance. Any
funds so applied shall be replaced by the Master Servicer by deposit in the
Certificate Account no later than the close of business on the next Master
Servicer Advance Date. The Master Servicer shall be entitled to be reimbursed
from the Certificate Account for all Advances of its own funds made pursuant
to this Section as provided in Section 3.08. The obligation to make Advances
with respect to any Mortgage Loan shall continue if such Mortgage Loan has
been foreclosed or otherwise terminated and the related Mortgaged Property has
not been liquidated.
(b) If the Master Servicer determines that it will be unable to comply
with its obligation to make the Advances as and when described in the second
sentence of Section 4.01(a), it shall use its best efforts to give written
notice thereof to the Trustee (each such notice a "Trustee Advance Notice";
and such notice may be given by telecopy), not later than 3:00 P.M., New York
time, on the Business Day immediately preceding the related Master Servicer
Advance Date, specifying the amount that it will be unable to deposit (each
such amount an "Advance Deficiency") and certifying that such Advance
Deficiency constitutes an Advance hereunder and is not a Nonrecoverable
Advance. If the Trustee receives a Trustee Advance Notice on or before 3:30
P.M., New York time on a Master Servicer Advance Date, the Trustee shall, not
later than 3:00 P.M., New York time, on the related Distribution Date, deposit
in the Distribution Account an amount equal to the Advance Deficiency
identified in such Trustee Advance Notice unless it is prohibited from so
doing by applicable law. Notwithstanding the foregoing, the Trustee shall not
be required to make such deposit if the Trustee shall have received written
notification from the Master Servicer that the Master Servicer has deposited
or caused to be deposited in the Certificate Account an amount equal to such
Advance Deficiency. All Advances made by the Trustee pursuant to this Section
4.01(b) shall accrue interest on behalf of the Trustee at the Trustee Advance
Rate from and including the date such Advances are made to but excluding the
date of repayment, with such interest being an obligation of the Master
Servicer and not the Trust Fund. The Master Servicer shall reimburse the
Trustee for the amount of any Advance made by the Trustee pursuant to this
Section 4.01(b) together with accrued interest, not later than the fifth day
following the related Master Servicer Advance Date. In the event that the
Master Servicer does not reimburse the Trustee in accordance with the
requirements of the preceding sentence, the Trustee shall immediately (a)
terminate all of the rights and obligations of the Master Servicer under this
Agreement in accordance with Section 7.01 and (b) subject to the limitations
set forth in Section 3.04, assume all of the rights and obligations of the
Master Servicer hereunder.
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(c) The Master Servicer shall, not later than the close of business on
the second Business Day immediately preceding each Distribution Date, deliver
to the Trustee a report (in form and substance reasonably satisfactory to the
Trustee) that indicates (i) the Mortgage Loans with respect to which the
Master Servicer has determined that the related Scheduled Payments should be
advanced and (ii) the amount of the related Scheduled Payments. The Master
Servicer shall deliver to the Trustee on the related Master Servicer Advance
Date an Officer's Certificate of a Servicing Officer indicating the amount of
any proposed Advance determined by the Master Servicer to be a Nonrecoverable
Advance.
SECTION 4.02. Priorities of Distribution.
(a) (1) With respect to the Available Funds for Loan Group 1, on each
Distribution Date, the Trustee shall withdraw such Available Funds from the
Distribution Account and apply such funds to distributions on the specified
Classes of Group 1 Senior Certificates in the following order and priority
and, in each case, to the extent of Available Funds for such Loan Group
remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 1
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the Class
Optimal Interest Distribution Amount with respect to the Group 1
Certificates that would have been distributed in the absence of such
shortfall, provided that prior to an Accrual Termination Date, the
related Accrual Amount shall be distributed as provided in Section
4.02(a)(1)(iii);
(iii) [Reserved];
(iv) to each Class of Group 1 Senior Certificates, concurrently,
as follows:
(x) to the Class PO-1 Component an amount allocable to the
related PO Formula Principal Amount, up to the outstanding
Component Balance thereof; and
(y) on each Distribution Date prior to the Senior Credit
Support Depletion Date, the related Non-PO Formula Principal
Amount up to the amount of the Senior Principal Distribution
Amount for Loan Group 1 for such Distribution Date will be
distributed sequentially, in the following order of priority:
(1) to the Class A-R Certificates, until its Class
Certificate Balance is reduced to zero;
(2) concurrently, to the Class 1-A-5 and Class 1-A-9
Certificates, pro rata, the Group A Priority Amount, until
their respective Class Certificate Balances are reduced to
zero;
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(3) concurrently, to the Class 1-A-6, Class 1-A-7,
Class 1-A-8 and Class 1-A-10 Certificates, the Group B
Priority Amount, sequentially as follows:
(a) to the Class 1-A-6 Certificates, until its
Class Certificate Balance is reduced to zero;
and
(b) concurrently, to the Class 1-A-7, Class
1-A-8 and Class 1-A-10 Certificates, pro rata,
until their respective Class Certificate
Balances are reduced to zero;
(4) concurrently, to the Class 1-A-1 and Class 1-A-2
Certificates, pro rata, until their respective Class
Certificate Balances are reduced to zero;
(5) concurrently, to the Class 1-A-6, Class 1-A-7,
Class 1-A-8 and Class 1-A-10 Certificates, without regard to
the Group B Priority Amount, sequentially as follows:
(a) to the Class 1-A-6 Certificates, until its
Class Certificate Balance is reduced to zero;
and
(b) concurrently, to the Class 1-A-7, Class
1-A-8 and Class 1-A-10 Certificates, pro rata,
until their respective Class Certificate
Balances are reduced to zero; and
(6) concurrently, to the Class 1-A-5 and Class 1-A-9
Certificates, pro rata, without regard to the Group A
Priority Amount, until their respective Class Certificate
Balances are reduced to zero.
(v) to the Class PO-1 Component, any related Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant to
clause (A) of the definition of the Subordinated Principal Distribution
Amount actually received or advanced for such Distribution Date (with
such amount to be allocated first from amounts calculated pursuant to
(A)(i) and (ii) then (iii) of the definition of Subordinated Principal
Distribution Amount).
(2) With respect to the Available Funds for Loan Group 2 on each
Distribution Date, the Trustee shall withdraw such Available Funds from
the Distribution Account and apply such funds to distributions on the
specified Classes of Group 2 Senior Certificates in the following order
of priority, and in each case, to the extent of Available Funds for such
Loan Group remaining:
(vi) [Reserved];
(vii) concurrently, to each interest-bearing Class of Group 2
Senior Certificates, an amount allocable to interest equal to the
related Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of
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the Class Optimal Interest Distribution Amount with respect to the Group
2 Certificates that would have been distributed in the absence of such
shortfall, provided that prior to the Accrual Termination Date, the
Accrual Amount shall be distributed as provided in Section
4.02(a)(2)(iii);
(viii) [Reserved];
(ix) to each Class of Group 2 Senior Certificates, concurrently as
follows:
(x) to the Class PO-2 Component, an amount allocable to
principal equal to the related PO Formula Principal Amount, up to
the outstanding Component Balance thereof; and
(y) on each Distribution Date, the related Non-PO Formula
Principal Amount, up to the amount of the Senior Principal
Distribution Amount for Loan Group 2 for such Distribution Date,
to the Class 2-A-1 Certificates until its Class Certificate
Balance is reduced to zero; and
(x) to the Class PO-2 Component, any related Class PO Deferred
Amount, up to an amount not to exceed the amount calculated pursuant to
clause (A) of the definition of the Subordinated Principal Distribution
Amount actually received or advanced for such Distribution Date (with
such amount to be allocated first from amounts calculated pursuant to
(A)(i) and (ii) then (iii) of the definition of Subordinated Principal
Distribution Amount).
(3) On each Distribution Date, after making the distributions
described in Section 4.02(a)(1) and Section 4.02(a)(2) above, the
remaining Available Funds from each Loan Group will be distributed to
the Senior Certificates to the extent provided in Section 4.05 hereof.
(4) On each Distribution Date, Available Funds from all of the
Loan Groups remaining after making the distributions described in
Section 4.02(a)(1), Section 4.02(a)(2) and Section 4.02(a)(3) above,
will be distributed to the Subordinated Certificates and the Class A-R
Certificates in the following order and priority and, in each case, to
the extent of such funds remaining:
(A) to the Class M Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(B) to the Class M Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(C) to the Class B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
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(D) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(E) to the Class B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(F) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(G) to the Class B-3 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(H) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(I) to the Class B-4 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(J) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero;
(K) to the Class B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution
Amount for such Class for such Distribution Date;
(L) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution
Date until the Class Certificate Balance thereof is reduced
to zero; and
(M) to the Class A-R Certificates, any remaining funds in
the Trust Fund.
On any Distribution Date, amounts distributed in respect of Class PO
Deferred Amounts will not reduce the Component Balance of the related Class PO
Component.
On any Distribution Date, to the extent the Amount Available for Senior
Principal for a Loan Group is insufficient to make the full distribution
required to be made pursuant to clause (a)(1)(iv)(x) or (a)(2)(iv)(x), as
applicable, (A) the amount distributable on the related Class PO Component in
respect of principal pursuant to such subclause shall be equal to the product
of (1) the related Amount Available for Senior Principal and (2) a fraction,
the numerator of which is the related PO Formula Principal Amount and the
denominator of which is the sum of such PO
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Formula Principal Amount and the related Senior Principal Distribution Amount
and (B) the amount distributable on the Senior Certificates of the related
Senior Certificate Group, other than the related Class PO Component, in
respect of principal shall be equal to the product of (1) the Amount Available
for Senior Principal for such Loan Group and (2) a fraction, the numerator of
which is such Senior Principal Distribution Amount and the denominator of
which is the sum of such Senior Principal Distribution Amount and the related
PO Formula Principal Amount.
(b) On each Distribution Date prior to and including the applicable
Accrual Termination Date with respect to each Class or Component of Accrual
Certificates, the Accrual Amount for such Class or Component for such
Distribution Date shall not (except as provided in the second to last sentence
in this paragraph) be distributed as interest with respect to such Class or
Component of Accrual Certificates but shall instead be added to the related
Class Certificate Balance of such Class on the related Distribution Date. With
respect to any Distribution Date prior to and including the applicable Accrual
Termination Date on which principal payments on any Class or Component of
Accrual Certificates are distributed pursuant to Section 4.02(a)(1)(iii) or
Section 4.02(a)(2)(iii), as applicable, the related Accrual Amount shall be
deemed to have been added on such Distribution Date to the related Class
Certificate Balance of such Class or Component of Accrual Certificates (and
included in the amount distributable on the related Class or Classes or
Component of Accretion Directed Certificates pursuant to Section
4.02(a)(1)(iii) or Section 4.02(a)(2)(iii), as applicable, for such
Distribution Date) and the related distribution thereon shall be deemed to
have been applied concurrently towards the reduction of all or a portion of
the amount so added and, to the extent of any excess, towards the reduction of
the Class Certificate Balance or Component Balance of such Class or Component
of Accrual Certificates immediately prior to such Distribution Date.
Notwithstanding any such distribution, the Accrual Certificates shall continue
to be a Class of Accrual Certificates on each subsequent Distribution Date
until the applicable Accrual Termination Date.
(c) On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priorities set forth in
Section 4.02(a)(1)(iv)(y), the portion of Available Funds available to be
distributed as principal of the Group 1 Senior Certificates (other than the
related Class PO Component) shall be distributed concurrently, as principal,
on such Classes, pro rata, on the basis of their respective Class Certificate
Balances, until the Class Certificate Balances thereof are reduced to zero.
(d) On each Distribution Date, the amount referred to in clause (i) of
the definition of Class Optimal Interest Distribution Amount for each Class of
Certificates for such Distribution Date shall be reduced for each Class of
Senior Certificates of a Senior Certificate Group and each Class of
Subordinated Certificates by (i) the related Class' pro rata share of Net
Prepayment Interest Shortfalls for such Loan Group based (x) with respect to a
Class of Senior Certificates on the related Class Optimal Interest
Distribution Amount and (y) with respect to a Class of Subordinated
Certificates on and prior to a Senior Termination Date on the Assumed Interest
Amount or after a Senior Termination Date, the related Class Optimal Interest
Distribution Amount for such Distribution Date, without taking into account
such Net Prepayment Interest Shortfalls and (ii) the related Class' Allocable
Share of (A) the interest portion of a Debt Service Reduction and (B) each
Relief Act Reduction for the Mortgage Loans in the related Loan Group (or
after the Senior Credit Support Depletion Date, any Mortgage Loan) incurred
during the calendar month preceding the month of such Distribution Date.
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(e) Notwithstanding the priority and allocation contained in Section
4.02(a)(4), if, on any Distribution Date, with respect to any Class of
Subordinated Certificates (other than the Class of Subordinated Certificates
then outstanding with the highest priority of distribution), the sum of the
related Class Subordination Percentages of such Class and of all Classes of
Subordinated Certificates which have a higher numerical Class designation than
such Class (the "Applicable Credit Support Percentage") is less than the
Original Applicable Credit Support Percentage for such Class, no distribution
of Principal Prepayments will be made to any such Classes (the "Restricted
Classes") and the amount of such Principal Prepayments otherwise distributable
to the Restricted Classes shall be distributed to any Classes of Subordinated
Certificates having lower numerical Class designations than such Class, pro
rata, based on their respective Class Certificate Balances immediately prior
to such Distribution Date and shall be distributed in the sequential order
provided in Section 4.02(a)(4).
(f) If Subsequent Recoveries have been received with respect to a
Liquidated Mortgage Loan, the amount of such Subsequent Recoveries will be
applied sequentially, in the order of payment priority, to increase the Class
Certificate Balance of each Class of Certificates to which Realized Losses
have been allocated, but in each case by not more than the amount of Realized
Losses previously allocated to that Class of Certificates pursuant to Section
4.04. Holders of such Certificates will not be entitled to any payment in
respect of the Class Optimal Interest Distribution Amount on the amount of
such increases for any Interest Accrual Period preceding the Distribution Date
on which such increase occurs. Any such increases shall be applied pro rata to
the Certificate Balance of each Certificate of such Class.
SECTION 4.03. [Reserved]
SECTION 4.04. Allocation of Realized Losses.
(a) On or prior to each Determination Date, the Trustee shall determine
the total amount of Realized Losses with respect to the related Distribution
Date. For purposes of allocating losses to the Subordinated Certificates, the
Class M Certificates will be deemed to have a lower numerical Class
designation, and to be of a higher relative payment priority, than each other
Class of Subordinated Certificates.
Realized Losses with respect to any Distribution Date shall be allocated
as follows:
(i) the applicable PO Percentage of any Realized Loss on a
Mortgage Loan in a Loan Group shall be allocated to the related Class PO
Component, until the Component Balance thereof is reduced to zero; and
(ii) the applicable Non-PO Percentage of any Realized Loss shall
be allocated first to the Subordinated Certificates in reverse order of
their respective numerical Class designations (beginning with the Class
of Subordinated Certificates then outstanding with the highest numerical
Class designation) until the respective Class Certificate Balance of
each such Class is reduced to zero, and second to the related Senior
Certificates (other than any Notional Amount Certificates, if
applicable, and the related Class PO Component), pro rata on the basis
of their respective Class Certificate Balances or, in the case of any
Class of Accrual Certificates or Accrual Component, on the basis of the
lesser
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of their respective Class Certificate Balance or Component Balance, as
applicable, and their respective initial Class Certificate Balances or
Component Balance, as applicable, in each case immediately prior to the
related Distribution Date, until the respective Class Certificate
Balance or Component Balance of each such Class or Component is reduced
to zero; provided, however, that (x) the applicable Non-PO Percentage of
any Realized Losses on the Mortgage Loans in Loan Group 1 that would
otherwise be allocated to the Class 1-A-5 Certificates will instead be
allocated to the Class 1-A-9 Certificates and (y) the applicable Non-PO
Percentage of any Realized Losses on the Mortgage Loans in Loan Group 1
that would otherwise be allocated to the Class 1-A-6, Class 1-A-7 and
Class 1-A-8 Certificates will instead be allocated to the Class 1-A-10
Certificates as follows: (i) with respect to the Class 1-A-6
Certificates, in an amount up to the product of 41.22% and the Class
Certificate Balance of the Class 1-A-10 Certificates, (ii) with respect
to the Class 1-A-7 Certificates, in an amount up to the product of
25.28% and the Class Certificate Balance of the Class 1-A-10
Certificates and (iii) with respect to the Class 1-A-8 Certificates, in
an amount up to the product of 33.50% and the Class Certificate Balance
of the Class 1-A-10 Certificates, in each case, until the Class
Certificate Balance of the Class 1-A-10 Certificates is reduced to zero.
(b) The Class Certificate Balance of the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation
shall be reduced on each Distribution Date by the sum of (i) the amount of any
payments on the Class PO Certificates in respect of Class PO Deferred Amounts
and (ii) the amount, if any, by which the aggregate of the Class Certificate
Balances of all outstanding Classes of Certificates (after giving effect to
the distribution of principal and the allocation of Realized Losses and Class
PO Deferred Amounts on such Distribution Date) exceeds the sum of the Pool
Stated Principal Balance for the following Distribution Date and any amounts
in the Supplemental Loan Account as of that Distribution Date.
(c) Any Realized Losses allocated to a Class of Certificates or any
reduction in the Class Certificate Balance of a Class of Certificates pursuant
to Section 4.04(a) above shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Balances.
(d) Any allocation of Realized Losses to a Certificate or to any
Component or any reduction in the Certificate Balance of a Certificate,
pursuant to Section 4.04(a) above shall be accomplished by reducing the
Certificate Balance or Component Balance thereof, as applicable, immediately
following the distributions made on the related Distribution Date in
accordance with the definition of "Certificate Balance" or "Component
Balance," as the case may be. Except as provided in Section 4.04(a)(i) above,
all Realized Losses or Excess Losses allocated to a Class of Component
Certificates will be allocated pro rata to the related Components.
SECTION 4.05. Cross-Collateralization
(a) [Reserved].
(b) If on any Distribution Date the aggregate Class Certificate Balance
of a Senior Certificate Group, other than the related Class PO Component,
after giving effect to distributions
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to be made on that Distribution Date, is greater than the Non-PO Pool Balance
for the related Loan Group (the "Undercollateralized Group"), then the Trustee
shall reduce the Available Funds of the other Loan Group that is not
undercollateralized (the "Overcollateralized Group"), and distribute such
funds as follows:
(1) to add to the Available Funds of the Undercollateralized Group an
amount equal to the Available Funds of the Overcollateralized Group
remaining after making distributions to the Senior Certificate Group of
the Overcollateralized Group on such Distribution Date pursuant to
Section 4.02; and
(2) to the Senior Certificate Group, other than the related Class PO
Component, if any, of the Undercollateralized Group, to the extent of
the principal portion of Available Funds of the Overcollateralized Group
remaining after making distributions to the Senior Certificate Group of
the Overcollateralized Group on such Distribution Date pursuant to
Section 4.02, until the aggregate Class Certificate Balance of the
Senior Certificate Group, other than the related Class PO Component, of
such Undercollateralized Group equals the Non-PO Pool Balance in the
related Loan Group.
SECTION 4.06. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
cause to be forwarded by first class mail to each Certificateholder, the
Master Servicer, the Depositor and each Rating Agency a statement setting
forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments,
Liquidation Proceeds and Subsequent Recoveries included therein;
(ii) the amount thereof allocable to interest, any Class Unpaid
Interest Amounts included in such distribution and any remaining Class
Unpaid Interest Amounts after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such
Distribution Date;
(v) the Pool Stated Principal Balance and each Loan Group
Principal Balance for the following Distribution Date;
(vi) each Senior Percentage and Subordinated Percentage for the
following Distribution Date;
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(vii) the amount of the Basic Master Servicing Fees and Excess
Master Servicing Fees paid to or retained by the Master Servicer with
respect to such Distribution Date;
(viii) the Pass-Through Rate for each Class of Certificates with
respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans
in each Loan Group (A) delinquent (exclusive of Mortgage Loans in
foreclosure) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and
(4) 91 or more days and (B) in foreclosure and delinquent (1) 1 to 30
days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days, as of
the close of business on the last day of the calendar month preceding
such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated
Principal Balance of such Mortgage Loan as of the close of business on
the Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii) each Senior Prepayment Percentage for the following
Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month and the aggregate amount of Subsequent
Recoveries, if any, reducing Realized Losses from preceding calendar
months;
(xv) with respect to the second Conveyance Period Distribution
Date, the number and aggregate balance of any Delay Delivery Mortgage
Loans not delivered within thirty days after the Closing Date, each
Remaining PO Supplemental Loan Amount and each Remaining Non-PO
Supplemental Loan Amount distributed as principal;
(xvi) the amount due, and the amount paid, under each Cap
Contract;
(xvii) the amount paid to the Class 1-A-1 Certificates from the
Class 1-A-1 Reserve Fund;
(xviii) the amount paid to the Class 1-A-2 Certificates from the
Class 1-A-2 Reserve Fund; and
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(xix) the amount on deposit in each Reserve Fund for the following
Distribution Date.
The Trustee may make the above information available to
Certificateholders via the Trustee's website at
xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx.
(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 clauses (a)(i), (a)(ii) and (a)(vii) of this Section
4.06 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
SECTION 4.07. 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
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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.
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 for a Class of LIBOR
Certificates, so long as any such LIBOR Certificates are outstanding, the
Trustee will determine LIBOR on the basis of the British Bankers' Association
("BBA") "Interest Settlement Rate" for one-month deposits in U.S. dollars as
found on Telerate page 3750 as of 11:00 a.m. London time on each LIBOR
Determination Date. "Telerate Page 3750" means the display page currently so
designated on the Moneyline Telerate Service (formerly the Dow Xxxxx Markets)
(or such other page as may replace that page on that service for the purpose
of displaying comparable rates or prices).
(b) If on any Interest Determination Date, LIBOR cannot be determined as
provided in paragraph (A) of this Section 4.08, the Trustee shall either (i)
request each Reference Bank to inform the Trustee of the quotation offered by
its principal London office for making one-month United States dollar deposits
in leading banks in the London interbank market, as of 11:00 a.m. (London
time) on such Interest Determination Date or (ii) in lieu of making any such
request, rely on such Reference Bank quotations that appear at such time on
the Reuters Screen LIBO Page (as defined in the International Swap Dealers
Association Inc. Code of Standard Wording, Assumptions and Provisions for
Swaps, 1986 Edition), to the extent available. LIBOR for a Class of LIBOR
Certificates for the next Interest Accrual Period will be established by the
Trustee on each interest Determination Date as follows:
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(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 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. If on the initial LIBOR Determination date,
the Trustee is required but unable to determine LIBOR in the manner
provided above, LIBOR for the next Interest Accrual Period shall be
2.85%.
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
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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. Distributions from the Reserve Funds.
(a) On each Distribution Date on or prior to the earlier of (i) the
Class 1-A-1 Cap Contract Scheduled Termination Date and (ii) the date on which
the Class Certificate Balance of the Class 1-A-1 Certificates is reduced to
zero, amounts on deposit in the Class 1-A-1 Reserve Fund will be withdrawn
therefrom and distributed to the Class 1-A-1 Certificates to the extent needed
to pay the Class 1-A-1 Supplemental Amount for such Distribution Date. Any
remaining amounts, if any, shall be held in the Class 1-A-1 Reserve Fund and
applied on future Distribution Dates to pay any Class 1-A-1 Supplemental
Amount.
Any amounts remaining in the Class 1-A-1 Reserve Fund in respect of the
Class 1-A-1 Cap Contract after the earlier of (i) the Class 1-A-1 Cap Contract
Scheduled Termination Date and (ii) the date on which the Class Certificate
Balance of the Class 1-A-1 Certificates has been reduced to zero, will be
distributed to Deutsche Bank AG, New York Branch.
(b) On each Distribution Date on or prior to the date on which the Class
Certificate Balance of the Class 1-A-2 Certificates is reduced to zero,
amounts on deposit in the Class 1-A-2 Reserve Fund will be withdrawn therefrom
and distributed to the Class 1-A-2 Certificates to the extent needed to pay
any Class 1-A-2 Supplemental Amount for such Distribution Date. Any remaining
amounts received on the Class 1-A-2 Cap Contract shall be held in the Class
1-A-2 Reserve Fund and applied on future Distribution Dates to pay any Class
1-A-2 Supplemental Amount on the Class 1-A-2 Certificates.
(c) Any amounts remaining in the Class 1-A-2 Reserve Fund, after the
Class Certificate Balance of the Class 1-A-2 Certificates has been reduced to
zero, will be distributed to Deutsche Bank AG, New York Branch.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
Subject to Section 9.02 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at
a bank or other entity having appropriate facilities therefor, if (i) such
Holder has so notified the Trustee at least five Business Days prior to the
related Record Date and (ii) such Holder shall hold (A) a Notional Amount
Certificate, (B) 100% of the Class Certificate Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 or (y) by check mailed by first
class mail to such Certificateholder at the address of such holder appearing
in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the countersignature and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless countersigned by the Trustee by manual signature, and
such countersignature upon any Certificate shall be conclusive evidence, and
the only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on
a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
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 hereof, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration
of transfer of any Certificate, the Trustee shall 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.
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At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly
executed by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In
the event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer and such Certificateholder's prospective transferee shall each
certify to the Trustee in writing the facts surrounding the transfer in
substantially the forms set forth in Exhibit J (the "Transferor Certificate")
and (i) deliver a letter in substantially the form of either Exhibit K (the
"Investment Letter") or Exhibit L (the "Rule 144A Letter") or (ii) there shall
be delivered to the Trustee at the expense of the transferor an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities Act. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the Master
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably
request to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee and the Depositor, the Sellers and the Master
Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (in the event such Certificate is a Private Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit K or Exhibit
L, or in the event such
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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 Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60 or
(ii) in the case of any ERISA-Restricted Certificate presented for
registration in the name of an employee benefit plan or arrangement subject to
ERISA, or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee 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 either 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. For purposes of
the preceding sentence, with respect to an ERISA-Restricted Certificate that
is not a Residual Certificate, in the event the representation letter or
Opinion of Counsel 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 Certificate. Notwithstanding
anything else to the contrary herein, any purported transfer of an
ERISA-Restricted Certificate to or on behalf of an employee benefit plan or
other plan of arrangement subject to ERISA or 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.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(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.
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(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in
the purported Transferee. If any purported transferee shall become a
Holder of a Residual Certificate in violation of the provisions of this
Section 5.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of
registration of Transfer of such Residual Certificate. The Trustee shall
be under no liability to any Person for any registration of Transfer of
a Residual Certificate that is in fact not permitted by Section 5.02(b)
and this Section 5.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as
the Transfer was registered after receipt of the related Transfer
Affidavit, 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
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outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment
of this Agreement which, based on an Opinion of Counsel furnished to the
Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which
is held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and indirect participating
firms as representatives of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of holders under this
Agreement, and requests and directions for and votes of such representatives
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (vi) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants
with respect to indirect participating firms and persons shown on the books of
such indirect participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
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
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registration, the Trustee shall issue the Definitive Certificates. Neither the
Master Servicer, the Depositor nor the Trustee shall be liable for any delay
in delivery of such instruction and each may conclusively rely on, and shall
be protected in relying on, such instructions. The Master Servicer shall
provide the Trustee with an adequate inventory of certificates to facilitate
the issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates all references in this Agreement to obligations
imposed upon or to be performed by the Depository shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Master Servicer and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new Certificate under this Section 5.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer or
the Trustee may treat the Person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Master Servicer, the Trustee nor any agent of the Master Servicer or the
Trustee shall be affected by any notice to the contrary.
SECTION 5.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders and/or Certificate Owners (a)
request such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights
under this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders and/or Certificate Owners propose
to transmit, or if the Depositor or Master Servicer shall request such
information in writing from the Trustee, then the Trustee shall, within ten
Business Days after the receipt of such request, (x) provide the Depositor,
the Master Servicer or such Certificateholders and/or Certificate Owners at
such recipients' expense the most recent list of the Certificateholders of
such Trust Fund held by the
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Trustee, if any, and (y) assist the Depositor, the Master Servicer or such
Certificateholders and/or Certificate Owners at such recipients' expense with
obtaining from the Depository a list of the related Depository Participants
acting on behalf of Certificate Owners of Book Entry Certificates. The
Depositor and every Certificateholder and Certificate Owner, by receiving and
holding a Certificate or beneficial interest therein, agree that the Trustee
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders and/or Depository
Participants hereunder, regardless of the source from which such information
was derived.
SECTION 5.06. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates
may be surrendered for registration of transfer or exchange. The Trustee
initially designates its Corporate Trust Office for such purposes. The Trustee
will give prompt written notice to the Certificateholders of any change in
such location of any such office or agency.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor 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 herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
FNMA or FHLMC.
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers, the
Master Servicer and Others.
None of the Depositor, the Master Servicer or any Seller or any of the
directors, officers, employees or agents of the Depositor, the Master Servicer
or any Seller shall be under any liability to the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer, any
Seller or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Master Servicer, any Seller or
any such Person from any liability which would otherwise be imposed by reasons
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor, the Master Servicer, each Seller and any director, officer,
employee or agent of the Depositor, the Master Servicer or each Seller may
rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising
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hereunder. The Depositor, the Master Servicer, each Seller and any director,
officer, employee or agent of the Depositor, the Master Servicer or any Seller
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. None of the Depositor, the Master Servicer
or any Seller shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its respective duties hereunder and
which in its opinion may involve it in any expense or liability; provided,
however, that any of the Depositor, the Master Servicer or any Seller may in
its discretion undertake any such action that it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the
parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and each Seller shall be
entitled to be reimbursed therefor out of the Certificate Account.
SECTION 6.04. Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrade or withdrawal of
the rating of any of the Certificates or (b) upon determination that its
duties hereunder are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Trustee. No such resignation shall become effective until the Trustee
or a successor master servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities and obligations hereunder.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by the Master Servicer to deposit in the
Certificate Account or remit to the Trustee any payment required to be
made under the terms of this Agreement, which failure shall continue
unremedied for five days after the date upon which written notice of
such failure shall have been given to the Master Servicer by the Trustee
or the Depositor or to the Master Servicer and the Trustee by the
Holders of Certificates having not less than 25% of the Voting Rights
evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform in
any material respect any other of the covenants or agreements on the
part of the Master Servicer contained in this Agreement, which failure
materially affects the rights of Certificateholders, that failure
continues unremedied for a period of 60 days after the date on which
written notice of such failure shall have been given to the Master
Servicer by the Trustee or the Depositor, or to the Master Servicer and
the Trustee by the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates; provided, however,
that the sixty-day cure period shall not apply to the initial delivery
of the Mortgage File for Delay Delivery Mortgage Loans nor the failure
to substitute or repurchase in lieu thereof; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer and such decree or order shall have remained
in force undischarged or unstayed for a period of 60 consecutive days;
or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its obligations; or
(vi) the Master Servicer shall fail to reimburse in full the
Trustee within five days of the Master Servicer Advance Date for any
Advance made by the Trustee pursuant to Section 4.01(b) together with
accrued and unpaid interest.
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If an Event of Default described in clauses (i) to (vi) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trustee may, or at the direction of
the Holders of Certificates 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), 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. 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 hereof
whether or not the obligations of the Master Servicer have been terminated
pursuant to this Section. The Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such
termination shall affect any obligation of the Master Servicer to pay amounts
owed pursuant to Article VIII. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be
credited to the Certificate Account, or thereafter be received with respect to
the Mortgage Loans.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due prior to
the notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to
which such Master Servicer would have been entitled pursuant to Sections
3.08(a)(i) through (viii),and any other amounts payable to such Master
Servicer hereunder the entitlement to which arose prior to the termination of
its activities hereunder.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 hereof, the Trustee shall, 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 herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and applicable law including the
obligation to make Advances pursuant to Section 4.01. As compensation
therefor, the Trustee shall be entitled to all 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; provided, however, that neither the Trustee nor
any other successor to Countrywide Home Loans Servicing LP as Master Servicer
shall be entitled to receive the Excess Master Servicing Fee. Notwithstanding
the foregoing, if the Trustee has become the successor to the Master Servicer
in accordance with Section 7.01 hereof, the Trustee may, if it shall be
unwilling to so act, or shall, if it is prohibited by applicable law from
making Advances pursuant to Section 4.01 hereof or if it is otherwise
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unable to so act, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment
of which does not adversely affect the then current rating of the
Certificates, by each Rating Agency as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder. Any successor to the Master
Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least
$15,000,000, and which is willing to service the Mortgage Loans and 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 hereof incurred prior to termination of the Master Servicer under Section
7.01), with like effect as if originally named as a party to this Agreement;
and provided further that each Rating Agency acknowledges that its rating of
the Certificates in effect immediately prior to such assignment and delegation
will not be qualified or reduced as a result of such assignment and
delegation. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.04 hereof, act in such capacity as
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 Basic 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 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
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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.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are
in the form required by this Agreement; provided, however, that the Trustee
shall not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that:
(i) unless an Event of Default known to the Trustee shall have
occurred and be continuing, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement,
no implied covenants or obligations shall be read into this Agreement
against the Trustee and the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in
good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be finally proven that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than
25% of the Voting Rights of Certificates 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 hereof, the Trustee shall be entitled to rely
conclusively on the information delivered to it by the Master Servicer
in a Trustee Advance Notice in determining whether or not it
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is required to make an Advance under Section 4.01(b), shall have no
responsibility to ascertain or confirm any information contained in any
Trustee Advance Notice, and shall have no obligation to make any Advance
under Section 4.01(b) in the absence of a Trustee Advance Notice or
actual knowledge of a Responsible Officer of the Trustee that (A) such
Advance was not made by the Master Servicer and (B) such Advance is not
a Nonrecoverable Advance.
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and
the Trustee shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Certificates evidencing not less than 25% of the Voting
Rights allocated to each Class of Certificates;
(v) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
accountants or attorneys;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers
hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it;
(vii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of
the investment security);
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(viii) the Trustee shall not be deemed to have knowledge of an
Event of Default until a Responsible Officer of the Trustee shall have
received written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any of
the trusts, rights or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby.
SECTION 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor or a Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS System other than with respect to the Trustee's execution and
counter-signature of the Certificates. The Trustee shall not be accountable
for the use or application by the Depositor or the Master Servicer of any
funds paid to the Depositor or the Master Servicer in respect of the Mortgage
Loans or deposited in or withdrawn from the Certificate Account by the
Depositor or the Master Servicer.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights as it would have if it were
not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Distribution Account on each Distribution Date
an amount equal to the Trustee Fee for such Distribution Date. The Trustee and
any director, officer, employee or agent of the Trustee shall be indemnified
by the Master Servicer and held harmless against any loss, liability or
expense (including reasonable attorney's fees) (i) incurred in connection with
any claim or legal action relating to (a) this Agreement, (b) the Certificates
or (c) in connection with the performance of any of the Trustee's duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or incurred by reason of any action of the Trustee
taken at the direction of the Certificateholders and (ii) resulting from any
error in any tax or information return prepared by the Master Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation
or removal of the Trustee hereunder. Without limiting the foregoing, the
Master Servicer covenants and agrees, except as otherwise agreed upon in
writing by the Depositor and the Trustee, and except for any such expense,
disbursement or advance as may arise from the Trustee's negligence, bad faith
or willful misconduct, to pay or reimburse the Trustee, for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Agreement with respect to: (A)
the
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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 herein, 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 hereof. The entity
serving as Trustee may have normal banking and trust relationships with the
Depositor and its affiliates or the Master Servicer and its affiliates;
provided, however, that such entity cannot be an affiliate of the Master
Servicer other than the Trustee in its role as successor to the Master
Servicer.
SECTION 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Master Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to Section 8.08, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a
tax is imposed with respect to the Trust Fund by
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any state in which the Trustee or the Trust Fund is located and the imposition
of such tax would be avoided by the appointment of a different trustee, then
the Depositor or the Master Servicer may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, one copy of which
instrument shall be delivered to the Trustee, one copy of which shall be
delivered to the Master Servicer and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered by the successor Trustee to the Master Servicer, one
complete set to the Trustee so removed and one complete set to the successor
so appointed. Notice of any removal of the Trustee shall be given to each
Rating Agency by the successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 8.08 hereof.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as
if originally named as trustee herein. The Depositor, the Master Servicer and
the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 hereof and its
appointment shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
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eligible under the provisions of Section 8.06 hereof without the execution or
filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time
be located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of the Master Servicer, shall
be conferred or imposed upon and exercised or performed by the Trustee
and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act
separately without the Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed (whether as Trustee hereunder or as
successor to the Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such
separate trustee or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
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(iv) The Master Servicer, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and
indemnification to any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC election
is to be made, as set forth in the Preliminary Statement, shall constitute,
and that the conduct of matters relating to such assets shall be such as to
qualify such assets as, a "real estate mortgage investment conduit" as defined
in and in accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of any such REMIC
and that in such capacity it shall: (a) prepare and file, or cause to be
prepared and filed, in a timely manner, a U.S. Real Estate Mortgage Investment
Conduit Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and
filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with
respect to any such REMIC, containing such information and at the times and in
the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby; (b) within thirty days of the
Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c) make
or cause to be made elections that such assets be treated as a REMIC on the
federal tax return for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and when required to be
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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 REMIC status of any REMIC;
(h) pay, from the sources specified in the last paragraph of this Section
8.11, the amount of any federal or state tax, including prohibited transaction
taxes as described below, imposed on any such REMIC prior to its termination
when and as the same shall be due and payable (but such obligation shall not
prevent the Trustee or any other appropriate Person from contesting any such
tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person as may
be required to sign such returns by the Code or state or local laws,
regulations or rules; (j) maintain records relating to any such REMIC,
including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined
at such intervals as may be required by the Code, as may be necessary to
prepare the foregoing returns, schedules, statements or information; and (k)
as and when necessary and appropriate, represent any such REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any such REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any such REMIC, and otherwise act on behalf of any such REMIC in
relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth
herein, 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 herein. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims or expenses of the Trustee arising from any
errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of 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
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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).
The Trustee shall treat (i) the Class 1-A-1 Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that is
owned by Deutsche Bank AG, New York Branch and (ii) the Class 1-A-2 Reserve
Fund as an outside reserve fund within the meaning of Treasury Regulation
1.860G-2(h) that is owned by Deutsche Bank AG, New York Branch, and that each
Reserve Fund is not an asset of any REMIC created hereunder. The Trustee shall
treat the rights of the Holders of the Class 1-A-1 Certificates and the
Holders of the Class 1-A-2 Certificates to receive payments from the
applicable Reserve Fund as rights in an interest rate corridor contract
written by the applicable Cap Contract Counterparty. Thus, the Class 1-A-1 and
Class 1-A-2 Certificates shall be treated as representing ownership of not
only a Master REMIC regular interest, but also ownership of an interest in an
interest rate corridor contract. For purposes of determining the issue price
of the Master REMIC regular interests, the Trustee shall assume that (x) the
Class 1-A-1 Cap Contract entered into by the Class 1-A-1 Cap Contract
Counterparty in respect of the Class 1-A-1 Certificates has a value of
$2,650,000.00 and (y) the Class 1-A-2 Cap Contract entered into by the Class
1-A-2 Class Cap Contract Counterparty in respect of the Class 1-A-2
Certificates has a value of $435,000.00.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Sellers, the Master Servicer and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (a) the
purchase by the Master Servicer of all Mortgage Loans (and REO Properties)
remaining in the Trust Fund at the price equal to the sum of (i) 100% of the
Stated Principal Balance of each Mortgage Loan plus one month's accrued
interest thereon at the applicable Adjusted Mortgage Rate, (ii) the lesser of
(x) the appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the Stated Principal
Balance of each Mortgage Loan related to any REO Property, and (iii) any
remaining unpaid costs and damages incurred by the Trust Fund that arises out
of an actual violation of any predatory or abusive lending law or regulation,
in all cases plus accrued and unpaid interest thereon at the applicable
Adjusted Mortgage Rate and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and (ii)
the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement. In no event shall the trusts
created hereby continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living on
the date hereof and (ii) the Latest Possible Maturity Date.
The Master Servicer shall have the right to purchase all Mortgage Loans
and REO Properties in the Trust Fund pursuant to clause (a) in the preceding
paragraph of this Section 9.01 only on or after the date on which the Pool
Stated Principal Balance, at the time of any such repurchase, is less than or
equal to ten percent (10%) of the Cut-off Date Pool Principal Balance.
SECTION 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust
Fund other than the funds in the Certificate Account, the Master Servicer
shall direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 9.01, at least 20 days prior to the date
notice is to be mailed to the affected Certificateholders, the Master Servicer
shall notify the Depositor and the Trustee of the date the Master Servicer
intends to terminate the Trust Fund and of the applicable repurchase price of
the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 10th day
and no later than the 15th day of the month next preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at
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the office therein designated, (b) the amount of such final distribution, (c)
the location of the office or agency at which such presentation and surrender
must be made, and (d) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office therein
specified. The Master Servicer will give such notice to each Rating Agency at
the time such notice is given to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Certificate Account to be remitted to the Trustee for deposit in
the Distribution Account on or before the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of
the Certificates. Upon such final deposit with respect to the Trust Fund and
the receipt by the Trustee of a Request for Release therefor, the Trustee
shall promptly release to the Master Servicer the Mortgage Files for the
Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in each case
on the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class
of Regular Certificates, the Certificate Balance thereof plus (a) accrued
interest thereon (or on their Notional Amount, if applicable) in the case of
an interest bearing Certificate and (b) any Class PO Deferred Amounts in the
case of Class PO Certificates, and (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account (other
than the amounts retained to meet claims) after application pursuant to clause
(i) above. Notwithstanding the reduction of the Class Certificate Balance of
any Class of Certificates to zero, such Class will be outstanding hereunder
(solely for the purpose of receiving distributions and not for any other
purpose) until the termination of the respective obligations and
responsibilities of the Depositor, each Seller, the Master Servicer and the
Trustee hereunder in accordance with Article IX.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within six months after the second notice all the applicable Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for
cancellation, the Master Servicer shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
SECTION 9.03. Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option as
provided in Section 9.01, the Trust Fund shall be terminated in accordance
with the following additional requirements, unless the Trustee has been
supplied with an Opinion of Counsel, at the expense of the Master Servicer, to
the effect that the failure to comply with the requirements of this Section
9.03 will not (i) result in the imposition of taxes on "prohibited
transactions" on any
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REMIC as defined in section 860F of the Code, or (ii) cause any REMIC to fail
to qualify as a REMIC at any time that any Certificates are outstanding:
(1) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Master Servicer under Section 9.02, the
Master Servicer shall prepare and the Trustee, at the expense of the
"tax matters person," shall adopt a plan of complete liquidation within
the meaning of section 860F(a)(4) of the Code which, as evidenced by an
Opinion of Counsel (which opinion shall not be an expense of the Trustee
or the Tax Matters Person), meets the requirements of a qualified
liquidation; and
(2) Within 90 days after the time of adoption of such a plan
of complete liquidation, the Trustee shall sell all of the assets of the
Trust Fund to the Master Servicer for cash in accordance with Section
9.01.
(b) The Trustee, as agent for any REMIC created 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 Master Servicer.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Master Servicer to prepare and the Trustee to adopt and sign a
plan of complete liquidation.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, 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 herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (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 (v),
(vi) or (vii) above shall not, as evidenced by an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Trustee or the Trust Fund),
adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall not be deemed
to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting 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, 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,
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
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distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner other than as described
in (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating 66-2/3%, or
(iii) reduce the aforesaid percentages of Certificates the Holders of which
are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any REMIC or the Certificateholders or
cause any REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
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
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
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SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance of
the (i) of the Mortgage Loans by the Sellers to the Depositor and (ii) Trust
Fund by the Depositor to the Trustee each be, and be construed as, an absolute
sale thereof to the Trustee. It is, further, not the intention of the parties
that such conveyances be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of any Seller or the Depositor, as the case may be, or if for any
other reason this Agreement or any Supplemental Transfer Agreement is held or
deemed to create a security interest in either such assets, then (i) this
Agreement or any Supplemental Transfer 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 or any Supplemental
Transfer Agreement shall be deemed to be an assignment and a grant pursuant to
the terms of this Agreement (i) by each Seller to the Depositor or (ii) by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired.
Each Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Trust Fund, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. The Depositor
shall arrange for filing any Uniform Commercial Code continuation statements
in connection with any security interest granted or assigned to the Trustee
for the benefit of the Certificateholders.
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the Trustee
and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03;
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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 thereof.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.16;
3. Each annual independent public accountants' servicing report
described in Section 3.17; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section 2.02,
2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered by first class
mail, by courier or by facsimile transmission to (1) in the case of the
Depositor, CWALT, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx, (2) in the case
of Countrywide, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, facsimile number (000) 000-0000, Attention: Xxxxx X. Xxxxxxx
or such other address as may be hereafter furnished to the Depositor and the
Trustee by Countrywide in writing, (3) in the case of Park Granada LLC, c/o
Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx or such
other address as may be hereafter furnished to the Depositor and the Trustee
by Park Granada in writing, (4) in the case of Park Monaco Inc., c/o
Countrywide Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx or such
other address as may be hereafter furnished to the Depositor and the Trustee
by Park Monaco in writing, (5) in the case of Park Sienna LLC, c/o Countrywide
Financial Corporation, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
facsimile number: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx or such other
address as may be hereafter furnished to the Depositor and the Trustee by Park
Sienna in writing, (6) in the case of the Master Servicer, Countrywide Home
Loans Servicing LP, 000 Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx, facsimile
number (000) 000-0000, Attention: Xxxx Xxxx, or such other address as may be
hereafter furnished to the Depositor and the Trustee by the Master Servicer in
writing, (7) in the case of the Trustee, The Bank of New York, 000 Xxxxxxx
Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, facsimile number: (000) 000-0000,
Attention: Mortgage-Backed Securities Group, CWALT, Inc. Series 2005-10CB, or
such other address as the Trustee may hereafter furnish to the Depositor or
Master Servicer and (8) in the case of the Rating Agencies, the address
specified therefor in the definition corresponding to the name of such Rating
Agency. Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
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SECTION 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or
members of an association; nor shall any Certificateholder be under any
liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and
5
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.
* * * * * *
6
IN WITNESS WHEREOF, the Depositor, the Trustee, the Sellers and the
Master Servicer have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above written.
CWALT, INC.,
as Depositor
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ XxxXxxxx Xxxxxxx
----------------------------------
Name: XxxXxxxx Xxxxxxx
Title: Assistant Treasurer
COUNTRYWIDE HOME LOANS, INC.,
as a Seller
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
PARK GRANADA LLC,
as a Seller
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PARK MONACO INC.,
as a Seller
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PARK SIENNA LLC,
as a Seller
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: First 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 2005-10CB
Representations and Warranties of Countrywide
---------------------------------------------
Countrywide Home Loans, Inc. ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II-A to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule II-A shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among Countrywide, as a seller, Park Granada LLC as a seller, Park Monaco
Inc., as a seller, Park Sienna LLC, as a seller Countrywide Home Loans
Servicing LP, as master servicer, CWALT, Inc., as depositor, and The Bank of
New York, as trustee.
1. Countrywide is duly organized as a New York corporation and is
validly existing and in good standing under the laws of the State of New York
and is duly authorized and qualified to transact any and all business
contemplated by the Pooling and Servicing Agreement to be conducted by
Countrywide in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification and,
in any event, is in compliance with the doing business laws of any such state,
to the extent necessary to perform any of its obligations under the Pooling
and Servicing Agreement in accordance with the terms thereof.
2. Countrywide has the full corporate power and authority to sell and
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 corporate action on the
part of Countrywide the execution, delivery and performance of the Pooling and
Servicing Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Countrywide, enforceable
against Countrywide in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally
and (b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
3. The execution and delivery of the Pooling and Servicing Agreement by
Countrywide, the sale of the Countrywide Mortgage Loans by Countrywide under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Countrywide and will not (A) result in a material breach of any
term or provision of the charter or by-laws of Countrywide or (B) materially
conflict with, result in a material breach, violation or acceleration of, or
result in a material default under, the terms of any other material agreement
or instrument to which Countrywide is a party or by which it may be bound, or
(C) constitute a material violation of any statute, order or regulation
applicable to Countrywide of any court, regulatory body, administrative agency
or governmental body
S-II-A-1
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 Mortgage Loans to
the Depositor as a sale of the Countrywide Mortgage Loans for all tax,
accounting and regulatory purposes.
8. Countrywide is a member of MERS in good standing, and will comply in
all material respects with the rules and procedures of MERS in connection with
the servicing of the MERS Mortgage Loans in the Trust Fund for as long as such
Mortgage Loans are registered with MERS.
S-II-A-2
SCHEDULE II-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-10CB
Representations and Warranties of Park Granada
----------------------------------------------
Park Granada LLC ("Park Granada") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set
forth in this Schedule II-B to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule II-B shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among Park Granada, as a seller, Park
Monaco Inc., as a seller, Park Sienna LLC, as a seller, Countrywide as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as depositor, and The Bank of New York, as trustee.
1. Park Granada is a limited liability company duly formed and validly
existing and in good standing under the laws of the State of Delaware.
2. Park Granada has the full corporate power and authority to sell each
Park Granada Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and has duly authorized by all necessary corporate action on the
part of Park Granada the execution, delivery and performance of the Pooling
and Servicing Agreement; and the Pooling and Servicing Agreement, assuming the
due authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Park Granada,
enforceable against Park Granada in accordance with its terms, except that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
3. The execution and delivery of the Pooling and Servicing Agreement by
Park Granada, the sale of the Park Granada Mortgage Loans by Park Granada
under the Pooling and Servicing Agreement, the consummation of any other of
the transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Granada and will not (A) result in a material breach of
any term or provision of the certificate of formation or the limited liability
company agreement of Park Granada or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Granada is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Granada of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over Park Granada; and Park Granada is not in breach or violation
of any material indenture or other 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
S-II-B-1
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 2005-10CB
Representations and Warranties of Park Monaco
---------------------------------------------
Park Monaco Inc. ("Park Monaco") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set
forth in this Schedule II-C to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule II-C shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among Park Monaco, as a seller,
Countrywide, as a seller, Park Granada LLC, as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as depositor, and The Bank of New York, as trustee.
(1) Park Monaco is a limited liability corporation duly formed and
validly existing and in good standing under the laws of the State of Delaware.
(2) Park Monaco has the full corporate power and authority to sell each
Park Monaco Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and has duly authorized by all necessary corporate action on the
part of Park Monaco the execution, delivery and performance of the Pooling and
Servicing Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Monaco, enforceable
against Park Monaco in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally
and (b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Park Monaco, the sale of the Park Monaco Mortgage Loans by Park Monaco under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Monaco and will not (A) result in a material breach of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Monaco or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Monaco is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Monaco of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Park Monaco; and Park Monaco is not in breach or violation
of any material indenture or other
S-II-C-1
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation may
materially impair Park 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 2005-10CB
Representations and Warranties of Park Sienna
---------------------------------------------
Park Sienna LLC ("Park Sienna") and Countrywide Home Loans, Inc.
("Countrywide"), each hereby makes the representations and warranties set
forth in this Schedule II-D to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule II-D shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among Park Sienna, as a seller,
Countrywide, as a seller, Park Granada LLC, as a seller, Park Monaco Inc., as
a seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT,
Inc., as depositor, and The Bank of New York, as trustee.
(1) Park Sienna is a limited liability company duly formed and validly
existing and in good standing under the laws of the State of Delaware.
(2) Park Sienna has the full corporate power and authority to sell each
Park Sienna Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Pooling and Servicing
Agreement and has duly authorized by all necessary corporate action on the
part of Park Sienna the execution, delivery and performance of the Pooling and
Servicing Agreement; and the Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of Park Sienna, enforceable
against Park Sienna in accordance with its terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally
and (b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing Agreement by
Park Sienna, the sale of the Park Sienna Mortgage Loans by Park Sienna under
the Pooling and Servicing Agreement, the consummation of any other of the
transactions contemplated by the Pooling and Servicing Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of Park Sienna and will not (A) result in a material breach of any
term or provision of the certificate of formation or the limited liability
company agreement of Park Sienna or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which Park
Sienna is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to Park Sienna of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Park Sienna; and Park Sienna is not in breach or violation
of any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court,
S-II-D-1
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 2005-10CB
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; and as
of the Initial Cut-off Date, no Mortgage Loan has been contractually
delinquent for 30 or more days more than once during the twelve months prior
to the Initial Cut-off Date. 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; and as of each
Supplemental Cut-off Date, no related Supplemental Mortgage Loan will have
been contractually delinquent for 30 or more days more than once during the
twelve months prior to that Supplemental Cut-off Date.
3. No Initial 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. There is no delinquent tax or assessment lien against any
Mortgaged Property.
S-III-A-1
6. 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.
7. 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.
8. 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.
9. 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.
10. As of the Closing Date in the case of 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.
11. 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; 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.
12. Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended) by an
entity that satisfied
S-III-A-2
at the time of origination the requirements of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. There exist no deficiencies with respect to escrow deposits
and payments, if such are required, for which customary arrangements for
repayment thereof have not been made, and no escrow deposits or payments of
other charges or payments due Countrywide have been capitalized under the
Mortgage or the related Mortgage Note.
S-III-A-3
21. 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.
22. There is no pledged account or other security other than real
estate securing the Mortgagor's obligations.
23. No Mortgage Loan has a shared appreciation feature, or other
contingent interest feature.
24. Each Mortgage Loan contains a customary "due on sale" clause.
25. As of the Closing Date, 25 of the Initial Mortgage Loans in
Loan Group 1 and 1 of the Initial Mortgage Loans in Loan Group 2, provide for
a prepayment penalty.
26. Each Mortgage Loan which 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 percentage for mortgage loans with terms to maturity of between 25
and 30 years is 12% for Loan-to-Value Ratios between 80.01% and 85.00%, 25%
for Loan-to-Value Ratios between 85.01% and 90.00%, 30% for Loan-to-Value
Ratios between 90.01% and 95.00% and 35% for Loan-to-Value Ratios between
95.01% and 100%. The specified coverage percentage for mortgage loans with
terms to maturity of up to 20 years ranges from 6% to 12% for Loan-to-Value
Ratios between 80.01% to 85.00%; from 12% to 20% for Loan-to-Value Ratios
between 85.01% to 90.00% and 20% to 25% for Loan-to-Value Ratios between
90.01% to 95.00%. Each such Primary Insurance Policy is issued by a Qualified
Insurer. All provisions of any such Primary Insurance Policy have been and are
being complied with, any such policy is in full force and effect, and all
premiums due thereunder have been paid. Any Mortgage subject to any such
Primary Insurance Policy obligates either the Mortgagor or the mortgagee
thereunder to maintain such insurance and to pay all premiums and charges in
connection therewith, subject, in each case, to the provisions of Section
3.09(b) of this Agreement. The Mortgage Rate for each Mortgage Loan is net of
any such insurance premium.
27. As of the Closing Date or the related Supplemental Transfer
Date, the improvements upon each Mortgaged Property are covered by a valid and
existing hazard insurance policy with a generally acceptable carrier that
provides for fire and extended coverage and coverage for such other hazards as
are customary in the area where the Mortgaged Property is located in an amount
which is at least equal to the lesser of (i) the maximum insurable value of
the improvements securing such Mortgage Loan or (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer. If the Mortgaged Property is
a condominium unit, it is included under the coverage afforded by a blanket
policy for the condominium unit. All such individual insurance policies and
all flood policies referred to in item (28) 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
S-III-A-4
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.
28. 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.
29. 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.
30. 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.
31. 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.
32. Each Mortgage Loan is being master serviced by the Master
Servicer.
33. 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.
34. 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
S-III-A-5
funds by a party other than the Mortgagor, directly or indirectly, for the
payment of any amount required by the Mortgage.
35. Each Mortgage Loan was underwritten in all material respects
in accordance with Countrywide's underwriting guidelines as set forth in the
Prospectus Supplement.
36. 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.
37. None of the Initial Mortgage Loans are graduated payment
mortgage loans or a growing equity mortgage loans, and none of the Initial
Mortgage Loans are subject to a buydown or similar arrangement.
38. 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.
39. The Mortgage Loans were selected from among the outstanding
fixed-rate one- to four-family mortgage loans in the portfolios of the Sellers
at the Closing Date as to which the representations and warranties made as to
the Mortgage Loans set forth in this Schedule III-A can be made. Such
selection was not made in a manner intended to adversely affect the interests
of Certificateholders.
40. Except for 2,250 Mortgage Loans in Loan Group 1 and 127
Mortgage Loans in Loan Group 2, each Initial Mortgage Loan has a payment date
on or before the Due Date in the month of the first Distribution Date.
41. 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.
42. The Mortgage Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
43. No proceeds from any Mortgage Loan underlying the Certificates
were used to finance single-premium credit insurance policies.
44. The master servicer has furnished, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information on its
S-III-A-6
borrower credit files related to the mortgage loans to Equifax, Experian and
Trans Union Credit Information Company on a monthly basis.
45. The original principal balance of each Mortgage Loan in Loan
Group 1 or Loan Group 2 is within the dollar amount limits of Xxxxxxx Mac and
Xxxxxx Mae for conforming one- to four-family mortgage loans.
46. No Mortgage Loan in Loan Group 1 or Loan Group 2 originated
between October 1, 2002 and March 7, 2003 is subject to the Georgia Fair
Lending Act, as amended. No Mortgage Loan in Loan Group 1 or Loan Group 2
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.
47. None of the Mortgage Loans are "high cost" loans as defined by
applicable predatory and abusive lending laws.
48. None of the Mortgage Loans are covered by the Home Ownership
and Equity Protection Act of 1994 ("HOEPA").
49. 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.).
50. 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.).
51. 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.
52. No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and with respect to the foregoing, the terms "High Cost Loan" and
"Covered Loan" have the meaning assigned to them in the then current Standard
& Poor's LEVELS(R) Version 5.6b Glossary Revised, Appendix E which is attached
hereto as Exhibit Q (the "Glossary") where (x) a "High Cost Loan" is each loan
identified in the column "Category under applicable anti-predatory lending
law" of the table entitled "Standard & Poor's High Cost Loan Categorization"
in the Glossary as each such loan is defined in the applicable anti-predatory
lending law of the State or jurisdiction specified in such table and (y) a
"Covered Loan" is each loan identified in the column "Category under
applicable anti-predatory lending law" of the table entitled "Standard &
Poor's Covered Loan Categorization" in the Glossary as each such loan is
defined in the applicable anti-predatory lending law of the State or
jurisdiction specified in such table.
53. No Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
54. No Mortgagor related to a Mortgage Loan in Loan Group 1 or
Loan Group 2 was required to purchase any single premium credit insurance
policy (e.g., life, disability,
S-III-A-7
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 or Loan Group 2 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 or
Loan Group 2 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.
55. No Mortgage Loan in Loan Group 1 or Loan Group 2 originated
prior to October 1, 2002 will impose prepayment penalties for a term in excess
of five years after origination.
56. The Master Servicer for each Mortgage Loan in Loan Group 1 and
Loan Group 2 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 to Equifax, Experian
and Trans Union Credit Information Company (three of the credit repositories)
on a monthly basis.
57. The aggregate principal balance of the Discount Mortgage Loans
will not exceed $45,958,391.83 in Loan Group 1 and $21,585,057.84 in Loan
Group 2.
S-III-A-8
SCHEDULE III-B
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-10CB
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 that are Initial Mortgage Loans as of the Closing
Date, or if so specified herein, as of the Initial Cut-off Date, and with
respect to the Countrywide Mortgage Loans that are 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-B shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Countrywide, as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, CWALT, Inc., as depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Countrywide Mortgage
Loan to the Depositor, Countrywide had good title to, and was the sole owner
of, such Countrywide Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject to
no interest or participation of, or agreement with, any other party, to sell
and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-B-1
SCHEDULE III-C
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-10CB
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 that
are Initial Mortgage Loans as of the Closing Date, or if so specified herein,
as of the Initial Cut-off Date, and with respect to the Park Granada Mortgage
Loans that are 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-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 2005-10CB
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 that
are Initial Mortgage Loans as of the Closing Date, or if so specified herein,
as of the Initial Cut-off Date, and with respect to the Park Monaco Mortgage
Loans that are 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-D shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller, Park
Monaco, as a seller, Park Granada LLC, as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Park Monaco Mortgage
Loan to the Depositor, Park Monaco had good title to, and was the sole owner
of, such Park Monaco Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject to
no interest or participation of, or agreement with, any other party, to sell
and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-D-1
SCHEDULE III-E
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-10CB
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 that
are Initial Mortgage Loans as of the Closing Date, or if so specified herein,
as of the Initial Cut-off Date, and with respect to the Park Sienna Mortgage
Loans that are 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-E shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among Countrywide Home Loans, Inc., as a seller, Park
Sienna, as a seller, Park Monaco Inc., as a seller, Park Sienna LLC, as a
seller, Countrywide Home Loans Servicing LP, as master servicer, CWALT, Inc.,
as depositor, and The Bank of New York, as trustee.
(1) Immediately prior to the assignment of each Park Sienna Mortgage
Loan to the Depositor, Park Sienna had good title to, and was the sole owner
of, such Park Sienna Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority, subject to
no interest or participation of, or agreement with, any other party, to sell
and assign the same pursuant to the Pooling and Servicing Agreement.
S-III-E-1
SCHEDULE IV
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 2005-10CB
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 (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
S-IV-1
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 Balance Schedule
[If applicable, attached to Prospectus Supplement]
S-V-1
SCHEDULE VI
Form of Monthly Master Servicer Report
-----------------------------------------------------------------------------
LOAN LEVEL REPORTING SYSTEM
-----------------------------------------------------------------------------
DATABASE STRUCTURE
-----------------------------------------------------------------------------
[MONTH, YEAR]
-----------------------------------------------------------------------------
Field Number Field Name Field Type Field Width Dec
-----------------------------------------------------------------------------
1 INVNUM Numeric 4
-----------------------------------------------------------------------------
2 INVBLK Numeric 4
-----------------------------------------------------------------------------
3 INACNU Character 8
-----------------------------------------------------------------------------
4 BEGSCH Numeric 15 2
-----------------------------------------------------------------------------
5 SCHPRN Numeric 13 2
-----------------------------------------------------------------------------
6 TADPRN Numeric 11 2
-----------------------------------------------------------------------------
7 LIQEPB Numeric 11 2
-----------------------------------------------------------------------------
8 ACTCOD Numeric 11
-----------------------------------------------------------------------------
9 ACTDAT Numeric 4
-----------------------------------------------------------------------------
10 INTPMT Numeric 8
-----------------------------------------------------------------------------
11 PRNPMT Numeric 13 2
-----------------------------------------------------------------------------
12 ENDSCH Numeric 13 2
-----------------------------------------------------------------------------
13 SCHNOT Numeric 13 2
-----------------------------------------------------------------------------
14 SCHPAS Numeric 7 3
-----------------------------------------------------------------------------
15 PRINPT Numeric 7 3
-----------------------------------------------------------------------------
16 PRIBAL Numeric 11 2
-----------------------------------------------------------------------------
17 LPIDTE Numeric 13 2
-----------------------------------------------------------------------------
18 DELPRN Numeric 7
-----------------------------------------------------------------------------
19 PPDPRN Numeric 11 2
-----------------------------------------------------------------------------
20 DELPRN Numeric 11 2
-----------------------------------------------------------------------------
21 NXTCHG Numeric 8
-----------------------------------------------------------------------------
22 ARMNOT Numeric 7 3
-----------------------------------------------------------------------------
23 ARMPAS Numeric 7 3
-----------------------------------------------------------------------------
24 ARMPMT Numeric 11 2
-----------------------------------------------------------------------------
25 ZZTYPE Character 2
-----------------------------------------------------------------------------
26 ISSUID Character 1
-----------------------------------------------------------------------------
27 KEYNAME Character 8
-----------------------------------------------------------------------------
TOTAL 240
-----------------------------------------------------------------------------
Suggested Format: DBASE file
Modem transmission
-----------------------------------------------------------------------------
S-VI-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").]
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO, OR TO A PERSON INVESTING ASSETS OF, AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that ______ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balance of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage
A-2
Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, Countrywide Home
Loans, Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park
Granada"), Park Monaco, Inc., as a seller ("Park Monaco"), and Park Sienna
LLC, as a seller ("Park Sienna" and, together with CHL, Park Granada and Park
Monaco, the "Sellers"), Countrywide Home Loans Servicing LP, as master
servicer (the "Master Servicer"), and The Bank of New York, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code, and will not subject the Trustee or the Master
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund. Unless the transferee delivers the Opinion of
Counsel described above, such representation shall be deemed to have been made
to the Trustee by the Transferee's acceptance of a Certificate of this Class
and by a beneficial owner's acceptance of its interest in a Certificate of
this Class. Notwithstanding anything else to the contrary herein, until such
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to, or to a person investing
assets of, an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By
_______________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO
THE EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO
EFFECT THE TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
B-1
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.]
B-2
Certificate No.:
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that ______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balance
of all Certificates of the Class to which this Certificate
B-3
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by CWALT, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Countrywide Home Loans, Inc., as a seller ("CHL"), Park Granada
LLC, as a seller ("Park Granada"), Park Monaco, Inc., as a seller ("Park
Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and, together with
CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee
in writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial
issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Securities Act)
to the Trustee an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the Securities Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Sellers, the Master Servicer or the Depositor. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.]
[No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, (ii) if such certificate has been the subject of
an ERISA-Qualifying Underwriting and the transferee is an insurance company, a
representation that the transferee is purchasing such Certificate with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, or
(iii) in the case of any such Certificate presented for registration in the
name of an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions
B-4
of any subsequent enactments), a trustee of any such benefit plan or
arrangement or any other person acting on behalf of any such benefit plan or
arrangement, an Opinion of Counsel satisfactory to the Trustee to the effect
that the purchase and holding of such Certificate will not result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and will not subject the Trustee or the Master Servicer to any obligation in
addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund.
Notwithstanding anything else to the contrary herein, any purported transfer
of a Certificate of this Class to or on behalf of an employee benefit plan
subject to ERISA or a plan or arrangement subject to Section 4975 of the Code
without the opinion of counsel satisfactory to the Trustee as described above
shall be void and of no effect.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
B-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ______________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
B-6
EXHIBIT C
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER TO THE
EFFECT THAT (i) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF SUCH A BENEFIT PLAN OR ARRANGEMENT TO
EFFECT THE TRANSFER, OR (ii) IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING AND THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION THAT THE TRANSFEREE IS PURCHASING SUCH CERTIFICATE WITH FUNDS
CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS SUCH TERM IS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60, AND THE
PURCHASE AND HOLDING OF THE CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE
RELIEF UNDER SECTIONS I AND III OF PTCE 95-60, OR (B) AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE WITHOUT THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE SERVICER UNDER SUCH AGREEMENT.]
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balance
of all Certificates of
this Class : $
CUSIP :
Interest Rate :
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class A-R
evidencing the distributions allocable to the Class A-R Certificates
with respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties
CWALT, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Master Servicer or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that ______________ is the registered owner of the
Percentage Interest (obtained by dividing the Denomination of this Certificate
by the aggregate Initial Certificate Balance of all Certificates of the Class
to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting of the Mortgage Loans deposited by CWALT,
Inc. (the
C-2
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Countrywide Home Loans, Inc., as a seller ("CHL"), Park Granada
LLC, as a seller ("Park Granada"), Park Monaco, Inc., as a seller ("Park
Monaco"), and Park Sienna LLC, as a seller ("Park Sienna" and, together with
CHL, Park Granada and Park Monaco, the "Sellers"), Countrywide Home Loans
Servicing LP, as master servicer (the "Master Servicer"), and The Bank of New
York, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, (ii) if such certificate has been the subject of
an ERISA-Qualifying Underwriting and the transferee is an insurance company, a
representation that the transferee is purchasing such Certificate with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, or
(iii) in the case of any such Certificate presented for registration in the
name of an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments), a trustee of any such benefit plan or arrangement or
any other person acting on behalf of any such benefit plan or arrangement, an
Opinion of Counsel satisfactory to the Trustee to the effect that the purchase
and holding of such Certificate will not result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code, and will not subject
the Trustee or the Master Servicer to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Master Servicer or the Trust Fund. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class A-R
Certificate to or on behalf of an employee benefit plan subject to ERISA or a
plan or arrangement subject to Section 4975 of the Code without the opinion of
counsel satisfactory to the Trustee as described above shall be void and of no
effect.
Each Holder of this Class A-R Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-R Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class A-R Certificate may be
transferred without
C-3
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
C-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
C-5
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTION IN RESPECT OF PRINCIPAL.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT, AND IS NOT
INVESTING ASSETS OF, AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR (B) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. SUCH
REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE
TRANSFEREE'S ACCEPTANCE OF A CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL
OWNER'S ACCEPTANCE OF ITS INTEREST IN A CERTIFICATE OF THIS CLASS.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, UNTIL THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO, OR A PERSON INVESTING ASSETS OF, AN EMPLOYEE
BENEFIT PLAN SUBJECT TO ERISA OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975
OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
of all Certificates
of this Class : $
CUSIP :
Interest Rate : Interest Only
Maturity Date :
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200____-____
Class [ ]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties
CWALT, Inc., as Depositor
The Notional Amount of this certificate at any time, may be less than
the Notional Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Master Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ______________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amount of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by CWALT, Inc. (the "Depositor"). The Trust Fund was
created
D-2
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Countrywide Home Loans,
Inc., as a seller ("CHL"), Park Granada LLC, as a seller ("Park Granada"),
Park Monaco, Inc., as a seller ("Park Monaco"), and Park Sienna LLC, as a
seller ("Park Sienna" and, together with CHL, Park Granada and Park Monaco,
the "Sellers"), Countrywide Home Loans Servicing LP, as master servicer (the
"Master Servicer"), and The Bank of New York, as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, or a person acting on behalf of or
investing plan assets of any such benefit plan or arrangement, which
representation letter shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund, or (ii) in the case of any such Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), a trustee of any such
benefit plan or arrangement or any other person acting on behalf of any such
benefit plan or arrangement, an Opinion of Counsel satisfactory to the Trustee
to the effect that the purchase and holding of such Certificate will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code, and will not subject the Trustee or the Master
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee, the Master
Servicer or the Trust Fund. When the transferee delivers the Opinion of
Counsel described above, such representation shall be deemed to have been made
to the Trustee by the Transferee's acceptance of a Certificate of this Class
and by a beneficial owner's acceptance of its interest in a Certificate of
this Class. Notwithstanding anything else to the contrary herein, until such
certificate has been the subject of an ERISA-Qualifying Underwriting, any
purported transfer of a Certificate of this Class to, or a person investing
assets of, an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Trustee
By __________________
Countersigned:
By _____________________________
Authorized Signatory of
THE BANK OF NEW YORK,
as Trustee
D-4
EXHIBIT E
[FORM OF] REVERSE OF CERTIFICATES
CWALT, INC.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as CWALT, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Master Servicer and the
E-1
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trustee in New York, New York, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Sellers and the Trustee and
any agent of the Depositor or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, nor any such agent shall be affected by
any notice to the contrary.
On any Distribution Date on which the Pool Stated Principal Balance
is less than or equal to 10% of the Cut-off Date Pool Principal Balance, the
Master Servicer will have the option, subject to the limitations set forth in
the Agreement, to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. In the event that no
such optional termination occurs, the obligations and responsibilities created
by the Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property in respect
thereof and the distribution to Certificateholders of all amounts required to
be distributed pursuant to the Agreement. In no event, however, will the trust
created by the Agreement continue beyond the
E-2
expiration of 21 years from the death of the last survivor of the descendants
living at the date of the Agreement of a certain person named in the
Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, _____________________________________________
_____________________________________________________________________________
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ________________________, or, if mailed by check, to _________.
Applicable statements should be mailed to ___________________________________
_____________________________________________________________________________
_____________________________________________________________________________.
This information is provided by ____________________________________,
the assignee named above, or ________________________________________________,
as its agent.
E-4
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary
public in and for said State, personally appeared ____________________________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
______________________________
Notary Public
[Notarial Seal]
E-5
EXHIBIT F-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, (the
"Agreement"), relating to the above-referenced Series, by and among CWALT,
Inc., as depositor (the "Depositor"), Countrywide Home Loans, Inc., as a
Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as a Seller, Park
Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP, as master
servicer and The Bank of New York, as Trustee. Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to
such terms in the Agreement. The Transferee has authorized the undersigned to
make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account or as the nominee,
trustee or agent of another Person, in which case the Transferee has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit
I-1
that such record holder is a Permitted Transferee and the pass-through entity
does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a
real estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives and, except as may be provided in Treasury
Regulations, persons holding interests in pass-through entities as a nominee
for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by the provisions of Section 5.02(c) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is _______________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee anticipates that it will, so long as it holders the
Class A-R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class A-R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class A-R Certificates that
the Transferee intends to pay taxes associated with holding such Class A-R
Certificates as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class A-R
Certificates. The Transferee has provided
I-2
financial statements or other financial information requested by the
Transferor in connection with the transfer of the Class A-R Certificates to
permit the Transferor to assess the financial capability of the Transferee to
pay such taxes. The Transferee is not an employee benefit plan that is subject
to ERISA or a plan that is subject to Section 4975 of the Code, and the
Transferee is not acting on behalf of such a plan.
12. Either (i) the Transferee is not an employee benefit plan subject to
Section 406 of ERISA or a plan or arrangement subject to Section 4975 of the
Code, or a person acting on behalf of or investing the assets of any such
benefit plan or arrangement to effect such acquisition, or, (ii) the source of
funds for the purchase of such Class A-R Certificate is an "insurance company
general account" within the meaning of Prohibited Transaction Class Exemption
95-60 (PTCE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995), and the terms and
conditions of Sections I and III of PTCE 95-60 are applicable to the
acquisition and holding of such Class A-R Certificate.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ___ day of _______________, 20__.
---------------------------------
PRINT NAME OF TRANSFEREE
By: _____________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_________________________
[Assistant] Secretary
Personally appeared before me the above-named _______________, known
or proved to me to be the same person who executed the foregoing instrument
and to be the _______________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed and sworn before me this _____ day of _________, 20__.
_________________________________
NOTARY PUBLIC
My Commission expires the
___ day of _____________, 20__
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest
in such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) which is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Class A-R Certificate, (iv) rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) an "electing partnership" as
defined in Code Section 775, (vi) a Person that is not a citizen or resident
of the United States, a corporation, partnership, or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof, an estate or trust whose income from sources without the
United States is includible in gross income for United States federal income
tax purposes regardless of its connection with the conduct of a trade or
business within the United States, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States fiduciaries have the authority to control
all substantial decisions of the trust unless such Person has furnished the
transferor and the Trustee with a duly completed Internal Revenue Service Form
W-8ECI or any applicable successor form, and (vii) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Class A-R Certificate to such Person may cause
the Trust Fund to fail to qualify as a REMIC at any time that certain
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and with the exception of
the FHLMC, a majority of its board or directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
I-5
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-6
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in a
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Class A-R Certificate
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its
Ownership Interest in a Class A-R Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Class A-R
Certificate and (C) not to Transfer its Ownership Interest in a Class
A-R Certificate or to cause the Transfer of an Ownership Interest in a
Class A-R Certificate to any other Person if it has actual knowledge
that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Class A-R Certificate in violation of the provisions of this
Section 5.02(c) shall be absolutely null and void and shall vest no
rights in the purported Transferee. If any purported transferee shall
become a Holder of a Class A-R Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof retroactive
to the date of registration of Transfer of such Class A-R Certificate.
The Trustee shall be under no liability to any Person for any
registration of Transfer of a Class A-R Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any
payments due on such Certificate to the Holder thereof or taking any
other action with respect to such Holder under the provisions of this
Agreement so long as the Transfer was registered after receipt of the
related Transfer Affidavit, Transferor Certificate and either the Rule
144A Letter or the Investment Letter. The Trustee shall be entitled but
not obligated to recover from any
I-7
Holder of a Class A-R Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as
it became other than a Permitted Transferee, all payments made on such
Class A-R Certificate at and after either such time. Any such payments
so recovered by the Trustee shall be paid and delivered by the Trustee
to the last preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Class A-R
Certificate to any Holder who is not a Permitted Transferee.
I-8
EXHIBIT J-1
[FORM OF] TRANSFEROR CERTIFICATE
(RESIDUAL)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re:CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
--------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that to the extent we are disposing of a Class A-R Certificate, we have no
knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
-------------------------------------
Print Name of Transferor
By:
-----------------------------------
Authorized Officer
J-1-1
EXHIBIT J-2
[FORM OF] TRANSFEROR CERTIFICATE
(PRIVATE)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re:CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
--------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Act"), and are
being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act.
Very truly yours,
-------------------------------------
Print Name of Transferor
By:
-----------------------------------
Authorized Officer
J-2-1
EXHIBIT K
[FORM OF] INVESTMENT LETTER (NON-RULE 144A)
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
--------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of or investing the assets of any such benefit plan or
arrangement to effect such acquisition or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting and we are an insurance
company, we are purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the
purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60,
K-1
(e) we are acquiring the Certificates for investment for our own account and
not with a view to any distribution of such Certificates (but without
prejudice to our right at all times to sell or otherwise dispose of the
Certificates in accordance with clause (g) below), (f) we have not offered or
sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of
Section 5 of the Act, and (g) we will not sell, transfer or otherwise dispose
of any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act or is
exempt from such registration requirements, and if requested, we will at our
expense provide an opinion of counsel satisfactory to the addressees of this
Certificate that such sale, transfer or other disposition may be made pursuant
to an exemption from the Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially
the same effect as this certificate, and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling
and Servicing Agreement.
Very truly yours,
-------------------------------------
Print Name of Transferor
By:
-----------------------------------
Authorized Officer
K-2
EXHIBIT L
[FORM OF] RULE 144A LETTER
---------------------
Date
CWALT, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx - 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mortgage-Backed Securities Group
Series 200_-_
Re: CWALT, Inc. Mortgage Pass-Through Certificates,
Series 200_-_, Class
--------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of or investing the assets of any such benefit plan or
arrangement to effect such acquisition or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting and we are an insurance
company, we are purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the
purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or
L-1
otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action, that would constitute a distribution of the
Certificates under the Securities Act or that would render the disposition of
the Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
(f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
Very truly yours,
-------------------------------------
Print Name of Transferee
By:
-----------------------------------
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis either at least $100,000 in securities or,
if Buyer is a dealer, Buyer must own and/or invest on a discretionary basis at
least $10,000,000 in securities (except for the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other
than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or charitable
organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State,
territory or the District of Columbia, the business
of which is substantially confined to banking and
is supervised by the State or territorial banking
commission or similar official or is a foreign bank
or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy
of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
L-3
___ Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange
Act of 1934.
___ Insurance Company. The Buyer is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by
the insurance commissioner or a similar official or
agency of a State, territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan
established and maintained by a State, its
political subdivisions, or any agency or
instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan
within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment
advisor registered under the Investment Advisors Act
of 1940.
___ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S.
Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22)
of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part
of an unsold allotment to or subscription by the Buyer, if the Buyer is a
dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned,
L-4
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer
is a bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after
they become available.
--------------------------------------
Print Name of Buyer
By:
-----------------------------------
Name:
Title:
Date:
--------------------------------
L-5
ANNEX 2 TO EXHIBIT L
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because
Buyer is part of a Family of Investment Companies (as defined below), is
such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i)
the Buyer is an investment company registered under the Investment
Company Act of 1940, as amended and (ii) as marked below, the Buyer
alone, or the Buyer's Family of Investment Companies, owned at least
$100,000,000 in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or
the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on
the basis of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If clause
(ii) in the preceding sentence applies, the securities may be valued at
market.
___ The Buyer owned $_______ in securities (other than
the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with
Rule 144A).
___ The Buyer is part of a Family of Investment
Companies which owned in the aggregate $_________
in securities (other than the excluded securities
referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned subsidiary
of the other).
L-6
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of
the Buyer's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate
to which this certification relates of any changes in the information
and conclusions herein. Until such notice is given, the Buyer's purchase
of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
--------------------------------
Print Name of Buyer or Adviser
By:
----------------------------
Name:
Title:
IF AN ADVISER:
--------------------------------
Print Name of Buyer
Date:
--------------------------
L-7
EXHIBIT M
[FORM OF] REQUEST FOR RELEASE
(for Trustee)
CWALT, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
----------------
Name of Mortgagor: ____________________________________________
Servicer Loan No.: ____________________________________________
Trustee
-------
Name: ____________________________________________
Address: ____________________________________________
____________________________________________
____________________________________________
Trustee
Mortgage File No.:
____________________________________________
The undersigned Master Servicer hereby acknowledges that it has
received from The Bank of New York, as Trustee for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, the documents
referred to below (the "Documents"). All capitalized terms not otherwise
defined in this Request for Release shall have the meanings given them in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series among the Trustee, Countrywide Home
Loans, Inc., as a Seller, Park Granada LLC, as a Seller, Park Monaco, Inc., as
a Seller, Park Sienna LLC, as a Seller, Countrywide Home Loans Servicing LP,
as Master Servicer and CWALT, Inc., as Depositor.
( ) Mortgage Note dated _______________, 20__, in the original
principal sum of $___________, made by ____________________________,
payable to, or endorsed to the order of, the Trustee.
( ) Mortgage recorded on __________________ as instrument no.
______________________ in the County Recorder's Office of the County
of _________________________, State of _______________________ in
book/reel/docket _________________________ of official records at
page/image
____________________________.
M-1
( ) Deed of Trust recorded on ______________________ as instrument no.
___________ in the County Recorder's Office of the County of
__________________________, State of _____________________ in
book/reel/docket _________________________ of official records at
page/image ____________________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_____________________ as instrument no. __________________ in the
County Recorder's Office of the County of _____________________,
State of ___________________ in book/reel/docket ________________ of
official records at page/image
____________________________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) _______________________________________________________________
( ) _______________________________________________________________
( ) _______________________________________________________________
( ) _______________________________________________________________
The undersigned Master Servicer hereby acknowledges and agrees as follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Servicer assert or seek to assert any claims or rights of
setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been
remitted to the Certificate Account and except as expressly provided in
the Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master
Servicer shall at all times be earmarked for the account of the Trustee,
and the Master Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Master Servicer's
possession, custody or control.
M-2
COUNTRYWIDE HOME LOANS
SERVICING LP
By
---------------------------
Its
--------------------------
Date:_________________, 20__
M-3
EXHIBIT N
[FORM OF] REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York Attn: Mortgage Custody
Services
Re: The Pooling & Servicing Agreement dated [month] 1, 200_,
among Countrywide Home Loans, Inc., as a Seller, Park
Granada LLC, as a Seller, Park Monaco, Inc., as a Seller,
Park Sienna LLC, as a Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, CWALT, Inc. and The Bank
of New York, as Trustee
----------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Trustee for CWALT, Inc., we request the release of the Mortgage Loan
File for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
1. Mortgage Loan paid in full (Countrywide Home Loans, Inc.
hereby certifies that all amounts have been received).
2. Mortgage Loan Liquidated (Countrywide Home Loans, Inc.
hereby certifies that all proceeds of foreclosure,
insurance, or other liquidation have been finally received).
3. Mortgage Loan in Foreclosure.
4. Other (explain):
If item 1 or 2 above is checked, and if all or part of the Mortgage
File was previously released to us, please release to us our previous receipt
on file with you, as well as any additional documents in your possession
relating to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon
return of all of the above documents to you as Trustee, please acknowledge
your receipt by signing in the space indicated below, and returning this form.
N-1
COUNTRYWIDE HOME LOANS, INC.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Date:
----------------------------------------------
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Date:
----------------------------------------------
N-2
EXHIBIT O
[RESERVED]
O-1
EXHIBIT P
[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 CHL Mortgage Pass-Through 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
STANDARD & POOR'S LEVELS(R) VERSION 5.6b GLOSSARY REVISED, APPENDIX E
APPENDIX E - Standard & Poor's Anti-Predatory Lending Categorization
--------------------------------------------------------------------
Standard & Poor's has categorized loans governed by anti-predatory lending
laws in the Jurisdictions listed below into three categories based upon a
combination of factors that include (a) the risk exposure associated with the
assignee liability and (b) the tests and thresholds set forth in those laws.
Note that certain loans classified by the relevant statute as Covered are
included in Standard & Poor's High Cost Loan Category because they included
thresholds and tests that are typical of what is generally considered High
Cost by the industry.
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. Code High Cost Home Loan
Xxx. xx.xx. 00-00-000 et seq.
Effective July 16, 2003
---------------------------------------------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code xx.xx. Covered Loan
757.01 et seq.
Effective June 2, 2003
---------------------------------------------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Stat. Xxx. xx.xx. Covered Loan
5-3.5-101 et seq.
Effective for covered loans offered or entered
into on or after January 1, 2003. Other
provisions of the Act took effect on June 7,
2002
---------------------------------------------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan Lending Practices High Cost Home Loan
Act, Conn. Gen. Stat. xx.xx. 36a-746 et seq.
Effective October 1, 2001
---------------------------------------------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Code xx.xx. Covered Loan
26-1151.01 et seq.
Effective for loans closed on or after January
28, 2003
---------------------------------------------------------------------------------------------------------------------
Q-1
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. 494.0078 High Cost Home Loan
et seq.
Effective October 2, 2002
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. High Cost Home Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
Georgia as amended (Mar. 7, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. High Cost Home Loan
- current) 7-6A-1 et seq.
Effective for loans closed on or after March 7,
2003
---------------------------------------------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity Protection Act of High Cost Loan
1994, 15 U.S.C. ss. 1639, 12 C.F.R. xx.xx. 226.32
and 226.34
Effective October 1, 1995, amendments October
1, 2002
---------------------------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. Comp. Stat. tit. High Risk Home Loan
815, xx.xx. 137/5 et seq.
Effective January 1, 2004 (prior to this date,
regulations under Residential Mortgage License
Act effective from May 14, 2001)
---------------------------------------------------------------------------------------------------------------------
Indiana Indiana Home Loan Practices Act, Ind. Code Xxx. High Cost Home Loan
xx.xx. 24-9-1-1 et seq.
Effective for loans originated on or after
January 1, 2005.
---------------------------------------------------------------------------------------------------------------------
Q-2
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. xx.xx. High Loan to Value Consumer
16a-1-101 et seq. Loan (id. ss. 16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 became
effective April 14, 1999; Section 16a-3-308a
became effective July 1, 1999
----------------------------
High APR Consumer Loan (id. ss.
16a-3-308a)
---------------------------------------------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. High Cost Home Loan
Rev. Stat. xx.xx. 360.100 et seq.
Effective June 24, 2003
---------------------------------------------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, xx.xx. High Rate High Fee Mortgage
8-101 et seq.
Effective September 29, 1995 and as amended
from time to time
---------------------------------------------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. xx.xx. 32.00 et High Cost Home Loan
seq. and 209 C.M.R. xx.xx. 40.01 et seq.
Effective March 22, 2001 and amended from time
to time
---------------------------------------------------------------------------------------------------------------------
Massachusetts Predatory Home Loan Practices Act High Cost Home Mortgage Loan
Mass. Gen. Laws ch. 183C, xx.xx. 1 et seq.
Effective November 7, 2004
---------------------------------------------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. xx.xx. Home Loan
598D.010 et seq.
Effective October 1, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, High Cost Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-
---------------------------------------------------------------------------------------------------------------------
Q-3
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
22 et seq.
Effective for loans closed on or after November
27, 2003
---------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. xx.xx. High Cost Home Loan
58-21A-1 et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
---------------------------------------------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on or after
April 1, 2003
---------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home High Cost Home Loan
Loans, N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
---------------------------------------------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various sections of the Covered Loan
Ohio Code), Ohio Rev. Code Xxx. xx.xx. 1349.25 et
seq.
Effective May 24, 2002
---------------------------------------------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
---------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after January
1, 2004
---------------------------------------------------------------------------------------------------------------------
West Virginia West Virginia Residential Mortgage Lender, West Virginia Mortgage Loan
Broker and Servicer Act, W. Va. Code Xxx. xx.xx. Act Loan
31-17-1 et seq.
---------------------------------------------------------------------------------------------------------------------
Q-4
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Effective June 5, 2002
---------------------------------------------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
---------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. Covered Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Covered Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 et seq.
Effective November 27, 2003 - July 5, 2004
---------------------------------------------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. Home Loan
2003) 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
---------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 et seq.
Effective for loans closed on or after November
27, 2003
---------------------------------------------------------------------------------------------------------------------
Q-5
Standard & Poor's Home Loan Categorization
------------------------------------------
---------------------------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Law/Effective Category under Applicable
Date Anti-Predatory Lending Law
---------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. xx.xx. Home Loan
58-21A-1 et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
---------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Consumer Home Loan
Loans, N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
---------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after January
1, 2004
---------------------------------------------------------------------------------------------------------------------
Q-6
EXHIBIT R
[FORM OF] CAP CONTRACT
Delivered to Trustee at closing and on file with the Trustee.
R-1
EXHIBIT S
[FORM OF] ASSIGNMENT AGREEMENT
Delivered to Trustee at closing and on file with the Trustee.
S-1
