EXHIBIT 4
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BCAP TRUST LLC 2007-AA5
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-AA5
POOLING AND SERVICING AGREEMENT
among
BCAP LLC,
Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer, Securities Administrator and Custodian
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
Dated September 1, 2007
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions..................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Custodian of the Mortgage Loans............
Section 2.03 Execution and Delivery of Certificates.......................
Section 2.04 REMIC Matters................................................
Section 2.05 Representations and Warranties of the Depositor..............
Section 2.06 Representations and Warranties of the Trustee................
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Distribution Account and Excess Reserve Fund Account.........
Section 3.02 Investment of Funds in the Distribution Account..............
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution...................................
Section 4.02 Monthly Statements to Certificateholders.....................
Section 4.03 Allocation of Applied Realized Loss Amounts..................
Section 4.04 Certain Matters Relating to the Determination of LIBOR.......
Section 4.05 Supplemental Interest Account and Posted Collateral
Account.....................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates....................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.04 Persons Deemed Owners........................................
Section 5.05 Access to List of Certificateholders' Names and Addresses....
Section 5.06 Maintenance of Office or Agency..............................
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor......................
Section 6.02 Merger or Consolidation of the Depositor.....................
Section 6.03 Limitation on Liability of the Depositor and Others..........
Section 6.04 Option to Purchase Defaulted Mortgage Loans..................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Master Servicer to Act; Appointment of Successor.............
Section 7.03 Master Servicer to Act as Servicer...........................
Section 7.04 Notification to Certificateholders...........................
ARTICLE VIII
CONCERNING THE TRUSTEE, VARIOUS TAX MATTERS, SERVICING REPORTS AND
PERIODIC FILINGS
Section 8.01 Duties of the Trustee........................................
Section 8.02 [Reserved]...................................................
Section 8.03 Certain Matters Affecting the Trustee........................
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans........
Section 8.05 Trustee May Own Certificates.................................
Section 8.06 Trustee's and Custodian's Fees and Expenses..................
Section 8.07 Eligibility Requirements for the Trustee.....................
Section 8.08 Resignation and Removal of the Trustee.......................
Section 8.09 Successor Trustee............................................
Section 8.10 Merger or Consolidation of the Trustee.......................
Section 8.11 Appointment of Co-Trustee or Separate Trustee................
Section 8.12 Tax Matters..................................................
Section 8.13 Annual Statement as to Compliance............................
Section 8.14 Annual Reports on Assessment of Compliance with Servicing
Criteria; Annual Independent Public Accountants'
Attestation Report..........................................
Section 8.15 Periodic Filings.............................................
Section 8.16 Tax Classification of the Excess Reserve Fund Account and
the Interest Rate Cap Agreement, the Supplemental
Interest Account and the Interest Rate Swap Agreement.......
Section 8.17 Monthly Data File............................................
ARTICLE IX
ADMINISTRATION OF THE
MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's
Obligations.................................................
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance...................................................
Section 9.03 Representations and Warranties of the Master Servicer........
Section 9.04 Master Servicer Events of Default............................
Section 9.05 Waiver of Default............................................
Section 9.06 Successor to the Master Servicer.............................
Section 9.07 Compensation of the Master Servicer..........................
Section 9.08 Merger or Consolidation......................................
Section 9.09 Resignation of the Master Servicer...........................
Section 9.10 Assignment or Delegation of Duties by the Master Servicer....
Section 9.11 Limitation on Liability of the Master Servicer...............
Section 9.12 Indemnification; Third Party Claims..........................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator...........................
Section 10.02 Certain Matters Affecting the Securities Administrator.......
Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans..............................................
Section 10.04 Securities Administrator May Own Certificates................
Section 10.05 Securities Administrator's Fees and Expenses.................
Section 10.06 Eligibility Requirements for Securities Administrator........
Section 10.07 Resignation and Removal of Securities Administrator..........
Section 10.08 Successor Securities Administrator...........................
Section 10.09 Merger or Consolidation of Securities Administrator..........
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator...............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.......................................................
Section 11.02 Final Distribution on the Certificates.......................
Section 11.03 Additional Termination Requirements..........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Governing Law................................................
Section 12.04 Intention of Parties.........................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Limitation on Rights of Certificateholders...................
Section 12.08 Certificates Nonassessable and Fully Paid....................
Section 12.09 Waiver of Jury Trial.........................................
Section 12.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness..............................................
Section 12.11 Third Party Rights...........................................
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
EXHIBIT A Form of Class A and Class M Certificates
EXHIBIT B Form of Class R Certificates
EXHIBIT C Form of Class CE Certificates
EXHIBIT D Form of Request for Release
EXHIBIT E Form of Initial Certification of Custodian
EXHIBIT F Form of Document Certification and Exception Report
of Custodian
EXHIBIT G Form of Residual Transfer Affidavit
EXHIBIT H Form of Transferor Certificate
EXHIBIT I Form of Rule 144A Letter
EXHIBIT J Form of Certification to be Provided with Form 10-K
EXHIBIT K Form of Securities Administrator Certification to be
Provided to Master Servicer
EXHIBIT L Countrywide Assignment Agreements
EXHIBIT M-1 Countrywide Purchase Agreement
EXHIBIT M-2 Countrywide Servicing Agreement
EXHIBIT M-3 Amendment Reg AB
EXHIBIT N Interest Rate Swap Agreement and Interest Rate Cap
Agreement
EXHIBIT O Servicing Criteria
EXHIBIT P Additional Form 10-D Disclosure
EXHIBIT Q Additional Form 10-K Disclosure
EXHIBIT R Form 8-K Disclosure Information
EXHIBIT S Additional Disclosure Notification
EXHIBIT T Representation Letter
EXHIBIT U Loan Level Data Report
THIS POOLING AND SERVICING AGREEMENT, dated as of September 1, 2007
(this "Agreement"), is hereby executed by and between BCAP LLC, a Delaware
limited liability company (the "Depositor"), XXXXX FARGO BANK, N.A., as
securities administrator (in such capacity, the "Securities Administrator"), as
master servicer (in such capacity, the "Master Servicer") and custodian (in such
capacity, the "Custodian") and HSBC BANK USA, NATIONAL ASSOCIATION, as trustee
(the "Trustee").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator shall elect that four segregated asset
pools within the Trust Fund (exclusive of (i) the Interest Rate Swap Agreement
and the Interest Rate Cap Agreement, (ii) the Supplemental Interest Account,
(iii) the Excess Reserve Fund Account, (iv) the right of the Offered
Certificates to receive Basis Risk Carry Forward Amounts subject to the
obligation to pay Class IO Shortfalls be treated for federal income tax purposes
as comprising four REMICs (each, a "Trust REMIC" or, in the alternative, Pooling
Tier REMIC-1, Pooling Tier REMIC-2, the Lower Tier REMIC and the Upper Tier
REMIC, respectively).
Each Class of Certificates (other than the Class R Certificates),
other than the right of each Class of Offered Certificates to receive Basis Risk
Carry Forward Amounts and the obligation to pay Class IO Shortfalls, and the
right of the Class CE Certificates to receive payments from the Interest Rate
Swap Agreement and the Interest Rate Cap Agreement, and the right to receive
Class IO Shortfalls, represents ownership of a regular interest in the Upper
Tier REMIC for purposes of the REMIC Provisions. The Class R Certificates
represent ownership of the sole Class of residual interest in each of Pooling
Tier REMIC-1, Pooling Tier REMIC-2, the Lower Tier REMIC and the Upper Tier
REMIC for purposes of the REMIC Provisions. The Startup Day for each Trust REMIC
is the Closing Date. The latest possible maturity date for each regular interest
is the latest date referenced in Section 2.04.
The Upper Tier REMIC shall hold as assets the several Classes of
uncertificated Lower Tier Regular Interests, set out below. The Lower Tier REMIC
shall hold as assets the several Classes of uncertificated Pooling Tier REMIC-2
Regular Interests. Pooling Tier REMIC-2 shall hold as assets the several Classes
of uncertificated Pooling Tier REMIC-1 Regular Interests. Pooling Tier REMIC-1
shall hold as assets the assets relating to the Trust Fund (exclusive of (i) the
Interest Rate Swap Agreement and the Interest Rate Cap Agreement, (ii) the
Supplemental Interest Account, (iii) the Excess Reserve Fund Account, and (iv)
the right of the Offered Certificates to receive Basis Risk Carry Forward
Amounts and the obligation to pay Class IO Shortfalls).
For federal income tax purposes, each Class of Offered Certificates
represents beneficial ownership of a regular interest in the Upper Tier REMIC
and the right to receive Basis Risk Carry Forward Amounts, subject to the
obligation to pay Class IO Shortfalls, and the Class CE Certificates represent
beneficial ownership of two regular interests in the Upper Tier REMIC, the
Excess Reserve Fund Account, the Supplemental Interest Account, the Interest
Rate Swap Agreement and the Interest Rate Cap Agreement, which portions of the
Trust Fund shall be treated as a grantor trust.
Pooling Tier REMIC-1
Pooling Tier REMIC-1 shall issue the following interests in Pooling
Tier REMIC-1, and each such interest, other than the Class PT-1-R Interest, is
hereby designated as a regular interest in Pooling Tier REMIC-1. Pooling Tier
REMIC-1 shall also issue the Class PT-1-R Interest. The Class PT-1 R Interest is
hereby designated as the sole Class of residual interest in Pooling Tier
REMIC-1.
Pooling Tier Pooling Tier Initial Pooling Tier
REMIC-1 REMIC-1 REMIC-1
Interest Interest Rate Principal Amount
----------------- ---------------- ----------------------
Class PT-1-1 (1) $107,406,725.35
Class PT-1-2A (2) $ 1,580,210.40
Class PT-1-2B (3) $ 1,580,210.40
Class PT-1-3A (2) $ 1,551,023.85
Class PT-1-3B (3) $ 1,551,023.85
Class PT-1-4A (2) $ 2,729,339.47
Class PT-1-4B (3) $ 2,729,339.47
Class PT-1-5A (2) $ 1,472,020.42
Class PT-1-5B (3) $ 1,472,020.42
Class PT-1-6A (2) $ 1,444,829.98
Class PT-1-6B (3) $ 1,444,829.98
Class PT-1-7A (2) $ 1,418,141.41
Class PT-1-7B (3) $ 1,418,141.41
Class PT-1-8A (2) $ 1,391,945.44
Class PT-1-8B (3) $ 1,391,945.44
Class PT-1-9A (2) $ 1,366,233.02
Class PT-1-9B (3) $ 1,366,233.02
Class PT-1-10A (2) $ 1,340,995.19
Class PT-1-10B (3) $ 1,340,995.19
Class PT-1-11A (2) $ 1,316,223.21
Class PT-1-11B (3) $ 1,316,223.21
Class PT-1-12A (2) $ 1,291,908.49
Class PT-1-12B (3) $ 1,291,908.49
Class PT-1-13A (2) $ 1,268,042.59
Class PT-1-13B (3) $ 1,268,042.59
Class PT-1-14A (2) $ 1,244,617.23
Class PT-1-14B (3) $ 1,244,617.23
Class PT-1-15A (2) $ 1,221,624.29
Class PT-1-15B (3) $ 1,221,624.29
Class PT-1-16A (2) $ 1,199,055.77
Class PT-1-16B (3) $ 1,199,055.77
Class PT-1-17A (2) $ 1,176,903.86
Class PT-1-17B (3) $ 1,176,903.86
Class PT-1-18A (2) $ 1,155,160.88
Class PT-1-18B (3) $ 1,155,160.88
Class PT-1-19A (2) $ 1,133,819.26
Class PT-1-19B (3) $ 1,133,819.26
Class PT-1-20A (2) $ 1,168,814.36
Class PT-1-20B (3) $ 1,168,814.36
Class PT-1-21A (2) $ 1,091,280.02
Class PT-1-21B (3) $ 1,091,280.02
Class PT-1-22A (2) $ 1,071,117.63
Class PT-1-22B (3) $ 1,071,117.63
Class PT-1-23A (2) $ 1,051,327.46
Class PT-1-23B (3) $ 1,051,327.46
Class PT-1-24A (2) $ 1,031,902.63
Class PT-1-24B (3) $ 1,031,902.63
Class PT-1-25A (2) $ 1,012,836.41
Class PT-1-25B (3) $ 1,012,836.41
Class PT-1-26A (2) $ 994,122.16
Class PT-1-26B (3) $ 994,122.16
Class PT-1-27A (2) $ 1,531,592.56
Class PT-1-27B (3) $ 1,531,592.56
Class PT-1-28A (2) $ 946,696.02
Class PT-1-28B (3) $ 946,696.02
Class PT-1-29A (2) $ 929,213.08
Class PT-1-29B (3) $ 929,213.08
Class PT-1-30A (2) $ 4,895,756.93
Class PT-1-30B (3) $ 4,895,756.93
Class PT-1-31A (2) $ 10,413,782.20
Class PT-1-31B (3) $ 10,413,782.20
Class PT-1-32A (2) $ 1,093,577.50
Class PT-1-32B (3) $ 1,093,577.50
Class PT-1-33A (2) $ 609,491.48
Class PT-1-33B (3) $ 609,491.48
Class PT-1-34A (2) $ 598,226.84
Class PT-1-34B (3) $ 598,226.84
Class PT-1-35A (2) $ 587,170.20
Class PT-1-35B (3) $ 587,170.20
Class PT-1-36A (2) $ 576,317.72
Class PT-1-36B (3) $ 576,317.72
Class PT-1-37A (2) $ 565,665.63
Class PT-1-37B (3) $ 565,665.63
Class PT-1-38A (2) $ 555,210.23
Class PT-1-38B (3) $ 555,210.23
Class PT-1-39A (2) $ 544,947.90
Class PT-1-39B (3) $ 544,947.90
Class PT-1-40A (2) $ 534,875.08
Class PT-1-40B (3) $ 534,875.08
Class PT-1-41A (2) $ 524,988.25
Class PT-1-41B (3) $ 524,988.25
Class PT-1-42A (2) $ 515,284.02
Class PT-1-42B (3) $ 515,284.02
Class PT-1-43A (2) $ 505,758.98
Class PT-1-43B (3) $ 505,758.98
Class PT-1-44A (2) $ 496,409.83
Class PT-1-44B (3) $ 496,409.83
Class PT-1-45A (2) $ 487,233.34
Class PT-1-45B (3) $ 487,233.34
Class PT-1-46A (2) $ 478,226.32
Class PT-1-46B (3) $ 478,226.32
Class PT-1-47A (2) $ 469,385.63
Class PT-1-47B (3) $ 469,385.63
Class PT-1-48A (2) $ 460,708.21
Class PT-1-48B (3) $ 460,708.21
Class PT-1-49A (2) $ 452,191.04
Class PT-1-49B (3) $ 452,191.04
Class PT-1-50A (2) $ 879,456.89
Class PT-1-50B (3) $ 879,456.89
Class PT-1-51A (2) $ 427,571.79
Class PT-1-51B (3) $ 427,571.79
Class PT-1-52A (2) $ 419,666.61
Class PT-1-52B (3) $ 419,666.61
Class PT-1-53A (2) $ 411,907.43
Class PT-1-53B (3) $ 411,907.43
Class PT-1-54A (2) $ 404,291.57
Class PT-1-54B (3) $ 404,291.57
Class PT-1-55A (2) $ 396,816.37
Class PT-1-55B (3) $ 396,816.37
Class PT-1-56A (2) $ 481,269.73
Class PT-1-56B (3) $ 481,269.73
Class PT-1-57A (2) $ 17,398,215.40
Class PT-1-57B (3) $ 17,398,215.40
Class PT-1-58A (2) $ 2,965,100.19
Class PT-1-58B (3) $ 2,965,100.19
Class PT-1-59A (2) $ 187,257.89
Class PT-1-59B (3) $ 187,257.89
Class PT-1-R (4) (4)
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the Pooling Tier
REMIC-1 Net WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling Tier REMIC-1 Net WAC Rate, subject to a maximum
rate of 9.95%.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling Tier REMIC-1 Net WAC
Rate over (B) 9.95%.
(4) The Class PT-1-R Interest shall not have a principal balance and shall not
bear interest.
On each Distribution Date, the Securities Administrator shall first
pay from the Trust Fund out of the Mortgage Loans and charge as an expense of
Pooling Tier REMIC-1 all expenses of the Trust relating to the Mortgage Loans
for such Distribution Date. Such expense shall be allocated in the same manner
as Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be deemed to be distributed
to the Pooling Tier REMIC-1 Regular Interests at the rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Mortgage Loans shall be allocated to
the outstanding Pooling Tier REMIC-1 Regular Interest with the lowest numerical
denomination until the Pooling Tier REMIC-1 Principal Amount of each such
interest or interests, as the case may be, is reduced to zero, provided that,
with respect to Pooling Tier REMIC-1 Regular Interests with the same numerical
denomination, such Realized Losses and payments of principal shall be allocated
pro rata between such Pooling Tier REMIC-1 Regular Interests.
Pooling Tier REMIC-2
Pooling Tier REMIC-2 shall issue the following interests in Pooling
Tier REMIC-2, and each such interest, other than the Class PT-2-R Interest, is
hereby designated as a regular interest in Pooling Tier REMIC-2. The Class
PT-2-R Interest is hereby designated as the sole Class of residual interest in
Pooling Tier REMIC-2 and shall be represented by the Class R Certificates.
Corresponding
Pooling Tier Corresponding Pooling Tier Corresponding
Pooling Tier Pooling Tier REMIC-2 Pooling Tier REMIC-1 Scheduled
REMIC-2 REMIC-2 Initial Principal REMIC-2 Regular Crossover
Interest Interest Rate Amount IO Interest Interest Distribution Date
------------- ------------- ----------------- -------------- ------------- -----------------
Class PT-2-1 (1) $107,406,725.35 N/A N/A N/A
Class PT-2-2A (2) $ 1,580,210.40 Class PT-2-IO-2 N/A N/A
Class PT-2-2B (3) $ 1,580,210.40 N/A N/A N/A
Class PT-2-3A (2) $ 1,551,023.85 Class PT-2-IO-3 N/A N/A
Class PT-2-3B (3) $ 1,551,023.85 N/A N/A N/A
Class PT-2-4A (2) $ 2,729,339.47 Class PT-2-IO-4 N/A N/A
Class PT-2-4B (3) $ 2,729,339.47 N/A N/A N/A
Class PT-2-5A (2) $ 1,472,020.42 Class PT-2-IO-5 N/A N/A
Class PT-2-5B (3) $ 1,472,020.42 N/A N/A N/A
Class PT-2-6A (2) $ 1,444,829.98 Class PT-2-IO-6 N/A N/A
Class PT-2-6B (3) $ 1,444,829.98 N/A N/A N/A
Class PT-2-7A (2) $ 1,418,141.41 Class PT-2-IO-7 N/A N/A
Class PT-2-7B (3) $ 1,418,141.41 N/A N/A N/A
Class PT-2-8A (2) $ 1,391,945.44 Class PT-2-IO-8 N/A N/A
Class PT-2-8B (3) $ 1,391,945.44 N/A N/A N/A
Class PT-2-9A (2) $ 1,366,233.02 Class PT-2-IO-9 N/A N/A
Class PT-2-9B (3) $ 1,366,233.02 N/A N/A N/A
Class PT-2-10A (2) $ 1,340,995.19 Class PT-2-IO-10 N/A N/A
Class PT-2-10B (3) $ 1,340,995.19 N/A N/A N/A
Class PT-2-11A (2) $ 1,316,223.21 Class PT-2-IO-11 N/A N/A
Class PT-2-11B (3) $ 1,316,223.21 N/A N/A N/A
Class PT-2-12A (2) $ 1,291,908.49 Class PT-2-IO-12 N/A N/A
Class PT-2-12B (3) $ 1,291,908.49 N/A N/A N/A
Class PT-2-13A (2) $ 1,268,042.59 Class PT-2-IO-13 N/A N/A
Class PT-2-13B (3) $ 1,268,042.59 N/A N/A N/A
Class PT-2-14A (2) $ 1,244,617.23 Class PT-2-IO-14 N/A N/A
Class PT-2-14B (3) $ 1,244,617.23 N/A N/A N/A
Class PT-2-15A (2) $ 1,221,624.29 Class PT-2-IO-15 N/A N/A
Class PT-2-15B (3) $ 1,221,624.29 N/A N/A N/A
Class PT-2-16A (2) $ 1,199,055.77 Class PT-2-IO-16 N/A N/A
Class PT-2-16B (3) $ 1,199,055.77 N/A N/A N/A
Class PT-2-17A (2) $ 1,176,903.86 Class PT-2-IO-17 N/A N/A
Class PT-2-17B (3) $ 1,176,903.86 N/A N/A N/A
Class PT-2-18A (2) $ 1,155,160.88 Class PT-2-IO-18 N/A N/A
Class PT-2-18B (3) $ 1,155,160.88 N/A N/A N/A
Class PT-2-19A (2) $ 1,133,819.26 Class PT-2-IO-19 N/A N/A
Class PT-2-19B (3) $ 1,133,819.26 N/A N/A N/A
Class PT-2-20A (2) $ 1,168,814.36 Class PT-2-IO-20 N/A N/A
Class PT-2-20B (3) $ 1,168,814.36 N/A N/A N/A
Class PT-2-21A (2) $ 1,091,280.02 Class PT-2-IO-21 N/A N/A
Class PT-2-21B (3) $ 1,091,280.02 N/A N/A N/A
Class PT-2-22A (2) $ 1,071,117.63 Class PT-2-IO-22 N/A N/A
Class PT-2-22B (3) $ 1,071,117.63 N/A N/A N/A
Class PT-2-23A (2) $ 1,051,327.46 Class PT-2-IO-23 N/A N/A
Class PT-2-23B (3) $ 1,051,327.46 N/A N/A N/A
Class PT-2-24A (2) $ 1,031,902.63 Class PT-2-IO-24 N/A N/A
Class PT-2-24B (3) $ 1,031,902.63 N/A N/A N/A
Class PT-2-25A (2) $ 1,012,836.41 Class PT-2-IO-25 N/A N/A
Class PT-2-25B (3) $ 1,012,836.41 N/A N/A N/A
Class PT-2-26A (2) $ 994,122.16 Class PT-2-IO-26 N/A N/A
Class PT-2-26B (3) $ 994,122.16 N/A N/A N/A
Class PT-2-27A (2) $ 1,531,592.56 Class PT-2-IO-27 N/A N/A
Class PT-2-27B (3) $ 1,531,592.56 N/A N/A N/A
Class PT-2-28A (2) $ 946,696.02 Class PT-2-IO-28 N/A N/A
Class PT-2-28B (3) $ 946,696.02 N/A N/A N/A
Class PT-2-29A (2) $ 929,213.08 Class PT-2-IO-29 N/A N/A
Class PT-2-29B (3) $ 929,213.08 N/A N/A N/A
Class PT-2-30A (2) $ 4,895,756.93 Class PT-2-IO-30 N/A N/A
Class PT-2-30B (3) $ 4,895,756.93 N/A N/A N/A
Class PT-2-31A (2) $ 10,413,782.20 Class PT-2-IO-31 N/A N/A
Class PT-2-31B (3) $ 10,413,782.20 N/A N/A N/A
Class PT-2-32A (2) $ 1,093,577.50 Class PT-2-IO-32 N/A N/A
Class PT-2-32B (3) $ 1,093,577.50 N/A N/A N/A
Class PT-2-33A (2) $ 609,491.48 Class PT-2-IO-33 N/A N/A
Class PT-2-33B (3) $ 609,491.48 N/A N/A N/A
Class PT-2-34A (2) $ 598,226.84 Class PT-2-IO-34 N/A N/A
Class PT-2-34B (3) $ 598,226.84 N/A N/A N/A
Class PT-2-35A (2) $ 587,170.20 Class PT-2-IO-35 N/A N/A
Class PT-2-35B (3) $ 587,170.20 N/A N/A N/A
Class PT-2-36A (2) $ 576,317.72 Class PT-2-IO-36 N/A N/A
Class PT-2-36B (3) $ 576,317.72 N/A N/A N/A
Class PT-2-37A (2) $ 565,665.63 Class PT-2-IO-37 N/A N/A
Class PT-2-37B (3) $ 565,665.63 N/A N/A N/A
Class PT-2-38A (2) $ 555,210.23 Class PT-2-IO-38 N/A N/A
Class PT-2-38B (3) $ 555,210.23 N/A N/A N/A
Class PT-2-39A (2) $ 544,947.90 Class PT-2-IO-39 N/A N/A
Class PT-2-39B (3) $ 544,947.90 N/A N/A N/A
Class PT-2-40A (2) $ 534,875.08 Class PT-2-IO-40 N/A N/A
Class PT-2-40B (3) $ 534,875.08 N/A N/A N/A
Class PT-2-41A (2) $ 524,988.25 Class PT-2-IO-41 N/A N/A
Class PT-2-41B (3) $ 524,988.25 N/A N/A N/A
Class PT-2-42A (2) $ 515,284.02 Class PT-2-IO-42 N/A N/A
Class PT-2-42B (3) $ 515,284.02 N/A N/A N/A
Class PT-2-43A (2) $ 505,758.98 Class PT-2-IO-43 N/A N/A
Class PT-2-43B (3) $ 505,758.98 N/A N/A N/A
Class PT-2-44A (2) $ 496,409.83 Class PT-2-IO-44 N/A N/A
Class PT-2-44B (3) $ 496,409.83 N/A N/A N/A
Class PT-2-45A (2) $ 487,233.34 Class PT-2-IO-45 N/A N/A
Class PT-2-45B (3) $ 487,233.34 N/A N/A N/A
Class PT-2-46A (2) $ 478,226.32 Class PT-2-IO-46 N/A N/A
Class PT-2-46B (3) $ 478,226.32 N/A N/A N/A
Class PT-2-47A (2) $ 469,385.63 Class PT-2-IO-47 N/A N/A
Class PT-2-47B (3) $ 469,385.63 N/A N/A N/A
Class PT-2-48A (2) $ 460,708.21 Class PT-2-IO-48 N/A N/A
Class PT-2-48B (3) $ 460,708.21 N/A N/A N/A
Class PT-2-49A (2) $ 452,191.04 Class PT-2-IO-49 N/A N/A
Class PT-2-49B (3) $ 452,191.04 N/A N/A N/A
Class PT-2-50A (2) $ 879,456.89 Class PT-2-IO-50 N/A N/A
Class PT-2-50B (3) $ 879,456.89 N/A N/A N/A
Class PT-2-51A (2) $ 427,571.79 Class PT-2-IO-51 N/A N/A
Class PT-2-51B (3) $ 427,571.79 N/A N/A N/A
Class PT-2-52A (2) $ 419,666.61 Class PT-2-IO-52 N/A N/A
Class PT-2-52B (3) $ 419,666.61 N/A N/A N/A
Class PT-2-53A (2) $ 411,907.43 Class PT-2-IO-53 N/A N/A
Class PT-2-53B (3) $ 411,907.43 N/A N/A N/A
Class PT-2-54A (2) $ 404,291.57 Class PT-2-IO-54 N/A N/A
Class PT-2-54B (3) $ 404,291.57 N/A N/A N/A
Class PT-2-55A (2) $ 396,816.37 Class PT-2-IO-55 N/A N/A
Class PT-2-55B (3) $ 396,816.37 N/A N/A N/A
Class PT-2-56A (2) $ 481,269.73 Class PT-2-IO-56 N/A N/A
Class PT-2-56B (3) $ 481,269.73 N/A N/A N/A
Class PT-2-57A (2) $ 17,398,215.40 Class PT-2-IO-57 N/A N/A
Class PT-2-57B (3) $ 17,398,215.40 N/A N/A N/A
Class PT-2-58A (2) $ 2,965,100.19 Class PT-2-IO-58 N/A N/A
Class PT-2-58B (3) $ 2,965,100.19 N/A N/A N/A
Class PT-2-59A (2) $ 187,257.89 Class PT-2-IO-59 N/A N/A
Class PT-2-59B (3) $ 187,257.89 N/A N/A N/A
Class PT-2-IO-2 (4) (4) N/A Class PT-1-2A September 2009
Class PT-2-IO-3 (4) (4) N/A Class PT-1-3A October 2009
Class PT-2-IO-4 (4) (4) N/A Class PT-1-4A November 2009
Class PT-2-IO-5 (4) (4) N/A Class PT-1-5A December 2009
Class PT-2-IO-6 (4) (4) N/A Class PT-1-6A January 2010
Class PT-2-IO-7 (4) (4) N/A Class PT-1-7A February 2010
Class PT-2-IO-8 (4) (4) N/A Class PT-1-8A March 2010
Class PT-2-IO-9 (4) (4) N/A Class PT-1-9A April 2010
Class PT-2-IO-10 (4) (4) N/A Class PT-1-10A May 2010
Class PT-2-IO-11 (4) (4) N/A Class PT-1-11A June 2010
Class PT-2-IO-12 (4) (4) N/A Class PT-1-12A July 2010
Class PT-2-IO-13 (4) (4) N/A Class PT-1-13A August 2010
Class PT-2-IO-14 (4) (4) N/A Class PT-1-14A September 2010
Class PT-2-IO-15 (4) (4) N/A Class PT-1-15A October 2010
Class PT-2-IO-16 (4) (4) N/A Class PT-1-16A November 2010
Class PT-2-IO-17 (4) (4) N/A Class PT-1-17A December 2010
Class PT-2-IO-18 (4) (4) N/A Class PT-1-18A January 2011
Class PT-2-IO-19 (4) (4) N/A Class PT-1-19A February 2011
Class PT-2-IO-20 (4) (4) N/A Class PT-1-20A March 2011
Class PT-2-IO-21 (4) (4) N/A Class PT-1-21A April 2011
Class PT-2-IO-22 (4) (4) N/A Class PT-1-22A May 2011
Class PT-2-IO-23 (4) (4) N/A Class PT-1-23A June 2011
Class PT-2-IO-24 (4) (4) N/A Class PT-1-24A July 2011
Class PT-2-IO-25 (4) (4) N/A Class PT-1-25A August 2011
Class PT-2-IO-26 (4) (4) N/A Class PT-1-26A September 2011
Class PT-2-IO-27 (4) (4) N/A Class PT-1-27A October 2011
Class PT-2-IO-28 (4) (4) N/A Class PT-1-28A November 2011
Class PT-2-IO-29 (4) (4) N/A Class PT-1-29A December 2011
Class PT-2-IO-30 (4) (4) N/A Class PT-1-30A January 2012
Class PT-2-IO-31 (4) (4) N/A Class PT-1-31A February 2012
Class PT-2-IO-32 (4) (4) N/A Class PT-1-32A March 2012
Class PT-2-IO-33 (4) (4) N/A Class PT-1-33A April 2012
Class PT-2-IO-34 (4) (4) N/A Class PT-1-34A May 2012
Class PT-2-IO-35 (4) (4) N/A Class PT-1-35A June 2012
Class PT-2-IO-36 (4) (4) N/A Class PT-1-36A July 2012
Class PT-2-IO-37 (4) (4) N/A Class PT-1-37A August 2012
Class PT-2-IO-38 (4) (4) N/A Class PT-1-38A September 2012
Class PT-2-IO-39 (4) (4) N/A Class PT-1-39A October 2012
Class PT-2-IO-40 (4) (4) N/A Class PT-1-40A November 2012
Class PT-2-IO-41 (4) (4) N/A Class PT-1-41A December 2012
Class PT-2-IO-42 (4) (4) N/A Class PT-1-42A January 2013
Class PT-2-IO-43 (4) (4) N/A Class PT-1-43A February 2013
Class PT-2-IO-44 (4) (4) N/A Class PT-1-44A March 2013
Class PT-2-IO-45 (4) (4) N/A Class PT-1-45A April 2013
Class PT-2-IO-46 (4) (4) N/A Class PT-1-46A May 2013
Class PT-2-IO-47 (4) (4) N/A Class PT-1-47A June 2013
Class PT-2-IO-48 (4) (4) N/A Class PT-1-48A July 2013
Class PT-2-IO-49 (4) (4) N/A Class PT-1-49A August 2013
Class PT-2-IO-50 (4) (4) N/A Class PT-1-50A September 2013
Class PT-2-IO-51 (4) (4) N/A Class PT-1-51A October 2013
Class PT-2-IO-52 (4) (4) N/A Class PT-1-52A November 2013
Class PT-2-IO-53 (4) (4) N/A Class PT-1-53A December 2013
Class PT-2-IO-54 (4) (4) N/A Class PT-1-54A January 2014
Class PT-2-IO-55 (4) (4) N/A Class PT-1-55A February 2014
Class PT-2-IO-56 (4) (4) N/A Class PT-1-56A March 2014
Class PT-2-IO-57 (4) (4) N/A Class PT-1-57A April 2014
Class PT-2-IO-58 (4) (4) N/A Class PT-1-58A May 2014
Class PT-2-IO-59 (4) (4) N/A Class PT-1-59A June 2014
Class PT-2-IO-60 (4) (4) N/A Class PT-1-60A July 2014
Class PT-2-IO-61 (4) (4) N/A Class PT-1-61A August 2014
Class PT-2-R (5) (5) N/A N/A N/A
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-2 Interest Rate") equal to the Pooling Tier
REMIC-1 Net WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling Tier REMIC-1 Interest Rates on the Pooling Tier
REMIC-1 Regular Interests and having an "A" in their Class designation,
provided that, on each Distribution Date on which interest is
distributable on the Corresponding Pooling Tier REMIC-2 IO Interest, this
Pooling Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate equal to Swap LIBOR subject to a maximum rate equal to the weighted
average of the Pooling Tier REMIC-1 Interest Rates on the Pooling Tier
REMIC-1 Regular Interests and having an "A" in their Class designation.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling Tier REMIC-1 Interest Rates on the Pooling Tier
REMIC-1 Regular Interests and having a "B" in their Class designation.
(4) Each Pooling Tier REMIC-2 IO Interest is an interest-only interest and
does not have a principal balance but has a notional balance ("Pooling
Tier REMIC-2 IO Notional Balance") equal to the Pooling Tier REMIC-1
Principal Amount of the Corresponding Pooling Tier REMIC-1 Regular
Interest. From the Closing Date through and including the Distribution
Date in August 2009, this Pooling Tier REMIC-2 IO Interest shall be
entitled to receive interest that accrues on the Corresponding
Pooling-Tier REMIC-1 Regular Interest at a rate equal to the excess, if
any, of (i) the Pooling-Tier REMIC -1 Interest Rate for the Corresponding
Pooling-Tier REMIC-1 Regular Interest over (ii) the Pooling-Tier REMIC-1
Interest Rate for the Corresponding Pooling-Tier REMIC-1 Regular Interest.
From and including the Distribution Date in September 2009 through and
including the Corresponding Scheduled Crossover Distribution Date, each
Pooling Tier REMIC-2 IO Interest shall be entitled to receive interest
that accrues on the Corresponding Pooling Tier REMIC-1 Regular Interest at
a rate equal to the excess, if any, of (i) the Pooling Tier REMIC-1
Interest Rate for the Corresponding Pooling Tier REMIC-1 Regular Interest
over (ii) Swap LIBOR. After the related Corresponding Scheduled Crossover
Distribution Date, the Pooling Tier REMIC-2 IO Interest shall not accrue
interest.
(5) The Class PT-2-R Interest shall not have a principal balance and shall not
bear interest.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be distributed to Pooling
Tier REMIC-2 Regular Interests at Pooling Tier REMIC-2 Interest Rates shown
above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Mortgage Loans shall be allocated to
the then outstanding Pooling Tier REMIC-2 Regular Interest (other than the
Pooling Tier REMIC-2 IO Interests) with the lowest numerical denomination until
the Pooling Tier REMIC-2 Principal Amount of each such interest or interests, as
the case may be, is reduced to zero, provided that, with respect to Pooling Tier
REMIC-2 Regular Interests with the same numerical denomination, such Realized
Losses, Subsequent Recoveries and payments of principal shall be allocated pro
rata between such Pooling Tier REMIC-2 Regular Interests.
Lower Tier REMIC
The Lower Tier REMIC shall issue the following interests, and each
such interest, other than the Class Interest, is hereby designated as a regular
interest in the Lower Tier REMIC. The Class Interest is hereby designated as the
sole Class of residual interest in the Lower Tier REMIC and shall be represented
by the Class R Certificates.
Initial Corresponding
Lower Tier Lower Tier Lower Tier Upper Tier
REMIC REMIC REMIC REMIC
Class Designation Interest Rate Principal Amount Regular Interest
----------------- ---------------- ------------------------------------------ ----------------
Class LT-A-1 (1) 1/2 Corresponding Upper Tier REMIC Regular A-1
Interest initial Class Certificate Balance
Class LT-A-2 (1) 1/2 Corresponding Upper Tier REMIC Regular A-2
Interest initial Class Certificate Balance
Class LT-A-3 (1) 1/2 Corresponding Upper Tier REMIC Regular A-3
Interest initial Class Certificate Balance
Class LT-M-1 (1) 1/2 Corresponding Upper Tier REMIC Regular M-1
Interest initial Class Certificate Balance
Class LT-M-2 (1) 1/2 Corresponding Upper Tier REMIC Regular M-2
Interest initial Class Certificate Balance
Class LT-M-3 (1) 1/2 Corresponding Upper Tier REMIC Regular M-3
Interest initial Class Certificate Balance
Class LT-M-4 (1) 1/2 Corresponding Upper Tier REMIC Regular M-4
Interest initial Class Certificate Balance
Class LT-M-5 (1) 1/2 Corresponding Upper Tier REMIC Regular M-5
Interest initial Class Certificate Balance
Class LT-Accrual (1) 1/2 Pool Stated Principal Balance plus 1/2 N/A
Subordinated Amount
Class LT-IO (2) (2) N/A
Class LT-R (3) (3) N/A
------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the Lower Tier REMIC Net
WAC Rate.
(2) This Lower Tier Regular Interest is an interest-only interest and does not
have a Lower Tier REMIC Principal Amount. On each Distribution Date, this
Lower Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling Tier REMIC-2 IO Interests.
(3) The Class LT-R Interest is the sole Class of residual interest in the
Lower Tier REMIC and it does not have a principal amount or an interest
rate.
Each Lower Tier Regular Interest is hereby designated as a regular
interest in the Lower Tier REMIC. The Class LT-A-1, Class LT-A-2, Class LT-A-3,
Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4 and Class LT-M-5
Interests are hereby designated the LT Accretion Directed Classes (the "LT
Accretion Directed Classes").
On each Distribution Date, 50% of the increase in the Subordinated
Amount shall be payable as a reduction of the Lower Tier REMIC Principal Amount
of the LT Accretion Directed Classes (each such Class will be reduced by an
amount equal to 50% of any increase in the Subordinated Amount that is
attributable to a reduction in the Class Certificate Balance of its
Corresponding Class) and shall be accrued and added to the Lower Tier REMIC
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower Tier REMIC Principal Amount of the Class LT-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Subordinated Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Subordinated Amount for purposes of determining the
amount of interest accrual on the Class LT-Accrual Interest payable as principal
on the LT Accretion Directed Classes on the next Distribution Date pursuant to
the first sentence of this paragraph. All payments of scheduled principal and
prepayments of principal generated by the Mortgage Loans and all Subsequent
Recoveries allocable to principal shall be allocated (i) 50% to the Class
LT-Accrual Interest and (ii) 50% to the LT Accretion Directed Classes (such
principal payments and Subsequent Recoveries shall be allocated among such LT
Accretion Directed Classes in an amount equal to 50% of the principal amounts
and Subsequent Recoveries allocated to their respective Corresponding Classes),
until paid in full. Notwithstanding the above, principal payments allocated to
the Class CE Interest that result in the reduction in the Subordinated Amount
shall be allocated to the Class LT-Accrual Interest (until paid in full).
Reductions to Lower Tier REMIC Principal Amounts as a result of Realized Losses
and increases in Lower Tier REMIC Principal Amounts as a result of Subsequent
Recoveries shall be applied so that after all distributions have been made on
each Distribution Date (i) the Lower Tier REMIC Principal Amount of each LT
Accretion Directed Class is equal to 50% of the Class Certificate Balance of its
Corresponding Class and (ii) the Class LT-Accrual Interest is equal to 50% of
the aggregate Stated Principal Balance of the Mortgage Loans plus 50% of the
Subordinated Amount. Any increase in the Class Certificate Balance of a Class of
Offered Certificates as a result of a Subsequent Recovery shall increase the
Lower Tier Principal Amount of the Corresponding Class of Lower Tier Regular
Interest by 50% of such increase, and the remaining 50% of such increase shall
increase the Lower-Tier Principal Amount of the Class LT-Accrual Interest.
Upper Tier REMIC
The Upper Tier REMIC shall issue the following Classes of Upper Tier
REMIC Regular Interests and each such interest, other than the Class UT-R
Interest, is hereby designated as a regular interest in the Upper Tier REMIC.
The Class UT-R Interest is hereby designated as the sole Class of residual
interests in the Upper Tier REMIC and shall be represented by the Class R
Certificates.
Upper Tier Upper Tier Initial Upper Tier Corresponding
REMIC REMIC REMIC Class of
Class Designation Interest Rate Principal Amount Certificates
----------------- ------------- ------------------ -------------
Class A-1 (1) $ 167,000,000 Class A-1
Class A-2 (1) $ 61,839,000 Class A-2
Class A-3 (1) $ 25,427,000 Class A-3
Class M-1 (1) $ 3,618,000 Class M-1
Class M-2 (1) $ 3,758,000 Class M-2
Class M-3 (1) $ 2,226,000 Class M-3
Class M-4 (1) $ 1,949,000 Class M-4
Class M-5 (1) $ 1,670,000 Class M-5
Class IO (2) (2)
Class CE (3) (3) Class CE (3)
Class UT-R (4) (4) Class R
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the WAC Cap) for the Corresponding Class of
Certificates and (ii) the Upper Tier REMIC Net WAC Rate.
(2) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest. This interest shall be beneficially owned by the holders of the
Class CE Certificates and shall be held as an asset of the Supplemental
Interest Account.
(3) The Class CE Interest has an initial principal balance of $10,855,241.78
but it will not accrue interest on such balance but will accrue interest
on a notional principal balance. As of any Distribution Date, the Class CE
Interest shall have a notional principal balance equal to the aggregate of
the Lower Tier Principal Amounts of the Lower Tier Regular Interests
(other than the Class LT-IO Interest) as of the first day of the related
Interest Accrual Period. With respect to any Interest Accrual Period, the
Class CE Interest shall bear interest at a rate equal to the excess, if
any, of the Lower Tier REMIC Net WAC Rate over the product of (i) 2 and
(ii) the weighted average Lower Tier REMIC Interest Rate of the Lower Tier
Regular Interests (other than Class LT-IO Interest), where the Lower Tier
REMIC Interest Rate on the Class LT-Accrual Interest is subject to a cap
equal to zero and each LT Accretion Directed Class is subject to a cap
equal to the Upper Tier REMIC Interest Rate on its Corresponding Class of
Upper Tier Regular Interest. With respect to any Distribution Date,
interest that so accrues on the notional principal balance of the Class CE
Interest shall be deferred in an amount equal to any increase in the
Subordinated Amount on such Distribution Date. Such deferred interest
shall not itself bear interest.
(4) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper Tier REMIC at the rates shown above,
provided that the Class IO Interest shall be entitled to receive interest before
any other interest in the Upper Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper Tier
Regular Interests until the outstanding principal balance of each such interest
equals the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Certificates
Class Class
Class Designation Pass-Through Rate Certificate Balance
----------------- ----------------- -------------------
Class A-1(5) (1) $ 167,000,000
Class A-2(5) (1) $ 61,839,000
Class A-3(5) (1) $ 25,427,000
Class M-1(5) (1) $ 3,618,000
Class M-2(5) (1) $ 3,758,000
Class M-3(5) (1) $ 2,226,000
Class M-4(5) (1) $ 1,949,000
Class M-5(5) (1) $ 1,670,000
Class CE (2) (2)
Class R (3) (3)
------------
(1) The Class A-1, Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5
Certificates will bear interest during each Interest Accrual Period at a
per annum rate equal to the lesser of (i) LIBOR plus the applicable
Pass-Through Margin and (ii) the WAC Cap.
(2) The Class CE Certificates will represent beneficial ownership of the Class
CE Interest, the Class IO Interest, the right to receive Class IO
Shortfalls, the Interest Rate Swap Agreement, the Interest Rate Cap
Agreement, amounts in the Supplemental Interest Account, subject to the
obligation to pay Net Swap Payments to the Swap Provider and Basis Risk
Carry Forward Amounts to the Offered Certificates. For federal income tax
purposes, the Securities Administrator will treat a Class CE
Certificateholder's obligation to make payments to the Offered
Certificates of Basis Risk Carry Forward Amounts from the Excess Reserve
Fund Account and the Supplemental Interest Account and the right to
receive Class IO Shortfalls as payments made or received pursuant to a
notional principal contract between the Class CE Certificateholders and
the holder of each Class of Offered Certificates. Such rights of the Class
CE Certificateholders and Offered Certificateholders shall be treated as
held in a portion of the Trust Fund that is treated as a grantor trust
under subpart E, Part I of subchapter J of the Code. The Class CE
Certificates do not have a Class Certificate Balance.
(3) The Class R Certificates do not have a principal balance or an interest
rate. The Class R Certificates represent the residual interest in each
Trust REMIC.
(4) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper Tier REMIC Regular Interest but also the
right to receive payments from the Excess Reserve Fund Account and the
Supplemental Interest Account in respect of any Basis Risk Carry Forward
Amounts. Each of these Certificates will also be subject to the obligation
to pay Class IO Shortfalls as described in Section 8.16. For federal
income tax purposes, any amount distributed on the Offered Certificates on
any such Distribution Date in excess of the amount distributable on their
Corresponding Class of Upper Tier Regular Interest on such Distribution
Date shall be treated as having been paid from the Excess Reserve Fund
Account or the Supplemental Interest Account, as applicable, and any
amount distributable on such Corresponding Class of Upper Tier Regular
Interest on such Distribution Date in excess of the amount distributable
on the Corresponding Class of Certificates on such Distribution Date shall
be treated as having been paid to the Supplemental Interest Account, all
pursuant to, and as further provided in Section 8.16. For federal income
tax purposes, the Securities Administrator will treat an Offered
Certificateholder's right to receive payments from the Excess Reserve Fund
Account and Supplemental Interest Account subject to the obligation to pay
Class IO Shortfalls to the Holder of the Class CE Certificates as payments
made or received pursuant to a notional principal contract between the
Class CE Certificateholders and each Class of Offered Certificates.
The minimum denomination for each Class of the Offered Certificates
will be $25,000 initial Certificate Balance, with integral multiples of $1 in
excess thereof except that one Certificate in each Class may be issued in a
different amount. The minimum denomination for the Class R Certificates will be
a 100% Percentage Interest in such Class and the Class CE Certificates will be a
1% Percentage Interest in such Class.
Set forth below are designations of Classes of Certificates to the categories
used herein:
Book-Entry Certificates All Classes of Certificates other than the
Physical Certificates.
Class A Certificates Class A-1, Class A-2 and Class A-3
Certificates.
Class M Certificates Class M-1, Class M-2, Class M-3, Class M-4 and
Class M-5 Certificates.
ERISA-Restricted Certificates The Physical Certificates and any Certificate
with a rating below the lowest applicable
permitted rating under the Underwriters'
Exemption.
Certificates Class A, Class M, Class R and Class CE
Certificates.
Offered Certificates Class A and Class M Certificates.
Subordinated Certificates Class M Certificates.
Physical Certificates The Class R and Class CE Certificates.
Private Certificates The Class R and Class CE Certificates.
Rating Agencies DBRS, Xxxxx'x and S&P.
Regular Certificates All Classes of Certificates other than the
Class R and Class CE Certificates.
Residual Certificates The Class R Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the Countrywide Agreements.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Account: Any of the Distribution Account, the Excess Reserve Fund
Account, the Investment Account, the Collection Account, the Supplemental
Interest Account or the Posted Collateral Account. Each Account shall be an
Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Offered Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class' share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.01.
Additional Disclosure Notification: As defined in Section 8.15(b).
Additional Form 10-D Disclosure: As defined in Section 8.15(b).
Additional Form 10-K Disclosure: As defined in Section 8.15(b).
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Amendment Reg AB: The Amendment Reg AB to the Master Loan Purchase
and Servicing Agreement, dated as of August 30, 2006 and the Amendment Reg AB to
the Master Loan Purchase and Servicing Agreement, dated as of February 26, 2007,
each among the Original Loan Seller, the Servicer and the Sponsor, a copy each
which is attached hereto as Exhibit M-3.
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Securities Administrator by the
Depositor.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Offered Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Assignment of Mortgage: An executed assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans, to the extent received by the Securities Administrator (x) the
sum of (i) all scheduled installments of interest (net of the related Expense
Fees and any lender paid mortgage insurance premiums, if any) and principal due
on the Due Date on such Mortgage Loans in the related Due Period and received by
the Servicer on or prior to the related Determination Date, together with any
Monthly Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds, Liquidation Proceeds and Subsequent Recoveries received by the
Servicer on the Mortgage Loans during the related Principal Prepayment Period
(in each case, net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received by the Servicer during the
related Principal Prepayment Period together with all Compensating Interest paid
by the Servicer in connection therewith (excluding any Prepayment Premiums);
(iv) all Substitution Adjustment Amounts with respect to substitutions of
Mortgage Loans that occur on or prior to the related Determination Date; (v) all
amounts received with respect to such Distribution Date as the Repurchase Price
in respect of a Mortgage Loan repurchased on or prior to the related
Determination Date; and (vi) the proceeds received with respect to the
termination of the Trust pursuant to clause (a) of Section 11.01; reduced by (y)
amounts in reimbursement for Advances previously made with respect to the
Mortgage Loans and other amounts as to which the Master Servicer, the Securities
Administrator, the Servicer, the Depositor or the Trustee are entitled to be
paid or reimbursed pursuant to this Agreement.
Back-Up Certification: Has the meaning set forth in Section 8.15(d).
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Subordinated Amount, if any, for such
Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Offered Certificates, as of any Distribution Date, the sum of (x) if on such
Distribution Date the Pass-Through Rate for any Class of Offered Certificates is
based upon the WAC Cap, the excess, if any, of (i) the Accrued Certificate
Interest Distribution Amount such Class of Certificates would otherwise be
entitled to receive on such Distribution Date had such Pass-Through Rate not
been subject to the WAC Cap, over (ii) the Accrued Certificate Interest
Distribution Amount payable on such Class of Certificates at the WAC Cap for
such Distribution Date and (y) the portion of any such excess described in
clause (x) for such Class of Certificates from all previous Distribution Dates
not previously paid, together with interest thereon at a rate equal to the
applicable Pass-Through Rate for such Class of Certificates for such
Distribution Date, without giving effect to the WAC Cap.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class CE Distributable Amount (prior to any
reduction for (x) amounts paid from the Excess Reserve Fund Account to pay any
Basis Risk Carry Forward Amount or (y) any Defaulted Swap Termination Payment).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York or California, (b) the State in which the Servicer's servicing operations
are located, or (c) the State in which any Corporate Trust Office is located,
are authorized or obligated by law or executive order to be closed, which
include Minnesota and Maryland.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Cap Provider: Barclays Bank PLC, a bank authorized and regulated by
the United Kingdom's Financial Services Authority and a member of the London
Stock Exchange, and its successors in interest.
Certificate Balance: With respect to any Class of Offered
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 minus all distributions of principal previously made with
respect thereto and reduced by any Applied Realized Loss Amounts applicable to
such Class of Certificates; provided, however, that immediately following the
Distribution Date on which a Subsequent Recovery is distributed, the Class
Certificate Balances of any Class or Classes of Certificates that have been
previously reduced by Applied Realized Loss Amounts will be increased, in order
of seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Applied Realized Loss Amounts allocated
to such Class or Classes). The Class CE and Class R Certificates have no
Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision 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 Securities Administrator 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.
Certificates: As specified in the Preliminary Statement.
Certification Parties: Has the meaning set forth in Section 8.15(d).
Certifying Person: Has the meaning set forth in Section 8.15(d).
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to any
Distribution Date is the excess of, if any, (a) the aggregate Class Certificate
Balance of the Class A Certificates immediately prior to such Distribution Date
over (b) the lesser of (x) 82.70% of the aggregate Stated Principal Balance of
the Mortgage Loans for such Distribution Date and (y) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class CE Certificates: All Certificates bearing the Class
designation of "Class CE."
Class CE Distributable Amount: On any Distribution Date, the sum of
(i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class CE Interest (as set forth in the Preliminary Statement) and
not applied as an Extra Principal Distribution Amount on such Distribution Date,
plus any such accrued interest remaining undistributed from prior Distribution
Dates, plus (without duplication), (ii) as a distribution in respect of
principal, any portion of the principal balance of the Class CE Interest that is
distributable as a Subordination Reduction Amount, minus (iii) any Defaulted
Swap Termination Payment payable from Available Funds to the Swap Provider and
any amounts paid from the Excess Reserve Fund Account to pay Basis Risk Carry
Forward Amounts.
Class CE Interest: The Upper Tier REMIC Regular Interest represented
by the Class CE Certificates as specified and described in the Preliminary
Statement and the related footnote thereto.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Class Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfalls: As defined in Section 8.16. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class CE Certificates in respect of amounts due to the
Swap Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class CE Interest (prior to
reduction for any Basis Risk Payments or Defaulted Swap Termination Payments) or
Class IO Interest on such Distribution Date, all as further provided in Section
8.16.
Class LT-R Interest: The sole Class of "residual interest" in the
Lower Tier REMIC evidenced by the Class R Certificates.
Class M Certificates: As specified in the Preliminary Statement.
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date is the excess of, if any, (i) the sum of (a) the aggregate
Class Certificate Balances of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount for such
Distribution Date) and (b) the Class Certificate Balance of the Class M-1
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 85.30% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (b) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date is the excess of, if any, (i) the sum of (a) the aggregate
Class Certificate Balances of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount for such Distribution Date) and (c) the Class
Certificate Balance of the Class M-2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) 88.00% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (b) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date is the excess of, if any, (i) the sum of (a) the aggregate
Class Certificate Balances of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount for such Distribution Date), (c) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date) and (d) the Class Certificate Balance of the Class M-3
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 89.60% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (b) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date is the excess of, if any, (i) the sum of (a) the aggregate
Class Certificate Balances of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount for such Distribution Date), (c) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (d) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date) and (e) the Class
Certificate Balance of the Class M-4 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) 91.00% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (b) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date is the excess of, if any, (i) the sum of (a) the aggregate
Class Certificate Balances of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount for such
Distribution Date), (b) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount for such Distribution Date), (c) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (d) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date), (e) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount for such
Distribution Date) and (f) the Class Certificate Balance of the Class M-5
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(a) 92.20% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (b) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class PT-1-R Interest: The sole Class of "residual interest" in
Pooling Tier REMIC-1 as described in the Preliminary Statement and the related
footnote thereto.
Class PT-2-R Interest: The sole Class of "residual interest" in
Pooling Tier REMIC-2 as described in the Preliminary Statement and the related
footnote thereto.
Class R Certificates: All Certificates bearing the Class designation
of "Class R."
Class UT-R Interest: The sole Class of "residual interest" in the
Upper Tier REMIC evidenced by the Class R Certificates.
Closing Date: September 21, 2007.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The "Custodial Account" as defined in the
Countrywide Servicing Agreement.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for such Distribution Date, with
respect to voluntary Principal Prepayments by the Mortgagor (excluding any
payments made upon liquidation of the Mortgage Loan), and (b) one-half of the
lesser of (1) the Servicing Fee payable to the Servicer for such Distribution
Date and (2) the Servicing Fee actually received by the Servicer for such
Distribution Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator: (i) for certificate transfer purposes, the office of the
Securities Administrator at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Services, BCAP 2007-AA5, (ii) for
all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager BCAP LLC 2007-AA5, facsimile no. (000) 000-0000, and
which is the address to which notices to and correspondence with the Securities
Administrator should be directed, or (iii) at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders. With respect to the Trustee, the designated office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and its telephone number is (000) 000-0000.
Corresponding Class: The Class of interests in the Lower Tier REMIC
or Upper Tier REMIC created under this Agreement that corresponds to the Class
of interests in the other such Trust REMIC, as applicable, or to a Class of
Certificates in the manner set out below:
Corresponding Corresponding
Lower Tier REMIC Upper Tier REMIC Corresponding
Regular Interest Regular Interest Class of Certificates
---------------- ---------------- ---------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3 Class A-3 Class A-3
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Corresponding Pooling Tier REMIC-1 Regular Interest: As described in
the Preliminary Statement.
Corresponding Pooling Tier REMIC-2 IO Interest: As described in the
Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling Tier REMIC-2 IO Interest.
Countrywide Agreements: Collectively, the Countrywide Purchase
Agreement and the Countrywide Servicing Agreement.
Countrywide Assignment Agreements: The Assignment, Assumption and
Recognition Agreement, dated as of the Closing Date, among Countrywide Home
Loans Servicing LP, Countrywide Home Loans Inc., the Master Servicer and
Securities Administrator, Xxxxxx Funding LLC and the Depositor and the
Assignment, Assumption and Recognition Agreement, dated as of the Closing Date,
among Countrywide Home Loans Servicing LP, Countrywide Home Loans Inc., the
Master Servicer and Securities Administrator, the Sponsor and the Depositor, a
copy of each which is attached hereto as Exhibit L.
Countrywide Home Loans: Countrywide Home Loans, Inc., a New York
corporation, and its successors in interest.
Countrywide Purchase Agreement: Collectively, (1) the Master
Mortgage Loan Purchase Agreement, dated August 30, 2006, between Xxxxxx Funding
LLC and the Original Loan Seller, as amended by Amendment Reg AB and (2) the
Master Mortgage Loan Purchase Agreement, dated February 26, 2007, between the
Purchaser and the Original Loan Seller, as amended by Amendment Reg AB, a copy
of each which is attached hereto as Exhibit M-1.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors in interest.
Countrywide Servicing Agreement: Collectively, (1) the Servicing
Agreement, dated February 26, 2007, between Xxxxxx Funding LLC and the Servicer,
as amended by Amendment Reg AB and (2) Servicing Agreement, dated August 30,
2006, between the Purchaser and the Servicer, as amended by Amendment Reg AB, a
copy of each which is attached hereto as Exhibit M-2.
Cumulative Loss Percentages: With respect to any Distribution Date,
the percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses incurred from the Cut-off Date to the last day of the
calendar month preceding the month in which such Distribution Date occurs and
the denominator of which is the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
Cumulative Loss Trigger Event: If, with respect to any Distribution
Date, the circumstances in which the aggregate amount of Realized Losses
incurred since the Cut-off Date through the last day of the related Due Period
divided by the aggregate Stated Principal Balance of the Mortgage Loans as of
the Cut-off Date exceeds the applicable percentages described below with respect
to such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------- ----------------------------------------
October 2009 through September 0.30% with respect to October 2009, plus
2010: an additional 1/12th of 0.45% for each
month thereafter through September 2010.
October 2010 through September 0.75% with respect to October 2010, plus
2011: an additional 1/12th of 0.55% for each
month thereafter through September 2011.
October 2011 through September 1.30% with respect to September 2011, plus
2012: an additional 1/12th of 0.60% for each
month thereafter through September 2012.
October 2012 through September 1.90% with respect to October 2012, plus
2013: an additional 1/12th of 0.30% for each
month thereafter through September 2013.
October 2013 through September 2.20% with respect to October 2013, plus
2014: an additional 1/12th of 0.05% for each
month thereafter through September 2014.
October 2014 and thereafter: 2.25% with respect to October 2014 and
thereafter.
Custodial File: With respect to each Mortgage Loan, all Mortgage
Loan Documents which are delivered to, and received by, the Custodian or which
at any time comes into the possession of the Custodian.
Custodian Fee: With respect to any Distribution Date (commencing
with the October 2007 Distribution Date), the amount charged by the Custodian to
the Master Servicer for custodial services with respect to the Mortgage Loans
performed by the Custodian during the preceding calendar month (commencing with
the month of October 2007), based on a custodial fee schedule furnished by the
Custodian to the Master Servicer.
Custodian: Xxxxx Fargo Bank, National Association.
Cut-off Date: September 1, 2007.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
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 (after
giving effect to payments of principal due on that date, whether or not
received).
DBRS: DBRS, Inc. and its successors, and if such company shall for
any reason no longer perform the functions of a securities rating agency, "DBRS"
shall be deemed to refer to any other "nationally recognized statistical rating
organization" as set forth on the most current list of such organizations
released by the Commission. For purposes of Section 12.05(c) the address for
notices to DBRS shall be DBRS, Inc., 000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or such other address as DBRS may hereafter furnish to the
Depositor, the Custodian and the Trustee.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States 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.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust out of the Available Funds to the Swap Provider
pursuant to the Interest Rate Swap Agreement as a result of an "Event of
Default" (as defined in the Interest Rate Swap Agreement) with respect to which
the Swap Provider is the defaulting party or a Termination Event (as defined in
the Interest Rate Swap Agreement) (other than Illegality or a Tax Event that is
not a Tax Event Upon Merger (each as defined in the Interest Rate Swap
Agreement)) with respect to which the Swap Provider is the sole Affected Party
(as defined in the Interest Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
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).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by the Original Loan Seller, the Purchasers or the Depositor in
accordance with the terms of the Countrywide Agreements, the Representation
Letter or this Agreement, as applicable, or which is, in the case of a
substitution pursuant to the Countrywide Agreements replaced or to be replaced
with a substitute mortgage loan.
Delinquency Trigger Event: With respect to any Distribution Date,
the circumstances in which the quotient (expressed as a percentage) of the
rolling three month average of (x) the aggregate unpaid principal balance of 60+
Day Delinquent Mortgage Loans, divided by (y) the aggregate unpaid principal
balance of the Mortgage Loans, in each case as of the last day of the related
Due Periods, equals or exceeds 40.00% of the prior period's Senior Enhancement
Percentage.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: BCAP LLC, a Delaware limited liability company, and its
successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "P-1" by Moody's, "R-1 (high)" by DBRS and "A-1" by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to the Servicer Remittance Date,
the Business Day immediately preceding the Servicer Remittance Date.
Disqualified Non-U.S. Person: With respect to a Residual
Certificate, (i) any Non-U.S. Person or agent thereof other than a Non-U.S.
Person that holds the Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Securities Administrator with an effective IRS Form W-8ECI, or (ii) any
domestic entity classified as a partnership under the Code if any of its direct
or indirect partners (other than through a U.S. corporation) are (or are
permitted to be under the applicable partnership agreement) Disqualified
Non-U.S. Persons, unless such Person described in (i) or (ii) above has
delivered to both the transferor and the Securities Administrator an opinion of
a nationally recognized tax counsel to the effect that the transfer of the
Residual Certificate to it is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of the
Residual Certificate will not be disregarded for federal income tax purposes.
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.01(b) in the
name of the Securities Administrator for the benefit of the Certificateholders
and designated "Xxxxx Fargo Bank, National Association in trust for registered
holders of BCAP LLC Trust 2007-AA5 Mortgage Pass-Through Certificates, Series
2007-AA5". Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Distribution Date: The 25th day of each month or, if such day is not
a Business Day, the immediately succeeding Business Day, commencing in October
2007.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
that Distribution Date occurs and ending on the first day of the calendar month
in which that Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution (provided, however, that following a
downgrade, withdrawal, or suspension of such Eligible Institution's Standard &
Poor's rating below the levels set forth in definition of "Eligible Institution"
with respect to any Eligible Account, the applicable Eligible Institution shall
either (x) obtain a guaranty from a guarantor which satisfies the Standard &
Poor's requirements set forth in such definition, or (y) transfer any such
Eligible Account to one or more segregated trust accounts in the trust
department of an institution which satisfies the definition of "Eligible
Institution", in either case, as promptly as practicable (and in any case within
not more than 60 calendar days with respect to the Excess Reserve Fund Account
or the Swap Account, or 30 calendar days with respect to each other Account)),
(ii) an account maintained with the corporate trust department of a federal
depository institution or state-chartered depository institution subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the U.S.
Code of Federal Regulation Section 9.10(b), which, in either case, has corporate
trust powers and is acting in its fiduciary capacity or (iii) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts maintained with
the Securities Administrator. Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated at least "A-1+" by Standard &
Poor's if the amounts on deposit are to be held in the account for no more than
365 days (or at least "A-2" by Standard & Poor's if the amounts on deposit are
to be held in the account for no more than 30 days), or the long-term unsecured
debt obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations, or other short-term deposits
of which are rated at least "P-1" by Moody's and "R-1" by DBRS (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Securities Administrator) (in each case to the extent they are designated
as Rating Agencies in the Preliminary Statement).
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 Prohibited
Transaction Exemption ("PTE") 2007-5, 72 Fed. Reg. 13130 (2007) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in the Countrywide Agreements.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Section 3.01(a) in
the name of the Trustee for the benefit of the Regular Certificateholders and
designated "Xxxxx Fargo Bank, National Association in trust for registered
holders of BCAP LLC Trust 2007-AA5, Mortgage Pass-Through Certificates, Series
2007-AA5". Funds in the Excess Reserve Fund Account shall be held in trust for
the Regular Certificateholders for the uses and purposes set forth in this
Agreement. Amounts on deposit in the Excess Reserve Fund Account shall not be
invested.
Excess Subordinated Amount: With respect to any Distribution Date,
the excess, if any, of (a) the Subordinated Amount for such Distribution Date
over (b) the Specified Subordinated Amount for such Distribution Date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the Servicing Fee Rate and, if applicable, any lender paid mortgage insurance
premium rate.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Xxx: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
September 2047.
Form 8-K Disclosure Information: As defined in Section 8.15(e).
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
Gross Margin: The fixed percentage amount set forth in the related
Mortgage Note to be added to the applicable Index to determine the Mortgage
Rate.
Index: As to each Mortgage Loan, the index from time to time in
effect for the adjustment of the Mortgage Rate set forth as such in the related
Mortgage Note.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of Offered
Certificates and the Corresponding Class of Lower Tier Regular Interests and any
Distribution Date, the period commencing on the Distribution Date occurring in
the month preceding the month in which the current Distribution Date occurs and
ending on the day immediately preceding the current Distribution Date (or, in
the case of the first Distribution Date, the period from and including the
Closing Date to but excluding such first Distribution Date). With respect to the
Class LT Accrual Interest, Class LT-IO Interest and each Pooling Tier REMIC-1
Regular Interest and Pooling Tier REMIC-2 Regular Interest and any Distribution
Date, the calendar month preceding such Distribution Date. For purposes of
computing interest accruals on each Class of Offered Certificates, each Interest
Accrual Period has the actual number of days in such month and each year is
assumed to have 360 days.
Interest Rate Cap Agreement: The interest rate cap agreement, dated
as of September 21, 2007, between the Cap Provider and the Securities
Administrator, a copy of which is attached hereto as Exhibit N.
Interest Rate Cap Payment: With respect to the Interest Rate Cap
Agreement and for any Distribution Date, the amount, if any, required to be paid
by the Cap Provider on such Distribution Date under the Interest Rate Cap
Agreement.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of September 21, 2007, between the Swap Provider and the Securities
Administrator, a copy of which is attached hereto as Exhibit N.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, that portion of Available Funds attributable to interest
received or advanced with respect to the Mortgage Loans, net of the fees payable
to the Servicer and any lender paid insurance premiums, with respect to such
Distribution Date.
Investment Account: As defined in Section 3.02(a).
LIBOR: With respect to any Interest Accrual Period for the Offered
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one month U.S.
dollar deposits as such rate appears on Reuters Page LIBOR01 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Reuters Page LIBOR01, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar deposits of
leading European banks.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the Offered Certificates, the second London Business Day preceding
the commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
Principal Prepayment Period preceding the month of such Distribution Date and as
to which the Servicer has certified 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: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower Tier Principal Amount: As described in the Preliminary
Statement.
Lower Tier Regular Interest: Each of the Class LT-A-1, Class LT-A-2,
Class LT-A-3, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4 and Class
LT-M-5, Class LT-IO and Class LT-Accrual Interests, as described in the
Preliminary Statement.
Lower Tier REMIC: As described in the Preliminary Statement.
Lower Tier REMIC Interest Rate: As described in the Preliminary
Statement.
Lower Tier REMIC Net WAC Rate: A per annum variable rate equal to
the weighted average of Pooling Tier REMIC-2 Interest Rates of Pooling Tier
REMIC-2 Regular Interests (other than Pooling Tier REMIC-2 IO Interests).
Lower Tier REMIC Principal Amount: The principal balance of each
Lower Tier Regular Interest, determined as set forth in the Preliminary
Statement. The Lower Tier REMIC Principal Amount shall be computed to at least
eight (8) decimal places.
LT Accretion Directed Classes: As described in the Preliminary
Statement.
Master Servicer: Xxxxx Fargo, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the Countrywide Servicing Agreement.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc. and its successors in
interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 12.05(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 Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Master Servicer, the
Securities Administrator, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note, including all riders
thereto.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
the Countrywide Agreements, each Mortgage Loan originally sold and subject to
the Countrywide Agreements being identified on the Mortgage Loan Schedule, which
Mortgage Loan includes without limitation the Mortgage File, the Custodial File,
the Servicing File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
Prepayment Premiums and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Trustee and Custodian and referred to on Schedule I, such schedule setting
forth the following information with respect to each Mortgage Loan as of the
Cut-off Date: (1) the Original Loan Seller's Mortgage Loan number; (2) the
address, city, state and zip code of the Mortgaged Property; (3) a code
indicating whether the Mortgagor is self-employed; (4) a code indicating whether
the Mortgaged Property is owner-occupied, investment property or a second home;
(5) a code indicating whether the Mortgaged Property is a single family
residence, two family residence, three-family residence, four family residence,
condominium, manufactured housing or planned unit development; (6) the purpose
of the Mortgage Loan; (7) the type of Mortgage Loan; (8) the Mortgage Interest
Rate at origination; (9) the current Mortgage Interest Rate; (10) the name of
the Servicer; (11) the Servicing Fee Rate; (12) the current Scheduled Payment;
(13) the original term to maturity; (14) the remaining term to maturity; (15)
the principal balance of the Mortgage Loan as of the Cut-off Date after
deduction of payments of principal due on or before the Cut-off Date whether or
not collected; (16) the loan-to-value ratio at origination; (17) the actual
principal balance of the Mortgage Loan as of the Cut-off Date; (18) social
security number of the Mortgagor; (19) a code indicating whether the Mortgaged
Property is a leasehold estate; (20) the Due Date of the Mortgage Loan; (21)
whether the Mortgage Loan is insured by a Primary Mortgage Insurance Policy and
the name of the insurer; (22) the certificate number of the Primary Mortgage
Insurance Policy; (23) the amount of coverage of the Primary Mortgage Insurance
Policy, and if it is a lender-paid Primary Mortgage Insurance Policy, the
premium rate; (24) the type of appraisal; (25) a code indicating whether the
Mortgage Loan is a MERS Mortgage Loan; (26) documentation type (including asset
and income type); (27) first payment date; (28) the schedule of the payment
delinquencies in the prior 12 months; (29) FICO score; (30) the Mortgagor's
name; (31) the stated maturity date; (32) the original principal amount of the
mortgage; (33) the "pay through" date or the date of the last payment made; and
(34) the Gross Margin of the Mortgage Loan. With respect to the Mortgage Loans
in the aggregate: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted average
Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted average
maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne on a Mortgage Note.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date, the amount
remaining for distribution pursuant to Section 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Mortgage Interest Rate: As to each Mortgage Loan and at any
time, the per annum rate equal to the Mortgage Interest Rate less the applicable
Expense Fee Rate.
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the Compensating Interest payments made with respect
to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) payable by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement), or any amount withdrawn from the applicable
reserve account referred to in the fourth full paragraph of Section 4.05 that is
required under that paragraph be treated as a Net Swap Receipt for purposes of
determining the distributions from the Supplemental Interest Account.
NIM Issuer: The entity established as the issuer of NIM Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class CE Certificates.
NIM Trustee: The trustee for the NIM Securities.
NMWHFIT: A "Non Mortgage Widely Held Fixed Investment Trust" as that
term is defined in Treasury Regulations Section 1.671-5(b)(12) or successor
provisions.
Non-Permitted Transferee: A Person other than a Permitted
Transferee.
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Servicer or any successor Servicer
including the Trustee or Master Servicer, as applicable, will not or, in the
case of a proposed Monthly Advance, would not be ultimately recoverable from
related late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer or any successor
Servicer including the Trustee or Master Servicer, as applicable, will not or,
in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise.
Non-U.S. Person: A person that is not a U.S. Person.
Notice of Final Distribution: The notice to be provided pursuant to
Section 11.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Servicer or the related
Original Loan Seller, and delivered to the Master Servicer, as required by the
Countrywide Servicing Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer, reasonably acceptable to the Trustee or
Securities Administrator (and/or such other Persons as may be set forth herein);
provided, that any Opinion of Counsel relating to (a) qualification of any Trust
REMIC or (b) compliance with the REMIC Provisions, must be (unless otherwise
stated in such Opinion of Counsel) an opinion of counsel who (i) is in fact
independent of the Servicer or the Trustee of the Mortgage Loans, (ii) does not
have any material direct or indirect financial interest in the Servicer or the
Trustee of the Mortgage Loans or in an Affiliate of either and (iii) is not
connected with the Servicer or Trustee of the Mortgage Loans as an officer,
employee, director or person performing similar functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10% or less of the Cut-off Date Pool
Principal Balance.
Original Loan Seller: Countrywide, in its capacity as Seller under
the Countrywide Purchase Agreement.
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 Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the
Securities Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralization Floor: An amount equal to 0.50% of the Cut-off
Date Pool Principal Balance.
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.
Pass-Through Margin: With respect to each Class of Offered
Certificates and any Distribution Date prior to the first Distribution Date
after the Optional Termination Date, the following percentages:
Class A-1 0.650%
Class A-2 0.750%
Class A-3 0.900%
Class M-1 1.500%
Class M-2 1.500%
Class M-3 1.500%
Class M-4 1.500%
Class M-5 1.500%
On the first Distribution Date after the Optional Termination Date,
the Pass-Through Margins for the Offered Certificates shall increase to the rate
set forth below:
Class A-1 1.300%
Class A-2 1.500%
Class A-3 1.800%
Class M-1 2.250%
Class M-2 2.250%
Class M-3 2.250%
Class M-4 2.250%
Class M-5 2.250%
Pass-Through Rate: For each Class of Certificates, 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: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Master Servicer, the Securities
Administrator, or any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original maturity
of not more than 90 days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or
a remaining maturity of more than 30 days) denominated in United
States dollars and issued by, any Depository Institution and rated
"F1+" by Fitch, "A-1+" by Standard & Poor's, "P-1" by Moody's and
"R-1" by DBRS (in each case, to the extent they are designated as
Rating Agencies in the Preliminary Statement);
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities (which shall in no event have an original
maturity of more than 365 days) bearing interest or sold at a
discount that are issued by any corporation incorporated under the
laws of the United States of America or any state thereof and that
are rated by Standard & Poor's and Moody's (in each case, to the
extent they are designated as Rating Agencies in the Preliminary
Statement), and by each other Rating Agency that rates such
securities in its highest long-term unsecured rating categories at
the time of such investment or contractual commitment providing for
such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date
of acquisition thereof) that is rated by Standard & Poor's and
Moody's (in each case, to the extent they are designated as Rating
Agencies in the Preliminary Statement), and by each other Agency
that rates such securities in its highest short-term unsecured debt
rating available at the time of such investment;
(vi) units of money market funds, including money market funds
managed or advised by the Depositor, the Master Servicer, the
Securities Administrator, or the Trustee or an Affiliate thereof,
that have been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by
Standard & Poor's and, if rated by Fitch, at least "AAA" by Fitch
and "R-1" by DBRS (in each case, to the extent they are designated
as Rating Agencies in the Preliminary Statement); and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or
any other obligation, security or investment, as may be acceptable
to each of the Rating Agencies as a permitted investment of funds
backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income from a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code 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 Trust REMIC 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 Xxxxxxx Mac, 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 Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Pooling Tier REMIC-1: As described in the Preliminary Statement.
Pooling Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling Tier REMIC-1 Net WAC Rate: With respect to the Mortgage
Loans as of any Distribution Date, a per annum rate equal to (a) the weighted
average of the Net Mortgage Interest Rates then in effect on the beginning of
the related Due Period on the Mortgage Loans multiplied by (b) 30 divided by the
actual number of days in the related Interest Accrual Period.
Pooling Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling Tier REMIC-2: As described in the Preliminary Statement.
Pooling Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling Tier REMIC-2 IO Interest: Any of the Pooling Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Posted Collateral Account: The separate Account created and
maintained by the Securities Administrator pursuant to Section 4.05 in the name
of the Securities Administrator for the benefit of the Certificateholders and
designated "Xxxxx Fargo Bank, National Association for the benefit of the
registered holders of BCAP LLC Trust 2007-AA5 Mortgage Pass-Through
Certificates, Series 2007-AA5." Funds in the Posted Collateral Account shall be
held in trust for the Certificateholders for the uses and purposes set forth in
this Agreement and under the Interest Rate Swap Agreement.
Prepayment Interest Shortfall: With respect to any Servicer
Remittance Date, the sum of, for each Mortgage Loan that was, during the related
Principal Prepayment Period, the subject of a Principal Prepayment that was
applied by the Servicer to reduce the outstanding principal balance of such
Mortgage Loan on a date preceding the Due Date in the succeeding Principal
Prepayment Period, an amount equal to the product of (a) the Mortgage Interest
Rate net of the Servicing Fee Rate for such Mortgage Loan, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of
days commencing on the date on which such Principal Prepayment was applied and
ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: With respect to any Distribution Date,
the calendar month preceding the month in which that Distribution Date occurs.
Principal Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, the amount equal to the sum of the following amounts
(without duplication): (i) all scheduled payments of principal due on the Due
Date on such Mortgage Loans in the related Due Period and received on or prior
to the related Determination Date, together with any Monthly Advances in respect
thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and Liquidation
Proceeds allocable to principal and received during the related Principal
Prepayment Period; (iii) all Principal Prepayments allocable to principal and
received during the related Principal Prepayment Period; (iv) all amounts
received with respect to such Distribution Date representing the portion of the
purchase price allocable to principal in connection with a purchase or
repurchase of a Deleted Mortgage Loan; (v) principal portion of all amounts
received with respect to such Distribution Date as a Substitution Adjustment
Amount and received in connection with the substitution of a Mortgage Loan; and
(vi) the allocable portion of the proceeds received with respect to the
termination of the Trust pursuant to clause (a) of Section 11.01 (to the extent
such proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated September
20, 2007, relating to the Offered Certificates.
PTCE: As defined in Section 5.02(b).
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchaser: Barclays Bank PLC, a public limited company registered in
England and Wales, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If 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 Master Servicer,
the Securities Administrator and Trustee. References herein to a given rating or
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers. For purposes of Section 12.05(c), the addresses
for notices to each Rating Agency shall be the address specified therefor in the
definition corresponding to the name of such Rating Agency, or such other
address as either such Rating Agency may hereafter furnish to the Depositor and
the Trustee.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of any amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date;
provided, however, that, for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (January 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Disposition: The final sale by the Servicer of any REO Property.
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.
Replacement Swap Provider Payment: As defined in Section 4.05.
Reportable Event: As defined in Section 8.15(e).
Representation Letter: The Side Letter, dated as of September 21,
2007, by and between Barclays Bank PLC and the Depositor, a copy of which is
attached hereto as Exhibit T.
Repurchase Price: With respect to any Mortgage Loan, an amount equal
to the sum of (i) the unpaid principal balance of such Mortgage Loan as of the
date of repurchase, (ii) interest on such unpaid principal balance of such
Mortgage Loan at the Mortgage Rate from the last date through which interest has
been paid to the date of repurchase, (iii) all unreimbursed Servicing Advances
and (iv) all expenses incurred by the Trustee arising out of the Trustee's
enforcement of the applicable Person's repurchase obligation under the
Countrywide Purchase Agreement or under the Representation Letter.
Request for Release: The Request for Release submitted by the
Servicer to the Custodian, substantially in the form of Exhibit D.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer in the corporate trust department or
similar group of the Trustee or the Securities Administrator with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
Reuters Page LIBOR01: The display page currently so designated on
the Reuters 3000 Xtra Service (or such other page as may replace that page on
that service for displaying comparable rates or prices).
Rule 144A Letter: As defined in Section 5.02(b).
Sarbanes Certification: As defined in Section 8.15(c).
Xxxxxxxx-Xxxxx Act: means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
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.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator Float Period: With respect to any
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Servicer Remittance Date and ending on such
Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the Subordinated
Amount (in each case after taking into account the distribution of the Principal
Distribution Amount for such Distribution Date) by (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 17.30%.
Servicer: Countrywide Home Loans Servicing LP in its capacity as
servicer under the Countrywide Servicing Agreement and the Assignment
Agreements, or any successor servicer appointed pursuant thereto.
Servicer Remittance Date: With respect to any Distribution Date, the
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately succeeding such 18th day) of the month in which such Distribution
Date occurs.
Servicing Advances: As defined in the Countrywide Servicing
Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit O
hereto.
Servicing Fee: As defined in the Countrywide Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate for such Mortgage Loan specified on the Mortgage Loan Schedule.
Servicing File: The "Credit File" as defined in the Countrywide
Servicing Agreement.
Servicing Function Participant: As defined in Section 8.14(a).
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: With respect to any Distribution
Date and each Mortgage Loan with respect to which any portion of a Scheduled
Payment is, as of the last day of the related Due Period, two months or more
delinquent (as calculated in accordance with the MBA method), each Mortgage Loan
in foreclosure, each REO Property relating to and each Mortgage Loan for which
the Mortgagor has filed for bankruptcy.
Specified Subordinated Amount: With respect to each Distribution
Date (i) prior to the Stepdown Date, an amount equal to 3.90% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date, (ii) on
or after the Stepdown Date, if there is no Trigger Event in effect, the greater
of (a) 7.80% of the aggregate Stated Principal Balance of the Mortgage Loans for
the related Distribution Date (after taking into account all principal received
on the Mortgage Loans that is distributed on such Distribution Date) and (b) the
Overcollateralization Floor and (iii) on or after the Stepdown Date, if a
Trigger Event is in effect, the Specified Subordinated Amount for the prior
Distribution Date. When the Class Certificate Balance of each Class of Offered
Certificates has been reduced to zero, the Specified Subordinated Amount will
thereafter equal zero.
Sponsor: Either of (i) Barclays Bank PLC, a public limited company
registered in England and Wales and regulated by the United Kingdom's Financial
Services Authority or (ii) Xxxxxx Funding LLC, a Delaware limited liability
company.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If
Standard & Poor's is designated as a Rating Agency in the Preliminary Statement,
for purposes of Section 12.05(c) the address for notices to Standard & Poor's
shall be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Surveillance Group - BCAP LLC Trust 2007-AA5, or
such other address as Standard & Poor's may hereafter furnish to the Master
Servicer, the Securities Administrator, the Depositor, the Servicer and the
Trustee.
Startup Day: As defined in Section 2.04.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Securities Administrator
with respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of scheduled payments of principal. For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any scheduled payments of principal received or
advanced prior to the related Servicer Remittance Date and any unscheduled
principal payments and other unscheduled principal collections received during
the related Principal Prepayment Period, and the Stated Principal Balance of any
Mortgage Loan that has prepaid in full or has become a Liquidated Mortgage Loan
during the related Principal Prepayment Period shall be zero.
Stepdown Date: The later to occur of (i) the earlier to occur of (a)
the Distribution Date in October 2010 and (b) the Distribution Date immediately
following the Distribution Date on which the aggregate Class Certificate
Balances of the Class A Certificates have been reduced to zero and (ii) the
first Distribution Date on which the Senior Enhancement Percentage (calculated
for this purpose only after taking into account payments of principal on the
Mortgage Loans applied to reduce the Stated Principal Balance of the Mortgage
Loans for the applicable Distribution Date but prior to any applications of
Principal Distribution Amount to the Certificates on such Distribution Date) is
greater than or equal to the Senior Specified Enhancement Percentage.
Subcontractor: Any third-party or Affiliated vendor, subcontractor
or other Person utilized by a Servicer, a Subservicer, the Master Servicer or
the Securities Administrator that is not responsible for the overall servicing
(as "servicing" is commonly understood by participants in the mortgage-backed
securities market) of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans.
Subordinated Amount: As of any Distribution Date, the excess, if
any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the Class Certificate Balances of the Offered
Certificates as of such Distribution Date (after giving effect to the payment of
the Principal Remittance Amount on such Certificates on that Distribution Date).
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordination Reduction Amount: With respect to any Distribution
Date, an amount equal to the lesser of (a) the Excess Subordinated Amount and
(b) the Net Monthly Excess Cash Flow.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Servicer under
this Agreement, with respect to some or all of the Mortgage Loans, that are
identified in Item 1122(d) of Regulation AB.
Substitution Adjustment Amount: With respect to Countrywide Purchase
Agreement or with respect to a Mortgage Loan substituted by the Purchaser, an
amount of cash received from the Original Loan Seller in connection with a
substitution for a Deleted Mortgage Loan.
Supplemental Interest Account: The Supplemental Interest Account
created pursuant to Section 4.05 of this Agreement consisting of the Interest
Rate Cap Agreement, the Interest Rate Swap Agreement, the Class IO Interest and
the right to receive Class IO Shortfalls, subject to the obligation to pay
amounts specified in Section 4.05. The Account is created and maintained by the
Securities Administrator for the benefit of the Certificateholders and
designated "Xxxxx Fargo Bank, National Association in the name of registered
holders of BCAP LLC Trust 2007-AA5 Mortgage Pass-Through Certificates, Series
2007-AA5."
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the Offered
Certificates divided by (b) 30.
Swap Provider: Barclays Bank PLC, a bank authorized and regulated by
the United Kingdom's Financial Services Authority and a member of the London
Stock Exchange, and its successors in interest.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the Class R Certificates is
designated as "tax matters person" of Pooling Tier REMIC-1, Pooling Tier
REMIC-2, the Lower Tier REMIC and the Upper Tier REMIC, in the manner provided
under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
10-K Filing Deadline: As defined in Section 8.15(c).
Termination Price: As defined in Section 11.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the Servicer
Remittance Date) or advanced on the Mortgage Loans for Due Dates during the
related Due Period (net of Expense Fees) over (ii) the sum of (A) the interest
payable to the Offered Certificates on such Distribution Date pursuant to
Section 4.01(a)(i), (B) any Net Swap Payments payable to the Swap Provider and
(C) any Swap Termination Payment (other than a Defaulted Swap Termination
Payment) payable to the Swap Provider from Available Funds.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: Either a Cumulative Loss Trigger Event or a
Delinquency Trigger Event.
Trust: The express trust created hereunder in Section 2.01(c).
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 related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Excess Reserve Fund Account, Supplemental Interest Account, Collection Account,
Posted Collateral Account and the Distribution Account, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement; (iii)
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise; (iv) the rights of the Depositor under
the Interest Rate Swap Agreement; (v) the rights of the Depositor under the
Interest Rate Cap Agreement; (vi) the rights of the Trust under the Countrywide
Agreements; (vii) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing; and (viii) the Representation Letter.
Trust REMIC: Any of Pooling Tier REMIC-1, Pooling Tier REMIC-2, the
Lower Tier REMIC or the Upper Tier REMIC, as applicable.
Trustee: HSBC Bank USA, National Association, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or amended by Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14979, or
any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on the amount in clause
(a) above at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Unpaid Realized Loss Amount: With respect to any Class of
Certificates and as to any Distribution Date, is the excess of (i) the Applied
Realized Loss Amounts with respect to such Class over (ii) the sum of (a) all
distributions in reduction of such Applied Realized Loss Amounts on all previous
Distribution Dates, and (b) the amount by which the Class Certificate Balance of
such Class has been increased due to the distribution of any Subsequent
Recoveries on all previous Distribution Dates. Any amounts distributed to a
Class of Certificates in respect of any Unpaid Realized Loss Amount will not be
applied to reduce the Class Certificate Balance of such Class.
Upper Tier REMIC: As described in the Preliminary Statement.
Upper Tier REMIC Interest Rate: As described in the Preliminary
Statement.
Upper Tier REMIC Net WAC Rate: For any Distribution Date, the
weighted average of the Lower Tier REMIC Interest Rate of the Lower Tier Regular
Interests (other than the Class LT-IO Interest), weighted on the basis of the
Lower Tier REMIC Principal Amounts.
Upper Tier REMIC Regular Interest: As described in the Preliminary
Statement.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) 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 U.S. Persons have authority to control substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
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 the Class CE
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class R
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 (c) the remaining Voting Rights shall be allocated among Holders
of the remaining Classes of Certificates in proportion to the Class Certificate
Balances of their respective Certificates on such date.
WAC Cap: As of any Distribution Date, a per annum rate equal to (i)
the weighted average of the Net Mortgage Interest Rates then in effect on the
beginning of the related Due Period on the Mortgage Loans minus the product of
(A) the Net Swap Payment plus any Swap Termination Payment (other than a
Defaulted Swap Termination Payment), payable to the Swap Provider from Available
Funds, if any, expressed as a percentage equal to a fraction, the numerator of
which is equal to the Net Swap Payment plus any Swap Termination Payment payable
to the Swap Provider (other than a Defaulted Swap Termination Payment) from
Available Funds and the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans at the beginning of that Due Period and
(B) 12 multiplied by, 30 divided by the actual number of days in the related
Interest Accrual Period.
WHFIT: A "Widely Held Fixed Investment Trust" as that term is
defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.
WHFIT Regulations: Treasury Regulations Section 1.671-5, as amended.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby 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, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund. On the Closing Date, the Depositor shall pay,
without any right of reimbursement from the Trust, to the Cap Provider the
"Fixed Amount" (as defined in the Interest Rate Cap Agreement) due and payable
to the Cap Provider pursuant to the terms of the Interest Rate Cap Agreement.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Custodian for
the benefit of the Certificateholders the following documents or instruments
with respect to each applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) the original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(iii) the related original Mortgage and evidence of its recording
or, in certain limited circumstances, a certified copy of the mortgage
with evidence of recording;
(iv) except with respect to a MERS Loan, originals of any
intervening Mortgage assignment or certified copies in either case
evidencing recording; provided, that the assignment may be in the form of
a blanket assignment or assignments, a copy of which with evidence of
recording shall be acceptable;
(v) originals of all assumption or modification agreements or
certified copies thereof, in either case with evidence of recording
thereon;
(vi) an original or copy of a title insurance policy or evidence of
title;
(vii) to the extent applicable, an original power of attorney; and
(viii) a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
The Depositor shall deliver to the Custodian the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 120 days from the Closing Date.
From time to time, pursuant to the Countrywide Purchase Agreement,
the Original Loan Seller may forward to the Custodian additional original
documents, additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan, in accordance with the terms of
the Countrywide Purchase Agreement. All such mortgage documents held by the
Custodian as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Custodian Assignments of Mortgages (except in the case of MERS Loans), in blank,
for each applicable Mortgage Loan.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within the time period and in the manner specified in the
Countrywide Purchase Agreement, upon receipt of actual knowledge the Trustee
shall take or cause to be taken such remedial actions under the Countrywide
Purchase Agreement against the Original Loan Seller as may be permitted to be
taken thereunder, including, without limitation, if applicable, the repurchase
by the Original Loan Seller of such Mortgage Loan. The foregoing repurchase
remedy shall not apply in the event that the Original Loan Seller cannot deliver
such original or copy of any document submitted for recordation to the
appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided, that
the Original Loan Seller shall instead deliver a recording receipt of such
recording office or, if such recording receipt is not available, an officer's
certificate of an officer of the Original Loan Seller, confirming that such
document has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Original Loan Seller shall be deemed to have been satisfied upon delivery by
the Original Loan Seller to the Custodian prior to the Closing Date of a copy of
such Mortgage or assignment, as the case may be, certified (such certification
to be an original thereof) by the public recording office to be a true and
complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "BCAP LLC Trust 2007-AA5"
and HSBC Bank USA, National Association is hereby appointed as Trustee in
accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans and the Interest Rate Swap
Agreement) pursuant to Section 2.01(a). The Securities Administrator on behalf
of the Trust is hereby authorized to enter into the Interest Rate Swap Agreement
and the Interest Rate Cap Agreement.
Section 2.02 Acceptance by the Custodian of the Mortgage Loans. The
Custodian shall acknowledge on the Closing Date receipt by the Custodian of the
documents identified in the Initial Certification in the form annexed hereto as
Exhibit E, and declares that it holds and will hold such documents and the other
documents delivered to it pursuant to Section 2.01, 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
Custodian acknowledges that it will maintain possession of the related Mortgage
Notes in California, Minnesota or Salt Lake City, Utah.
Prior to and as a condition to the Closing Date, the Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage Note
and Assignment of Mortgage for each Mortgage Loan. The Custodian shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
On the Closing Date, the Custodian shall ascertain that all
documents required to be delivered to it are in its possession and shall deliver
to the Depositor an Initial Certification, in the form annexed hereto as Exhibit
E, and shall deliver to the Depositor a Document Certification and Exception
Report, in the form annexed hereto as Exhibit F, within 90 days after the
Closing Date to the effect that, as to each applicable Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception and
not covered by such certification): (i) all documents required to be delivered
to it are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based on
its examination and only as to the foregoing documents, the information set
forth in items (1), (2), (8), (32) and (34) of the Mortgage Loan Schedule
respecting such Mortgage Loan is correct; and each Mortgage Note has been
endorsed as provided in Section 2.01 of this Agreement. The Custodian shall not
be responsible to verify the validity, sufficiency or genuineness of any
document in any Custodial File.
The Custodian shall retain possession and custody of each applicable
Custodial File in accordance with and subject to the terms and conditions set
forth herein. The Servicer shall promptly deliver to the Custodian, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Custodial File as come into the possession of the
Servicer from time to time.
The Trustee shall enforce the obligation of the Original Loan Seller
to cure or repurchase Mortgage Loans that do not conform to the requirements of
Sections 2.01 and 2.02 as determined in the Custodian's review as required
herein by notifying the Original Loan Seller to correct or cure such default.
The Trustee shall also enforce the obligation of the Original Loan Seller under
the Countrywide Purchase Agreement to cure or repurchase Mortgage Loans for
which there is a defect or a breach of a representation or warranty thereunder
of which a Responsible Officer of the Trustee has actual knowledge, by notifying
the applicable party to correct or cure such default. If the Servicer or the
Original Loan Seller, as the case may be, fails or is unable to correct or cure
the defect or breach within the period set forth in the applicable agreement,
upon receipt of actual knowledge of such failure the Trustee shall notify the
Depositor of such failure to correct or cure. Unless otherwise directed by the
Depositor within five (5) Business Days after notifying the Depositor of such
failure by the applicable party to correct or cure, the Trustee shall notify the
Depositor and the Depositor will cause the Original Loan Seller to repurchase
the Mortgage Loan. If, within ten (10) Business Days of receipt of such notice
by such party, such party fails to repurchase such Mortgage Loan, the Trustee
shall notify the Depositor of such failure. The Trustee shall pursue all legal
remedies available to the Trustee, on behalf of the Trust, against the Servicer,
the Original Loan Seller and the Purchaser, as applicable, under this Agreement,
if the Trustee has received written notice from the Depositor directing the
Trustee to pursue such remedies. The Trustee will be reimbursed by the Trust for
all costs and expenses incurred by it in enforcing such legal remedies.
Upon receipt of a Form of Request of Release (which Request of
Release shall include a statement to the effect that all amounts received or to
be received in connection with such payment which are required to be deposited
in the Collection Account pursuant to Section 3.10 have been or will be so
deposited) signed by an officer of the Servicer, the Custodian shall promptly
release the related Custodial File to the Servicer within two (2) Business Days.
No expenses incurred in connection with any instrument of satisfaction or deed
of reconveyance shall be chargeable to the Collection Account unless such
expenses constitute Servicing Advances.
Section 2.03 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, the Securities Administrator 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.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" of each Trust REMIC for purposes of the REMIC Provisions shall
be the Closing Date. The "latest possible maturity date" of the regular
interests in each Trust REMIC is the Distribution Date occurring in September
2047, which is the Distribution Date in the month following the month in which
the latest maturity date of any Mortgage Loan occurs.
Amounts distributable to the Class CE Certificates (prior to any
reduction for any Basis Risk Payment, Net Swap Payment or Swap Termination
Payment), exclusive of any amounts received from the Swap Provider or under the
Interest Rate Cap Agreement, shall be deemed paid from the Upper Tier REMIC in
respect of the Class CE Interest and the Class IO Interest to the Holders of the
Class CE Certificates prior to distribution of any Basis Risk Payments to the
Offered Certificates or Swap Termination Payment to the Swap Provider.
For federal income tax purposes, any amount distributed on the
Offered Certificates on any Distribution Date in excess of the amount
distributable on their Corresponding Class of Upper Tier Regular Interest on
such Distribution Date shall be treated as having been paid from the Excess
Reserve Fund Account or the Supplemental Interest Account, as applicable, and
any amount distributable on such Corresponding Class of Upper Tier Regular
Interest on such Distribution Date in excess of the amount distributable on the
Corresponding Class of Offered Certificates on such Distribution Date shall be
treated as having been paid to the Supplemental Interest Account as a Class IO
Shortfall, all pursuant to and as further provided in Section 8.16.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Master Servicer, the
Securities Administrator, the Custodian and the Trustee that as of the date of
this Agreement or as of such date specifically provided herein:
(a) The Depositor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the power and authority to convey the Mortgage
Loans and to execute, deliver and perform, and to enter into and consummate
transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite company action having been taken,
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been received or obtained on or
prior to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the certificate of formation or limited liability company
agreement of the Depositor, or (B) of any term, condition or provision of any
material indenture, deed of trust, contract or other agreement or instrument to
which the Depositor or any of its subsidiaries is a party or by which it or any
of its subsidiaries is bound; (ii) results or will result in a violation of any
law, rule, regulation, order, judgment or decree applicable to the Depositor of
any court or governmental authority having jurisdiction over the Depositor or
its subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that would materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 12.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodian, and shall inure to the benefit of
the Certificateholders.
Section 2.06 Representations and Warranties of the Trustee. The
Trustee hereby represents and warrants to the Depositor, the Master Servicer,
the Securities Administrator and the Custodian, as of the Closing Date:
(a) The Trustee has been duly incorporated and is validly existing
as a national banking association and is duly qualified to do business and in
good standing under the laws of each jurisdiction in which the performance of
its duties under this Agreement would require such qualification and has the
requisite power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) The Trustee has the full power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated by
this Agreement and has duly authorized by all necessary action on the part of
the Trustee the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery thereof by the
other parties thereto, constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms, except
that (i) the enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (ii) 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.
(c) The execution and delivery of this Agreement by the Trustee, the
consummation of any other of the transactions contemplated by this Agreement,
and the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of the Trustee and will not (i) result in a material breach
of any term or provision of the articles of incorporation or bylaws of the
Trustee, (ii) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which the Trustee is a party or by
which it may be bound, or (iii) constitute a material violation of any statute,
order or regulation applicable to the Trustee of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the Trustee;
and the Trustee 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 Trustee's ability to perform or meet any of its obligations under this
Agreement.
(d) No litigation is pending or threatened against the Trustee that
would materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of the Trustee to perform any of its
obligations under this Agreement in accordance with the terms thereof. For
purposes of the foregoing, the Trustee does not regard any actions, proceedings
or investigations "threatened" unless the potential litigants or governmental
authority has manifested to a member of the Trustee's Legal Department having
responsibility for litigation matters involving the corporate trust activities
of the Trustee its present intention to initiate such proceedings.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee of, or compliance by the Trustee with, this Agreement
or the consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, the Trustee has obtained
the same.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Distribution Account and Excess Reserve Fund Account.
(a) The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class CE Certificateholders, to receive any Basis
Risk Payment and to secure their limited recourse obligation to pay to the
Offered Certificateholders any Basis Risk Carry Forward Amounts (prior to using
any Interest Rate Cap Payments or Net Swap Receipts). For the avoidance of
doubt, any Basis Risk Carry Forward Amounts shall be paid to the Offered
Certificates first from the Excess Reserve Fund Account and then from the
Supplemental Interest Account. On each Distribution Date, the Securities
Administrator shall deposit the amount of any Basis Risk Payment received by it
for such date into the Excess Reserve Fund Account. The Excess Reserve Fund
Account shall be a non-interest bearing account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Offered Certificates, the Securities
Administrator shall (1) withdraw from the Distribution Account, to the extent of
funds available therefor in the Distribution Account, and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.01(a)(iii)(D), the lesser of (x)
the Class CE Distributable Amount (without regard to the reduction in clause
(iii) of the definition thereof with respect to any Basis Risk Carry Forward
Amount or any Defaulted Swap Termination Payment) (to the extent remaining after
the distributions specified in Sections 4.01(a)(iii)(A)-(C)) and (y) the
aggregate Basis Risk Carry Forward Amounts of the Offered Certificates for such
Distribution Date and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of Offered Certificates the related
Basis Risk Carry Forward Amount. Such payments shall be allocated to those
Classes based upon the amount of Basis Risk Carry Forward Amount owed to each
such Class and shall be paid in the priority set forth in Section
4.01(a)(iii)(E).
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class CE Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper Tier REMIC to the Excess Reserve Fund Account shall be
treated as distributions by the Securities Administrator to the Class CE
Certificateholders in respect of the Class CE Interest and then contributed by
the Class CE Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Offered Certificateholders pursuant to Section
4.01(a)(iii)(E) from the Excess Reserve Fund Account shall be accounted for by
the Securities Administrator, for federal income tax purposes, as amounts paid
first to the Holders of the Class CE Certificates (in respect of the Class CE
Interest or the Class IO Interest, respectively) and then to the respective
Class or Classes of Offered Certificates. In addition, the Securities
Administrator shall account for the Offered Certificateholders' rights to
receive payments of Basis Risk Carry Forward Amounts from the Excess Reserve
Fund Account (along with payments of Basis Risk Carry Forward Amounts from the
Supplemental Interest Account) and obligation to pay Class IO Shortfalls to the
Supplemental Interest Account as rights and obligations in a limited recourse
notional principal contract between the Class CE Certificateholders and the
Holders of each such Class. Funds in the Excess Reserve Fund Account shall
remain uninvested.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any distributions from
the Excess Reserve Fund Account except as expressly set forth in this Section
3.01(a).
(b) The Securities Administrator shall establish and maintain the
Distribution Account on behalf of the Certificateholders, which shall be a
non-interest bearing trust account. The Securities Administrator shall, promptly
upon receipt on the Business Day received, deposit in the Distribution Account
and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Securities
Administrator pursuant to the applicable Servicing Agreement; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted pursuant to the Countrywide Servicing Agreement, and the Servicer
pursuant to an Officer's Certificate directs the Securities Administrator in
writing to withdraw such amount from the Distribution Account, the Securities
Administrator shall return such funds to the Servicer. All funds deposited in
the Distribution Account shall be held by the Securities Administrator in trust
for the Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.01.
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Securities Administrator may (but shall not be obligated to) invest funds in
the Distribution Account during the Securities Administrator Float Period (for
purposes of this Section 3.02, such Account is referred to as an "Investment
Account"), in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand or maturing on such
Distribution Date, in the case of an investment that is an obligation of the
Securities Administrator, no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement. All such Permitted Investments shall be held to
maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Securities Administrator. The
Securities Administrator shall be entitled to sole possession over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Securities Administrator or its
agent, together with any document of transfer necessary to transfer title to
such investment to the Securities Administrator. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Securities Administrator may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator Float Period shall be subject to the
Securities Administrator's withdrawal in the manner set forth in Section 10.05.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. Notwithstanding the foregoing, the
Securities Administrator shall be liable to the Trust for any such loss on any
funds it has invested under this Section 3.02 only during the Securities
Administrator Float Period, and the Securities Administrator shall deposit funds
in the amount of such loss in the Distribution Account promptly after such loss
is incurred.
(d) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation is not payable or
reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Securities Administrator shall obtain and verify certain information
and documentation from certain other parties to this Agreement including, but
not limited to, each such party's name, address and other identifying
information.
(f) On or prior to each Distribution Date, the Custodian shall
deliver an invoice to the Master Servicer (which may be provided
electronically), setting forth the amount of the Custodian Fee for the related
Distribution Date. The Master Servicer shall remit the Custodian Fee to the
Custodian payable out of the compensation payable hereunder to the Master
Servicer.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator will make the disbursements and transfers
from amounts then on deposit in the Distribution Account in the following order
of priority and to the extent of the Available Funds remaining and, on such
Distribution Date, shall make distributions on the Certificates in accordance
with such allocation:
(i) holders of each Class of Offered Certificates and to the
Supplemental Interest Account in the following order of priority:
(A) from the Interest Remittance Amount, to the Supplemental
Interest Account, the sum of (x) all Net Swap Payments and (y) any
Swap Termination Payment owed to the Swap Provider (to the extent
not previously received by the Swap Provider as a Replacement Swap
Provider Payment), other than a Defaulted Swap Termination Payment,
if any;
(B) concurrently, on a pro rata basis based upon their
respective entitlements, to the Holders of the A Certificates and
any related Accrued Certificate Interest and any Unpaid Interest
Amounts for each such Class, as applicable, on such Distribution
Date;
(C) from any remaining Interest Remittance Amount, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amount, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amount, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(F) from any remaining Interest Remittance Amount, to the
Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(G) from any remaining Interest Remittance Amount, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii) (A) on each Distribution Date (I) prior to the Stepdown Date or
(II) with respect to which a Trigger Event is in effect, to the
Supplemental Interest Account and to the Holders of the related Class or
Classes of Offered Certificates then entitled to distributions of
principal, from Available Funds remaining after making distributions
pursuant to clause (i) above, an amount equal to the Principal
Distribution Amount in the following order of priority:
(1) to the extent unpaid after the distributions
pursuant to clause (i)(A) above, to the Supplemental Interest
Account, the sum of (x) all Net Swap Payments and (y) any Swap
Termination Payment (to the extent not previously received by
the Swap Provider as a Replacement Swap Provider Payment),
other than a Defaulted Swap Termination Payment, owed to the
Swap Provider, if any;
(2) (a) to the Class A-1, Class A-2 and Class A-3
Certificates, pro rata, based on their respective Class
Certificate Balances until their respective Class Certificate
Balances are reduced to zero; and
(3) sequentially to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4 and Class M-5 Certificates, in that order, until
their respective Class Certificate Balances are reduced to
zero;
(B) on each Distribution Date (I) on and after the Stepdown
Date and (II) as long as a Trigger Event is not in effect, to the
Supplemental Interest Account and to the Holders of the related Class or
Classes of Offered Certificates then entitled to distribution of
principal, from Available Funds remaining on deposit in the Distribution
Account after making distributions pursuant to clause (i) above, an amount
equal to the Principal Distribution Amount in the following amounts and
order of priority:
(1) to the extent unpaid after the distributions
pursuant to clause (i)(A) above, to the Supplemental Interest
Account, the sum of (x) all Net Swap Payments and (y) any Swap
Termination Payment (to the extent not previously received by
the Swap Provider as a Replacement Swap Provider Payment),
other than a Defaulted Swap Termination Payment, owed to the
Swap Provider, if any;
(2) to the Class A Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and (y) the Class A Principal
Distribution Amount, allocated pro rata based on their
respective Class Certificate Balances until their respective
Class Certificate Balances are reduced to zero;
(3) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above and (y)
the Class M-1 Principal Distribution Amount until their Class
Certificate Balance has been reduced to zero;
(4) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above and to
the Class M-1 Certificateholders in clause (ii)(B)(3) above
and (y) the Class M-2 Principal Distribution Amount, until
their Class Certificate Balance has been reduced to zero;
(5) to the Class M-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above and to
the Class M-2 Certificateholders in clause (ii)(B)(4) above
and (y) the Class M-3 Principal Distribution Amount, until
their Class Certificate Balance has been reduced to zero;
(6) to the Class M-4 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above, to
the Class M-2 Certificateholders in clause (ii)(B)(4) above
and to the Class M-3 Certificateholders in clause (ii)(B)(5)
above and (y) the Class M-4 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to
zero; and
(7) to the Class M-5 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amounts distributed to the Supplemental Interest Account in
clause (ii)(B)(1) above and the amounts distributed to the
Class A Certificateholders in clause (ii)(B)(2) above, to the
Class M-1 Certificateholders in clause (ii)(B)(3) above, to
the Class M-2 Certificateholders in clause (ii)(B)(4) above,
to the Class M-3 Certificateholders in clause (ii)(B)(5) above
and to the Class M-4 Certificateholders in clause (ii)(B)(6)
above and (y) the Class M-5 Principal Distribution Amount,
until their Class Certificate Balance has been reduced to
zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above, plus as specifically indicated below, amounts on deposit
in the Excess Reserve Fund Account, shall be distributed in the following
order of priority:
(A) sequentially, to the Holders of the Class M-1, Class M-2,
Class M-3, Class M-4 and Class M-5 Certificates, in that order, any
Unpaid Interest Amount for each such Class;
(B) sequentially, to the Holders of the Class A-1, Class A-2
and Class A-3 Certificates, in that order, any Unpaid Realized Loss
Amount for each such Class;
(C) sequentially, to the Holders of the Class M-1, Class M-2,
Class M-3, Class M-4 and Class M-5 Certificates, in that order, any
Unpaid Realized Loss Amount for each such Class;
(D) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to any Net Swap Receipts) for
such Distribution Date;
(E) from funds on deposit in the Excess Reserve Fund Account
with respect to that Distribution Date, an amount equal to any
remaining unpaid Basis Risk Carry Forward Amount with respect to the
Offered Certificates for that Distribution Date, first, concurrently
to the Class A Certificates, pro rata, based on their respective
Class Certificate Balances immediately prior to that Distribution
Date, up to their respective unpaid remaining Basis Risk Carry
Forward Amounts (provided that, if for any Distribution Date, after
the allocation of the remaining unpaid Basis Risk Carry Forward
Amounts to the Class A Certificates, the remaining unpaid Basis Risk
Carry Forward Amounts for any of the Class A Certificates is reduced
to zero, any amount of remaining unpaid Basis Risk Carry Forward
Amounts that would have been allocated to that Class A Certificate
for that Distribution Date will instead be allocated, pro rata,
based on their respective remaining unpaid Basis Risk Carry Forward
Amounts, to the other Class A Certificates to the extent the other
Class A Certificates have any remaining unpaid Basis Risk Carry
Forward Amounts), and, second, sequentially to the Class X-0, Xxxxx
X-0, Class M-3, Class M-4 and Class M-5 Certificates, in that order,
in each case up to their respective unpaid remaining Basis Risk
Carry Forward Amounts;
(F) to the Supplemental Interest Account, the amount of any
Defaulted Swap Termination Payment owed to the Swap Provider;
(G) to the Class CE Certificates, the remainder of the Class
CE Distributable Amount not distributed pursuant to Sections
4.01(a)(iii)(A)-(F); and
(H) to the Class R Certificates, any remaining amount, in
respect of each Trust REMIC.
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive in full the related
Accrued Certificate Interest Distribution Amount or the related Unpaid Interest
Amount, then such shortfall will be allocated to the Holders of such Classes,
with interest thereon, on future Distribution Dates, as an Unpaid Interest
Amount, subject to the priorities described above.
In addition, notwithstanding the foregoing, on any Distribution Date
after the Distribution Date on which the Class Certificate Balance of a Class of
Offered Certificates has been reduced to zero, that Class of Certificates shall
be retired and shall no longer be entitled to distributions, including
distributions in respect of Unpaid Interest Amounts, unpaid remaining Basis Risk
Carry Forward Amounts or Unpaid Realized Loss Amounts for the Offered
Certificates.
(b) On any Distribution Date, any Relief Act Interest Shortfalls for
such Distribution Date and Net Prepayment Interest Shortfalls for such
Distribution Date shall be allocated by the Securities Administrator as a
reduction in the following order:
(i) First, to the portion of the Class CE Distributable Amount
allocable to interest; and
(ii) Second, pro rata, as a reduction of the Accrued Certificate
Interest Distribution Amount for the Class A and Class M Certificates,
based on the amount of interest to which such Classes would otherwise be
entitled.
Section 4.02 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Servicer, the Depositor and each Rating Agency a
statement based in part on information provided by the Servicer setting forth
with respect to the related distribution:
(i) the actual Distribution Date, the related Record Date, the
Interest Accrual Period(s) for each Class for such Distribution Date and
the LIBOR Determination Date for such Interest Accrual Period;
(ii) the amount of Available Funds;
(iii) the amount of Available Funds allocable to principal, the
Principal Remittance Amount (separately identifying the components
thereof) and the Principal Distribution Amount (and the calculation
thereof);
(iv) the amount of Available Funds allocable to interest and each
Interest Remittance Amount;
(v) the amount of any Unpaid Interest Amount for each Class included
in such distribution and any remaining Unpaid Interest Amounts after
giving effect to such distribution, any Basis Risk Carry Forward Amount
for each Class of Certificates, the amount of such Basis Risk Carry
Forward Amount covered by withdrawals from the Excess Reserve Fund Account
or the Supplemental Interest Account on such Distribution Date;
(vi) 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 of the shortfall as between principal
and interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account or the Supplemental Interest
Account;
(vii) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on such
Distribution Date and the aggregate amount of all Advances recovered
during the related Due Period;
(viii) the Pool Stated Principal Balance for the related
Distribution Date;
(ix) the amount of the Expense Fees paid to or retained by the
Servicer with respect to such Distribution Date and the amount of any
expenses and fees paid to or retained by the master servicer or securities
administrator for such Distribution Date, in each case identifying the
general purpose of such fees;
(x) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(xi) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicer (and the Master Servicer or the Trustee as successor servicer and
any other successor servicer, if applicable) as outstanding as of the
close of business on the Determination Date immediately preceding such
Distribution Date;
(xii) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 30 to
59 days, 60 to 89 days, 90 or more days, and in such other periods and for
such times as required by Regulation AB, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month to be calculated in accordance with the MBA
method;
(xiii) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xiv) with respect to any Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate outstanding principal balance of such Mortgage
Loans as of the close of business on the Determination Date preceding such
Distribution Date of the REO Properties;
(xv) the total number and outstanding 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;
(xvi) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger
Event);
(xvii) the amount on deposit in each Excess Reserve Fund Account and
the Supplemental Interest Account (after giving effect to distributions on
such Distribution Date);
(xviii) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xix) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation of it to the related
Certificateholders with respect to Unpaid Interest Amounts, Applied
Realized Loss Amounts, Basis Risk Carry Forward Amounts;
(xx) the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments;
(xxi) LIBOR and Swap LIBOR;
(xxii) the Subordinated Amount and Specified Subordinated Amount;
(xxiii) the Cumulative Loss Percentage and the aggregate amount of
Realized Losses used to calculate the Cumulative Loss Percentage;
(xxiv) the amount distributed on the Class CE Certificates;
(xxv) the amount of any Subsequent Recoveries for such Distribution
Date; and
(xxvi) the number of Mortgage Loans at the beginning and end of the
applicable reporting period, the pool factor, and the weighted average
interest rate, and weighted average remaining term.
In addition, each Form 10-D prepared and filed by the
Securities Administrator pursuant to Section 8.15 shall include the following
information with respect to the related distribution:
(i) material breaches of Mortgage Loan representations and
warranties of which the Securities Administrator has knowledge or has
received written notice; and
(ii) material breaches of any covenants under this Agreement of
which the Securities Administrator has knowledge or has received written
notice.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency and the Depositor
is limited, if applicable, to the availability, timeliness and accuracy of the
information derived from the Servicer. The Securities Administrator shall make
available the above statement via the Securities Administrator's internet
website. The Securities Administrator's website will initially be located at
xxxx://xxx.xxxxxxx.xxx and assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at (000) 000-0000.
Parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk and
indicating such. The Securities Administrator may change the way the monthly
statements to Certificateholders are distributed in order to make such
distribution more convenient and/or more accessible to the above parties and the
Securities Administrator shall provide timely and adequate notification to all
above parties regarding any such changes. As a condition to access the
Securities Administrator's internet website, the Securities Administrator may
require registration and the acceptance of a disclaimer. The Securities
Administrator will not be liable for the dissemination of information in
accordance with this Agreement.
The Securities Administrator shall make available to each Analytics
Company via the Securities Administrator's internet website each statement to
Certificateholders prepared pursuant to this Section 4.02(b). The Securities
Administrator and the Servicer shall cooperate in good faith with the Depositor
to reconcile any discrepancies in such statements, and the Securities
Administrator shall provide any corrections to such statements to each Analytics
Company within ten Business Days of the related Distribution Date, provided that
the Securities Administrator shall only be obligated to report to one Analytics
Company in any month.
(c) Within a reasonable period of time after the end of each
calendar year, the Securities Administrator 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)(iii), and (a)(v)
of this Section 4.02 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time in
effect.
(d) Notwithstanding any other provision of this Agreement, the
Securities Administrator shall comply with all federal withholding requirements
respecting payments made or received under the Interest Rate Swap Agreement or
the Interest Rate Cap Agreement and payments to Certificateholders of interest
or original issue discount that the Securities Administrator reasonably believes
are applicable under the Code. The consent of Certificateholders shall not be
required for such withholding. If the Securities Administrator does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the
Securities Administrator shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
Section 4.03 Allocation of Applied Realized Loss Amounts.
Any Applied Realized Loss Amounts shall be allocated by the
Securities Administrator to the most junior Class of Subordinated Certificates
then Outstanding in reduction of the Class Certificate Balance thereof, until
the Class Certificate Balance of each such Class is reduced to zero. After the
Class Certificate Balance of each Class of Subordinated Certificate is reduced
to zero, the Class Certificate Balance of the Class A-3 Certificates will be
reduced by the aggregate remaining excess referred to in the previous sentence.
After the Class Certificate Balance of the Class A-3 Certificates is reduced to
zero, the Class Certificate Balance of the Class A-2 Certificates will be
reduced by the aggregate remaining excess referred to in the previous sentence.
After the Class Certificate Balance of the Class A-2 Certificates is reduced to
zero, the Class Certificate Balance of the Class A-1 Certificates will be
reduced by the aggregate remaining excess referred to above.
In the event Applied Realized Loss Amounts are allocated to any
Class of Certificates, their Class Certificate Balances shall be reduced by the
amount so allocated and no funds shall be distributed with respect to the
written down amounts or with respect to interest or Basis Risk Carry Forward
Amounts on the written down amounts on that Distribution Date or any future
Distribution Dates, even if funds are otherwise available therefor.
Notwithstanding the foregoing, the Class Certificate Balance of each
Class of Certificates that has been previously reduced by Applied Realized Loss
Amounts will be increased, in that order or seniority, by the amount of the
Subsequent Recoveries (but not in excess of the Applied Realized Loss Amount
allocated to the applicable Class of Certificates).
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of LIBOR. Until all of the Offered Certificates are paid in full, the
Securities Administrator shall at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). 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 Securities Administrator 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 Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator 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.
(i) The Pass-Through Rate for each Class of Offered Certificates for
each Interest Accrual Period shall be determined by the Securities
Administrator on each LIBOR Determination Date so long as the Offered
Certificates are Outstanding on the basis of LIBOR and the respective
formulae appearing in footnotes corresponding to the Offered Certificates
in the table relating to the Certificates in the Preliminary Statement.
The Securities Administrator shall not have any liability or
responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to
determine the arithmetic mean referred to in the definition of LIBOR, all
as provided for in this Section 4.04 and the definition of LIBOR. The
establishment of LIBOR and each Pass-Through Rate for the Offered
Certificates by the Securities Administrator shall (in the absence of
manifest error) be final, conclusive and binding upon each Holder of a
Certificate and the Securities Administrator.
Section 4.05 Supplemental Interest Account and Posted Collateral
Account. On the Closing Date, the Securities Administrator shall establish and
maintain in its name, a separate non-interest bearing trust account for the
benefit of the holders of the Offered Certificates (the "Supplemental Interest
Account") as a part of the Trust Fund. The Supplemental Interest Account shall
be an Eligible Account, and funds on deposit therein shall be held separate and
apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Securities Administrator held pursuant
to this Agreement. Funds in the Supplemental Interest Account shall remain
uninvested.
On any Distribution Date, Interest Rate Cap Payments, Swap
Termination Payments, Net Swap Payments owed to the Swap Provider and Net Swap
Receipts for that Distribution Date will be deposited into the Supplemental
Interest Account. With respect to any Distribution Date, funds in the
Supplemental Interest Account will be distributed in the following order of
priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment (to the extent not previously received by
the Swap Provider as a Replacement Swap Provider Payment), other than a
Defaulted Swap Termination Payment, to the Swap Provider, if any, owed for
that Distribution Date;
(ii) to the Class A Certificates, to pay Accrued Certificate
Interest Distribution Amounts and, if applicable, any Unpaid Interest
Amounts, pro rata, based on their respective entitlements to those amounts
to the extent unpaid from Available Funds;
(iii) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4 and Class M-5 Certificates, in that order, to pay Accrued Certificate
Interest and, if applicable, Unpaid Interest Amounts for such Classes to
the extent unpaid from other Available Funds;
(iv) to the Offered Certificates, to pay any Basis Risk Carry
Forward Amounts as described, and in the same manner and priority as set
forth in Section 4.01(a)(iii)(E) above, to the extent unpaid from other
Available Funds (including funds on deposit in the Excess Reserve Fund
Account);
(v) sequentially, to Class X-0, Xxxxx X-0, Class M-3, Class M-4 and
Class M-5 Certificates, in that order, to pay principal as described, and
in the same manner and order of priority as set forth, in Section
4.01(a)(ii)(A) or 4.01(a)(ii)(B) above, as applicable, but only to the
extent necessary to restore the Subordinated Amount to the Specified
Subordinated Amount as a result of current or prior Realized Losses not
previously reimbursed, after giving effect to payments and distributions
from other Available Funds;
(vi) among the Class A Certificates, first to the Class A-1
Certificates, then to the Class A-2 Certificates, and then to the Class
A-3 Certificates, in each case in an amount equal to the remaining Unpaid
Realized Loss Amount for each such Class, to the extent unpaid from other
Available Funds;
(vii) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4 and Class M-5 Certificates, in that order, to pay any Unpaid Realized
Loss Amounts, in each case in an amount equal to the remaining Unpaid
Realized Loss Amount for each such Class, to the extent unpaid from other
Available Funds;
(viii) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(ix) to the Holders of the Class CE Certificates, any remaining
amounts.
Notwithstanding any other provision in this Agreement, in the event
that the Interest Rate Swap Agreement is terminated and the Trust enters into a
replacement interest rate swap agreement and the Trust is entitled to receive a
payment from a replacement swap provider, the Securities Administrator shall
direct the replacement swap provider to make such payment (the "Replacement Swap
Provider Payment") to the Supplemental Interest Account. The Swap Provider shall
be entitled to receive from the Supplemental Interest Account the lesser of (x)
the amount so received from the Replacement Swap Provider and (y) any Swap
Termination Payment owed to the Swap Provider (to the extent not already paid by
the Trust) that is being replaced immediately upon receipt of the Replacement
Swap Provider Payment, regardless of whether the date of receipt thereof is a
Distribution Date; provided that to the extent that the Replacement Swap
Provider Payment is less than the Swap Termination Payment owed to the Swap
Provider, any remaining amounts will be paid to the Swap Provider on the
subsequent Distribution Date (unless the Replacement Swap Provider Payment is
paid to the Swap Provider on a Distribution Date, in which case such remaining
amounts will be paid on such Distribution Date) in accordance with the priority
of payments described in Section 4.01 of this Agreement. For the avoidance of
doubt, the parties agree that the Swap Provider shall have first priority to any
Replacement Swap Provider Payment over the payment by the Trust to
Certificateholders, the Servicer, the Custodian, the Trustee, the Master
Servicer, the Securities Administrator or any other Person.
Notwithstanding the foregoing, in the event that the Trust receives
a Swap Termination Payment and a successor Swap Provider cannot be obtained,
then the Securities Administrator shall deposit the Swap Termination Payment
into the reserve account that is a sub-account of the Supplemental Interest
Account. On each subsequent Distribution Date (so long as funds are available in
the reserve account), the Securities Administrator shall withdraw from the
reserve account and deposit into the Supplemental Interest Account an amount
equal to the amount of any Net Swap Receipt due the Trust under the Interest
Rate Swap Agreement (calculated in accordance with the terms of the original
Interest Rate Swap Agreement) and treat such amount as a Net Swap Receipt for
purposes of determining the distributions from the Supplemental Interest
Account.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Account shall be distributed pursuant to the priorities
set forth in this Section 4.05.
The Securities Administrator shall account for the Supplemental
Interest Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Supplemental Interest Account
are the Class CE Certificateholders. For federal income tax purposes, Net Swap
Payments and Swap Termination Payments payable to the Swap Provider from
Available Funds shall be deemed to be paid to the Supplemental Interest Account
from the Upper Tier REMIC, first, by the Holder of the Class CE Certificates (in
respect of the Class IO Interest and, if applicable, Class CE Interest) and
second, other than any Defaulted Swap Termination Payment, by the Holders of the
applicable Class or Classes of Offered Certificates (in respect of Class IO
Shortfalls) as and to the extent provided in Section 8.16.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Offered Certificateholders from the Excess Reserve Fund
Account or the Supplemental Interest Account shall be accounted for by the
Securities Administrator for federal income tax purposes, as amounts paid first
to the Holders of the Class CE Certificates (in respect of the Class CE Interest
or the Class IO Interest, respectively) and then to the respective Class or
Classes of Offered Certificates. In addition, the Securities Administrator shall
account for the rights of Holders of each Class of Offered Certificates to
receive payments of Basis Risk Carry Forward Amounts from the Supplemental
Interest Account (along with Basis Risk Carry Forward Amounts payable from the
Excess Reserve Fund Account) and the obligations of the Offered Certificates to
pay Class IO Shortfalls to the Supplemental Interest Account as rights and
obligations under a separate limited recourse notional principal contract
between the Class CE Certificateholders and of Holders of each such Class.
The Supplemental Interest Account shall be an "outside reserve fund"
for federal income tax purposes and not an asset of any Trust REMIC.
Furthermore, the Holders of the Class CE Certificates shall be the beneficial
owners of the Supplemental Interest Account for all federal income tax purposes,
and shall be taxable on all income earned thereon, and any amounts reimbursed
from the Upper Tier REMIC to the Supplemental Interest Account shall be treated
as having been distributed to the Holders of the Class CE Certificates.
In the event the Swap Provider or Cap Provider does not deliver the
Delivery Amount (as defined in the Interest Rate Swap Agreement) to the
Securities Administrator, the Securities Administrator shall provide notice of
such failure to the Swap Provider or the Cap Provider, as applicable, within one
Business Day of such failure.
With respect to the failure of the Swap Provider or the Cap Provider
to perform any of its obligations under the Interest Rate Swap Agreement or the
Interest Rate Cap Agreement, as applicable, the breach by the Swap Provider or
the Cap Provider of any of its representations and warranties made pursuant to
the Interest Rate Swap Agreement or the Interest Rate Cap Agreement, as
applicable, or the termination of the Interest Rate Swap Agreement or the
Interest Rate Cap Agreement, the Securities Administrator shall send any notices
and make any demands, on behalf of the Trust as are required under the Interest
Rate Swap Agreement or the Interest Rate Cap Agreement, as applicable.
The Depositor shall cause any replacement swap provider or
replacement cap provider to provide a copy of the replacement interest rate swap
agreement or the replacement interest rate cap agreement, as applicable, to the
Securities Administrator.
On the Closing Date, the Securities Administrator pursuant to the
Interest Rate Swap Agreement and the Interest Rate Cap Agreement shall open and
maintain in its name, a separate non-interest bearing trust account for the
benefit of the holders of the Certificates (the "Posted Collateral Account") as
a part of the Trust Fund. The Posted Collateral Account shall be an Eligible
Account and funds on deposit therein shall be held separate and apart from and
shall not be commingled with, any other moneys, including, without limitation,
other moneys of the Securities Administrator held pursuant to this Agreement.
Funds in the Posted Collateral Account shall be invested at the direction of the
Swap Provider or the Cap Provider, as applicable, as provided in the Interest
Rate Swap Agreement and the Interest Rate Cap Agreement and the Swap Provider
and the Cap Provider, as applicable, shall be responsible for all losses
incurred in connection with investments thereof. In no event shall the
Securities Administrator have any liability or responsibility for the selection
of investments and any losses incurred thereon, and shall have no obligation to
invest or reinvest any funds in the absence of timely written direction.
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) and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class CE Certificates in the name of the Depositor or its designee.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator 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
such Holder has so notified the Securities Administrator at least five Business
Days prior to the related Record Date 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 Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any 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 authenticated
by the Securities Administrator by manual signature, and such authentication
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 authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of this Section 5.02, 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 Securities Administrator 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 Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator 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 Securities Administrator 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 Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In determining whether a transfer is being made pursuant to an effective
registration statement, the Securities Administrator shall be entitled to rely
solely upon a written notice to such effect from the Depositor. Except with
respect to (i) the transfer of the Class CE Certificates or the Residual
Certificates to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class CE Certificates to the NIM Issuer or the NIM Trustee, or
(iii) a transfer of the Class CE Certificates from the NIM Issuer or the NIM
Trustee to the Depositor or an Affiliate of the Depositor, in the event that a
transfer of a Private Certificate which is a Physical Certificate 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 shall certify to the Securities Administrator
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit H (the "Transferor Certificate") and either (i) there shall be
delivered to the Securities Administrator a letter in substantially the form of
Exhibit I (the "Rule 144A Letter") or (ii) there shall be delivered to the
Securities Administrator at the expense of the transferor an Opinion of Counsel
that such transfer may be made without registration under the Securities Act. In
the event that a transfer of a Private Certificate which is a Book-Entry
Certificate 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 will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. As directed by the
Depositor, the Securities Administrator 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 Depositor shall cooperate with the
Securities Administrator and the Servicer in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Securities
Administrator such information regarding the Certificates, the Mortgage Loans
and other matters regarding the Trust Fund as the Depositor shall reasonably
determine 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 Securities Administrator, the Servicer 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.
Except with respect to (i) the transfer of the Class CE Certificates
or the Residual Certificates to the Depositor or an Affiliate of the Depositor,
(ii) the transfer of the Class CE Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class CE Certificates from the NIM Issuer or
the NIM Trustee to the Depositor or an Affiliate of the Depositor, no transfer
of an ERISA-Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator (in the event such Certificate is a
Private Certificate, such requirement is satisfied only by the Securities
Administrator's receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that such transferee is
not an employee benefit plan or arrangement subject to Section 406 of ERISA, a
plan subject to Section 4975 of the Code or a plan subject to any Federal, state
or local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, nor a Person acting on behalf of any such plan or arrangement
nor using the assets of any such plan or arrangement to effect such transfer, or
(ii) in the case of an ERISA-Restricted Certificate other than a Residual
Certificate that has been the subject of an ERISA-Qualifying Underwriting, and
the purchaser is an insurance company, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
other than a Residual Certificate presented for registration in the name of an
employee benefit plan subject to Title I of ERISA, a plan or arrangement subject
to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a plan subject to Similar Law, or a trustee of any such plan 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
Securities Administrator, which Opinion of Counsel shall not be an expense of
the Depositor, the Securities Administrator, the Servicer, the Master Servicer,
the Custodian or the Trust Fund, addressed to the Securities Administrator, to
the effect that the purchase or holding of such ERISA-Restricted Certificate
will not constitute or result in a non-exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Depositor, the Securities Administrator, the Master Servicer, the
Custodian or the 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 Physical
Certificate, in the event the representation letter referred to in the preceding
sentence is not furnished, such representation shall be deemed to have been made
to the Securities Administrator by the transferee's (including an initial
acquirer's) acceptance of the ERISA-Restricted Certificates. Notwithstanding
anything else to the contrary herein, (a) any purported transfer of an
ERISA-Restricted Certificate, other than a Residual Certificate, to or on behalf
of an employee benefit plan subject to ERISA, the Code or Similar Law without
the delivery to the Securities Administrator of an Opinion of Counsel
satisfactory to the Securities Administrator as described above shall be void
and of no effect and (b) any purported transfer of a Residual Certificate to a
transferee that does not make the representation in clause (i) above shall be
void and of no effect.
None of the Residual Certificates may be sold to any employee
benefit plan subject to Title I of ERISA, any plan subject to Section 4975 of
the Code, or any plan subject to any Similar Law or any Person investing on
behalf or with plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator 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 Securities Administrator in accordance with the
foregoing requirements.
As long as an Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate other than an ERISA Restricted Certificate, or
any interest therein, shall be deemed to have represented that either (i) it is
not a Plan or (ii) the acquisition and holding of the Certificate are eligible
for the exemptive relief available under at least one of (i) Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 84-14 (for transactions by
independent "qualified professional asset managers"), (ii) PTCE 91-38 (for
transactions by bank collective investment funds), (iii) XXXX 00-0 (for
transactions by insurance company pooled separate accounts), (iv) PTCE 95-60
(for transactions by insurance company general accounts) or (v) PTCE 96-23 (for
transactions effected by "in-house asset managers") or similar exemption under
similar law.
(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 Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator 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 G;
(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 a
Non-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 Securities Administrator 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 the Rule 144A Letter. The Securities Administrator shall
be entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact a Non-Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became a Non-Permitted
Transferee, all payments made on such Residual Certificate at and after
either such time. Any such payments so recovered by the Securities
Administrator shall be paid and delivered by the Securities Administrator
to the last preceding Permitted Transferee of such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, 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 a Non-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 Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Securities Administrator, the Master Servicer, the Custodian or the Servicer, to
the effect that the elimination of such restrictions will not cause any Trust
REMIC to fail to qualify as a REMIC at any time that the Certificates are
Outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment of
this Agreement which, based on an Opinion of Counsel furnished to the Securities
Administrator, 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 a Non-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 a Non-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
Securities Administrator 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 Securities
Administrator 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 Securities Administrator
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 Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository and, upon receipt of notice of such intent from
the Depository, the Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to initiate such termination, the Securities
Administrator 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 Securities Administrator of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Securities Administrator shall issue
the Definitive Certificates. None of the Depositor or the Securities
Administrator 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 Depositor shall provide the Securities Administrator with an
adequate inventory of Certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Securities
Administrator, to the extent applicable with respect to such Definitive
Certificates and the Securities Administrator shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided, that the
Securities Administrator 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.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing (with copies directly (other than with respect to a
Residual Certificate) to the Swap Provider and Cap Provider). The Securities
Administrator shall forward any such IRS Form (other than with respect to a
Residual Certificate) received to the Swap Provider or Cap Provider. Each
Private Certificateholder by its purchase of a Certificate is deemed to consent
to any such IRS Form being so forwarded. The Securities Administrator shall be
required to forward any tax certification received by it to the Swap Provider
and Cap Provider at the last known address provided to it, and, subject to
Article VIII hereof, shall not be liable for the receipt of such tax
certification by the Swap Provider or Cap Provider, nor any action taken or not
taken by the Swap Provider or Cap Provider with respect to such tax
certification. Upon the request of the Swap Provider and the Cap Provider, the
Securities Administrator shall forward the name and address and Percentage
Interest held in the Private Certificates for each Private Certificateholder to
the Swap Provider and Cap Provider at the last known address provided to it. The
Securities Administrator shall not be liable for the completeness, accuracy,
content or truthfulness of any such tax certification provided to it, and shall
have no duty to take any action to correct any misstatement or omission in any
tax certification provided to it and forwarded to the Swap Provider or the Cap
Provider; provided however, if the Securities Administrator has actual knowledge
that a tax certificate or name and address information provided to it by a
Private Certificateholder contains a misstatement or omission (including by
reason of the Swap Provider and the Cap Provider informing it of the
misstatement or omission), it shall notify the Swap Provider and the Cap
Provider of the misstatement or omission, and when it receives a corrected form
or name and address information from the Holder of the Private Certificate it
shall forward the corrected form and/or name and address information to the Swap
Provider and the Cap Provider.
(g) Each Certificate presented or surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Securities Administrator in accordance with its customary practice. No service
charge shall be made for any registration of transfer or exchange of Private
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator, or
the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Depositor and the Securities Administrator such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of notice
to the Securities Administrator that such Certificate has been acquired by a
bona fide purchaser, the Securities Administrator shall execute, authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like Class, tenor and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Securities Administrator 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
Securities Administrator) 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 Trustee, the Securities
Administrator, the Depositor and any agent of the Depositor or the Securities
Administrator 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 the
Trustee, the Securities Administrator, the Depositor, nor any agent of the
Depositor or the Securities Administrator 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 (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and (c)
provide a copy of the communication which such Certificateholders propose to
transmit, or if the Depositor or Servicer shall request such information in
writing from the Securities Administrator, then the Securities Administrator
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange. The Securities Administrator initially
designates its offices located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000. The Securities Administrator shall give prompt
written notice to the Certificateholders of any change in such location of any
such office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
under the laws of the United States or under the laws of one of the states
thereof and will each obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any Person succeeding to the business of the Depositor,
shall be the successor of the Depositor, 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.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
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 or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor 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 and any director, officer, employee, Affiliate or agent of the
Depositor may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor and any director, officer, employee or agent of the
Depositor 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 or any other unanticipated
or extraordinary expense, other than 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. The Depositor shall not 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 the Depositor may in its discretion undertake
any such action (or direct the Trustee to undertake such actions for the benefit
of the Certificateholders) 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 and the
Trustee, if applicable, shall be entitled to be reimbursed therefor out of the
Distribution Account.
Section 6.04 Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is 90 days or more delinquent. The purchase price
therefor, which shall be deposited in the Distribution Account, shall be 100% of
the unpaid principal balance of such Mortgage Loan, plus all related accrued and
unpaid interest, and the amount of any unreimbursed Servicing Advances made by
the Servicer related to the applicable Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default described in
the Countrywide Servicing Agreement shall occur with respect to the Servicer
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Master Servicer may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights the Master
Servicer shall, by notice in writing to the Servicer (with a copy to each Rating
Agency), terminate all of the rights and obligations of the Servicer under the
Countrywide Servicing Agreement and in and to the Mortgage Loans serviced by the
Servicer and the proceeds thereof. The Holders of Certificates evidencing at
least 66% of the Voting Rights of Certificates affected by an Event of Default
may waive such Event of Default; provided, however, that (a) an Event of Default
with respect to the Servicer's obligation to make Monthly Advances may be waived
only by all of the holders of the Certificates affected by such Event of Default
and (b) no such waiver is permitted that would materially adversely affect any
non-consenting Certificateholder. On and after the receipt by the Servicer of
such written notice of termination, all authority and power of the Servicer
hereunder, whether with respect to the applicable Mortgage Loans or otherwise,
shall pass to and be vested in the Master Servicer. The Master Servicer is
hereby authorized and empowered to execute and deliver, on behalf of the
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 applicable Mortgage
Loans and related documents, or otherwise.
Section 7.02 Master Servicer to Act; Appointment of Successor.
Within 120 days after the Master Servicer gives, and a Servicer receives a
notice of termination pursuant to Section 7.01, the Master Servicer shall,
subject to and to the extent provided in Section 7.03, and subject to the rights
of the Master Servicer to appoint a successor Servicer pursuant to this Section
7.02, be the successor to the Servicer in its capacity as servicer under related
Servicing Agreement and the transactions set forth or provided for herein and in
the Countrywide Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions of the Countrywide Servicing Agreement and
applicable law including the obligation to make Monthly Advances or Servicing
Advances pursuant to the Countrywide Servicing Agreement (it being understood
and agreed that if the Servicer fails to make an Advance, the Master Servicer
shall do so unless a determination has been made that such Advance would
constitute a Nonrecoverable Monthly Advance or a Nonrecoverable Servicing
Advance). As compensation therefor, the Master Servicer shall be entitled to all
funds relating to the Mortgage Loans that the Servicer would have been entitled
to charge to the Collection Account if the Servicer had continued to act under
the related Servicing Agreement including, if the Servicer was receiving the
Servicing Fee at the Servicing Fee Rate set forth in the Countrywide Servicing
Agreement (as set forth in the Mortgage Loan Schedule with respect to the
related Mortgage Loans), such Servicing Fee and the income on investments or
gain related to the Collection Account.
Notwithstanding the foregoing, the Master Servicer may, if it shall
be unwilling to so act, or shall, if it is prohibited by applicable law from
making Monthly Advances and Servicing Advances pursuant to a Servicing
Agreement, or if it is otherwise unable to so act, or, at the written request of
Certificateholders entitled to a majority of the Voting Rights, 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 Servicer under the Countrywide Servicing Agreement in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Servicer. No such appointment of a successor to the Servicer hereunder shall
be effective until the Depositor shall have consented thereto. Any successor to
the Servicer shall be an institution which is a Xxxxxx Xxx and Xxxxxxx Mac
approved seller/servicer in good standing, which has a net worth of at least
$25,000,000, which is willing to service the Mortgage Loans and which executes
and delivers to the Depositor and the Master Servicer an agreement accepting
such delegation and assignment, containing an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of such
terminated Servicer, (other than liabilities of the terminated Servicer incurred
prior to termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, 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 a Servicer
hereunder, the Master Servicer, unless the Master Servicer is prohibited by law
from so acting, shall, subject to this Section 7.02, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Master Servicer may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it, the Depositor and such
successor shall agree; provided, however, that no such compensation shall be in
excess of the Servicing Fee Rate and amounts paid to the Servicer from
investments. The Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Master Servicer nor any other successor to a 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 predecessor Servicer to
deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it.
Any successor Servicer shall be responsible for giving notice to the
related Mortgagors of such change of Servicer, in accordance with applicable
federal and state law, and shall, during the term of its service as Servicer,
maintain in force the policy or policies that the Servicer is required to
maintain pursuant to the Servicing Agreement.
Notwithstanding the foregoing, the Master Servicer may not terminate
a Servicer without cause.
Section 7.03 Master Servicer to Act as Servicer. In the event that a
Servicer shall for any other reason no longer be the Servicer, the Master
Servicer or another successor Servicer, shall thereupon assume all of the rights
and obligations of the predecessor Servicer hereunder arising thereafter
pursuant to Section 7.02.
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Master
Servicer shall give prompt written notice thereof to Certificateholders and to
each Rating Agency.
(b) Promptly after the occurrence of any Event of Default, the
Master Servicer shall transmit by mail to all Certificateholders and each Rating
Agency notice of each such Event of Default hereunder known to the Master
Servicer, unless such Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE, VARIOUS TAX MATTERS, SERVICING REPORTS AND
PERIODIC FILINGS
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer 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 a Master Servicer 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.
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 bad faith or willful misfeasance; provided, however,
that:
(a) unless a Master Servicer Event of Default of which a Responsible
Officer of the Trustee obtains actual knowledge has occurred and is 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 the duties and obligations 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;
(b) 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 is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) 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 the 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.
Section 8.02 [Reserved].
Section 8.03 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
opinions (including an Opinion of Counsel), 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;
(b) 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 advice or Opinion of
Counsel;
(c) 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;
(d) 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 to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require indemnity satisfactory to the Trustee
against such cost, expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
Servicer or, if paid by the Trustee, shall be repaid by the Servicer upon demand
from the Servicer's own funds;
(e) 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 and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) 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;
(g) 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.
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of a Master Servicer Event of Default, 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;
(i) 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 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;
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder;
(l) notwithstanding anything to the contrary in the applicable
Servicing Agreement, the Trustee shall not consent to the Servicer's request of
assigning the Servicing Agreement or the servicing rights thereunder to any
other party; and
(m) should the Trustee deem the nature of any action required on its
part to be unclear, the Trustee may require prior to such action that it be
provided by the Depositor with reasonable further instructions.
Section 8.04 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 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. The Trustee shall not be accountable for the use or
application by the Depositor or the Servicer of any funds paid to the Depositor
or the Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account or the Distribution Account by the Depositor or the
Servicer.
The Trustee shall have no responsibility (i) for filing or recording
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become and remains the
successor Servicer), (ii) to see to any insurance (unless the Trustee shall have
become the successor Servicer), or (iii) to confirm or verify the contents of
any reports or certificates of a Servicer, delivered to the Trustee pursuant to
this Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.05 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 8.06 Trustee's and Custodian's Fees and Expenses. As
compensation for its activities under this Agreement, the Trustee shall be paid
its fees by the Securities Administrator from the Securities Administrator's own
funds pursuant to a separate agreement. The Trustee shall have no lien on the
Trust Fund for the payment of such fees. As compensation for its activities
under this Agreement, the Custodian shall be paid its fees by the Master
Servicer from the Master Servicer's own funds pursuant to a separate agreement.
The obligations of the Securities Administrator under this Section 8.06 shall
survive the resignation, termination or removal of the Custodian for payment of
the Custodian Fee accrued prior to such termination, resignation or removal. The
Trustee and any director, officer, employee, or agent of the Trustee shall be
indemnified by the Trust Fund and held harmless against any loss, liability, or
expense (including reasonable attorneys' fees) incurred in connection with any
claim or legal action relating to:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of a
Servicer's obligations in connection with the Servicing Agreement for which that
Servicer has completed performance of its obligation to indemnify the Trustee
pursuant to the Countrywide Servicing Agreement, (ii) resulting from any breach
of an Original Loan Seller's obligations in connection with the Countrywide
Purchase Agreement for which it has completed performance of its obligation to
indemnify the Trustee pursuant to such Countrywide Purchase Agreement, or (iii)
incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Trustee's duties under this Agreement. This indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee under this Agreement. Without limiting the foregoing, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any expense, disbursement, or advance arising from the Trustee's negligence,
bad faith, or willful misfeasance, the Trust Fund shall pay or reimburse the
Trustee, for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with this Agreement with respect to:
(A) the reasonable compensation, 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
them to perform services under this Agreement, and
(C) the reasonable out-of-pocket costs and expenses incurred
in connection with the termination fo the Master Servicer and the
transfer of the Master Servicer's responsibilities and rights to a
successor Master Servicer pursuant to Section 9.04.
Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee under
this Agreement or for any other expenses; provided, however, no expense shall be
reimbursed hereunder if it would not constitute an "unanticipated expense
incurred by the REMIC" within the meaning of the REMIC Provisions.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
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 any of the Rating Agencies to reduce 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 8.07 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 this
Section 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its Affiliates or with
the Servicer and its Affiliates; provided, however, that such entity cannot be
an Affiliate of the Depositor or of the Servicer other than the Trustee in its
role as successor to the Servicer.
Section 8.08 Resignation and Removal of the 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 Servicer and each Rating
Agency not less than 60 days before the date specified in such notice, when,
subject to Section 8.09, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.09 meeting the qualifications set
forth in Section 8.07. 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 Section 8.07 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which shall
be delivered to the Trustee and one copy to the successor trustee.
The Holders of Certificates entitled to a majority 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 shall be
delivered to the Trustee so removed and one complete set to the successor so
appointed. The successor trustee shall notify each Rating Agency of any removal
of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee 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 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 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, 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 8.10 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.07
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. In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
and the Securities Administrator of such succession or appointment and shall
furnish to the Depositor and the Securities Administrator in writing and in form
and substance reasonably satisfactory to the Depositor and the Securities
Administrator, all information reasonably necessary for the Depositor and the
Securities Administrator to accurately and timely report, pursuant to Section
8.15(e), the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section 8.11 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 Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons 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 8.11, such powers, duties, obligations, rights and
trusts as the Trustee may consider appropriate. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.09 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, 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 (as successor servicer), shall
be conferred or imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title to
the Trust Fund or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because 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;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, 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 and indemnity to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the 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.
The grantor trust shall be treated as a WHFIT that is a NMWHFIT. The
Securities Administrator shall report as required under the WHFIT Regulations to
the extent such information as is reasonably necessary to enable the Securities
Administrator to do so, and is not in its possession, is provided to the
Securities Administrator on a timely basis. The Securities Administrator is
hereby directed to assume that DTC is the only "middleman" (as such term is
defined in the WHFIT Regulations) unless the Depositor provides the Securities
Administrator with the identities of other "middlemen" that are
Certificateholders. The Securities Administrator shall be entitled to rely on
the first sentence of this subparagraph and shall be entitled to indemnification
in accordance with the terms of this Agreement in the event that the Internal
Revenue Service makes a determination that the first sentence of this
subparagraph is incorrect.
The Securities Administrator, in its discretion, shall report
required WHFIT information using either the cash or accrual method, except to
the extent the WHFIT Regulations specifically require a different method. The
Securities Administrator shall be under no obligation to determine whether any
Certificateholder or other beneficial owner of a Certificate, to the extent the
Securities Administrator knows of any other beneficial owner of a Certificate,
uses the cash or accrual method. The Securities Administrator shall make
available information as required by the WHFIT Regulations to Certificateholders
annually. In addition, the Securities Administrator shall not be responsible or
liable for providing subsequently amended, revised or updated information to any
Certificateholder, unless requested by the Certificateholder.
The Securities Administrator shall not be liable for failure to meet
the reporting requirements of the WHFIT Regulations nor for any penalties
thereunder if such failure is due to: (i) the lack of reasonably necessary
information that is not in its possession being provided to the Securities
Administrator, (ii) incomplete, inaccurate or untimely information being
provided to the Securities Administrator or (iii) the inability of the
Securities Administrator, after good faith efforts, to alter its existing
information reporting systems to capture information necessary to fully comply
with the WHFIT Regulations for the 2007 calendar year. Absent receipt of
information regarding any sale of Certificates, including the price, amount of
proceeds and date of sale from the beneficial owner thereof or the Depositor,
the Securities Administrator may assume there is no secondary market trading of
WHFIT interests.
To the extent required by the WHFIT Regulations, the Securities
Administrator shall use reasonable efforts to publish on an appropriate website
the CUSIP Numbers for the Certificates that represent ownership of a WHFIT. The
CUSIP Numbers so published will represent the Rule 144A CUSIP Numbers. The
Securities Administrator shall make reasonable good faith efforts to keep the
website accurate and updated to the extent CUSIP Numbers have been received. The
Securities Administrator shall not be liable for investor reporting delays that
result from the receipt of inaccurate or untimely CUSIP Number information.
The Securities Administrator shall be entitled to additional
reasonable compensation for changes in reporting required in respect of the
WHFIT Regulations that arise as a result of a change in the WHFIT Regulations or
a change in interpretation of the WHFIT Regulations by the IRS, if such change
requires, in the Securities Administrator's sole discretion, a material increase
in the Securities Administrator's reporting obligations in respect of the
related Grantor Trust.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund 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
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each Trust REMIC and that in such capacity it shall:
(a) prepare (and the Trustee shall sign) and file, in a timely
manner, a U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return
(Form 1066 or any successor form adopted by the Internal Revenue Service) and
prepare (and the Trustee shall sign) and file with the Internal Revenue Service
and applicable state or local tax authorities income tax or information returns
for each taxable year with respect to each Trust 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 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, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all Trust REMICs and shall also furnish to the
Internal Revenue Service, on Form 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) promptly upon entering into the Interest Rate Swap Agreement and
Interest Rate Cap Agreement, apply for an employer identification number from
the Internal Revenue Service via Form SS-4 or any other acceptable method for
the grantor trust and shall also furnish to the Internal Revenue Service, on
Form 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;
(d) deliver or cause to be delivered the federal taxpayer
identification number of the grantor trust on a correct, complete and duly
executed IRS Form W-9 of the grantor trust to the Swap Provider and the Cap
Provider promptly upon receipt of such number after applying for it pursuant to
8.12(c) above and, in any event, no later than the first Payment Date under the
Interest Rate Swap Agreement and the Interest Rate Cap Agreement and promptly
upon actual knowledge that such previously provided form is obsolete or
incorrect and, if requested by the Swap Provider or the Cap Provider, an
applicable IRS Form W-8IMY if permitted or required under applicable law;
(e) make an election that each Trust REMIC be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law);
(f) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(g) provide information necessary for the computation of tax imposed
on the Transfer of a Residual Certificate to a Person that is a "Non-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);
(h) 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 of each Trust REMIC as a REMIC under the REMIC
Provisions;
(i) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(j) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on each Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings);
(k) cause federal, state or local income tax or information returns
to be signed by the Trustee or, if required by applicable tax law, the
Securities Administrator or such other Person as may be required to sign such
returns by the Code or state or local laws, regulations or rules;
(l) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting 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
(m) as and when necessary and appropriate, represent each Trust
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 each Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Holder of the largest Percentage Interest of the Class R
Certificates shall act as Tax Matters Person for each Trust REMIC within the
meaning of Treasury Regulations Section 1.860F-4(d), and the Securities
Administrator is hereby designated as agent of such Certificateholder for such
purpose (or if the Securities Administrator is not so permitted, such Holder
shall be the Tax Matters Person in accordance with the REMIC Provisions). In
such capacity, the Securities Administrator shall, as and when necessary and
appropriate, represent each Trust 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 each
Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any Trust
REMIC, and otherwise act on behalf of each Trust REMIC in relation to any tax
matter or controversy involving it.
The Securities Administrator shall treat the rights of the Class CE
Certificateholders to receive amounts in the Excess Reserve Fund Account and the
Supplemental Interest Account (subject, other than in the case of the Class CE
Certificates, to the obligation to pay Basis Risk Carry Forward Amounts) and the
rights of the Offered Certificateholders to receive Basis Risk Carry Forward
Amounts as the beneficial ownership of interests in a grantor trust, and not as
an obligation of any Trust REMIC created hereunder, for federal income tax
purposes. The Securities Administrator shall file or cause to be filed with the
IRS together with Form 1041 or such other form as may be applicable and shall
furnish or cause to be furnished, to the Class CE Certificateholders and the
Offered Certificateholders, the respective amounts described above that are
received, in the time or times and in the manner required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value to each Class
of Certificates of the right to receive Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account and Basis Risk Carry Forward Amounts from the
Supplemental Interest Account. Unless otherwise advised by the Depositor, for
federal income tax purposes, the Securities Administrator is hereby directed to
assign a value of zero to the right of each Holder allocating the purchase price
of an initial Offered Certificateholder between such right and the related Upper
Tier Regular Interest. Thereafter, the Depositor shall provide to the Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under this
Agreement; provided, however, that the Depositor shall not be required to
provide any information regarding the Mortgage Loans after the Closing Date or
any information that the Servicer is required to provide to the Securities
Administrator. The Depositor hereby indemnifies the Securities Administrator for
any losses, liabilities, damages, claims, or expenses of the Securities
Administrator arising from any errors or miscalculations of the Securities
Administrator that result from any failure of the Depositor to provide, pursuant
to this paragraph, accurate information or data to the Securities Administrator
on a timely basis.
The Securities Administrator shall not (i) cause the creation of any
interests in any Trust REMIC other than the regular and residual interests set
forth in the Preliminary Statement, (ii) receive any amount representing a fee
or other compensation for services (except as otherwise permitted by this
Agreement) or (iii) otherwise knowingly or intentionally take any action, cause
the Trust Fund to take any action or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of any Trust REMIC as a
REMIC or (ii) result in the imposition of a tax upon any Trust REMIC or the
Trust Fund (including but not limited to the tax on "prohibited transactions" as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
Trust REMIC set forth in Section 860G(d) of the Code, or the tax on "net income
from foreclosure property") unless the Securities Administrator receives an
Opinion of Counsel (at the expense of the Trust Fund, but in no event at the
expense of the Securities Administrator), to the effect that the contemplated
action will not, with respect to the Trust Fund, result in the imposition of a
tax upon either Trust REMIC created hereunder or endanger the status of any
Trust REMIC.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Pooling-Tier REMIC-1, as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on any Trust REMIC pursuant to Sections 23153 and 24874
of the California Revenue and Taxation Code, if not paid as otherwise provided
for herein, the tax shall be paid by (i) the Securities Administrator if such
tax arises out of or results from negligence of the Securities Administrator in
the performance of any of its obligations under this Agreement, (ii) the
Servicer, in the case of any such minimum tax, and otherwise if such tax arises
out of or results from a breach by the Servicer of any of its obligations under
the Countrywide Servicing Agreement, (iii) the Original Loan Seller if such tax
arises out of or results from the Original Loan Seller's obligation to
repurchase a Mortgage Loan pursuant to the Countrywide Purchase Agreement or
(iv) in all other cases, or if the Securities Administrator, the Servicer or the
Original Loan Seller fails to honor its obligations under the preceding clause
(i), (ii), or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 4.01(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act as specifically required herein, and the Securities
Administrator shall comply with any directions of the Depositor stating that
such directions are being given to assure such continuing treatment. In
particular, the Securities Administrator shall not (a) sell or authorize the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a purchase or
repurchase of the Mortgage Loans pursuant to this Agreement or (b) accept any
contribution to any Trust REMIC after the Startup Day without receipt of an
Opinion of Counsel that such action described in clause (a) or (b) will not
result in the imposition of a tax on any Trust REMIC or cause any Trust REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding.
Section 8.13 Annual Statement as to Compliance. The Master Servicer
and Securities Administrator shall deliver (or otherwise make available) and
cause any Subservicer or subcontractor that meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB to deliver, to the Depositor, the
Rating Agencies on or before March 15th of each calendar year, commencing in
2008, an Officer's Certificate stating, as to each signatory thereof, that (i) a
review of the activities of the Master Servicer and Securities Administrator, as
applicable, during the preceding calendar year and of its performance under this
Agreement has been made under such officers' supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Master Servicer and
Securities Administrator, as applicable, has fulfilled all of its obligations
under this Agreement in all material respects, throughout such year, or, if
there has been a default in the fulfillment of any such obligation in any
material respect, specifying each such default known to such officers and the
nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review such Officer's Certificate and, if
applicable, consult with the Master Servicer and Securities Administrator, as
applicable, as to the nature of any defaults by the Master Servicer and
Securities Administrator, as applicable, in the fulfillment of any of the Master
Servicer's and Securities Administrator's obligations, as applicable. The
obligations of the Master Servicer and Securities Administrator, as applicable,
under this Section apply to each Master Servicer and Securities Administrator,
that acted as Master Servicer and Securities Administrator during the applicable
period, whether or not such Person is acting as the Master Servicer and
Securities Administrator at the time such Officer's Certificate is required to
be delivered.
Section 8.14 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report.
(a) Not later than March 15th of each calendar year commencing in
2008, the Master Servicer, Securities Administrator and Custodian shall deliver,
and shall cause each Subcontractor utilized by the Master Servicer, Securities
Administrator and Custodian, as applicable, and determined by the Master
Servicer, Securities Administrator and Custodian, as applicable, pursuant to
Section 8.01 to be "participating in a servicing function" within the meaning of
Item 1122 of Regulation AB (in each case, a "Servicing Function Participant"),
to deliver, each at its own expense, to the Depositor, a report on an assessment
of compliance with the Servicing Criteria applicable to it that contains (A) a
statement by such party of its responsibility for assessing compliance with the
Servicing Criteria applicable to it, (B) a statement that such party used the
Servicing Criteria to assess compliance with the applicable Servicing Criteria,
(C) such party's assessment of compliance with the applicable Servicing Criteria
as of and for the period ending the end of the fiscal year covered by the Form
10-K required to be filed pursuant to Section 8.15, including, if there has been
any material instance of noncompliance with the applicable Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D) a
statement that a registered public accounting firm has issued an attestation
report on such Person's assessment of compliance with the applicable Servicing
Criteria as of and for such period. Each such assessment of compliance report
shall be addressed to the Depositor and signed by an authorized officer of such
Person, and shall address each of the applicable Servicing Criteria set forth on
Exhibit O hereto, or as set forth in the notification furnished to the Depositor
pursuant to Section 8.14(c). The Master Servicer, Securities Administrator and
Custodian each hereby acknowledges and agrees that its assessments of compliance
will cover the items identified on Exhibit O hereto as being covered by the
Master Servicer, Securities Administrator and Custodian, as applicable. The
parties to this Agreement acknowledge that where a particular Servicing Criteria
has multiple components, each party's assessment of compliance and related
attestation of compliance) will relate only to those components that are
applicable to such party. Promptly after receipt of each such report on
assessment of compliance, the Depositor shall review each such report and, if
applicable, consult with the Master Servicer, Securities Administrator or
Custodian, as applicable, as to the nature of any material instance of
noncompliance with the Servicing Criteria applicable to it (and each Servicing
Function Participant engaged or utilized by the Master Servicer, Securities
Administrator or Custodian, as applicable), as the case may be. The Custodian
shall not be required to cause the delivery of any such assessments by March
15th in any given year so long as Form 10-K is not required to be filed in
respect of the Trust for the preceding calendar year.
(b) Not later than March 15th of each calendar year commencing in
2008, the Master Servicer, Securities Administrator and Custodian shall cause,
and the Master Servicer, Securities Administrator and Custodian shall cause each
Servicing Function Participant utilized by such Person, to cause, each at its
own expense, a registered public accounting firm (which may also render other
services to such party) and that is a member of the American Institute of
Certified Public Accountants to furnish a report to the Depositor, with a copy
to the Rating Agencies, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such Person, which includes an
assertion that such Person has complied with the Servicing Criteria applicable
to it pursuant to Section 8.14(a) and (ii) on the basis of an examination
conducted by such firm in accordance with standards for attestation engagements
issued or adopted by the PCAOB, that attests to and reports on such Person's
assessment of compliance with the Servicing Criteria applicable to it. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Each such related accountant's attestation report shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act. Such report must be available for general
use and not contain restricted use language. The Custodian shall not be required
to cause the delivery of any such attestation required by this paragraph in any
given year so long as Form 10-K is not required to be filed in respect of the
Trust for the preceding calendar year.
(c) No later than February 1 of each fiscal year, commencing in
2007, the Master Servicer, Securities Administrator and Custodian shall notify
the Depositor as to the name of each Servicing Function Participant utilized by
it during the preceding calendar year, and each such notice will specify what
specific Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Function Participant in each case, to the
extent of any change from the prior year's notice, if any. When the Master
Servicer, Securities Administrator or Custodian submits its assessment pursuant
to Section 8.14(a), the Master Servicer, Securities Administrator or Custodian
will also at such time include the assessment (and related attestation pursuant
to Section 8.14(b)) of each Servicing Function Participant utilized by it.
Section 8.15 Periodic Filings. (a) The Master Servicer, Securities
Administrator, Custodian and Trustee shall reasonably cooperate with the
Depositor in connection with the reporting requirements of the Trust under the
Exchange Act. The Securities Administrator shall prepare for execution by the
Master Servicer on behalf of the Depositor any Form 8-K (other than any Form 8-K
related to the filing of this Agreement and any amendments thereto), Form 10-D
and Form 10-K required by the Exchange Act and the rules and regulations of the
Commission thereunder, in order to permit the timely filing thereof, and the
Securities Administrator shall file (via the Commission's Electronic Data
Gathering and Retrieval System) such Forms executed by the Master Servicer.
(b) Within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Securities Administrator shall
prepare and file, and the Master Servicer shall sign, on behalf of the Trust any
Form 10-D required by the Exchange Act, in form and substance as required by the
Exchange Act. The Securities Administrator shall file each Form 10-D with a copy
of the related Monthly Statement attached thereto. Any disclosure in addition to
the Monthly Statement that is required to be included on Form 10-D ("Additional
Form 10-D Disclosure") shall be reported to the Depositor and the Securities
Administrator by the parties set forth on Exhibit P and directed and approved by
the Depositor pursuant to the following paragraph and the Securities
Administrator shall compile such disclosure pursuant to the following paragraph.
The Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except as
set forth in the next paragraph.
As set forth on Exhibit P hereto, within 5 calendar days after the
related Distribution Date, (i) certain parties to this Agreement shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known by such applicable parties, in XXXXX-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-D Disclosure, if
applicable (together with an Additional Disclosure Notification in the form of
Exhibit S hereto called "Additional Disclosure Notification") and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit P (other than with respect to
the Securities Administrator) of their duties under this paragraph or
proactively solicit from such parties any Additional Form 10-D Disclosure
information; provided, however, the Securities Administrator shall cooperate
with the Depositor in a reasonable manner in order for the Depositor to comply
with its reporting obligations under the Exchange Act as set forth in Section
8.15(a). The Depositor shall be responsible for any reasonable fees and expenses
assessed or incurred by the Securities Administrator in connection with any
Additional Form 10-D Disclosure on Form 10-D pursuant to this Section
8.15(b)(e)(ii).
After preparing the Form 10-D, the Securities Administrator shall
forward electronically a copy of the Form 10-D to the Depositor for review and
verification by the Depositor. No later than two Business Days following the
10th calendar day after the related Distribution Date, a duly authorized
representative of the Master Servicer shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Securities Administrator and the
Depositor, and no later than 5:00 p.m. New York City time on the 15th calendar
day after such Distribution Date, the Securities Administrator shall file such
Form 10-D with the Commission. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 8.15(e)(ii). Promptly (but no
later than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website (as of the Closing
Date located at xxx.xxxxxxx.xxx) a final executed copy of each Form 10-D
prepared and filed by the Securities Administrator. The signing party at the
Master Servicer can be contacted at the Master Servicer's address for notices
set forth in Section 12.05(c)(c), or such other address as to which the Master
Servicer has provided prior written notice to the Securities Administrator. The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of their duties under this Section
8.15(b) related to the timely preparation, execution and filing of Form 10-D is
contingent upon such parties and the Servicer and any Subservicer or Servicing
Function Participant engaged by the Servicer strictly observing all applicable
deadlines in the performance of their duties under this Section 8.15(b) and any
other applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, or claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-D, where such failure results from the
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the Securities
Administrator or any Subcontractor utilized by the Securities Administrator) or
any Servicer or any Subservicer or Servicing Function Participant engaged by the
Servicer needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Securities Administrator that the Depositor has filed or
caused to be filed all such required reports during the preceding 12 months and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing no later than the
fifth calendar day after the related Distribution Date with respect to the
filing of a report on Form 10-D if the answer to the questions should be no. The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(c) On or before 90 days after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act (the "10-K
Filing Deadline"), commencing in March 2008, the Securities Administrator shall
prepare and file on behalf of the Trust a Form 10-K, in form and substance as
required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Securities
Administrator within the applicable time frames set forth in this Agreement or
the Countrywide Servicing Agreement, (i) an annual compliance statement for the
Securities Administrator, the Master Servicer, the Servicer and each Subservicer
engaged by the Servicer, as described under Section 8.13, and under the
Servicing Agreement (ii)(A) the annual reports on assessment of compliance with
servicing criteria for the Securities Administrator, the Master Servicer, the
Servicer, each Servicing Function Participant utilized by the Servicer, the
Securities Administrator or the Master Servicer, as described under Section 8.14
and the applicable Servicing Agreement, and (B) if any such report on assessment
of compliance with servicing criteria identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or such
report on assessment of compliance with Servicing Criteria is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included, (iii)(A) the registered public
accounting firm attestation report for the Master Servicer, the Securities
Administrator, the Servicer, each Servicing Function Participant utilized by the
Servicer, the Securities Administrator or the Master Servicer, as described
under Section 8.14 and under the applicable Servicing Agreement, and (B) if any
registered public accounting firm attestation report described under Section
8.14 identifies any material instance of noncompliance, disclosure identifying
such instance of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (iv) a certification in the form attached hereto as Exhibit J,
with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Sarbanes Certification"), which shall be
signed by the senior officer of the Master Servicer in charge of the master
servicing function. Any disclosure or information in addition to (i) through
(iv) above that is required to be included on Form 10-K ("Additional Form 10-K
Disclosure") shall be reported to the Depositor and the Securities Administrator
by the parties set forth on Exhibit R and directed and approved by the Depositor
pursuant to the following paragraph and the Securities Administrator shall
compile such disclosure pursuant to the following paragraph. The Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth in
the next paragraph.
As set forth on Exhibit Q hereto, no later than March 1 of each year
(or, in the case of the Servicer, March 5th of each year) that the Trust is
subject to the Exchange Act reporting requirements, commencing in 2008, the
parties, to the extent described on Exhibit Q, shall be required to provide to
the Securities Administrator and the Depositor, to the extent known by such
applicable parties, in XXXXX-compatible form, or in such other form as otherwise
agreed upon by the Securities Administrator and such party, the form and
substance of any Additional Form 10-K Disclosure described on Exhibit Q
applicable to such party (and shall include with such Additional Form 10-K
Disclosure an Additional Disclosure Notification in the form attached hereto as
Exhibit S), and the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Securities Administrator has no duty under this
Agreement to monitor or enforce the performance by the parties listed on Exhibit
Q (other than with respect to the Securities Administrator) of their duties
under this paragraph or proactively solicit from such parties any Additional
Form 10-K Disclosure information; provided, however, the Securities
Administrator shall cooperate with the Depositor in a reasonable manner in order
for the Depositor to comply with its reporting obligations under the Exchange
Act as set forth in Section 8.15(a). The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this paragraph. The Securities Administrator shall
compile all such information provided to it in a Form 10-K prepared by it.
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a copy of the Form 10-K to the Depositor for approval and
execution. Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Securities Administrator that the Depositor has filed all such
required reports during the preceding 12 months and that it has been subject to
such filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the 15th calendar day of
March in any year in which the Trust is subject to the reporting requirements of
the Exchange Act, if the answer to the questions should be "no." The Securities
Administrator shall be entitled to rely on such representations in preparing
and/or filing any such Form 10-K. No later than 5:00 p.m. EST on the 4th
Business Day prior to the 10-K Filing Deadline, a senior officer of the Master
Servicer in charge of the master servicing function shall sign the Form 10-K and
return an electronic or fax copy of such signed Form 10-K (with an original
executed hard copy to follow by overnight mail) to the Securities Administrator.
If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be amended, the Securities Administrator will follow the procedures set forth
in Section 8.15(e)(ii). Promptly (but no later than one Business Day) after
filing with the Commission, the Securities Administrator will make available on
its internet website a final executed copy of each Form 10-K prepared and filed
by the Securities Administrator. The parties to this Agreement acknowledge that
the performance by the Master Servicer and the Securities Administrator of its
duties under this Section 8.15(c) related to the timely preparation, execution
and filing of Form 10-K is contingent upon such parties and the Servicer (and
any Subservicer or Servicing Function Participant engaged by the Servicer)
observing all applicable deadlines in the performance of their duties under this
Section 8.15(c), Section 8.15(d), Section 8.13 and Section 8.14 or any other
applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-K, where such failure results from the
Securities Administrator's inability or failure to receive, on a timely basis,
any information from any party hereto or any Subservicer or Servicing Function
Participant engaged by any such party hereto (other than the Securities
Administrator or any Servicing Function Participant utilized by the Securities
Administrator or any Servicer or any Subservicer or Servicing Function
Participant engaged by the Servicer) needed to prepare, arrange for execution or
file such Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
(d) Each Form 10-K shall include a Sarbanes Certification, required
to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Securities
Administrator shall provide, and shall cause any Servicing Function Participant
engaged by it to provide, to the Person who signs the Sarbanes Certification
(the "Certifying Person"), by March 1 (with a ten-calendar day cure period) of
each year in which the Trust is subject to the reporting requirements of the
Exchange Act and otherwise within a reasonable period of time upon request, a
certification (each, a "Back-Up Certification"), in the form attached hereto as
Exhibit K, upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at 000-000-0000. In the
event any such party or any Servicing Function Participant engaged by such party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable sub-servicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section
8.15(d) with respect to the period of time it was subject to this Agreement or
any applicable sub-servicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Sarbanes Certification in the event
that it does not receive any Back-Up Certification required to be furnished to
it pursuant to this section or any Servicing Agreement or Custodial Agreement.
(e) (i) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. On or
prior to January 30 of the first year in which the Securities Administrator is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification with respect to the Trust, with a
copy to the Depositor. At the start of any fiscal year, including any fiscal
year after the filing of a Form 15 Suspension Notification, if the number of
Holders of the Offered Certificates of record exceeds the number set forth in
Section 15(d) of the Exchange Act or the regulations promulgated pursuant
thereto which would cause the Trust to again become subject to the reporting
requirements of the Exchange Act, the Securities Administrator shall recommence
preparing and filing reports on Form 10-K, Form 10-D and Form 8-K as required
pursuant to this Section 8.15 and the parties hereto shall again have the
obligations set forth in this Section 8.15.
(ii) In the event that the Securities Administrator is unable to
timely file with the Commission all or any required portion of any Form
8-K, Form 10-D or Form 10-K required to be filed pursuant to this
Agreement because required disclosure information was either not delivered
to it or delivered to it after the delivery deadlines set forth in this
Agreement, the Securities Administrator will promptly notify
electronically the Depositor. In the case of Form 10-D and Form 10-K, the
Depositor and Securities Administrator will thereupon prepare and file,
and the other parties shall cooperate in connection with such preparation
and filing, a Form 12b-25 and a Form 10-D/A and Form 10-K/A as applicable,
pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the
Securities Administrator will, upon receipt of all required Form 8-K
Disclosure Information and, upon the approval and direction of the
Depositor, include such disclosure information on the next succeeding Form
10-D. In the event that any previously filed Form 8-K, Form 10-D or Form
10-K needs to be amended, in connection with any Additional Form 10-D
Disclosure (other than, in the case of Form 10-D, for the purpose of
restating any Monthly Statement), Additional Form 10-K Disclosure or Form
8-K Disclosure Information, the Securities Administrator will notify the
Depositor and such other parties to the transaction as are affected by
such amendment, and the Depositor and the Securities Administrator shall
prepare and file, and such other parties will cooperate in connection with
such preparation and filing, any necessary Form 8-K/A, Form 10-D/A or Form
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D
or Form 10-K shall be signed by a duly authorized representative or a
senior officer in charge of master servicing of the Master Servicer, as
applicable. The parties to this Agreement acknowledge that the performance
by the Master Servicer and Securities Administrator of their duties under
this Section 8.15(e) related to the timely preparation, execution and
filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D
or Form 10-K is contingent upon each such party and the Servicer observing
all applicable deadlines in the performance of their duties under this
Section 8.15 and Sections 8.13 and 8.14. Neither the Master Servicer nor
the Securities Administrator shall have any liability for any loss,
expense, damage, claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file any such Form 15, Form 12b-25
or any amendments to Form 8-K, Form 10-D or Form 10-K, where such failure
results from the Securities Administrator's inability or failure to obtain
or receive, on a timely basis, any information from any party hereto, any
Servicer or any Subservicer or any Servicing Function Participant engaged
by any such party hereto or under the Servicing Agreement (other than the
Securities Administrator or any Servicing Function Participant utilized by
the Securities Administrator) needed to prepare, arrange for execution or
file such Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or
Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and
also if requested by the Depositor, the Securities Administrator shall prepare
and file on behalf of the Trust any Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K (other
than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported
to the Depositor and the Securities Administrator by the parties set forth on
Exhibit R and directed and approved by the Depositor pursuant to the following
paragraph. The Securities Administrator will have no duty or liability for any
failure hereunder to determine or prepare any Form 8-K Disclosure Information or
any Form 8-K, except as set forth in the next paragraph.
As set forth on Exhibit R hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business (New York City time) on the 2nd Business Day after the occurrence of a
Reportable Event the parties, to the extent described on Exhibit R, shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known by such applicable parties, in XXXXX-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Form 8-K Disclosure Information, if
applicable, (and shall include with such Form 8-K Disclosure Information, an
Additional Disclosure Notification in the form attached hereto as Exhibit S, and
the Depositor will approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Form 8-K Disclosure Information on Form 8-K. The
Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit R (other than with respect to
the Securities Administrator) of their duties under this paragraph or
proactively solicit or procure from such parties any Form 8-K Disclosure
Information; provided, however, the Securities Administrator shall cooperate
with the Depositor in a reasonable manner in order for the Depositor to comply
with its reporting obligations under the Exchange Act as set forth in Section
8.15(a). The Depositor will be responsible for any reasonable fees and expenses
assessed or incurred by the Securities Administrator in connection with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph. The Securities Administrator shall compile all such information
provided to it in a Form 8-K prepared by it.
After preparing the Form 8-K, the Securities Administrator shall no
later than 12:00 noon (New York City time) on the 3rd Business Day after the
Reportable Event but in no case without having had notice for 24 hours forward
electronically a copy of the Form 8-K to the Depositor for review. No later than
12:00 noon (New York City time) on the 4th Business Day after the Reportable
Event, a duly authorized representative of the Master Servicer shall sign the
Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an
original executed hard copy to follow by overnight mail) to the Securities
Administrator. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K needs to be amended, the Securities Administrator will follow the
procedures set forth in this Section 8.15(e)(ii). Promptly (but no later than
one Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
8-K prepared and filed by the Securities Administrator. The signing party at the
Master Servicer can be contacted at the Master Servicer's address for notices
set forth in Section 12.05, or such other address as to which the Depositor has
provided prior written notice to the Securities Administrator. The parties to
this Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of their duties under this Section 8.15(e) related to
the timely preparation, arrangement for execution and filing of Form 8-K is
contingent upon such parties and the Servicer and any Subservicer or Servicing
Function Participant engaged by the Servicer observing all applicable deadlines
in the performance of their duties under this Section 8.15(e) or any other
applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 8-K, where such failure results from the Securities
Administrator's inability or failure to obtain or receive, on a timely basis,
any information from any party hereto (other than the Securities Administrator
or any Subcontractor utilized by the Securities Administrator) any Servicer or
any Subservicer or Servicing Function Participant engaged by the Servicer needed
to prepare, arrange for execution or file such Form 8-K, not resulting from its
own negligence, bad faith or willful misconduct.
(f) The Securities Administrator shall have no liability for any
loss, expense, damage or claim arising out of or resulting from (i) the accuracy
or inaccuracy of any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information (excluding any information therein
provided by the Securities Administrator or any Subcontractor utilized by the
Securities Administrator) provided to the Securities Administrator in connection
with the preparation of Forms 10-D, 10-K and 8-K pursuant to this Section 8.15,
or (ii) the failure of the Depositor to approve for filing any Forms 10-D, 10-K
and 8-K required to be prepared by the Securities Administrator pursuant to this
Section 8.15, in either case, not resulting from the Securities Administrator's
own negligence, bad faith or willful misconduct.
Section 8.16 Tax Classification of the Excess Reserve Fund Account
and the Interest Rate Cap Agreement, the Supplemental Interest Account and the
Interest Rate Swap Agreement. For federal income tax purposes, the Securities
Administrator shall treat the Excess Reserve Fund Account and the Interest Rate
Cap Agreement, the Supplemental Interest Account, the Interest Rate Cap
Agreement and the Interest Rate Swap Agreement as beneficially owned by the
holders of the Class CE Certificates and shall treat such portion of the Trust
Fund as a grantor trust, within the meaning of subpart E, Part I of subchapter J
of the Code. The Securities Administrator shall treat the rights that each Class
of Offered Certificates has to receive payments of Basis Risk Carry Forward
Amounts from the Excess Reserve Fund Account and, to the extent not paid from
the Excess Reserve Fund Account from the Supplemental Interest Account, and the
obligation to pay Class IO Shortfalls to the Supplemental Interest Account as
rights and obligations under a notional principal contract between the Class CE
Certificateholders and each such Class and beneficially owned by each such Class
through the grantor trust. Accordingly, (i) each Class of Offered Certificates
will be comprised of two components - an Upper Tier REMIC Regular Interest and
an interest in a notional principal contract, subject to the obligation to pay
Class IO Shortfalls, and (ii) the Class CE Certificates will be comprised of the
following components: two Upper Tier REMIC Regular Interests (the Class CE
Interest and the Class IO Interest), an interest in the Excess Reserve Fund
Account (including the Interest Rate Cap Agreement), subject to the obligation
to pay Basis Risk Carry Forward Amounts, and ownership of the Supplemental
Interest Account, the Interest Rate Swap Agreement and the right to receive
Class IO Shortfalls, subject to the obligation to pay Basis Risk Carry Forward
Amounts, Net Swap Payments and Swap Termination Payments. The Securities
Administrator shall allocate the issue price for a Class of Certificates among
the respective components for purposes of determining the issue price of each
Upper Tier REMIC Regular Interest based on information received from the
Depositor. Unless otherwise advised by the Depositor in writing, for federal
income tax purposes, the Securities Administrator is hereby directed to assign a
value of zero to the right of each Holder of an Offered Certificate to receive
the related Basis Risk Carry Forward Amount for purposes of allocating the
purchase price of an initial Offered Certificateholder between such right and
the related Upper Tier REMIC Regular Interest.
Holders of Offered Certificates shall also be treated as having
agreed to pay, on each Distribution Date, to the Holders of the Class CE
Certificates an aggregate amount equal to the excess, if any, of (i) Net Swap
Payments and Swap Termination Payments (other than Defaulted Swap Termination
Payments) over (ii) the sum of amounts payable on the Class CE Interest
available for such payments and amounts payable on the Class IO Interest (such
excess, a "Class IO Shortfall"), first from interest and then from principal
distributable on the Offered Certificates. A Class IO Shortfall payable from
interest collections shall be allocated pro rata among such Offered Certificates
based on the amount of interest otherwise payable to such Class of Offered
Certificates, and a Class IO Shortfall payable from principal collections shall
be allocated in reverse sequential order beginning with the most subordinate
Class of Offered Certificates then Outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of Offered
Certificates in respect of the corresponding Upper Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class CE Certificates
through the Supplemental Interest Account.
Section 8.17 Monthly Data File. The Securities Administrator shall
make available on the Securities Administrator's internet website a monthly loan
level data file (based solely on information provided by the Servicer)
containing data provided to the Securities Administrator by the Servicer,
available to those who are permitted to access the website, including the Rating
Agencies. Such data at a minimum shall contain the fields referenced in Exhibit
U.
ARTICLE IX
ADMINISTRATION OF THE
MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of the Servicer's obligations under the related
Servicing Agreement, and (except as set forth below) shall use its reasonable
good faith efforts to cause the Servicer to duly and punctually perform its
duties and obligations thereunder. Upon the occurrence of an Event of Default of
which a Responsible Officer of the Master Servicer has actual knowledge, the
Master Servicer shall promptly notify the Securities Administrator and the
Trustee and shall specify in such notice the action, if any, the Master Servicer
plans to take in respect of such default. So long as an Event of Default shall
occur and be continuing, the Master Servicer shall take the actions specified in
Article VII.
If (i) a Servicer reports a delinquency on a monthly report and (ii)
the Servicer, by 11 a.m. (New York Time) on the related Remittance Date, neither
makes an Advance nor provides the Securities Administrator and the Master
Servicer with an Officer's Certificate certifying that such an Advance would be
a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, then the
Master Servicer shall, pursuant to Section 7.02 in its capacity as successor
servicer, deposit in the Distribution Account not later than the Business Day
immediately preceding the related Distribution Date an Advance in an amount
equal to the difference between (x) with respect to each Monthly Payment due on
a Mortgage Loan that is delinquent (other than Relief Act Interest Shortfalls)
and for which the related Servicer was required to make an Advance pursuant to
this Agreement and (y) amounts deposited in the Collection Account to be used
for Advances with respect to such Mortgage Loan, except to the extent the Master
Servicer determines any such Advance to be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. Subject to the foregoing and Section 7.02, the
Master Servicer shall continue to make such Advances for so long as the related
Servicer is required to do so under the related Servicing Agreement. If
applicable, on the Business Day immediately preceding the Distribution Date, the
Master Servicer shall deliver an Officer's Certificate to the Trustee and the
Securities Administrator stating that the Master Servicer elects not to make an
Advance in a stated amount and detailing the reason(s) it deems the Advance to
be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. Any amounts
deposited by the Master Servicer pursuant to this Section 9.01 shall be net of
the Servicing Fee for the related Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicer as required hereunder (including costs associated with (i) termination
of any Servicer, (ii) the appointment of a successor servicer or (iii) the
transfer to and assumption of, the servicing by the Master Servicer) and shall,
to the extent permitted by the related Servicing Agreement, seek reimbursement
therefor initially from the terminated Servicer. In the event the full costs
associated with the transition of servicing responsibilities to the Master
Servicer or to a successor servicer are not paid for by the predecessor or
successor Servicer (provided such successor Servicer is not the Master
Servicer), the Master Servicer may be reimbursed therefor by the Trust for costs
incurred by the Master Servicer associated with any such transfer of servicing
duties from the Servicer to the Master Servicer or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of any Servicer it replaces or for any errors or omissions of the
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by any Servicer of the Servicer's rights and
obligations under this Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and other
Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Servicer, the
Depositor, the Securities Administrator, the Custodian and the Trustee, for the
benefit of the Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all
necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) [Reserved.]
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery of
this Agreement. The Master Servicer shall indemnify the Servicer, the Depositor,
the Securities Administrator, the Trustee and the Trust hold them harmless
against any loss, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and other reasonable costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a material breach of the Master Servicer's representations and
warranties contained in Section 9.03(a) above. It is understood and agreed that
the enforcement of the obligation of the Master Servicer set forth in this
Section 9.03 to indemnify the Servicer, the Depositor, the Securities
Administrator, the Trustee and the Trust constitutes the sole remedy of the
Servicer, the Depositor, the Securities Administrator, the Trustee and the Trust
respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of the Master Servicer as Master
Servicer hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Servicer,
Depositor, the Master Servicer, Securities Administrator or the Trustee or
notice thereof by any one of such parties to the other parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from a Servicer or required to
be made by the Master Servicer under the terms of this Agreement which continues
unremedied for a period of two (2) Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or to the Master Servicer and Trustee by
the holders of Certificates evidencing at least 25% of the Voting Rights;
provided that the cure periods, for the failure to comply with the requirements
set forth in Section 8.15 with respect to delivery of additional disclosure or
with respect to filings of any Forms 8-K, 10-D and 10-K required by the Exchange
Act, shall not exceed the lesser of ten (10) calendar days or such period in
which any applicable Form 8-K, 10-D and 10-K required by the Exchange Act can be
timely filed (without taking into account any extensions);
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling 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 sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days; or
(f) except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Securities Administrator, the Trustee and the Depositor.
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the Trustee
may have at law or equity to damages, including injunctive relief and specific
performance, the Trustee, by notice in writing to the Master Servicer, may, and
upon the request of the Holders of Certificates representing at least 51% of the
Voting Rights shall, terminate with cause all the rights and obligations of the
Master Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, the
Master Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee any and all documents and other instruments related to
the performance of its duties hereunder as the Master Servicer and, place in
such successor's possession all such documents with respect to the master
servicing of the Mortgage Loans and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, at the Master Servicer's sole expense. The Master Servicer shall
cooperate with the Trustee and such successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including without limitation, the transfer to such successor master servicer for
administration by it of all cash amounts which shall at the time be credited to
the Distribution Account or are thereafter received with respect to the Mortgage
Loans.
All reasonable out-of-pocket costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a terminated Master
Servicer, including, without limitation, any such costs or expenses associated
with the complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data as may be required by the Trustee to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or any successor Master Servicer appointed pursuant to
Section 9.06) to master service shall be paid by the terminated Master Servicer;
provided, however, that to the extent not previously reimbursed by the
terminated Master Servicer, such fees and expenses shall be payable to the
Trustee pursuant to Section 8.06.
Upon the occurrence of a Master Servicer Event of Default, the
Trustee shall provide the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a successor master servicer in the event the
Trustee should succeed to the duties of the Master Servicer as set forth herein.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights waive any default by the Master Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Master Servicer Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Master Servicer under
this Agreement prior to the termination of the Master Servicer. Any successor
shall be a Xxxxxx Xxx and Xxxxxxx Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. 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 in no event shall the master
servicing compensation paid to such successor master servicer exceed that paid
to the Master Servicer hereunder. Notwithstanding anything to the contrary, in
no event shall the Trustee be liable for any master servicing fee or for any
differential in the amount of the master servicing fee paid hereunder and the
amount necessary to induce any successor servicer to act as successor master
servicer under this Agreement and the transactions set forth or provided for
herein. In the event that the Master Servicer's duties, responsibilities and
liabilities under this Agreement are terminated, the Master Servicer shall
continue to discharge its duties and responsibilities hereunder until the
effective date of such termination with the same degree of diligence and
prudence which it is obligated to exercise under this Agreement and shall take
no action whatsoever that might impair or prejudice the rights of its successor.
The termination of the Master Servicer shall not become effective until a
successor shall be appointed pursuant hereto and shall in no event (i) relieve
the Master Servicer of responsibility for the representations and warranties
made pursuant to Section 9.03(a) hereof and the remedies available to the
Trustee under Section 9.03(c) hereof, it being understood and agreed that the
provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment within
90 days of the time the Trustee receives the resignation of the Master Servicer,
the Trustee shall be the successor Master Servicer in all respects under this
Agreement and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Advances; provided, however, that any failure to perform any
duties or responsibilities caused by the Master Servicer's failure to provide
information required by this Agreement shall not be considered a default by the
Trustee hereunder. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability herein granted to the Master
Servicer. As compensation therefor, the Trustee shall be entitled to receive the
compensation, reimbursement and indemnities otherwise payable to the Master
Servicer, including the fees and other amounts payable pursuant to Section 9.07
hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption as
successor master servicer of such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be entitled
to income earned on investments of funds in the Distribution Account.
Section 9.08 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor to the Master Servicer 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 resulting Person to the Master Servicer
shall (i) be a Person (or have an Affiliate) that is qualified and approved to
service mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac (provided further that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Mae and Xxxxxxx Mac guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it unless the Master
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee shall have assumed, or a
successor master servicer satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Trustee.
The termination or the resignation of Xxxxx Fargo Bank, N.A. as the
Master Servicer or the Securities Administrator will not affect its status as
the Custodian.
If at any time, Xxxxx Fargo Bank, N.A., as Master Servicer, resigns
under this Section 9.09, or is removed as Master Servicer pursuant to Section
9.04, then at such time Xxxxx Fargo Bank, N.A. shall also resign (and shall be
entitled to resign) as Securities Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the Trustee
and the Depositor of a letter from each Rating Agency to the effect that such
action shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof,
the duties of the Master Servicer are transferred to a successor master
servicer, the entire compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, the Securities
Administrator, the Servicer or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties as Master Servicer with respect to the Mortgage Loans
under this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however, that the Master Servicer may in its sole
discretion undertake any such action that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom, shall
be liabilities of the Trust, and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account in accordance with the
provisions of Section 9.07 and Section 9.12.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Depositor, the Sponsor, the Securities
Administrator and the Trustee, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Sponsor, the Securities Administrator or the Trustee may sustain as a result
of the Master Servicer's willful malfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its reckless disregard for
its obligations and duties under this Agreement, including any failure by the
Master Servicer or any Subcontractor utilized by such Master Servicer to deliver
any information, report, certification or accountants' letter when and as
required under Section 8.13 or 8.14, including without limitation any failure by
the Master Servicer to identify any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB. The
Depositor, the Sponsor, the Securities Administrator and the Trustee shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans which would entitle the
Depositor, the Securities Administrator or the Trustee to indemnification under
this Section 9.12, whereupon the Master Servicer shall assume the defense of any
such claim and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Notwithstanding anything to
the contrary contained herein, the Master Servicer shall not settle any claim
involving the Trustee without the Trustee's prior written consent unless such
settlement involves a complete, unqualified and absolute release of the Trustee
from any and all liability in connection with such claim.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement or the Certificates, except to the
extent that any such loss, liability or expense is related to (i) a material
breach of the Master Servicer's representations and warranties in this
Agreement, (ii) resulting from any breach of the applicable Servicer's
obligations in connection with this Agreement for which the Servicer has
performed its obligation to indemnify the Master Servicer, the Trustee and the
Custodian pursuant to the related Servicing Agreement if applicable, (iii)
resulting from any breach of the Original Loan Seller's obligations in
connection with the applicable Assignment Agreement, for which the Original Loan
Seller has performed its obligation to indemnify the Master Servicer pursuant to
the applicable Assignment Agreement, or (iv) the Master Servicer's willful
malfeasance, bad faith or negligence or by reason of its reckless disregard of
its duties and obligations under this Agreement; provided that any such loss,
liability or expense constitutes an "unanticipated expense incurred by the
REMIC" within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii).
The Master Servicer shall be entitled to reimbursement for any such indemnified
amount from funds on deposit in the Distribution Account. The foregoing
indemnity shall survive the resignation or removal of the Master Servicer or the
termination of this Agreement.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator 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 Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator 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 Securities Administrator and the Securities
Administrator 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 Securities Administrator 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 Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction 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 Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or 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 advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction 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 Securities Administrator 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; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Securities Administrator, not reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors, provided that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator 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, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of any Servicer under this Agreement;
(vii) the Securities Administrator 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 Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
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 the 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 Securities Administrator shall be entitled to
be reimbursed therefor out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor and the Securities Administrator
assumes no responsibility for their correctness. The Securities Administrator
makes no representations as to the validity or sufficiency of this Agreement,
the Interest Rate Swap Agreement, the Interest Rate Cap Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Securities Administrator's execution and authentication of the
Certificates. The Securities Administrator shall not be accountable for the use
or application by the Depositor or any Servicer of any funds paid to the
Depositor or any Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or any Servicer.
The Depositor hereby directs the Securities Administrator to enter
into the Interest Rate Swap Agreement and the Interest Rate Cap Agreement and to
execute the Certificates not in its individual capacity but solely as Securities
Administrator of the Trust Fund created by this Agreement, in the exercise of
the powers and authority conferred and vested in it by this Agreement. Each of
the undertakings and agreements made on the part of the Securities Administrator
on behalf of the Trust Fund in the Interest Rate Swap Agreement, the Interest
Rate Cap Agreement and the Certificates is made and intended not as a personal
undertaking or agreement by the Securities Administrator but is made and
intended for the purpose of binding only the Trust Fund.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator and any director, officer, employee, agent
or "control person" within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange of 1934, as amended ("Control Person"), of
the Securities Administrator shall be indemnified by the Trust 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, the Interest Rate Swap Agreement or the Interest Rate Cap Agreement,
(b) the Mortgage Loans or (c) the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Securities Administrator's duties hereunder, (ii)
incurred in connection with the performance of any of the Securities
Administrator's duties hereunder or under such other agreements, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Securities Administrator's duties
hereunder or (iii) incurred by reason of any action of the Securities
Administrator taken at the direction of the Certificateholders, provided that
any such loss, liability or expense constitutes an "unanticipated expense
incurred by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Securities Administrator
hereunder. Without limiting the foregoing, and except for any such expense,
disbursement or advance as may arise from the Securities Administrator's
negligence, bad faith or willful misconduct, or which would not be an
"unanticipated expense" within the meaning of the second preceding sentence, the
Securities Administrator shall be reimbursed by the Trust for all reasonable
expenses, disbursements and advances incurred or made by the Securities
Administrator in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of any
accountant, engineer, appraiser or other agent that is not regularly employed by
the Securities Administrator, to the extent that the Securities Administrator
must engage such Persons to perform acts or services hereunder and (C) printing
and engraving expenses in connection with preparing any Definitive Certificates.
The Trust shall fulfill its obligations under this paragraph from amounts on
deposit from time to time in the Distribution Account. The Securities
Administrator shall be required to pay all expenses incurred by it in connection
with its activities hereunder and shall not be entitled to reimbursement
therefor except as provided in this Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, 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 of at least investment grade. 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 10.06 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 Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
a Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator functions are operated through an institutional trust department
of the Securities Administrator, (ii) must be authorized to exercise corporate
trust powers under the laws of its jurisdiction of organization, and (iii) must
be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency and rates such
successor, or the equivalent rating by Standard & Poor's or Moody's. If no
successor Securities Administrator shall have been appointed and shall have
accepted appointment within 60 days after the Securities Administrator ceases to
be the Securities Administrator pursuant to Section 10.07, then the Trustee may
(but shall not be obligated to) become the successor Securities Administrator.
The Depositor shall appoint a successor to the Securities Administrator in
accordance with Section 10.07. The Trustee shall notify the Rating Agencies of
any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any time
the Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator 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
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Notwithstanding the foregoing, if at any time the Securities
Administrator resigns pursuant to Section 10.07, the Trustee shall be authorized
to appoint, with the Depositor's consent, a successor Securities Administrator
concurrently with the appointment of a successor Master Servicer.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor securities administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, 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
Securities Administrator herein. The Depositor, the Trustee, the Master Servicer
and the predecessor Securities Administrator 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 Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
10.06 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 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.03, the obligations and responsibilities
of the Depositor, the Master Servicer, the Securities Administrator and the
Trustee created hereby with respect to the Trust Fund shall terminate upon the
earlier of (a) the purchase on or after the Optional Termination Date, by the
Holder of a majority percentage interest in the Class CE Certificates, at the
price (the "Termination Price") equal to the sum of (i) 100% of the unpaid
principal balance of each Mortgage Loan (other than in respect of REO Property)
plus accrued and unpaid interest thereon at the applicable Mortgage Interest
Rate, and (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 Servicer at the expense of the Servicer and (y) the
unpaid principal balance of each Mortgage Loan related to any REO Property, in
each case plus accrued and unpaid interest thereon at the applicable Mortgage
Rate, (iii) all unreimbursed Monthly Advances, Servicing Advances and
indemnification payments payable to the Servicer, (iv) any Swap Termination
Payment owed to the Swap Provider pursuant to the Interest Rate Swap Agreement
(to the extent not received by the Swap Provider as a Replacement Swap Provider
Payment), and (v) any unreimbursed indemnification payments payable to the
Master Servicer, the Securities Administrator and the Trustee under this
Agreement; 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
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.
Section 11.02 Final Distribution on the Certificates. If, on any
Servicer Remittance Date, the Servicer notifies the Securities Administrator
that there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Collection Account, the Securities
Administrator shall promptly send a Notice of Final Distribution to the
applicable Certificateholders and the Swap Provider. If the electing Person
elects to terminate the Trust pursuant to clause (a) of Section 11.01, by no
later than the 10th day of the month of the final distribution, the Securities
Administrator upon request by the electing Person will notify the Depositor of
the final Distribution Date and of the applicable repurchase price of the
Mortgage Loans and the related REO Properties.
A Notice of Final Distribution, 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 Securities
Administrator by letter to Certificateholders mailed not later than the 15th day
of the month of such final distribution. Any such Notice of Final Distribution
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such Notice of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event the electing Person purchases the Mortgage Loans (and
REO Properties) pursuant to Section 11.01(a), such electing Person is required
to remit to the Securities Administrator the Termination Price on the Servicer
Remittance Date immediately preceding the applicable final Distribution Date.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Custodian of the Request for Release, the Custodian shall promptly release to
such electing Person or its designee the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due the Master Servicer, the
Securities Administrator, the Depositor and the Trustee hereunder), in each case
on the final Distribution Date and in the order set forth in Section 4.01, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates, the Class Certificate Balance thereof
plus for each such Class accrued interest thereon in the case of an
interest-bearing Certificate and all other amounts to which such Classes are
entitled pursuant to Section 4.01, (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account after
application pursuant to clause (i) above (other than the amounts retained to
meet claims, which retained amounts shall also be released to the Residual
Certificates, as applicable, as and to the extent such amounts shall no longer
be required to be so retained). The foregoing provisions are intended to
distribute to each Class of Regular Certificates any accrued and unpaid interest
and principal to which they are entitled based on the Pass-Through Rates and
actual Class Certificate Balances or notional principal balances set forth in
the Preliminary Statement upon liquidation of the Trust.
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 Securities Administrator
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
Securities Administrator 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 Class R Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event the
electing Person elects to purchase the Mortgage Loans as provided in Section
11.01, the related Trust REMICs shall be terminated in accordance with the
following additional requirements, unless the Securities Administrator has been
supplied with an Opinion of Counsel, at the expense of the electing Person, to
the effect that the failure to comply with the requirements of this Section
11.03 will not (i) result in the imposition of taxes on "prohibited
transactions" on any Trust REMIC as defined in Section 860F of the Code, or (ii)
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are Outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the person electing to terminate or its designee, and, by the next Distribution
Date after such sale, the Securities Administrator shall distribute to the
related Certificateholders the proceeds of such sale in complete liquidation of
each of the related Trust REMICs; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the terminated Trust REMICs stating
that pursuant to Treasury Regulations Section 1.860F-1, the first day of the 90
day liquidation period for each such Trust REMIC was the date on which the
Trustee sold the assets of the Trust Fund to the electing Person.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Master Servicer, the Securities Administrator, the Depositor, the
Custodian and the Trustee (and the Master Servicer may request an amendment or
consent to any amendment of the Countrywide Agreements) without the consent of
any of the Certificateholders (i) to cure any ambiguity or mistake, (ii) to
correct any defective provision herein or in the Servicing Agreement, or to
supplement any provision in this Agreement which may be inconsistent with any
other provision herein or in the Countrywide Agreements, (iii) to add to the
duties of the Master Servicer, the Securities Administrator, the Depositor, the
Custodian or the Trustee (or with respect to the Countrywide Agreements), (iv)
to add any other provisions with respect to matters or questions arising
hereunder or under the Countrywide Agreements, or (v) to modify, alter, amend,
add to or rescind any of the terms or provisions contained in this Agreement or
in the Countrywide Agreements; provided that any action pursuant to clause (iv)
or (v) above shall not, as evidenced by an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the requesting party, but in any case shall not
be an expense of the Trustee, the Master Servicer, the Securities Administrator,
the Custodian or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided, further, 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. The Trustee, the Master Servicer, the Securities
Administrator, the Custodian and the Depositor also may at any time and from
time to time amend this Agreement (and the Master Servicer shall request the
Servicer to amend the Countrywide Servicing 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 each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk
of the imposition of any tax on any Trust 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
Securities Administrator 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 Securities Administrator 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, the Securities Administrator, the Custodian and
the Trustee (and the Master Servicer shall consent to any amendment to the
Servicing Agreement) with the consent of the Holders of Certificates evidencing
Percentage Interests aggregating not less than 66-2/3% of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such 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 clause (i), without the consent of the
Holders of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 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
Securities Administrator shall not consent to any amendment to this Agreement or
the Countrywide Agreements unless (i) it shall have first received an Opinion of
Counsel, which opinion shall not be an expense of the Securities Administrator
or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on any Trust REMIC or the Certificateholders or cause any
such Trust REMIC to fail to qualify as a REMIC or the grantor trust to fail to
qualify as a grantor trust at any time that any Certificates are Outstanding and
(ii) the party seeking such amendment shall have provided written notice to the
Rating Agencies and the Swap Provider (with a copy of such notice to the
Securities Administrator and the Trustee) of such amendment, stating the
provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicer under the Countrywide Servicing Agreement, any
Certificate beneficially owned by the Depositor or any of its Affiliates or by
the Original Loan Seller or any of its Affiliates shall be deemed not to be
Outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
the Servicing Agreement requiring the consent of Certificateholders, the
Securities Administrator 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 12.01 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 Securities Administrator may prescribe.
Nothing in this Agreement shall require the Trustee or the
Securities Administrator to enter into an amendment which modifies its
obligations or liabilities without its consent and in all cases without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Securities Administrator or the Trust Fund), satisfactory to the Trustee and the
Securities Administrator that (i) such amendment is permitted and is not
prohibited by this Agreement or the Servicing Agreement and that all
requirements for amending this Agreement or the Servicing 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 12.01.
Notwithstanding the Securities Administrator's consent to, or
request for, any amendment of the Servicing Agreement pursuant to the terms of
this Section 12.01, the Servicing Agreement cannot be amended without the
consent of the Servicer.
Notwithstanding the foregoing, any amendment to this Agreement shall
require the prior written consent of the Swap Provider if such amendment
materially and adversely affects the rights or interests of the Swap Provider.
The Trustee may, but shall not be obligated to, enter into any
amendment which negatively affects the Trustee's own rights, duties or
immunities under this Agreement.
Section 12.02 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 shall be
effected by the Depositor at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders is delivered to the Depositor.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 12.03 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 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. 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, either of such assets are held
to be the property of the Depositor, or if for any other reason this Agreement
is held or deemed to create a security interest in either of such assets, then
(i) this Agreement shall be deemed to be a security agreement within the meaning
of the Uniform Commercial Code of the State of New York and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
by the Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the assets transferred, whether now owned or
hereafter acquired.
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 12.05 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:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Servicer, the Master
Servicer, the Securities Administrator or the Trustee and the appointment
of any successor;
(iv) the repurchase or substitution of Mortgage Loans pursuant to
this Agreement or the Countrywide Purchase Agreement;
(v) any notice of a repurchase of a Mortgage Loan pursuant to this
Agreement or Countrywide Purchase Agreement; and
(vi) the final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the following:
(i) each report to Certificateholders described in Section 4.02;
(ii) the Servicer's annual statement of compliance and the
accountant's attestation described in the Countrywide Servicing Agreement;
and
(c) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, BCAP LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel, Facsimile: (000) 000-0000, or such other address as
the Depositor may hereafter furnish to the Servicer and the Trustee; (b) in the
case of the Trustee to 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone:
(000) 000-0000 or in each case such other address as the Trustee may hereafter
furnish to the Depositor; (c) In the case of the Securities Administrator and/or
Master Servicer to Xxxxx Fargo Bank, National Association, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000 Attention: Corporate Trust Services BCAP 2007-AA5
Facsimile: (000) 000-0000, with a copy to X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager BCAP 2007-AA5 and for the purpose of certificate
transfers, Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000 or such other addresses as may be hereafter furnished to the
Swap Provider and the other parties hereto in writing; and (d) in the case of
each of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 12.06 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 12.07 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 Securities Administrator 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 Securities Administrator to institute such action, suit or
proceeding in its own name as Securities Administrator hereunder and shall have
offered to the Securities Administrator such reasonable indemnity as it may
require against the costs, expenses, and liabilities to be incurred therein or
thereby, and the Securities Administrator, 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 Securities Administrator, that no one or more Holders
of Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Agreement, except in the manner herein
provided and for the common benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section 12.07, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 12.08 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
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 12.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agree to comply with all reasonable requests made by the Depositor in good faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with the Trust, the Master
Servicer and the Securities Administrator shall cooperate fully with the
Depositor to deliver to the Depositor (including its assignees or designees),
any and all statements, reports, certifications, records and any other
information available to such party and reasonably necessary in the good faith
determination of the Depositor to permit the Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Master Servicer and the Securities Administrator reasonably believed by the
Depositor to be necessary in order to effect such compliance.
Section 12.11 Third Party Rights. The Swap Provider and each Person
entitled to indemnification hereunder who is not a party hereto, shall be deemed
a third-party beneficiary of this Agreement to the same extent as if it were a
party hereto and shall have the right to enforce its rights under this
Agreement.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
BCAP LLC
By: /s/ Xxx Xxxxxxxx
---------------------------------------------
Name: Xxx Xxxxxxxx
Title: President and Chief Executive Officer
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master
Servicer and Securities Administrator
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Custodian
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
HSBC BANK USA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
SCHEDULE I
Mortgage Loan Schedule
(Delivered to Master Servicer on the Closing Date)
EXHIBIT A
FORM OF CLASS A-1, CLASS X-0, XXXXX X-0, CLASS M-1, CLASS M-2, CLASS M-3,
CLASS M-4 and CLASS M-5 CERTIFICATES.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL 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 REPRESENTS AN
INTEREST IN 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"), AND CERTAIN OTHER
ASSETS.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A
PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. :
Cut-off Date : September 1, 2007
First Distribution Date : October 25, 2007
Initial Certificate Balance of
this Certificate
("Denomination") :
Initial Certificate Balances of
all Certificates of this Class : [A-1] $167,000,000
[A-2] $61,839,000
[A-3] $25,427,000
[M-1] $3,618,000
[M-2] $3,758,000
[M-3] $2,226,000
[M-4] $1,949,000
[M-5] $1,670,000
CUSIP : [A-1] 05531A XX0
[X-0] 00000X XX0
[A-3] 05531A AC8
[M-1] 05531A AD6
[M-2] 05531A AE4
[M-3] 05531A AF1
[M-4] 05531A AG9
[M-5] 05531A AH7
ISIN : [A-1] US05531AAA25
[A-2] US05531AAB08
[A-3] US05531AAC80
[M-1] US05531AAD63
[M-2] US05531AAE47
[M-3] US05531AAF12
[M-4] US05531AAG94
[M-5] US05531AAH77
BCAP LLC
BCAP LLC Trust 2007-AA5
Mortgage Pass-Through Certificates, Series 2007-AA5
[Class A-1] [Class A-2] [Class A-3] [Class M-1] [Class M-2] [Class M-3]
[Class M-4][Class M-5]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Class Certificate Balance at any time may be
less than the Class 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 or the Securities Administrator 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 of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") between BCAP LLC, as depositor
(the "Depositor"), Xxxxx Fargo Bank, National Association, as Master Servicer
(the "Master Servicer"), as Securities Administrator (the "Securities
Administrator") and as Custodian (the "Custodian") and HSBC Bank USA, National
Association, 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.
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 authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity, but solely as
Securities Administrator
By:
-------------------------------------------
Authenticated:
By:
---------------------------------------
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2007-AA5
Mortgage Pass-Through Certificates, Series 2007-AA5
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2007-AA5 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
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 for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately 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 Securities Administrator 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 office designated by the
Securities Administrator for such purposes, 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Securities Administrator and the
other parties to the Agreement 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator 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 Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator and the Depositor and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans in and all property acquired in respect of the Mortgage Loans at
a purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of 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.
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 Securities Administrator 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.
EXHIBIT B
FORM OF [CLASS R] CERTIFICATES
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," 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 SECURITIES ADMINISTRATOR 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 SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : R
Cut-off Date : September 1, 2007
First Distribution Date : October 25, 2007
CUSIP : 05531A AK0
ISIN : US05531AAK07
BCAP LLC
BCAP LLC Trust 2007-AA5
Mortgage Pass-Through Certificates, Series 2007-AA5
Class R
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor or the Securities Administrator
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 specified above of any monthly distributions due to the
Class R Certificates pursuant to a Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement") between BCAP LLC, as
depositor (the "Depositor"), Xxxxx Fargo Bank, National Association, as Master
Servicer (the "Master Servicer"), as Securities Administrator (the "Securities
Administrator") and as Custodian (the "Custodian") and HSBC Bank USA, National
Association, 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 R
Certificate at the office designated by the Securities Administrator for such
purposes.
No transfer of a Class R Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement or
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator or
the Trust Fund. In the event that such representation is violated, or any
attempt is made to transfer to a plan or arrangement subject to Section 406 of
ERISA or a plan subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement, such attempted transfer or acquisition
shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, Securities Administrator or agent in connection with any Transfer of
this Class R Certificate, (C) not to cause income with respect to the Class R
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R Certificate or to cause the Transfer of the Ownership Interest in this
Class R Certificate to any other Person if it has actual knowledge that such
Person is a Non-Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R Certificate in violation of
the provisions herein shall be absolutely null and void and shall 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 authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed. Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By: ______________________________________________
Authenticated:
By:__________________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2007-AA5
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2007-AA5 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
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 for each
Distribution Date is the last Business Day of the monthly immediately preceding
the month in which such Distribution Date occurs.
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 Securities Administrator 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 office designated by the
Securities Administrator for such purposes, 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Securities Administrator and the
other parties to the Agreement 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator 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 Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator, the Depositor, and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option 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. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of 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.
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 Securities Administrator 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.
EXHIBIT C
FORM OF CLASS CE CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" 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"), AND CERTAIN OTHER ASSETS
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT-REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
ANY SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN
THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE
OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID
AND OF NO EFFECT.
NO TRANSFER OF ANY CLASS CE CERTIFICATES SHALL BE MADE UNLESS THE PROPOSED
TRANSFEREE OF SUCH CLASS CE CERTIFICATE PROVIDES TO THE SECURITIES ADMINISTRATOR
THE APPROPRIATE TAX CERTIFICATION FORM (I.E., IRS FORM W-9 OR IRS FORM W-8BEN,
W-8IMY, W-8EXP OR W-8EC1, AS APPLICABLE (OR ANY SUCCESSOR FORM THERETO)) AND
AGREES TO UPDATE SUCH FORMS (I) UPON EXPIRATION OF ANY SUCH FORM, (II) AS
REQUIRED UNDER THEN APPLICABLE U.S. TREASURY REGULATIONS AND (III) PROMPTLY UPON
LEARNING THAT SUCH FORM HAS BECOME OBSOLETE OR INCORRECT, AS A CONDITION TO SUCH
TRANSFER. UNDER THE AGREEMENT, UPON RECEIPT OF ANY SUCH TAX CERTIFICATION FORM
FROM A TRANSFEREE OF ANY CLASS CE CERTIFICATE, THE SECURITIES ADMINISTRATOR
SHALL FORWARD SUCH TAX CERTIFICATION FORM PROVIDED TO IT TO THE SWAP PROVIDER.
EACH HOLDER OF A CLASS CE CERTIFICATE AND EACH TRANSFEREE THEREOF SHALL BE
DEEMED TO HAVE CONSENTED TO THE SECURITIES ADMINISTRATOR FORWARDING TO THE SWAP
PROVIDER ANY SUCH TAX CERTIFICATION FORM IT HAS PROVIDED AND UPDATED IN
ACCORDANCE WITH THESE TRANSFER RESTRICTIONS. ANY PURPORTED SALES OR TRANSFERS OF
ANY CLASS CE CERTIFICATE TO A TRANSFEREE WHICH DOES NOT COMPLY WITH THESE
REQUIREMENTS SHALL BE DEEMED NULL AND VOID UNDER THIS AGREEMENT.
Certificate No. : CE
Cut-off Date : September 1, 2007
First Distribution Date : October 25, 2007
Percentage Interest of this Certificate
("Denomination")
: 100%
CUSIP : 00000X XX0
ISIN : US05531AAJ34
BCAP LLC
BCAP LLC Trust 2007-AA5
Mortgage Pass-Through Certificates, Series 2007-AA5
Class CE
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor or the Securities
Administrator 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 of the
Denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") between
BCAP LLC, as depositor (the "Depositor"), Xxxxx Fargo Bank, National
Association, as Master Servicer (the "Master Servicer"), as Securities
Administrator (the "Securities Administrator") and as Custodian (the
"Custodian") and HSBC Bank USA, National Association, 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.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA or Section 4975 of the Code or any
materially similar provisions of applicable federal, state or local law
("Similar Law") or a person acting on behalf of or investing plan assets of any
such plan, which representation letter shall not be an expense of the Securities
Administrator, or (ii) if the transferee is an insurance company and the
certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation letter that it is purchasing such Certificates with the assets of
its general account and that the purchase and holding of such Certificates
satisfy the requirements for exemptive relief under Sections I and III of PTCE
95-60, or (iii) in the case of a 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) or a plan subject to Similar Law, or a Securities Administrator of
any such plan 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 Securities Administrator, which Opinion of Counsel shall not
be an expense of the Securities Administrator, the Depositor or the Trust Fund,
addressed to the Securities Administrator and the Depositor to the effect that
the purchase and holding of such Certificate will not constitute or result in a
non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of
the Code or any Similar Law and will not subject the Securities Administrator to
any obligation in addition to those expressly undertaken in this Agreement or to
any liability.
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 authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By: _______________________________________
Authenticated:
By:________________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
BCAP LLC
BCAP LLC Trust 2007-AA5
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as BCAP LLC Trust 2007-AA5 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 Securities Administrator 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 and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified 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 for each
Distribution Date is the last Business Day of the month immediately 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 Securities Administrator 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 office designated by the
Securities Administrator for such purposes 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
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Securities Administrator and the other parties to
the Agreement 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator 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 Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator, the Depositor and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Securities Administrator, the Depositor, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option 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. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of 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.
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 Securities Administrator 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.
EXHIBIT D
FORM OF REQUEST FOR RELEASE
(for Xxxxx Fargo Bank, N.A., as custodian)
In connection with the administration of the Mortgage Loans held by
you as custodian, we request the release, and acknowledge receipt, of the
(Custodial File/[specify documents]) for the Mortgage Loan described below, for
the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Send Custodial File to:
Reason for Requesting Documents (check one)
_______ 1. Mortgage Loan Paid in Full. (The requestor hereby certifies
that all amounts received in connection therewith have been
credited to the Collection Account pursuant to the Pooling and
Servicing Agreement.)
_______ 2. Mortgage Loan Repurchased Pursuant to any or all of the
Pooling and Servicing Agreement, the applicable Servicing
Agreements or the Assignment Agreements. (The requestor hereby
certifies that the Repurchase Price (as defined in the
applicable agreement) has been credited to the Collection
Account pursuant to the Pooling and Servicing Agreement.)
_______ 3. Mortgage Loan Liquidated by _________________. (The requestor
hereby certifies that all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received
and credited to the Collection Account pursuant to the Pooling
and Servicing Agreement.)
_______ 4. Mortgage Loan in Foreclosure.
_______ 5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
Capitalized terms not defined herein shall have the meanings set
forth in the Pooling and Servicing Agreement, dated as of September 1, 2007 (the
"Pooling and Servicing Agreement"), between BCAP LLC, as depositor, Xxxxx Fargo
Bank, National Association, as master servicer, securities administrator and
custodian and HSBC Bank USA, National Association, as trustee.
I, the undersigned, hereby certify that the above statements are
true and correct and set my name hereof on this __ day of ___________, 200_.
[REQUESTOR]
By:__________________________________________
Name:
Title:
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form, if requested.
XXXXX FARGO BANK, N.A.,
as a Custodian
By: ________________________________
Name:
Title
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
Re: Pooling and Servicing Agreement, dated as of September 1, 2007,
among BCAP LLC, as depositor, Xxxxx Fargo Bank, National
Association, as custodian and HSBC Bank USA, National Association,
as trustee
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, certifies that it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to a MERS Loan, 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 Custodian 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 Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Custodian has made no determination and makes no
representations 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 sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Custodian
By:____________________________________
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Original Loan Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement, dated as of September 1, 2007,
among BCAP LLC, as depositor, Xxxxx Fargo Bank, N.A., as custodian
and HSBC Bank USA, National Association, as trustee
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan (other than any
Mortgage Loan paid in full or listed on the attached Document Exception Report)
it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(c) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording with the standard Xxxxxx Mae/FHLMC Condominium Rider
or PUD Rider be attached if the mortgaged property is a condominium or is
located in a PUD;
(d) except with respect to a MERS Loan, originals of any intervening
Mortgage assignment or certified copies in either case evidencing
recording; provided that the assignment may be in the form of a blanket
assignment or assignments, a copy of which with evidence of recording
shall be acceptable;
(e) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(f) an original or copy of a title insurance policy, a certificate
of title, or attorney's opinion of title and abstract of title;
(g) to the extent applicable, (1) an original power of attorney, or
a certified copy thereof, in either case with evidence of recordation
thereon if necessary to maintain the lien of the Mortgage or if the
document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy of
such power of attorney, and (2) an original or copy of any surety
agreement or guaranty agreement;
(h) for each Mortgage Loan with respect to which the Mortgagor's
name as it appears on the note does not match the borrower's name on the
mortgage loan schedule, one of the following: the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement;
(i) a security agreement, chattel mortgage or equivalent document
executed in connection with the mortgage, if any.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 8, 31 and 32 of the
Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Custodian
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, or
(ii) the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan or the perfection or priority of any Mortgage. Notwithstanding
anything herein to the contrary, the Custodian has made no determination and
makes no representations 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 sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A., not in its
individual capacity, but solely as
Custodian
By:_____________________________________
Name:
Title:
EXHIBIT G
FORM OF RESIDUAL TRANSFER AFFIDAVIT
BCAP LLC Trust 2007-AA5,
Mortgage Pass-Through Certificates, Series 2007-AA5
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 R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement (the
"Agreement"), between BCAP LLC, as depositor (the "Depositor"), Xxxxx Fargo
Bank, National Association, as master servicer (the "Master Servicer"),
securities administrator (the "Securities Administrator") and custodian (the
"Custodian") and HSBC Bank USA, National Association, as trustee (the
"Trustee"). Capitalized terms used, but not defined herein, 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 for the
benefit of the Depositor, the Securities Administrator and the Trustee.
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. 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 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 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 Securities Administrator a certificate
substantially in the form set forth as Exhibit H 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 has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. 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 will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
|_| The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the
Transferee to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee:
|_| The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer,
the Transferee had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith.
|_| None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
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__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Ian Xxxxxxxx
Xxxxx Fargo Bank, National Association,
as Securities Administrator
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: BCAP 2007-AA5
Re: BCAP LLC Trust 2007-AA5,
Mortgage Pass-Through Certificates Series 2007-AA5, 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 and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_________________________________
Print Name of Transferor
By:
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Ian Xxxxxxxx
Xxxxx Fargo Bank, National Association,
as Securities Administrator
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: BCAP 2007-AA5
Barclays Bank PLC,
as Swap Provider and Cap Provider
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: BCAP 2007-AA5
Re: BCAP LLC Trust 2007-AA5,
Mortgage Pass-Through Certificates Series 2007-AA5, 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 we are purchasing a Class A-1 Certificate,
Class A-2 Certificate, Class A-3 Certificate, Class M-1 Certificate, Class M-2
Certificate, Class M-3 Certificate, Class M-4 Certificate or Class M-5
Certificate, or we are not an employee benefit plan that is subject to Title I
of 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 (the "Code"), or a plan subject to any federal, state
or local law materially similar to the foregoing provisions of ERISA or the
Code, nor are we acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement to effect such acquisition, or, with
respect to a Class CE Certificate that has been the subject of an
ERISA-Qualifying Underwriting, the purchaser is an insurance company that is
purchasing this 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 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 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 and (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.
Our taxpayer identification number is [_]. We attach hereto IRS Form
W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments) or W-9, as applicable.
We hereby consent to the attached Forms being provided to the Swap Provider and
the Cap Provider.
ANNEX 1 TO EXHIBIT I
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 $___________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
____ 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, 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 as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
___________________________________
Print Name of Transferee
By: ____________________________________
Name:
Title:
Date:
----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX 2 TO EXHIBIT I
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).
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 Transferee
By:_______________________________
Name:
Title:
IF AN ADVISER:
__________________________________
Print Name of Buyer
Date:______________________________
EXHIBIT J
XXXXXXXX-XXXXX CERTIFICATION
[DATE]
BCAP TRUST LLC 2007-AA5
[ ]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: BCAP TRUST LLC 2007-AA5
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of BCAP TRUST LLC 0000-XX0 (xxx "Xxxxxxxx Xxx periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken
as a whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s) in all material respects and]
5. All of the reports on assessment of compliance with servicing
criteria for ABS and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, sub-servicer, co-servicer, depositor or trustee].]
Date:_____________________
________________________________________
[Signature]
[Title]
EXHIBIT K
FORM OF SECURITIES ADMINISTRATOR CERTIFICATION TO
BE PROVIDED TO MASTER SERVICER
Re: BCAP LLC Trust 2007-AA5 (the "Trust") Mortgage Pass-Through
Certificates Series 2007-AA5, issued pursuant to the Pooling
and Servicing Agreement, dated as of September 1, 2007 (the
"Pooling and Servicing Agreement"), between BCAP LLC, as
depositor (the "Depositor"), HSBC Bank USA, National
Association, as trustee, and Xxxxx Fargo Bank, National
Association, as master servicer and securities administrator
The Securities Administrator hereby certifies to the Depositor and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 10-D required to be
filed in respect of period covered by the Annual Report (collectively with the
Annual Report, the "Reports"), of the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the Annual Report;
3. Based on my knowledge, the distribution information required to
be provided by the Securities Administrator under the Pooling and Servicing
Agreement for inclusion in the Reports is included in the Reports; and
4. I am responsible for reviewing the activities performed by the
Securities Administrator under the Pooling and Servicing Agreement, and based on
my knowledge and the compliance review conducted in preparing the compliance
statement of the Securities Administrator required in the Annual Report under
Item 1123 of Regulation AB, and except as disclosed in the Reports, the
Securities Administrator has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects; and
5. The report on assessment of compliance with servicing criteria
for asset-backed securities applicable of the Securities Administrator and each
Subcontractor utilized by the Securities Administrator and the related
attestation reports on assessment of compliance with servicing criteria
applicable to the Securities Administrator and any subcontractor required to be
included in the Annual Report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 has been included as an exhibit to the
Annual Report. Any material instances of non-compliance are described in such
report and have been disclosed in the Annual Report.
Date: _________________________________
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: ________________________________________
[Signature]
[Title]
EXHIBIT L
COUNTRYWIDE ASSIGNMENT AGREEMENTS
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated September 21, 2007
(the "Agreement"), among Barclays Bank PLC ("Assignor"), BCAP LLC ("Assignee"),
Countrywide Home Loans Servicing LP (the "Servicer"), Countrywide Home Loans,
Inc. (the "Company"), HSBC Bank USA, National Association (the "Trustee") and
Xxxxx Fargo Bank, National Association ("Xxxxx Fargo Bank"):
For and in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Assignment and Conveyance
-------------------------
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the rights, title, interest and obligations of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Master
Mortgage Loan Purchase Agreement (the "Sale Agreement"), dated as of August 30,
2006, between the Assignor, as purchaser (the "Purchaser"), and the Company, as
seller, and the Servicing Agreement (the "Servicing Agreement"), dated as of
August 30, 2006, between the Purchaser, and the Company, as servicer, each as
amended by Amendment Reg AB to the Master Loan Purchase and Servicing Agreement,
dated as of August 30, 2006 (together with the Sale Agreement and Servicing
Agreement, the "Sale and Servicing Agreements"), among the Purchaser and the
Company, solely insofar as the Sale and Servicing Agreements relate to the
Mortgage Loans.
From and after the date hereof, the Servicer shall service the
Mortgage Loans in accordance with the Servicing Agreement as modified by this
Agreement.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to any mortgage loans subject to
the Sale and Servicing Agreements that are not the Mortgage Loans set forth on
the Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition of the Company
--------------------------
2. From and after the date hereof (the "Securitization Closing
Date"), each of the Company and the Servicer shall and does hereby recognize
that the Assignee, in connection with a securitization of the Mortgage Loans
(the "Securitization"), will transfer the Mortgage Loans and assign all of its
rights, title, interest and obligations (to the extent relating to the Mortgage
Loans) to and under the Sale and Servicing Agreements (solely to the extent set
forth herein) and this Agreement to BCAP LLC Trust 2007-AA5 (the "Trust")
created pursuant to a Pooling and Servicing Agreement, dated as of September 1,
2007 (the "Pooling and Servicing Agreement"), among the Assignee, the Trustee
and Xxxxx Fargo Bank, National Association, as master servicer, securities
administrator and custodian (including its successors in interest and any
successor master servicers under the Pooling and Servicing Agreement, the
"Master Servicer"). Each of the Company, the Servicer and the Master Servicer on
behalf of the Trust hereby acknowledges and agrees that from and after the date
hereof (i) the Trust will be the owner of the Mortgage Loans, (ii) the Company
and the Servicer shall look solely to the Trust for performance of any
obligations of the Assignor insofar as they relate to the Mortgage Loans, (iii)
the Trust shall have and assume all the rights, remedies and obligations
available to the Assignor, insofar as they relate to the Mortgage Loans, under
the Sale and Servicing Agreements, including, without limitation, the
enforcement of the document delivery requirements set forth in Section 2 of the
Sale Agreement, and shall be entitled to enforce all of the obligations of the
Company thereunder insofar as they relate to the Mortgage Loans, (iv) all
references to the Purchaser under the Sale and Servicing Agreements insofar as
they relate to the Mortgage Loans, shall be deemed to refer to the Trust and (v)
the Mortgage Loans will be part of a "real estate mortgage investment conduit"
within the meaning of Section 860D of the Code (a "REMIC"), and the Servicer
shall service the Mortgage Loans and any real property acquired upon default
thereof (including, without limitation, making or permitting any modification,
waiver or amendment of any term of any Mortgage Loan) in accordance with the
Sale and Servicing Agreement but in no event in a manner that would (A) cause
the REMIC to fail to qualify as a REMIC or (B) result in the imposition of a tax
upon the REMIC, and all custodial accounts and escrow accounts maintained under
the Servicing Agreement with respect to the Mortgage Loans shall be Eligible
Accounts as set forth in this Agreement.
Representations and Warranties of the Company and the Servicer
--------------------------------------------------------------
3. Each of the Company and the Servicer warrants and represents to
the Assignor, the Assignee and the Trust as of the date hereof that:
(a) It is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, as
applicable;
(b) It has full power and authority to execute, deliver and perform
its obligations under this Agreement and has full power and authority to perform
its obligations under the Sale and Servicing Agreements to which it is a party .
The execution by it of this Agreement is in the ordinary course of its business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of its charter or bylaws or organization documents, as
applicable, or any legal restriction, or any material agreement or instrument to
which it is now a party or by which it is bound, or result in the violation of
any law, rule, regulation, order, judgment or decree to which its or its
property is subject. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by it, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute its valid and legally binding obligation, enforceable against it in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by it in connection with the execution, delivery or performance by it of
this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
to the best of its knowledge threatened against it, before any court,
administrative agency or other tribunal, which would draw into question the
validity of this Agreement or the Sale and Servicing Agreements, or which,
either in any one instance or in the aggregate, would result in any material
adverse change in its ability to perform its obligations under this Agreement or
the Sale and Servicing Agreements, and it is solvent.
Remedies for Breach of Representations and Warranties
-----------------------------------------------------
4. Each of the Company and the Servicer hereby acknowledges and
agrees that the remedies available to the Assignor, the Assignee and the Trust
in connection with any breach of the representations and warranties made by it
set forth in Section 3 hereof shall be as set forth in Subsection 3.03 of the
Sale Agreement as if they were set forth herein (including without limitation
the repurchase and indemnity obligations set forth therein).
Amendments to Sale and Servicing Agreements for the Securitization
------------------------------------------------------------------
5. Solely with respect to the Mortgage Loans, the following
amendments are hereby made to the Servicing Agreement:
(a) The following definitions set forth in the Servicing Agreement
are amended and restated in their entirety as follows:
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking and savings and loan institutions in either the State of
California, the State of Maryland, the State of Minnesota or the State of Texas
are authorized or obligated by law or executive order to be closed.
Eligible Account: The Custodian or another depository, the accounts of which are
(i) maintained at an Eligible Institution, or (ii) a trust account or accounts
maintained with the corporate trust department of a federal or state chartered
depository institution or trust company having capital and surplus of not less
than $50,000,000, acting in its fiduciary capacity or (iii) any other account
acceptable to the applicable Rating Agency(ies), as evidenced in writing. Each
such account may bear interest unless otherwise specified herein. This Agreement
may be amended to reduce the rating requirements in clause (i) above pursuant to
Section 7.12, provided that, the Person requesting such amendment obtains a
letter from the applicable Rating Agency(ies) stating that such reduction in
rating requirements would not result in the downgrading or withdrawal of the
respective ratings then assigned to the related securities.
Eligible Institution: A federal or state chartered depository institution or
trust company or with the Servicer, the short-term 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 a minimum short-term rating of "A-2" by S&P, "P-2" by Moodys, or
"F-2" by Fitch, as applicable ("Ratings"), respectively, at the time any amounts
are held on deposit therein; provided, that following a downgrade, withdrawal,
or suspension of such institution's rating above, each account shall, within 30
calendar days, be moved to one or more segregated trust accounts in the trust
department of such institution, or to an account at another institution that
complies with the above requirements. This Agreement may be amended to reduce
the above rating requirements pursuant to Section 7.12, provided that, the
Person requesting such amendment obtains a letter from the applicable Rating
Agency(ies) stating that such reduction in rating requirements would not result
in the downgrading or withdrawal of the respective ratings then assigned to the
related securities. Each Eligible Account shall be a separate account.
Permitted Investments: Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued by the Servicer, the Company, or any of their respective
affiliates:
(1) direct obligations of, or obligations fully guaranteed
as to timely payment of principal and interest by, the United States
or any agency or instrumentality thereof, provided such obligations
are backed by the full faith and credit of the United States;
(2) (A) such depository institution or trust company or its
ultimate parent has a short-term uninsured debt rating in one of the
two highest available rating categories of the Rating Agency and (B)
any other demand or time deposit or deposit which is fully insured
by the FDIC;
(3) repurchase obligations with respect to any security
described in clause (1) above and entered into with a depository
institution or trust company (acting as principal) rated A or higher
by the Rating Agency;
(4) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United States of America, the District of Columbia or any state
thereof and that are rated by the Rating Agency that rates such
securities in its highest long-term unsecured rating categories at
the time of such investment or contractual commitment providing for
such investment;
(5) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) that is rated
by the Rating Agency that rates such securities in its highest
short-term unsecured debt rating available at the time of such
investment;
(6) units of money market funds, including money market
funds (which may be 12b-1 funds, as contemplated by the Commission
under the Investment Company Act of 1940) registered under the
Investment Company Act of 1940 including funds managed or advised by
the Servicer, the Company having the highest applicable rating from
the Rating Agency; and
(7) if previously confirmed in writing to the Assignee or
its designee, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to
the Rating Agency in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial
ratings of the senior certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Rating Agency: Any nationally recognized statistical rating agency rating the
securities issued in the applicable Pass-Through Transfer.
Reconstitution Date: The date on which any or all of the Mortgage Loans serviced
under this Agreement shall be removed from this Agreement and reconstituted as
part of a Pass-Through Transfer pursuant to Section 7.06 hereof. The
Reconstitution Date shall be September 21, 2007.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per annum set
forth in the applicable Trade Confirmation or Purchase Confirmation. The
applicable Servicing Fee Rate for each Mortgage Loan shall be provided to Xxxxx
Fargo Bank, National Association by BCAP LLC.
(b) The first paragraph of Section 3.04 of the Servicing Agreement
is amended and restated in its entirety as follows:
Countrywide shall segregate and hold all funds collected and received pursuant
to each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one (1) or more Custodial Accounts, in
the form of time deposit or demand accounts and shall be titled "Countrywide in
trust for BCAP LLC Trust 2007-AA5 as Purchaser of Mortgage Loans and various
Mortgagors." Countrywide shall provide the Purchaser with written evidence of
the creation of such Custodial Account(s) upon the request of the Purchaser.
(c) The first paragraph of Section 3.13(c) of the Servicing
Agreement is amended and restated in its entirety as follows:
Disposition. Subject to the following paragraph, Countrywide shall use best
efforts to dispose of each REO Property as soon as possible and shall sell each
REO Property no later than three (3) years after title to such REO Property has
been obtained, unless Countrywide determines, and gives an appropriate notice to
the Purchaser, that a longer period is necessary for the orderly disposition of
any REO Property. If a period longer than one (1) year is necessary to sell any
REO Property, Countrywide shall, if requested by the Purchaser, report monthly
to the Purchaser as to the progress being made in selling such REO Property.
Countrywide shall also maintain, on each REO Property, fire and hazard insurance
with extended coverage in an amount which is at least equal to the maximum
insurable value of the improvements which are a part of such property, liability
insurance and, to the extent required and available under the National Flood
Insurance Act of 1968, as amended, flood insurance in the amount required in
Section 3.10 hereof.
(d) The first paragraph of Section 4.02(a) of the Servicing
Agreement is amended and restated in its entirety as follows:
Monthly Reports. No later than the fifteenth (15th) calendar day of each month
(or if such fifteenth day is not a Business Day, the Business Day immediately
preceding such fifteenth day), Countrywide shall furnish to the Purchaser via an
electronic medium mutually acceptable to the parties, monthly reports in form
and substance reasonably acceptable to the parties ("Monthly Remittance Advice")
with respect to monthly remittance advices, defaulted Mortgage Loans and
realized loss calculations, respectively, attached hereto as Exhibits B, C and D
which reports shall include with respect to each Mortgage Loan the following
loan-level information: (i) the scheduled balance as of the last day of the
related Due Period, (ii) all Principal Prepayments applied to the Mortgagor's
account during the related Principal Prepayment Period, and (iii) the
delinquency and bankruptcy status of the Mortgage Loan, if applicable; provided,
however, it is understood that Countrywide shall not be obligated to report on
any prepayment penalties or charges.
(e) Exhibits B, C and D attached hereto, are hereby added to the
Servicing Agreement as Exhibits B, C and D.
(f) Sections 4.04 and 4.05 of the Servicing Agreement are hereby
deleted.
(g) Section 3.04 of the Servicing Agreement is hereby amended by
adding the following paragraph to the end thereof:
Funds in the Custodial Account shall, if invested, be invested in
Permitted Investments; provided, however, that the Servicer shall be under no
obligation or duty to invest (or otherwise pay interest on) amounts held in the
Custodial Account. All Permitted Investments shall mature or be subject to
redemption or withdrawal no later than one Business Day prior to the next
succeeding Remittance Date (except that if such Permitted Investment is an
obligation of the Servicer, then such Permitted Investment shall mature not
later than such applicable Remittance Date). Any and all investment earnings
from any such Permitted Investment shall be for the benefit of the Servicer and
shall be subject to its withdrawal or order from time to time, and shall not be
part of the Trust. The risk of loss of moneys required to be remitted to the
Master Servicer resulting from such investments shall be borne by and be the
risk of the Servicer. The Servicer shall promptly deposit the amount of any such
loss in the Custodial Account, but in no event later than the related Remittance
Date.
Miscellaneous
-------------
6. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Master Servicer on behalf of the Trust.
8. This Agreement shall inure to the benefit of (i) the parties
hereto and their respective successors and assigns and (ii) the Trust. Any
entity into which Assignor, Assignee, the Servicer or Company may be merged or
consolidated shall, without the requirement for any further writing, be deemed
Assignor, Assignee, the Servicer or Company, respectively, hereunder.
9. Each of this Agreement and the Sale and Servicing Agreements
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreements (to the extent assigned hereunder) by Assignor to
Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Sale and Servicing Agreements.
10. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts with
any provision of any Sale and Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Sale and Servicing Agreements
13. All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to:
In the case of the Assignor:
Barclays Bank PLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxx
Telephone: (000) 000-0000
Email: x.xxx@xxxxxx.xxx
In the case of the Depositor:
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
In the case of the Trustee
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Telephone: (000) 000-0000
In the case of the Company and Servicer:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
In the case of the Master Servicer:
for the purposes of notices and delivery of the Monthly
Remittance Advice, as set forth in Section 4.02(a) of the
Agreement:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - BCAP
2007-AA5 Facsimile: (000) 000-0000, with a copy
to X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: ClientManager BCAP 2007-AA5; and
for the purposes of remittance:
Direct to: Xxxxx Fargo Bank, N.A.
Bank Number ABA: 000000000
Beneficiary Account #: 0000000000
Beneficiary Account Name: SAS Clearing
Reference: For Further Credit 53178000 BCAP 2007-AA5
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Its: Senior Vice President
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc., its General
Partner
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Its: Senior Vice President
BARCLAYS BANK PLC
By: /s/ Xxx Xxx
------------------------------------
Name: Xxx Xxx
Its: Managing Director
BCAP LLC
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Its: President and Chief Executive
Officer
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Its: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Its: Vice President
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
-------------------------------------------------
Mortgage Loan Schedule
(Delivered to Master Servicer on the Closing Date)
EXHIBIT B
---------
MONTHLY REMITTANCE ADVICE
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
Column Name Description Decimal Format Comment Max Size
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 10 digits 20
define a group of loans.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
LOAN_NBR A unique identifier assigned to each loan Text up to 10 digits 10
by the investor.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the
LOAN_NBR.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
BORROWER_NAME The borrower name as received in the Maximum length of 30 30
file. It is not separated by first and (Last, First)
last name.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar 11
interest payment that a borrower is signs ($)
expected to pay, P&I constant.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
NEW_PAY_AMT The new loan payment amount as reported 2 No commas(,) or dollar 11
by the Servicer. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
ACTL_BEG_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or dollar 11
at the beginning of the processing cycle. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
ACTL_END_PRIN_BAL The borrower's actual principal balance 2 No commas(,) or dollar 11
at the end of the processing cycle. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle MM/DD/YYYY 10
that the borrower's next payment is due
to the Servicer, as reported by Servicer.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar 11
applied. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
CURT_ADJ_ AMT_1 The curtailment interest on the first 2 No commas(,) or dollar 11
curtailment amount, if applicable. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar 11
applied. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
CURT_ADJ_ AMT_2 The curtailment interest on the second 2 No commas(,) or dollar 11
curtailment amount, if applicable. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar 11
applied. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SERV_CURT_DATE_3 The curtailment date associated with the MM/DD/YYYY 10
third curtailment amount.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar 11
curtailment amount, if applicable. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
ACTION_CODE The standard FNMA numeric code used to Action Code Key: 2
indicate the default/delinquent status of 15=Bankruptcy,
a particular loan. 30=Foreclosure, , 60=PIF,
63=Substitution,
65=Repurchase,70=REO
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or dollar 11
reported by the Servicer. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, 2 No commas(,) or dollar 11
if applicable. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar 11
applicable. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
LOAN_LOSS_AMT The amount the Servicer is passing as a 2 No commas(,) or dollar 11
loss, if applicable. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SCHED_BEG_PRIN_BAL The scheduled outstanding principal 2 No commas(,) or dollar 11
amount due at the beginning of the cycle signs ($)
date to be passed through to investors.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar 11
investors at the end of a processing signs ($)
cycle.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar 11
reported by the Servicer for the current signs ($)
cycle -- only applicable for
Scheduled/Scheduled Loans.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
SCHED_NET_INT The scheduled gross interest amount less 2 No commas(,) or dollar 11
the service fee amount for the current signs ($)
cycle as reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
ACTL_PRIN_AMT The actual principal amount collected by 2 No commas(,) or dollar 11
the Servicer for the current reporting signs ($)
cycle -- only applicable for
Actual/Actual Loans.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or dollar 11
service fee amount for the current signs ($)
reporting cycle as reported by the
Servicer -- only applicable for
Actual/Actual Loans.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar 11
borrower prepays on his loan as reported signs ($)
by the Servicer.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the 2 No commas(,) or dollar 11
loan waived by the servicer. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
MOD_TYPE The Modification Type. Varchar - value can be 30
alpha or numeric
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar 11
interest advances made by Servicer. signs ($)
----------------------------- ------------------------------------------- --------- ---------------------------- ------------
Exhibit C
---------
REPORTING DATA FOR DEFAULTED LOANS
Data must be submitted to Xxxxx Fargo Bank in an Excel spreadsheet format with
fixed field names and data type. The Excel spreadsheet should be used as a
template consistently every month when submitting data.
Table: Delinquency
Name Type Size
------------------------------------------------------------------------
Servicer Loan # Number 8
(Double)
Investor Loan # Number 8
(Double)
Borrower Name Text 20
Address Text 30
State Text 2
Due Date Date/Time 8
Action Code Text 2
FC Received Date/Time 8
File Referred to Atty Date/Time 8
NOD Date/Time 8
Complaint Filed Date/Time 8
Sale Published Date/Time 8
Target Sale Date Date/Time 8
Actual Sale Date Date/Time 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Estimated Completion Date/Time 8
Date
Loss Mit Actual Completion Date Date/Time 8
Loss Mit Broken Plan Date Date/Time 8
BK Chapter Text 6
BK Filed Date Date/Time 8
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
RFD Text 10
Occupant Code Text 10
Eviction Start Date Date/Time 8
Eviction Completed Date Date/Time 8
List Price Currency 8
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
o Items in bold are MANDATORY FIELDS. We must receive information in those
fields every month in order for your file to be accepted.
The Action Code Field should show the applicable numeric code to indicate that a
special action is being taken. The Action Codes are the following:
12-Relief Provisions
15-Bankruptcy/Litigation
20-Referred for Deed-in-Lieu
30-Referred fore Foreclosure
00-Xxxxxx
00-Xxxxxxxxxx
00-XXX-Xxxx for Sale
71-Third Party Sale/Condemnation
72-REO-Pending Conveyance-Pool Insurance claim filed
Xxxxx Fargo Bank will accept alternative Action Codes to those above, provided
that the Codes are consistent with industry standards. If Action Codes other
than those above are used, the Servicer must supply Xxxxx Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description of Action Codes:
----------------------------
Action Code 12 - To report a Mortgage Loan for which the Borrower has been
granted relief for curing a delinquency. The Action Date is the date the relief
is expected to end. For military indulgence, it will be three months after the
Borrower's discharge from military service.
Action Code 15 - To report the Borrower's filing for bankruptcy or instituting
some other type of litigation that will prevent or delay liquidation of the
Mortgage Loan. The Action Date will be either the date that any repayment plan
(or forbearance) instituted by the bankruptcy court will expire or an additional
date by which the litigation should be resolved.
Action Code 20 - To report that the Borrower has agreed to a deed-in-lieu or an
assignment of the property. The Action Date is the date the Servicer decided to
pursue a deed-in-lieu or the assignment.
Action Code 30 - To report that the decision has been made to foreclose the
Mortgage Loan. The Action Date is the date the Servicer referred the case to the
foreclosure attorney.
Action Code 60 - To report that a Mortgage Loan has been paid in full either at,
or prior to, maturity. The Action Date is the date the pay-off funds were
remitted to the Master Servicer.
Action Code 65 - To report that the Servicer is repurchasing the Mortgage Loan.
The Action Date is the date the repurchase proceeds were remitted to the Master
Servicer.
Action Code 70 - To report that a Mortgage Loan has been foreclosed or a
deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of
the owner of the Mortgage Loan, has acquired the property and may dispose of it.
The Action Date is the date of the foreclosure sale or, for deeds-in-lieu, the
date the deed is recorded on behalf of the owner of the Mortgage Loan.
Action Code 71 - To report that a Mortgage Loan has been foreclosed and a third
party acquired the property, or a total condemnation of the property has
occurred. The Action Date is the date of the foreclosure sale or the date the
condemnation award was received.
Action Code 72 - To report that a Mortgage Loan has been foreclosed, or a
deed-in-lieu has been accepted, and the property may be conveyed to the mortgage
insurer and the pool insurance claim has been filed. The Action Date is the date
of the foreclosure sale, or, for deeds-in-lieu, the date of the deed for
conventional mortgages.
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
ASUM-Approved Assumption
BAP-Borrower Assistance
Program CO-Charge Off
DIL-Deed-in-Lieu
FFA-Formal Forbearance Agreement
MOD-Loan Modification
PRE-Pre-Sale
SS-Short Sale
MISC-Anything else approved by the PMI or Pool Insurer
Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The Occupant Code field should show the current status of the property. The
acceptable codes are:
Mortgagor
Tenant
Unknown
Vacant
Exhibit D
---------
REALIZED LOSS CALCULATION INFORMATION
XXXXX FARGO BANK, N.A. Form 332
Calculation of Realized Loss
----------------------------
Purpose
-------
To provide the Servicer with a form for the calculation of any Realized Loss (or
gain) as a result of a Mortgage Loan having been foreclosed and Liquidated.
Distribution
------------
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation to
the Master Servicer with the Monthly Accounting Reports which supports the
Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due Date
--------
With respect to any liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the Master
Servicer under Section 4.02 of this Agreement (the "Statement Date") in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage Loan,
then the form will be submitted on the first Statement Date occurring after the
30th day following receipt of final liquidation proceeds and supporting
documentation.
Preparation Instructions
------------------------
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements,
vouchers, receipts, canceled checks, etc., to document the expense.
Entries not properly
documented will not be reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
-------
11-17. Complete as necessary. All line entries must be supported by copies of
the appropriate claims forms, statements, payment checks, etc. to
document the credit. If the Mortgage Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of the
Note prior to the Bankruptcy Deficiency and the Unpaid Principal Balance
as reduced by the Bankruptcy Deficiency should be input on line 16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
-------------------------------------------
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( ).
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
XXXXX FARGO BANK, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
Servicer Loan No. Servicer Name Servicer Address
XXXXX FARGO BANK, N.A.
Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
Actual Unpaid Principal Balance of Mortgage Loan $ _______________(1)
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
$ _________________
Total Expenses $ ______________(10)
Credits:
Escrow Balance $ ______________(11)
HIP Refund ________________(12)
Rental Receipts ________________(13)
Hazard Loss Proceeds ________________(14)
Primary Mortgage Insurance Proceeds ________________(15)
Proceeds from Sale of Acquired Property ________________(16)
Other (itemize) ________________(17)
___________________
___________________
Total Credits $_______________(18)
Total Realized Loss (or Amount of Gain) $________________
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated September 21, 2007
(the "Agreement"), among Xxxxxx Funding LLC ("Assignor"), BCAP LLC ("Assignee"),
Countrywide Home Loans Servicing LP (the "Servicer"), Countrywide Home Loans,
Inc. (the "Company"), HSBC Bank USA, National Association (the "Trustee") and
Xxxxx Fargo Bank, National Association ("Xxxxx Fargo Bank"):
For and in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the rights, title, interest and obligations of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Master
Mortgage Loan Purchase Agreement (the "Sale Agreement"), dated as of February
26, 2007, between the Assignor, as purchaser (the "Purchaser"), and the Company,
as seller, and the Servicing Agreement (the "Servicing Agreement"), dated as of
February 26, 2007, between the Purchaser, and the Company, as servicer, each as
amended by Amendment Reg AB to the Master Loan Purchase and Servicing Agreement,
dated as of February 26, 2007 (together with the Sale Agreement and Servicing
Agreement, the "Sale and Servicing Agreements"), among the Purchaser and the
Company, solely insofar as the Sale and Servicing Agreements relate to the
Mortgage Loans.
From and after the date hereof, the Servicer shall service the
Mortgage Loans in accordance with the Servicing Agreement as modified by this
Agreement.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to any mortgage loans subject to
the Sale and Servicing Agreements that are not the Mortgage Loans set forth on
the Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), each of the Company and the Servicer shall and does hereby recognize
that the Assignee, in connection with a securitization of the Mortgage Loans
(the "Securitization"), will transfer the Mortgage Loans and assign all of its
rights, title, interest and obligations (to the extent relating to the Mortgage
Loans) to and under the Sale and Servicing Agreements (solely to the extent set
forth herein) and this Agreement to BCAP LLC Trust 2007-AA5 (the "Trust")
created pursuant to a Pooling and Servicing Agreement, dated as of September 1,
2007 (the "Pooling and Servicing Agreement"), among the Assignee, the Trustee
and Xxxxx Fargo Bank, National Association, as master servicer, securities
administrator and custodian (including its successors in interest and any
successor master servicers under the Pooling and Servicing Agreement, the
"Master Servicer"). Each of the Company, the Servicer and the Master Servicer on
behalf of the Trust hereby acknowledges and agrees that from and after the date
hereof (i) the Trust will be the owner of the Mortgage Loans, (ii) the Company
and the Servicer shall look solely to the Trust for performance of any
obligations of the Assignor insofar as they relate to the Mortgage Loans, (iii)
the Trust shall have and assume all the rights, remedies and obligations
available to the Assignor, insofar as they relate to the Mortgage Loans, under
the Sale and Servicing Agreements, including, without limitation, the
enforcement of the document delivery requirements set forth in Section 2 of the
Sale Agreement, and shall be entitled to enforce all of the obligations of the
Company thereunder insofar as they relate to the Mortgage Loans, (iv) all
references to the Purchaser under the Sale and Servicing Agreements insofar as
they relate to the Mortgage Loans, shall be deemed to refer to the Trust and (v)
the Mortgage Loans will be part of a "real estate mortgage investment conduit"
within the meaning of Section 860D of the Code (a "REMIC"), and the Servicer
shall service the Mortgage Loans and any real property acquired upon default
thereof (including, without limitation, making or permitting any modification,
waiver or amendment of any term of any Mortgage Loan) in accordance with the
Sale and Servicing Agreement but in no event in a manner that would (A) cause
the REMIC to fail to qualify as a REMIC or (B) result in the imposition of a tax
upon the REMIC, and all custodial accounts and escrow accounts maintained under
the Servicing Agreement with respect to the Mortgage Loans shall be Eligible
Accounts as set forth in this Agreement.
Representations and Warranties of the Company and the Servicer
3. Each of the Company and the Servicer warrants and represents to
the Assignor, the Assignee and the Trust as of the date hereof that:
(a) It is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, as
applicable;
(b) It has full power and authority to execute, deliver and perform
its obligations under this Agreement and has full power and authority to perform
its obligations under the Sale and Servicing Agreements to which it is a party .
The execution by it of this Agreement is in the ordinary course of its business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of its charter or bylaws or organization documents, as
applicable, or any legal restriction, or any material agreement or instrument to
which it is now a party or by which it is bound, or result in the violation of
any law, rule, regulation, order, judgment or decree to which its or its
property is subject. The execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by it, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute its valid and legally binding obligation, enforceable against it in
accordance with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by it in connection with the execution, delivery or performance by it of
this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
to the best of its knowledge threatened against it, before any court,
administrative agency or other tribunal, which would draw into question the
validity of this Agreement or the Sale and Servicing Agreements, or which,
either in any one instance or in the aggregate, would result in any material
adverse change in its ability to perform its obligations under this Agreement or
the Sale and Servicing Agreements, and it is solvent.
Remedies for Breach of Representations and Warranties
4. Each of the Company and the Servicer hereby acknowledges and
agrees that the remedies available to the Assignor, the Assignee and the Trust
in connection with any breach of the representations and warranties made by it
set forth in Section 3 hereof shall be as set forth in Subsection 3.03 of the
Sale Agreement as if they were set forth herein (including without limitation
the repurchase and indemnity obligations set forth therein).
Amendments to Sale and Servicing Agreements for the Securitization
5. Solely with respect to the Mortgage Loans, the following
amendments are hereby made to the Servicing Agreement:
(a) The following definitions set forth in the Servicing Agreement
are amended and restated in their entirety as follows:
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking and savings and loan institutions in either the State of
California, the State of Maryland, the State of Minnesota or the State of Texas
are authorized or obligated by law or executive order to be closed.
Eligible Account: The Custodian or another depository, the accounts of which are
(i) maintained at an Eligible Institution, or (ii) a trust account or accounts
maintained with the corporate trust department of a federal or state chartered
depository institution or trust company having capital and surplus of not less
than $50,000,000, acting in its fiduciary capacity or (iii) any other account
acceptable to the applicable Rating Agency(ies), as evidenced in writing. Each
such account may bear interest unless otherwise specified herein. This Agreement
may be amended to reduce the rating requirements in clause (i) above pursuant to
Section 7.12, provided that, the Person requesting such amendment obtains a
letter from the applicable Rating Agency(ies) stating that such reduction in
rating requirements would not result in the downgrading or withdrawal of the
respective ratings then assigned to the related securities.
Eligible Institution: A federal or state chartered depository institution or
trust company or with the Servicer, the short-term 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 a minimum short-term rating of "A-2" by S&P, "P-2" by Moodys, or
"F-2" by Fitch, as applicable ("Ratings"), respectively, at the time any amounts
are held on deposit therein; provided, that following a downgrade, withdrawal,
or suspension of such institution's rating above, each account shall, within 30
calendar days, be moved to one or more segregated trust accounts in the trust
department of such institution, or to an account at another institution that
complies with the above requirements. This Agreement may be amended to reduce
the above rating requirements pursuant to Section 7.12, provided that, the
Person requesting such amendment obtains a letter from the applicable Rating
Agency(ies) stating that such reduction in rating requirements would not result
in the downgrading or withdrawal of the respective ratings then assigned to the
related securities. Each Eligible Account shall be a separate account.
Permitted Investments: Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued by the Servicer, the Company, or any of their respective
affiliates:
(1) direct obligations of, or obligations fully
guaranteed as to timely payment of principal and interest by, the
United States or any agency or instrumentality thereof, provided
such obligations are backed by the full faith and credit of the
United States;
(2) (A) such depository institution or trust company or
its ultimate parent has a short-term uninsured debt rating in one
of the two highest available rating categories of the Rating
Agency and (B) any other demand or time deposit or deposit which
is fully insured by the FDIC;
(3) repurchase obligations with respect to any security
described in clause (1) above and entered into with a depository
institution or trust company (acting as principal) rated A or
higher by the Rating Agency;
(4) securities bearing interest or sold at a discount
that are issued by any corporation incorporated under the laws of
the United States of America, the District of Columbia or any
state thereof and that are rated by the Rating Agency that rates
such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual
commitment providing for such investment;
(5) commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations) that is rated by the Rating Agency that rates such
securities in its highest short-term unsecured debt rating
available at the time of such investment;
(6) units of money market funds, including money market
funds (which may be 12b-1 funds, as contemplated by the
Commission under the Investment Company Act of 1940) registered
under the Investment Company Act of 1940 including funds managed
or advised by the Servicer, the Company having the highest
applicable rating from the Rating Agency; and
(7) if previously confirmed in writing to the Assignee
or its designee, any other demand, money market or time deposit,
or any other obligation, security or investment, as may be
acceptable to the Rating Agency in writing as a permitted
investment of funds backing securities having ratings equivalent
to its highest initial ratings of the senior certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Rating Agency: Any nationally recognized statistical rating agency rating the
securities issued in the applicable Pass-Through Transfer.
Reconstitution Date: The date on which any or all of the Mortgage Loans serviced
under this Agreement shall be removed from this Agreement and reconstituted as
part of a Pass-Through Transfer pursuant to Section 7.06 hereof. The
Reconstitution Date shall be September 21, 2007.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per annum set
forth in the applicable Trade Confirmation or Purchase Confirmation. The
applicable Servicing Fee Rate for each Mortgage Loan shall be provided to Xxxxx
Fargo Bank, National Association by BCAP LLC.
(b) The first paragraph of Section 3.04 of the Servicing Agreement
is amended and restated in its entirety as follows:
Countrywide shall segregate and hold all funds collected and received pursuant
to each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one (1) or more Custodial Accounts, in
the form of time deposit or demand accounts and shall be titled "Countrywide in
trust for BCAP LLC Trust 2007-AA5 as Purchaser of Mortgage Loans and various
Mortgagors." Countrywide shall provide the Purchaser with written evidence of
the creation of such Custodial Account(s) upon the request of the Purchaser.
(c) The first paragraph of Section 3.13(c) of the Servicing
Agreement is amended and restated in its entirety as follows:
Disposition. Subject to the following paragraph, Countrywide shall use best
efforts to dispose of each REO Property as soon as possible and shall sell each
REO Property no later than three (3) years after title to such REO Property has
been obtained, unless Countrywide determines, and gives an appropriate notice to
the Purchaser, that a longer period is necessary for the orderly disposition of
any REO Property. If a period longer than one (1) year is necessary to sell any
REO Property, Countrywide shall, if requested by the Purchaser, report monthly
to the Purchaser as to the progress being made in selling such REO Property.
Countrywide shall also maintain, on each REO Property, fire and hazard insurance
with extended coverage in an amount which is at least equal to the maximum
insurable value of the improvements which are a part of such property, liability
insurance and, to the extent required and available under the National Flood
Insurance Act of 1968, as amended, flood insurance in the amount required in
Section 3.10 hereof.
(d) The first paragraph of Section 4.02(a) of the Servicing
Agreement is amended and restated in its entirety as follows:
Monthly Reports. No later than the fifteenth (15th) calendar day of each month
(or if such fifteenth day is not a Business Day, the Business Day immediately
preceding such fifteenth day), Countrywide shall furnish to the Purchaser via an
electronic medium mutually acceptable to the parties, monthly reports in form
and substance reasonably acceptable to the parties ("Monthly Remittance Advice")
with respect to monthly remittance advices, defaulted Mortgage Loans and
realized loss calculations, respectively, attached hereto as Exhibits B, C and D
which reports shall include with respect to each Mortgage Loan the following
loan-level information: (i) the scheduled balance as of the last day of the
related Due Period, (ii) all Principal Prepayments applied to the Mortgagor's
account during the related Principal Prepayment Period, and (iii) the
delinquency and bankruptcy status of the Mortgage Loan, if applicable; provided,
however, it is understood that Countrywide shall not be obligated to report on
any prepayment penalties or charges.
(e) Exhibits B, C and D attached hereto, are hereby added to the
Servicing Agreement as Exhibits B, C and D.
(f) Sections 4.04 and 4.05 of the Servicing Agreement are hereby
deleted.
(g) Section 3.04 of the Servicing Agreement is hereby amended by
adding the following paragraph to the end thereof:
Funds in the Custodial Account shall, if invested, be invested in
Permitted Investments; provided, however, that the Servicer shall be under no
obligation or duty to invest (or otherwise pay interest on) amounts held in the
Custodial Account. All Permitted Investments shall mature or be subject to
redemption or withdrawal no later than one Business Day prior to the next
succeeding Remittance Date (except that if such Permitted Investment is an
obligation of the Servicer, then such Permitted Investment shall mature not
later than such applicable Remittance Date). Any and all investment earnings
from any such Permitted Investment shall be for the benefit of the Servicer and
shall be subject to its withdrawal or order from time to time, and shall not be
part of the Trust. The risk of loss of moneys required to be remitted to the
Master Servicer resulting from such investments shall be borne by and be the
risk of the Servicer. The Servicer shall promptly deposit the amount of any such
loss in the Custodial Account, but in no event later than the related Remittance
Date.
Miscellaneous
6. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Master Servicer on behalf of the Trust.
8. This Agreement shall inure to the benefit of (i) the parties
hereto and their respective successors and assigns and (ii) the Trust. Any
entity into which Assignor, Assignee, the Servicer or Company may be merged or
consolidated shall, without the requirement for any further writing, be deemed
Assignor, Assignee, the Servicer or Company, respectively, hereunder.
9. Each of this Agreement and the Sale and Servicing Agreements
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreements (to the extent assigned hereunder) by Assignor to
Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Sale and Servicing Agreements.
10. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts with
any provision of any Sale and Servicing Agreements with respect to the Mortgage
Loans, the terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Sale and Servicing Agreements 13. All directions, demands and
notices hereunder shall be in writing and shall be deemed to have been duly
given when delivered to:
In the case of the Assignor:
Xxxxxx Funding LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
In the case of the Depositor:
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
In the case of the Trustee
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Telephone: (000) 000-0000
In the case of the Company and Servicer:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
In the case of the Master Servicer:
for the purposes of notices and delivery of the
Monthly Remittance Advice, as set forth in
Section 4.02(a) of the Agreement:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - BCAP 2007-AA5
Facsimile: (000) 000-0000, with a copy to X.X. Xxx 00,
Xxxxxxxx, Xxxxxxxx 00000, Attention: ClientManager BCAP
2007-AA5; and
for the purposes of remittance:
Direct to: Xxxxx Fargo Bank, N.A.
Bank Number ABA:000000000
Beneficiary Account #: 0000000000
Beneficiary Account Name: SAS Clearing
Reference: For Further Credit 53178000 BCAP
2007-AA5
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Its: Senior Vice President
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc., its General
Partner
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Its: Senior Vice President
XXXXXX FUNDING LLC
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Director
BCAP LLC
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Its: President and Chief Executive
Officer
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Its: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Its: Vice President
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
(Delivered to Master Servicer on the Closing Date)
EXHIBIT B
MONTHLY REMITTANCE ADVICE
-------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment Max Size
-------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer Text up to 10 digits 20
to define a group of loans.
-------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to Text up to 10 digits 10
each loan by the investor.
-------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a Text up to 10 digits 10
loan by the Servicer. This may
be different than the LOAN_NBR.
-------------------------------------------------------------------------------------------------------
BORROWER_NAME The borrower name as received in
the file. It is not separated by Maximum length of 30
first and last name. (Last, First) 30
-------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or 11
scheduled interest payment that a
borrower is expected to pay, P&I
constant. dollar signs ($)
-------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as 4 Max length of 6 6
reported by the Servicer.
-------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate less 4 Max length of 6 6
the service fee rate as reported
by the Servicer.
-------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a
loan as reported by the Servicer. 4 Max length of 6 6
-------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a No commas(,) or
loan as reported by the Servicer. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as No commas(,) or
reported by the Servicer. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported by 4 Max length of 6 6
the Servicer.
-------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using 4 Max length of 6 6
to calculate a forecasted rate.
-------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal
balance at the beginning of the No commas(,) or
processing cycle. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal
balance at the end of the No commas(,) or
processing cycle. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next
payment is due to the Servicer,
as reported by Servicer.
-------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to 2 No commas(,) or 11
be applied. dollar signs ($)
-------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated MM/DD/YYYY 10
with the first curtailment
amount.
-------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_1 The curtailment interest on the
first curtailment amount, if No commas(,) or
applicable. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount to 2 No commas(,) or 11
be applied. dollar signs ($)
-------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date associated MM/DD/YYYY 10
with the second curtailment
amount.
-------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the
second curtailment amount, if No commas(,) or
applicable. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to 2 No commas(,) or 11
be applied. dollar signs ($)
-------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated MM/DD/YYYY 10
with the third curtailment amount.
-------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the
third curtailment amount, if No commas(,) or
applicable. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as No commas(,) or
reported by the Servicer. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as reported MM/DD/YYYY 10
by the Servicer.
-------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numeric code used Action Code Key: 2
to indicate the default/delinquent 15=Bankruptcy,
status of a particular loan. 30=Foreclosure,
, 60=PIF,
63=Substitution,
65=Repurchase,70=REO
-------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest 2 No commas(,) or 11
adjustment as reported by the
Servicer. dollar signs ($)
-------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or 11
amount, if applicable. dollar signs ($)
-------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, No commas(,) or
if applicable. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is 2 No commas(,) or 11
passing as a loss, if applicable. dollar signs ($)
-------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or 11
principal amount due at the dollar signs ($)
beginning of the cycle date to be
passed through to investors.
-------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance 2 No commas(,) or 11
due to investors at the end of a dollar signs ($)
processing cycle.
-------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or 11
reported by the Servicer for the dollar signs ($)
current cycle -- only applicable
for Scheduled/Scheduled Loans.
-------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or 11
amount less the service fee dollar signs ($)
amount for the current cycle as
reported by the Servicer -- only
applicable for Scheduled/Scheduled
Loans.
-------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or 11
collected by the Servicer for the dollar signs ($)
current reporting cycle -- only
applicable for Actual/Actual
Loans.
-------------------------------------------------------------------------------------------------------
ACTL_NET_IN The actual gross interest amount 2 No commas(,) or 11
less the service fee amount for dollar signs ($)
the current reporting cycle as
reported by the Servicer -- only
applicable for Actual/Actual Loans.
-------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received when 2 No commas(,) or 11
a borrower prepays on his loan as dollar signs ($)
reported by the Servicer.
-------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for No commas(,) or
the loan waived by the servicer. 2 dollar signs ($) 11
-------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
-------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can 30
be alpha or numeric
-------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) or 11
and interest advances made by dollar signs ($)
Servicer.
-------------------------------------------------------------------------------------------------------
Exhibit C
REPORTING DATA FOR DEFAULTED LOANS
Data must be submitted to Xxxxx Fargo Bank in an Excel spreadsheet format with
fixed field names and data type. The Excel spreadsheet should be used as a
template consistently every month when submitting data.
Table: Delinquency
Name Type Size
----------------------------------------------------------------------------
Servicer Loan # Number 8
(Double)
Investor Loan # Number 8
(Double)
Borrower Name Text 20
Address Text 30
State Text 2
Due Date Date/Time 8
Action Code Text 2
FC Received Date/Time 8
File Referred to Atty Date/Time 8
NOD Date/Time 8
Complaint Filed Date/Time 8
Sale Published Date/Time 8
Target Sale Date Date/Time 8
Actual Sale Date Date/Time 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Estimated Completion Date/Time 8
Date
Loss Mit Actual Completion Date Date/Time 8
Loss Mit Broken Plan Date Date/Time 8
BK Chapter Text 6
BK Filed Date Date/Time 8
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
RFD Text 10
Occupant Code Text 10
Eviction Start Date Date/Time 8
Eviction Completed Date Date/Time 8
List Price Currency 8
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
o Items in bold are MANDATORY FIELDS. We must receive information in those
fields every month in order for your file to be accepted.
The Action Code Field should show the applicable numeric code to indicate that a
special action is being taken. The Action Codes are the following:
12-Relief Provisions
15-Bankruptcy/Litigation
20-Referred for Deed-in-Lieu
30-Referred fore Foreclosure
00-Xxxxxx
00-Xxxxxxxxxx
00-XXX-Xxxx for Sale
71-Third Party Sale/Condemnation
72-REO-Pending Conveyance-Pool Insurance claim filed
Xxxxx Fargo Bank will accept alternative Action Codes to those above, provided
that the Codes are consistent with industry standards. If Action Codes other
than those above are used, the Servicer must supply Xxxxx Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description of Action Codes:
Action Code 12 - To report a Mortgage Loan for which the Borrower has been
granted relief for curing a delinquency. The Action Date is the date the relief
is expected to end. For military indulgence, it will be three months after the
Borrower's discharge from military service.
Action Code 15 - To report the Borrower's filing for bankruptcy or instituting
some other type of litigation that will prevent or delay liquidation of the
Mortgage Loan. The Action Date will be either the date that any repayment plan
(or forbearance) instituted by the bankruptcy court will expire or an additional
date by which the litigation should be resolved.
Action Code 20 - To report that the Borrower has agreed to a deed-in-lieu or an
assignment of the property. The Action Date is the date the Servicer decided to
pursue a deed-in-lieu or the assignment.
Action Code 30 - To report that the decision has been made to foreclose the
Mortgage Loan. The Action Date is the date the Servicer referred the case to the
foreclosure attorney.
Action Code 60 - To report that a Mortgage Loan has been paid in full either at,
or prior to, maturity. The Action Date is the date the pay-off funds were
remitted to the Master Servicer.
Action Code 65 - To report that the Servicer is repurchasing the Mortgage Loan.
The Action Date is the date the repurchase proceeds were remitted to the Master
Servicer.
Action Code 70 - To report that a Mortgage Loan has been foreclosed or a
deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of
the owner of the Mortgage Loan, has acquired the property and may dispose of it.
The Action Date is the date of the foreclosure sale or, for deeds-in-lieu, the
date the deed is recorded on behalf of the owner of the Mortgage Loan.
Action Code 71 - To report that a Mortgage Loan has been foreclosed and a third
party acquired the property, or a total condemnation of the property has
occurred. The Action Date is the date of the foreclosure sale or the date the
condemnation award was received.
Action Code 72 - To report that a Mortgage Loan has been foreclosed, or a
deed-in-lieu has been accepted, and the property may be conveyed to the mortgage
insurer and the pool insurance claim has been filed. The Action Date is the date
of the foreclosure sale, or, for deeds-in-lieu, the date of the deed for
conventional mortgages.
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
ASUM-Approved Assumption
BAP-Borrower Assistance Program
CO-Charge Off
DIL-Deed-in-Lieu
FFA-Formal Forbearance Agreement
MOD-Loan Modification
PRE-Pre-Sale SS-Short Sale
MISC-Anything else approved by the PMI or Pool Insurer
Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The Occupant Code field should show the current status of the property. The
acceptable codes are:
Mortgagor
Tenant
Unknown
Vacant
Exhibit D
REALIZED LOSS CALCULATION INFORMATION
XXXXX FARGO BANK, N.A. Form 332
Calculation of Realized Loss
Purpose
To provide the Servicer with a form for the calculation of any Realized Loss (or
gain) as a result of a Mortgage Loan having been foreclosed and Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation to
the Master Servicer with the Monthly Accounting Reports which supports the
Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due Date
With respect to any liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the Master
Servicer under Section 4.02 of this Agreement (the "Statement Date") in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage Loan,
then the form will be submitted on the first Statement Date occurring after the
30th day following receipt of final liquidation proceeds and supporting
documentation.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
11-17. Complete as necessary. All line entries must be supported by copies of
the appropriate claims forms, statements, payment checks, etc. to
document the credit. If the Mortgage Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of the
Note prior to the Bankruptcy Deficiency and the Unpaid Principal Balance
as reduced by the Bankruptcy Deficiency should be input on line 16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( ).
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
XXXXX FARGO BANK, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
Servicer Loan No. Servicer Name Servicer Address
XXXXX FARGO BANK, N.A.
Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
Actual Unpaid Principal Balance of Mortgage Loan $________________(1)
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
$__________________
Total Expenses $_______________(10)
Credits:
Escrow Balance $_______________(11)
HIP Refund ________________(12)
Rental Receipts ________________(13)
Hazard Loss Proceeds ________________(14)
Primary Mortgage Insurance Proceeds ________________(15)
Proceeds from Sale of Acquired Property ________________(16)
Other (itemize) ________________(17)
________________
________________
Total Credits $_______________(18)
Total Realized Loss (or Amount of Gain) $________________
EXHIBIT M-1
COUNTRYWIDE PURCHASE AGREEMENT
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
BARCLAYS BANK PLC,
as Purchaser
----------------------------------------
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of August 30, 2006
----------------------------------------
Conventional Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I. DEFINITIONS
ARTICLE II. PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Due Diligence by the Purchaser................................
Section 2.02 Identification of Mortgage Loan Package.......................
Section 2.03 Post-Closing Due Diligence....................................
Section 2.04 Credit Document Deficiencies Identified During
Due Diligence...............................................
Section 2.05 Delivery of Collateral Files..................................
Section 2.06 Purchase Confirmation.........................................
Section 2.07 Closing.......................................................
Section 2.08 Payment of the Purchase Proceeds..............................
Section 2.09 Entitlement to Payments on the Mortgage Loans.................
Section 2.10 Payment of Costs and Expenses.................................
Section 2.11 MERS Mortgage Loans and the MERS System.......................
Section 2.12 Required Closing Documents....................................
ARTICLE III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.........
Section 3.02 Representations and Warranties Regarding Individual Mortgage
Loans. .....................................................
Section 3.03 Remedies for Breach of Representations and Warranties.........
Section 3.04 Repurchase of Convertible Mortgage Loans......................
Section 3.05 Representations and Warranties Respecting the Purchaser.......
Section 3.06 Indemnification by the Purchaser..............................
ARTICLE IV. MISCELLANEOUS
Section 4.01 Notices.......................................................
Section 4.02 Sale Treatment................................................
Section 4.03 Exhibits......................................................
Section 4.04 General Interpretive Principles...............................
Section 4.05 Reproduction of Documents.....................................
Section 4.06 Further Agreements............................................
Section 4.07 Assignment of Mortgage Loans by the Purchaser.................
Section 4.08 Conflicts between Transaction Documents.......................
Section 4.09 Governing Law.................................................
Section 4.10 Severability Clause...........................................
Section 4.11 Successors and Assigns........................................
Section 4.12 Confidentiality...............................................
Section 4.13 Entire Agreement..............................................
Section 4.14 Counterparts..................................................
Section 4.15 Waivers.......................................................
Section 4.16 No Solicitation...............................................
Section 4.17 Consent to Service of Process.................................
Exhibit A Schedule of Collateral Documents..............................
Exhibit B Form of Purchase Confirmation.................................
Exhibit C Form of Custodial Agreement...................................
Exhibit D Form of Trade Confirmation....................................
Exhibit E Form of Countrywide's Officer's Certification.................
Exhibit F Form of Security Release Certification........................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of August 30, 2006 (the "Agreement"), between Countrywide Home Loans,
Inc., having an address at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
("Countrywide"), and Barclays Bank PLC, having an address at 000 Xxxx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000 the ("Purchaser").
R E C I T A L S
The Purchaser has agreed to purchase from Countrywide and
Countrywide has agreed to sell from time to time to the Purchaser all of
Countrywide's right, title and interest, excluding servicing rights, in and to
those certain mortgage loans identified in a Purchase Confirmation (as defined
below) executed by Countrywide and the Purchaser. This Agreement is intended to
set forth the terms and conditions by which Countrywide shall transfer and the
Purchaser shall acquire such mortgage loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of a similar type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Xxx or Xxxxxxx Mac.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Master Mortgage Loan Purchase Agreement, including
all exhibits and supplements hereto, and all amendments hereof.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California, the State of New York, or the State of Texas are authorized or
obligated by law or executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Documents: The documents required to be delivered on each
Closing Date pursuant to Section 2.12.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Conventional Mortgage Loan: A Mortgage Loan that is not insured by
the FHA or guaranteed by the VA.
Convertible Mortgage Loan: Any Adjustable Rate Mortgage Loan that
contains a provision whereby the Mortgagor is permitted to convert the Mortgage
Loan to a fixed-rate mortgage loan in accordance with the terms of the related
Mortgage Note.
Countrywide: Countrywide Home Loans, Inc., or any successor or
assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.04 of the Servicing Agreement, each of which shall be an
Eligible Account.
Custodial Agreement: The agreement governing the retention of the
Collateral Files by the Custodian.
Custodian: Xxxxx Fargo Bank, N.A., its successor in interest or
assign, or such other custodian that may be designated by Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to an Agency.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
Xxxxxx Mae Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxx Xxx.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Xxxxxxx Mac Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxxx Mac under its Cash Purchase Program or MBS Program
(Special Servicing Option).
Funding Deadline: With respect to each Closing Date, one o'clock
(1:00) p.m. New York time.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) that is a Section 32 Mortgage
Loan under the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), (b)
(classified as a "high cost" or similarly defined loan under any other
applicable state, federal or local law or (c) categorized as High Cost pursuant
to Appendix E of Standard & Poor's Glossary, as applicable at the time of
origination of the Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Interim Funder: With respect to each MERS Mortgage Loan, the Person
named on the MERS System as the interim funder pursuant to the MERS Procedures
Manual.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Investor: With respect to each MERS Mortgage Loan, the Person named
on the MERS System as the investor pursuant to the MERS Procedures Manual.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Countrywide in connection
with the liquidation of a defaulted Mortgage Loan through trustee's sale,
foreclosure sale or otherwise, other than amounts received following the
acquisition of an REO Property pursuant to Section 3.13 of the Servicing
Agreement.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, upon a
leasehold estate of the Mortgagor, as the case may be.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Government Insurance Proceeds (if applicable), Other Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans included therein and made a part of the related
Purchase Confirmation, which schedule shall include, the following information
with respect to each Mortgage Loan: (i) Countrywide's loan number identifying
such Mortgage Loan; (ii) the Mortgage Interest Rate, less any LPMI Fee, as of
the Cut-off Date; (iii) with respect to any Adjustable Rate Mortgage Loan, the
Gross Margin, the Periodic Rate Cap, the Lifetime Rate Cap, the next Interest
Adjustment Date and whether such Adjustable Rate Mortgage Loan is a Convertible
Mortgage Loan, (iv) with respect to a LPMI Loan, the LPMI Fee, (v) with respect
to each First Lien Mortgage Loan, the LTV at origination and, with respect to
each Second Lien Mortgage Loan, the Combined LTV at origination; (vi) the
remaining term as of the Cut-off Date and the original term of such Mortgage
Loan, (vii) whether such Mortgage Loan is a First Lien Mortgage Loan or a Second
Lien Mortgage Loan (viii) any other information pertaining to such Mortgage Loan
as may be reasonably requested by the Purchaser, (ix) with respect to each
Option ARM Mortgage Loan, (a) the maximum negative amortization percentage, and
(b) the recast period, (x) name, address, city and zipcode of Mortgagor, (xi)
the Stated Principal Balance, (xii) appraisal amount, (xiii) purchase amount,
(xiv) loan amount, (xv) first Monthly Payment Due Date, (xvi) credit score,
(xvii) document type, (xviii) occupancy type, (xix) payment current through
date, (xx) Prepayment Penalty window - flag/term, and (xxi) interest-only term.
The information set forth in the Mortgage Loan Schedule relating to the Mortgage
Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with respect to any LPMI
Loan, as applicable, is exclusive of the LPMI Fee.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by (a) an assistant Vice
President or higher ranking officer and (b) by the Treasurer or the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of Countrywide, and
delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may
be an employee of the party on behalf of whom the opinion is being
given.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor three different payment options each month, which
include: (i) a minimum monthly payment option, (ii) an interest-only payment
option or (iii) a full principal and interest option which amortizes over 30
years or less.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgaged-backed securities transaction.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02 of this Agreement, are intended to be
sold under this Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
Prepayment Penalty:With respect to each Mortgage Loan, a prepayment
penalty, charge, premium or fee, if any, payable upon the Principal Prepayment
in full or part of such Mortgage Loan, as set forth in the related Mortgage Note
or Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment Period: As to any Remittance Date, the second
day of the calendar month preceding the month of such Remittance Date, through
the first day of the calendar month of such Remittance Date.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Countrywide and the Purchaser in connection
with the purchase and sale of each Mortgage Loan Package, which sets forth the
terms relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Countrywide in exchange for the Mortgage Loan Package purchased
on such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 4.07 hereof.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 3.02
hereof; (v) shall be the same type of Mortgage Loan (i.e., a Convertible
Mortgage Loan or a Fixed Rate Mortgage Loan).
Relief Act: The Servicemembers' Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of Subchapter M of Chapter
1, Subtitle A, of the Code, and related provisions, and proposed, temporary and
final Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO Property
or the transfer of the management of such REO Property to the Purchaser as set
forth in Section 3.13 of the Servicing Agreement.
REO Property: A Mortgaged Property acquired by Countrywide on behalf
of the Purchaser as described in Section 3.13 of the Servicing Agreement.
RESPA: Real Estate Settlement Procedures Act, as amended
from time to time.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan plus (ii) interest on
such Stated Principal Balance at the Mortgage Loan Remittance Rate from the last
date through which interest has been paid and distributed to the Purchaser to
the date of repurchase, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
on the related Mortgaged Property.
Servicing Agreement: The agreement dated as of August 30, 2006 and
signed by the Purchaser and Servicing LP with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Countrywide, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed, and shall be prorated (based upon the number of days of the related
month Countrywide so acted as servicer relative to the total number of days in
that month) for each part thereof. The obligation of the Purchaser to pay the
Servicing Fee is limited to, and the Servicing Fee is payable solely from, the
interest portion of such Monthly Payment collected by Countrywide, or as
otherwise provided herein. Subject to the foregoing, and with respect to each
Mortgage Loan, Countrywide shall be entitled to receive its Servicing Fee
through the disposition of any related REO Property and the Servicing Fee
payable with respect to any REO Property shall be based on the Stated Principal
Balance of the related Mortgage Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R) Glossary
applicable at the time of origination of the Mortgage Loan.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Countrywide and the Purchaser prior to the
applicable Closing Date confirming the terms of a prospective purchase and sale
of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, this Agreement
and the Servicing Agreement.
Underwriting Guidelines: The applicable underwriting guidelines of
the Seller, a copy of which is attached as an exhibit to the related Trade
Confirmation.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
VA: The Department of Veterans Affairs.
Whole Loan Transfer: The sale or transfer by the Purchaser of some
or all of the Mortgage Loans in a whole loan format.
ARTICLE II.
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Due Diligence by the Purchaser.
(a) Review of Credit File. At least five (5) Business Days prior to
the Closing Date, Countrywide shall make available to the Purchaser the Credit
File for each Preliminary Mortgage Loan in the related Preliminary Mortgage Loan
Package. The Purchaser shall have the right to review the Credit File for each
such Preliminary Mortgage Loan, at Countrywide's offices or such other location
agreed upon by the Purchaser and Countrywide, for the purpose of determining
whether each Preliminary Mortgage Loan conforms in all material respects to the
applicable terms contained in the Transaction Documents, which determination
shall be made in the Purchaser's reasonable and good faith discretion. In the
event that the Purchaser rejects any Preliminary Mortgage Loan based on such
review, reasonable discretion that any Mortgage Loan is not in compliance in all
material respects with the applicable terms of the Transaction Documents, such
Mortgage Loan shall be deleted from the related Mortgage Loan Schedule and
Countrywide shall have the right to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. The Purchaser shall use its reasonable best efforts
to conduct its due diligence, and to convey the results thereof to Countrywide,
within the time and in the manner necessary to permit Countrywide to rebut or
cure any Preliminary Mortgage Loan or to substitute replacement Preliminary
Mortgage Loans as permitted herein.
(b) Rejection of Preliminary Mortgage Loans. Without limiting the
generality of the foregoing, in the event that the Purchaser rejects Preliminary
Mortgage Loans (i) comprising more than ten percent (10%) of the related
Preliminary Mortgage Loan Package (as measured by unpaid principal balance), or
(ii) for reasons other than as permitted under this Agreement or the Trade
Confirmation, Countrywide may, in its sole discretion, rescind its offer to sell
any of the Preliminary Mortgage Loans relating thereto to the Purchaser and
Countrywide shall have no liability therefor.
Section 2.02 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.03 Post-Closing Due Diligence.
In the event that the Purchaser fails to complete its due diligence,
as contemplated in Section 2.01 of this Agreement, with respect to any
Preliminary Mortgage Loan, the Purchaser and Countrywide may nonetheless
mutually agree to the purchase and sale of such Mortgage Loan as contemplated
hereunder, and upon such mutual agreement, if the Purchaser provides notice to
Countrywide of such Mortgage Loan and such Mortgage Loan is identified as such
in the Purchase Confirmation (as used therein, the "Pending Mortgage Loans"),
the Purchaser shall have the right to review the related Credit File for such
Mortgage Loan within ten (10) Business Days after the Closing Date and, based on
such review and within such ten (10) Business Days period, request that
Countrywide repurchase any Pending Mortgage Loan that the Purchaser reasonably
and in good faith contends does not conform in all material respects to the
applicable terms of the Transaction Documents. Countrywide shall have ten (10)
Business Days from the date of its receipt of such request to either (a)
repurchase such Mortgage Loan at the purchase price for such Mortgage Loan (as
calculated under the related Transaction Documents, as applicable) plus accrued
and unpaid interest, or (b) provide evidence reasonably satisfactory to the
Purchaser that such Mortgage Loan does in fact conform to the terms of the
Transaction Documents, as applicable. In the event that Countrywide must
repurchase any Mortgage Loan in accordance with this Section 2.03 or pursuant to
any other applicable term contained in the Transaction Documents, Countrywide
may, at its option, substitute replacement Mortgage Loans conforming in all
material respects to the applicable terms contained in the related Transaction
Documents. The rights and remedies set forth in this Section 2.03 are in
addition to those set forth in Section 3.03 hereof.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File is
missing material documentation (as used therein, the "Missing Credit
Documents"), Countrywide agrees to use its best efforts to procure each such
Missing Credit Document within sixty (60) days following the related Closing
Date. In the event of a default by a Mortgagor or any material impairment of the
Mortgaged Property, in either case directly arising from a breach of
Countrywide's obligation to deliver the Missing Credit Document within the time
specified above, Countrywide shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
(a) Custodial Agreement. Countrywide shall, on or before the
Business Day prior to the related Closing Date, deliver to the Custodian the
Collateral File for each Mortgage Loan in the Mortgage Loan Package. The parties
hereto shall execute the Custodial Agreement on or prior to the initial Closing
Date as required under Section 2.12. Countrywide shall comply with its
obligations under the Custodial Agreement and the Purchaser shall pay all fees
and expenses of the Custodian.
(b) Missing Collateral Documents. In the event that any of the
original Collateral Documents set forth in clauses (3) through (9) of Exhibit A
hereto are not delivered to the Custodian on or before the Closing Date (each, a
"Missing Collateral Document"), then Countrywide shall have (i) with respect to
any Missing Collateral Document sent for recording, twelve (12) months from the
related Closing Date, or (ii) with respect to all other Missing Collateral
Documents, one-hundred twenty (120) days from the Closing Date, to deliver to
the Purchaser such Missing Collateral Documents; provided, however, that with
respect to any Government Mortgage Loan, Countrywide agrees to procure each such
Missing Collateral Document within sixty (60) days following the FHA's or the
VA's, as applicable, deadline for procuring such documents. Notwithstanding the
foregoing, Countrywide shall not be deemed to be in breach of this Agreement if
its failure to deliver to the Purchaser any Missing Collateral Document within
the time specified above is due solely to (i) the failure of the applicable
recorder's office to return a Missing Collateral Document that was sent for
recording or (ii) the failure of the title insurer to issue and deliver the
original mortgagee title policy, except where such refusal to issue the policy
is based on a claim that the title insurer is under no obligation to issue such
policy.
(c) Other Documents. Countrywide shall forward to the Purchaser in a
timely manner any original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance with
this Agreement upon execution and, if applicable, recordation thereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Countrywide shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Countrywide.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Countrywide under
this Agreement shall be true and correct in all material respects as of the
Closing Date and no event shall have occurred that, with notice or the passage
of time, would constitute a default under this Agreement;
(b) All of the representations and warranties of the Purchaser under
this Agreement shall be true and correct in all material respects as of the
Closing Date and no event shall have occurred that, with notice or the passage
of time, would constitute a default under this Agreement;
(c) Both parties shall have executed the related Trade Confirmation
and Purchase Confirmation;
(d) at least two Business Days prior to the related Closing Date,
Countrywide shall deliver to the Purchaser a a listing on a loan level basis of
the necessary information to compute the Purchase Proceeds of the Mortgage Loans
delivered on such Closing Date (including accrued interest) in a format as
mutually agreed upon by Countrywide and the Purchaser, and prepare a Mortgage
Loan Schedule;
(e) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all closing documents as specified in Section
2.12 of this Agreement, in such forms as are agreed upon by the parties, duly
executed by all signatories as required pursuant to the terms hereof; and
(f) Countrywide shall have delivered to the Custodian all Collateral
Documents required pursuant to Section 2.05 of this Agreement.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07 hereof, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Countrywide on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Countrywide on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date).
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Countrywide shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. To the extent permitted by
applicable law, each of the Assignments of Mortgage is subject to recordation in
all appropriate public offices for real property records in all the counties or
their comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
only the first of such recordation to be effected shall be at Countrywide's
expense in the event recordation is either necessary under applicable law or
requested by the Purchaser at its sole option and all subsequent recordations
shall be at the expense of the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Countrywide pursuant to this Agreement, Countrywide shall cause the registration
of such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Countrywide shall be in lieu of Countrywide delivering to the
Purchaser an Assignment of Mortgage for such MERS Mortgage Loan. With respect to
the Mortgage and intervening assignments related to any MERS Mortgage Loan,
Countrywide shall, in accordance with Section 2.05 of this Agreement, provide
the Purchaser with the original Mortgage with evidence of registration with MERS
and, as applicable, the originals of all intervening assignments of the Mortgage
with evidence of recording thereon prior to the registration of the Mortgage
Loan with the MERS System.
With respect to each MERS Mortgage Loan, Countrywide shall designate
the Purchaser as the Investor and the Custodian as custodian, and no Person
shall be listed as Interim Funder on the MERS System.
In connection with the MERS System, Countrywide is hereby authorized
and empowered, in its own name, to register, or change the registration of any
MERS Mortgage Loan to effectuate such registration. Further, Countrywide is
authorized to cause the removal of any MERS Mortgage Loan from such
registration, and to execute and deliver on behalf of itself and the Purchaser,
any and all instruments of assignment and comparable instruments with respect to
any registration and/or removal of such MERS Mortgage Loan on or from the MERS
System.
Section 2.12 Required Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(a) this Agreement (to be executed and delivered only for the
initial Closing Date);
(b) with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
(c) the related Mortgage Loan Schedule attached to the related
Purchase Confirmation as the Mortgage Loan Schedule thereto;
(d) with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit E hereto with respect to Countrywide,
including all attachments thereto;
(e) a Security Release Certification, in the form of Exhibit F, as
applicable, hereto executed by any person, if any of the Mortgage Loans are
subject to a security interest, pledge or hypothecation for the benefit of such
person; and
(f) Countrywide shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan. This Agreement has been duly
executed and delivered and constitutes the valid, legal, binding and enforceable
obligation of Countrywide, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by Countrywide
to make this Agreement valid and binding upon Countrywide in accordance with its
terms;
(c) No Conflict. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by Countrywide,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of Countrywide's certificate of
incorporation or by-laws or result in a material breach of any legal restriction
or any material agreement or instrument to which Countrywide is now a party or
by which it is bound, or constitute a material default or result in an
acceleration under any of the foregoing, or result in the violation of any
material law, rule, regulation, order, judgment or decree to which Countrywide
or its property is subject;
(d) Approved Seller. Countrywide is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of HUD
pursuant to Sections 203 and 211 of the National Housing Act. No event has
occurred, including a change in insurance coverage, which would make Countrywide
unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD eligibility requirements;
(e) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the sale of the Mortgage Loans
to the Purchaser, the ability of Countrywide to service the Mortgage Loans
hereunder in accordance with the terms hereof, or Countrywide's ability to
perform its obligations under this Agreement, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of Countrywide contemplated
herein;
(f) No Consent Required. 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,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date.
(g) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Countrywide, , and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by Countrywide pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(h) Ability to Perform; Solvency. Countrywide does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. Countrywide is solvent and the sale
of the Mortgage Loans will not cause Countrywide to become insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud any of Countrywide's creditors;
(i) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form or other document furnished
pursuant to this Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading;
(j) No Brokers. Countrywide has not dealt with any third party
broker, investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans;
(k) Sale Treatment. Countrywide intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of Countrywide and
Countrywide has determined that the disposition of the Mortgage Loans pursuant
to this Agreement will be afforded sale treatment for tax and accounting
purposes; and
(l) Reasonable Purchase Price. The consideration received by
Countrywide upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Countrywide represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
prior to the related Cut-off Date for such Mortgage Loan under the terms of the
Mortgage Note have been made; Countrywide has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the Mortgaged Property subject to the Mortgage, directly or indirectly,
for the payment of any amount required by the Mortgage Loan; and there has been
no delinquency of more than thirty (30) days in any payment by the Mortgagor
thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. With
respect to each Mortgage Loan, there is no delinquent taxes and insurance
premiums and, to the best of Countrywide's knowledge, there is no delinquent
ground rents, water charges, sewer rents, assessments, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser or its designee, all in accordance with this
Agreement. The substance of any such waiver, alteration or modification has been
approved by the primary mortgage guaranty insurer, if any, and by the title
insurer, to the extent required by the related policy and its terms are
reflected on the related Mortgage Loan Schedule. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement approved
by the primary mortgage insurer, if any, and the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Collateral
File and the terms of which are reflected in the Mortgage Loan Schedule if
executed prior to the Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto and no Mortgagor
was a debtor in any state or Federal bankruptcy or insolvency proceedings at the
time the Mortgage Loan was originated;
(f) Hazard and Flood Insurance. All buildings or other improvements
upon the Mortgaged Property are insured by an insurer acceptable to an Agency
against loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, and such insurer
is licensed to do business in the state where the Mortgaged Property is located.
All such insurance policies contain a standard mortgagee clause naming
Countrywide, its successors and assigns as mortgagee, and all premiums thereon
have been paid. If, upon the origination of the Mortgage Loan, the Mortgaged
Property was, or was subsequently deemed to be, in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), a flood
insurance policy that meets the requirements of the current guidelines of the
Federal Insurance Administration (or any successor thereto) and conforms to the
requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. Any and all requirements of any
applicable federal, state or local law including, without limitation, usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and all anti-predatory and abusive laws
applicable to the Mortgage Loan including, without limitation, any applicable
law governing Prepayment Penalties, have been complied with;
(h) No Release of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated, or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission;
(i) Enforceability of Mortgage Documents. The Mortgage Note and the
related Mortgage are genuine and each is the legal, valid and binding obligation
of the maker thereof, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws. All parties to the Mortgage Note, and the Mortgage had legal
capacity to enter into the Mortgage Note and to execute and deliver the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly and
properly executed by such parties;
(j) Valid First or Second Lien. Each related Mortgage is a valid,
subsisting enforceable and perfected first lien (with respect to a First Lien
Mortgage Loan) or second lien (with respect to a Second Lien Mortgage Loan) on
the related Mortgaged Property, including all improvements on the Mortgaged
Property. The lien of the Mortgage is subject only to:
(i) the lien of current real property taxes and assessments
not yet due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
that are acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and that do not adversely affect
the Appraised Value (as evidenced by an appraisal referred to in such
definition) of the Mortgaged Property set forth in such appraisal;
(iii) with respect to a Second Lien Mortgage Loan only, the
lien of the first mortgage on the Mortgaged Property; and
(iv) 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 the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien (with respect to a First Lien
Mortgage Loan) or second lien (with respect to a Second Lien Mortgage Loan) and
first priority (with respect to a First Lien Mortgage Loan) or second priority
(with respect to a Second Lien Mortgage Loan) security interest on the property
described therein and Countrywide has full right to sell and assign the same to
the Purchaser (subject to (i)-(iv) above).
(k) Disbursements of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed, and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and recording the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) Sole Owner. Countrywide is the sole owner and holder of the
Mortgage Loan. The Mortgage Loan is not assigned or pledged, and Countrywide has
good and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest not specifically set forth in the
related Mortgage Loan Schedule and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to the terms of this Agreement;
(m) Title Insurance. Each Mortgage Loan that is a First Lien
Mortgage Loan and each Mortgage Loan that is a Second Lien Mortgage Loan with an
original principal balance greater than $100,000, in either case, is covered by
a lender's title insurance policy acceptable to an Agency, issued by a title
insurer acceptable to an Agency and qualified to do business in the jurisdiction
where the related Mortgaged Property is located, insuring (subject to the
exceptions contained in Section 3.02(j)(i), (i) and (iv) above) Countrywide, its
successors and assigns as to the first or second priority lien of the Mortgage,
as applicable. Additionally, such lender's title insurance policy affirmatively
insures ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. Countrywide is the sole insured of such
lender's title insurance policy, and such lender's title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender's 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 lender's title insurance policy;
(n) No Default. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no 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, and Countrywide has not waived any default, breach, violation or
event of acceleration, and with respect to any Second Lien Mortgage Loan,
Countrywide has not received a written notice of default of any senior mortgage
loan related to the Mortgaged Property which has not been cured;
(o) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(p) Origination and Collection Practices. The origination, servicing
and collection practices used by Countrywide with respect to each Mortgage Note
and Mortgage have been in all respects legal, proper, prudent and customary in
the mortgage origination and servicing business. With respect to escrow deposits
and Escrow Payments, if any, all such payments are in the possession of, or
under the control of, Countrywide and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or Escrow Payments or other charges or payments due
Countrywide have been capitalized under any Mortgage or the related Mortgage
Note. With respect to Adjustable Rate Mortgage Loans, all Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law and
the terms of the related Mortgage Note. Any interest required to be paid
pursuant to applicable state, federal and local law has been properly paid and
credited;
(q) No Condemnation or Damage. To the best of Countrywide's
knowledge, the Mortgaged Property is free of material damage and waste and there
is no proceeding pending for the total or partial condemnation thereof;
(r) Customary and Enforceable Provisions. The Mortgage contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby including (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. There is no homestead available to a
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(s) Collateral. The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage;
(t) Appraisal. Unless the Mortgage Loan was underwritten pursuant to
one of Countrywide's streamline documentation programs, the Credit File contains
an appraisal of the related Mortgaged Property signed prior to the approval of
the Mortgage Loan application by an appraiser who meets the minimum requisite
qualifications of an Agency and Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated thereunder
for appraisers, duly appointed by the originator, that had no interest, direct
or indirect in the Mortgaged Property, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan; the appraisal is in a form
acceptable to an Agency, with such riders as are acceptable to such Agency;
(u) Trustee for Deed of Trust. In the event the Mortgage constitutes
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 the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(v) CLTV and LTV, Private Mortgage Insurance, FHA Insurance and VA
Guarantees. No Mortgage Loan that is a Second Lien Mortgage Loan has a CLTV
greater than 100%. No Mortgage Loan has an LTV greater than 100%. Each
Conventional Mortgage Loan, except a Second Lien Mortgage Loan or a Mortgage
Loan underwritten in accordance with sub-prime credit underwriting guidelines,
with an LTV at origination in excess of eighty percent (80%) is and will be
subject to a PMI Policy, which insures that portion of the Mortgage Loan over
seventy-five percent (75%) of the Appraised Value of the related Mortgaged
Property. All provisions of such PMI Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due thereunder
have been paid. Any Mortgage subject to any such PMI Policy obligates the
Mortgagor thereunder to maintain such insurance and to pay all premiums and
charges in connection therewith or, in the case of a lender paid mortgage
insurance policy, the premiums and charges are included in the Mortgage Interest
Rate for the Mortgage Loan. Each Government Mortgage Loan either has, or will
have in due course, a valid and enforceable MIC or LGC, as applicable and, in
each case, all premiums due thereunder have been paid. []Any Mortgage Loan
subject to a PMI Policy obligates the Mortgagor thereunder to maintain the PMI
Policy and to pay all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the related Mortgage Note is
net of any such insurance premium if the related PMI Policy is lender-paid;
(w) Lawfully Occupied. The Mortgaged Property is lawfully occupied
under applicable law. 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 certificates of
occupancy, have been made or obtained from the appropriate authorities;
(x) Assignment of Mortgage. Except for the absence of recording
information, the Assignment of Mortgage is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged Property
is located;
(y) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable 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. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(z) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms acceptable to an Agency;
(aa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan and no Mortgage Loan originated on or after October 1, 2002 through March
6, 2003 is governed by the Georgia Fair Lending Act;
(bb) Type of Mortgaged Property. The Mortgaged Property is a fee
simple estate or a leasehold estate located in a jurisdiction in which the use
of a leasehold estate for residential properties is an accepted practice that
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two to four residential dwelling, or an
individual residential condominium unit in a condominium project, or an
individual unit in a planned unit development, or an individual unit in a
residential cooperative housing corporation; provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform in all material respects with the Underwriting
Guidelines. At the time of origination, no portion of the Mortgaged Property was
used for commercial purposes; provided, that Mortgaged Properties which contain
a home office shall not be considered as being used for commercial purposes.
None of the Mortgaged Properties are log homes, mobile homes, geodesic domes or
any other properties not eligible for financing pursuant to the applicable
Underwriting Guidelines;
(cc) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten generally in accordance with the Underwriting
Guidelines;
(dd) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(ee) Due On Sale. The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(ff) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(hh) No Violation of Environmental Laws. There is no pending action
or proceeding directly involving any Mortgaged Property of which Countrywide is
aware in which compliance with any environmental law, rule or regulation is an
issue;
(ii) Servicemembers' Civil Relief Act. The Mortgagor has not
notified Countrywide, and Countrywide has no knowledge of any relief requested
to the Mortgagor under the Relief Act;
(jj) Disclosure Materials. The Mortgagor has received all disclosure
materials required by applicable law with respect to the making of the Mortgage
Loans;
(kk) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct to perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade in or exchange of a Mortgaged Property;
(ll) Credit Information. For each Mortgage Loan, Countrywide or its
designee has furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and requisite information on its borrower
credit files to each of the following credit repositories: Equifax Credit
Information Services, Inc., Trans Union, LLC and Experian Information Solution,
Inc., on a monthly basis;
(mm) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground lease
will not terminate earlier than five years after the maturity date of the
Mortgage Loan; (3) the ground lease does not provide for termination of the
lease in the event of lessee's default without the mortgagee being entitled to
receive written notice of, and a reasonable opportunity to cure the default; (4)
the ground lease permits the mortgaging of the related Mortgaged Property; (5)
the ground lease protects the mortgagee's interests in the event of a property
condemnation; and (6) the use of leasehold estates for residential properties is
an accepted practice in the jurisdiction in which the Mortgaged Property is
located;
(nn) Prepayment Penalty. With respect to each Mortgage Loan that has
a Prepayment Penalty, each such Prepayment Penalty is enforceable and is
permitted pursuant to applicable federal, state and local law. With respect to
Mortgage Loans originated prior to October 1, 2002, no such Prepayment Penalty
may be imposed for a term in excess of five (5) years following origination;
(oo) Payment Terms. Principal payments on the Mortgage Loan
commenced no more than seventy days after funds were disbursed in connection
with the Mortgage Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Cap are as
set forth on the related Mortgage Note. Except with respect to any Option ARM
Mortgage Loan, the Mortgage Note is payable in monthly installments of principal
and interest, which installments of interest, with respect to Adjustable Rate
Mortgage Loans, are subject to change due to the adjustments to the Mortgage
Interest Rate on each Interest Rate Adjustment Date, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than fourty years from
commencement of amortization. Unless otherwise specified on the related Mortgage
Loan Schedule, the Mortgage Loan is payable on the first day of each month.
Except for Balloon Mortgage Loans, the Mortgage Loan does not require a balloon
payment on its stated maturity date;
(pp) Simple Interest Mortgage Loans. With respect to each Mortgage
Loan that is a simple interest Mortgage Loan, the Mortgage Loan is identified on
the related Mortgage Loan Schedule as a simple interest Mortgage Loan, the
Mortgage Loan is required to be serviced as a simple interest Mortgage Loan
pursuant to the terms of the related Mortgage Note, and the servicing and
collection practices used in connection therewith have been in accordance with
legal, proper, prudent and customary practices for servicing simple interest
Mortgage Loans;
(qq) Compliance with Anti-Money Laundering Laws. Countrywide has
established an anti-money laundering compliance program to the extent required
by applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2003, and the laws and regulations
administered by the U.S. Department of Treasury's Office of Foreign Assets
Control ("OFAC"), which prohibit dealings with certain countries, territories,
entities and individuals named in OFAC's Sanction Programs and on the Specially
Designated Nationals and Blocked Persons List. The Mortgage Loans have been
originated, and documentation related thereto shall be maintained, in material
compliance with such program; and
(rr) Fraud. No fraud, error, omission, misrepresentation or similar
occurrence, with respect to a Mortgage Loan has taken place on the part of
Countrywide or, to the best of Countrywide's knowledge, any other Person,
including without limitation, the Mortgagor, any appraiser, or any builder or
developer involved in connection with the origination of the Mortgage Loan or in
the application of any insurance in relation to such Mortgage Loan.
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 of this Agreement shall survive the sale of the
Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Collateral
Documents or Credit File. Upon discovery by either Countrywide or the Purchaser
of a breach of any of the foregoing representations and warranties that
materially and adversely affects the value of one or more of the related
Mortgage Loans, the party discovering such breach shall give prompt written
notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the earlier of
either discovery by or notice to Countrywide of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, or the Purchaser's interests therein, Countrywide shall use
its best efforts to promptly cure such breach in all material respects, and, if
such breach cannot be cured, Countrywide shall, at the Purchaser's option,
repurchase such Mortgage Loan at the Repurchase Price. In the event that a
breach shall involve any representation or warranty set forth in Section 3.01
hereof and such breach cannot be cured within sixty (60) days of the earlier of
either discovery by or notice to Countrywide of such breach, all of the Mortgage
Loans affected by such breach shall, at the Purchaser's option, be repurchased
by Countrywide at the Repurchase Price.
(c) Substitution or Repurchase. However, if the breach shall involve
a representation or warranty set forth in Section 3.02, (Countrywide shall,
rather than repurchase the Mortgage Loan as provided above, remove such Mortgage
Loan (a "Deleted Mortgage Loan") and substitute in its place a Qualified
Substitute Mortgage Loan or Loans. If Countrywide has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any repurchase
of a Mortgage Loan(s) pursuant to the provisions of this Section 3.03 shall be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price for distribution to the Purchaser on the next scheduled Remittance Date,
after deducting therefrom any amount received in respect of such repurchased
Mortgage Loan or Loans and being held in the Custodial Account for future
distribution. At the time of repurchase or substitution, the Purchaser and
Countrywide shall arrange for the reassignment of the Deleted Mortgage Loan and
release of the related Collateral File to Countrywide and the delivery to
Countrywide of any documents held by the Custodian relating to the Deleted
Mortgage Loan. In the event Countrywide determines to substitute a Qualified
Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide shall,
simultaneously with such reassignment, give written notice to the Purchaser that
such repurchase or substitution has taken place and amend the Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify the Qualified Substitute
Mortgage Loan(s) and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, Countrywide shall be deemed to have made
as to such Qualified Substitute Mortgage Loan(s) the representations and
warranties except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the date of such substitution. Countrywide
shall effect such substitution by delivering to the Custodian or to such other
party as the Purchaser may designate in writing the Collateral Documents for
such Qualified Substitute Mortgage Loan(s). Countrywide shall deposit in the
Custodial Account the Monthly Payment less the Servicing Fee due on such
Qualified Substitute Mortgage Loan(s) in the month following the date of such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution shall be retained by Countrywide. For the
month of substitution, distributions to the Purchaser shall include the Monthly
Payment due on any Deleted Mortgage Loan in the month of substitution, and
Countrywide shall thereafter be entitled to retain all amounts subsequently
received by Countrywide in respect of such Deleted Mortgage Loan.
For any month in which Countrywide substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, Countrywide shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Countrywide in the month of
substitution pursuant to Section 4.01 of the Servicing Agreement. Accordingly,
on the date of such substitution, Countrywide shall deposit from its own funds
into the Custodial Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution obligation,
Countrywide shall indemnify the Purchaser and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and expenses resulting from, a breach of any representation or warranty
contained in Sections 3.01 and 3.02 of this Agreement that materially and
adversely affects the value of one or more Mortgage Loans or the Purchaser's
interest therein.
(d)Sole Remedy. With respect to the breach of a representation and
warranty set forth in Section 3.01 and Section 3.02 hereof with respect to a
Mortgage Loan, the obligation under this Section 3.03 of Countrywide to cure,
repurchase, indemnify or replace such Mortgage Loan shall constitute the sole
remedy against Countrywide respecting such breach available to the Purchaser.
(e) Accrual of Cause of Action. Any cause of action against
Countrywide relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 hereof shall accrue as to any Mortgage
Loan upon (i) discovery of such breach by the Purchaser or notice thereof by
Countrywide to the Purchaser, (ii) failure by Countrywide to cure such breach or
repurchase such Mortgage Loan as specified above, and (iii) demand upon
Countrywide by the Purchaser for compliance with the relevant provisions of this
Agreement.
Section 3.04 Repurchase of Convertible Mortgage Loans.
In the event a Mortgagor exercises the option to convert a
Convertible Mortgage Loan to a Fixed Rate Mortgage Loan in accordance with the
terms of the related Mortgage Note, Countrywide shall repurchase such
Convertible Mortgage Loan within thirty (30) days of such conversion taking
effect at a price equal to on hundred percent (100%) of the unpaid principal
balance of such Convertible Mortgage Loan at the time of such conversion plus
accrued interest thereon through the last day of the month of repurchase at the
Mortgage Loan Remittance Rate; provided, however, no interest shall be due and
payable if a Convertible Mortgage Loan is repurchased on the first day of a
month. Any repurchase of a Convertible Mortgage Loan(s) pursuant to the
foregoing provisions of this Section 3.04 shall be accomplished by deposit in
the Custodial Account of the amount of said repurchase price for distribution to
the Purchaser on the next scheduled Remittance Date.
Section 3.05 Representations and Warranties Respecting the
Purchaser.
The Purchaser represents, warrants and covenants to Countrywide
that, as of each Closing Date:
(a) Organization and Standing. The Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified to transact business in and is in good
standing under the laws of each state in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires such qualification;
(b) Due Authority. The Purchaser has the full power and authority to
perform, and to enter into and consummate, all transactions contemplated by this
Agreement; the Purchaser has the full power and authority to purchase and hold
each Mortgage Loan;
(c) No Conflict. Neither the acquisition of the Mortgage Loans by
the Purchaser pursuant to this Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any of
the terms, conditions or provisions of the Purchaser's charter or by-laws or
result in a material breach of any legal restriction or any material agreement
or instrument to which the Purchaser is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the
foregoing, or result in the violation of any material law, rule, regulation,
order, judgment or decree to which the Purchaser or its property is subject;
(d) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to the Purchaser's knowledge,
threatened, which either in any one instance or in the aggregate, if determined
adversely to the Purchaser would adversely affect the purchase of the Mortgage
Loans by the Purchaser hereunder, or the Purchaser's ability to perform its
obligations under this Agreement; and
(e) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser with
this Agreement or the consummation of the transactions contemplated by this
Agreement (including, but not limited to, any approval from HUD), or if
required, such consent, approval, authorization or order has been obtained prior
to the related Closing Date.
Section 3.06 Indemnification by the Purchaser.
The Purchaser shall indemnify Countrywide and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and expenses resulting from, a breach of any representation
or warranty contained in Sections 3.05. With respect to the breach of a
representation and warranty set forth in Section 3.05 hereof, the obligation
under this Section 3.06 of the Purchaser to indemnify Countrywide shall
constitute the sole remedy against the Purchaser respecting such breach
available to Countrywide.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxx
With copy to: General Counsel
(ii) the Purchaser:
Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
With a copy to:
Barclays Bank PLC, as administrator
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
E mail: xxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
To the address and contact set forth in the related Purchase
Confirmation or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 4.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Countrywide and not a pledge of the Mortgage Loans by Countrywide to
the Purchaser to secure a debt or other obligation of Countrywide. Consequently,
the sale of each Mortgage Loan shall be reflected as a sale on Countrywide's
business records, tax returns and financial statements. Accordingly, Countrywide
and the Purchaser shall each treat the transaction for federal income tax
purposes as a sale by Countrywide, and a purchase by the Purchaser, of the
Mortgage Loans.
Section 4.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 4.04 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 4.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 4.06 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 4.07 Assignment of Mortgage Loans by the Purchaser.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans in a Whole Loan Transfer;
provided, however, that the transferee will not be deemed to be the Purchaser
hereunder unless such transferee shall agree in writing to be bound by the terms
of this Agreement in the form of an assignment, assumption and recognition
agreement ("AAR") reasonably acceptable to the Purchaser and Countrywide and an
original counterpart of the AAR shall have been executed by the Purchaser and
the transferee and delivered to Countrywide. Notwithstanding the foregoing, no
transfer shall be effective if such transfer would result in there being more
than three (3) "Purchasers" outstanding hereunder with respect to any Mortgage
Loan Package.
Section 4.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement and either the related Trade Confirmation
or the related Purchase Confirmation, the terms of the related Purchase
Confirmation shall control. In the event of any conflict, inconsistency or
ambiguity between the terms and conditions of the Trade Confirmation and the
Purchase Confirmation, the terms of the Purchase Confirmation shall control. In
the event of any conflict, inconsistency or ambiguity between the terms and
conditions of this Agreement and the Servicing Agreement, the terms of this
Agreement shall control.
Section 4.09 Governing Law.
This Agreement shall be deemed in effect when fully executed and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by applicable
federal law.
Section 4.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 4.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide and the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser. Except as specifically
set forth in Section 4.07 above, the Purchaser may not assign, pledge or
hypothecate this Agreement to any Person without Countrywide's prior written
consent.
Section 4.12 Confidentiality.
Countrywide and the Purchaser acknowledge and agree that the terms
of the Transaction Documents shall be kept confidential and their contents will
not be divulged to any party without the other party's consent, except to the
extent that it is appropriate for Countrywide and the Purchaser to do so in
working with legal counsel, auditors, taxing authorities, or other governmental
agencies.
Section 4.13 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to the sale of each Mortgage Loan Package and supersede all prior or
contemporaneous oral or written communications regarding same. Countrywide and
the Purchaser understand and agree that no employee, agent or other
representative of Countrywide or the Purchaser has any authority to bind such
party with regard to any statement, representation, warranty or other expression
unless said statement, representation, warranty or other expression is
specifically included within the express terms of this Agreement or the related
Trade Confirmation or Purchase Confirmation. Neither this Agreement nor the
related Trade Confirmation or Purchase Confirmation shall be modified, amended
or in any way altered except by an instrument in writing signed by both parties.
Section 4.14 Counterparts.
This Agreement may be executed simultaneously in any number of counterparts.
Each counterpart shall be deemed to be an original, and all such counterparts
shall constitute one and the same instrument.
Section 4.15 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 4.16 No Solicitation
The Purchaser shall not take any action or cause any action to be
taken by any of its employees, agents or affiliates, or by any independent
contractors acting on the Purchaser's behalf, to solicit any borrower in any
manner whatsoever, including but not limited to, soliciting a borrower to prepay
or refinance a Mortgage Loan. Furthermore, neither the Purchaser nor any of its
affiliates shall directly or indirectly provide information to any third party
for purposes of soliciting the borrowers related to the Mortgage Loans. It is
understood that promotions undertaken by the Purchaser or its affiliates which
are directed to the general public at large (i.e., newspaper advertisements,
radio or T.V. ads, etc.) and not specifically directed to the borrowers related
to the Mortgage Loans shall not constitute a breach of this section. Countrywide
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors or independent mortgage
brokerage companies on Countrywide's behalf, to personally, by telephone or
mail, solicit the borrower under any Mortgage Loan for the purpose of
refinancing such Mortgage Loan; provided, that Countrywide may solicit any
borrower for whom Countrywide has received a request for verification of
mortgage, a request for demand for payoff, a borrower initiated written or
verbal communication indicating a desire to prepay the related Mortgage Loan, or
the borrower initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Countrywide or any of its affiliates which
concern optional insurance products or other additional products shall not
constitute solicitation nor is Countrywide prohibited from responding to
unsolicited requests or inquiries made by a borrower or an agent of a borrower.
Notwithstanding the foregoing, the following solicitations, if undertaken by
Countrywide or any affiliate of Countrywide, shall not be prohibited: (i)
solicitations or promotions that are directed to the general public at large,
including, without limitation, mass mailings based on mailing lists and
newspaper, radio, television and other mass media advertisements and (ii)
borrower messages included on, and statement inserts provided with, the monthly
statements sent to borrowers; provided, however, that similar messages and
inserts are sent to all other borrowers of similar type mortgage loans serviced
by Countrywide and such affiliates, including, but not limited to, those
mortgage loans serviced for the Countrywide's and/or such affiliates own
account; and (iii) solicitations made as a part of a campaign directed to
borrowers with mortgage loans meeting certain defined parameters (other than
parameters relating to the borrowers or Mortgage Loans specifically), provided,
that such solicitations are made to all borrowers of mortgage loans serviced by
Countrywide and such affiliates with respect to mortgage loans meeting such
defined parameters, including, but not limited to, those mortgage loans serviced
for the Countrywide's and/or such affiliates own account.
Section 4.17 Consent to Service of Process.
EACH OF THE PURCHASER AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE
NON EXCLUSIVE JURISDICTION OF THE COURTS OF THE SATE OF NEW YORK AND THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN
ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT
IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF
PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS
PROVIDED FOR NOTICES HEREUNDER.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.,
Countrywide
By:___________________________________
Name: Xxxxxx Xxxxx
Title:
BARCLAYS BANK PLC,
the Purchaser
By:___________________________________
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original Mortgage Note (or a lost note affidavit in a
form acceptable to an Agency) bearing all intervening endorsements,
endorsed "Pay to the order of _____________, without recourse" and signed
in the name of Countrywide by an authorized officer.
2. Assignment of Mortgage: The original Assignment of Mortgage in blank.
3. Guarantee: The original of any guarantee executed in connection with the
Mortgage Note.
4. Mortgage: The original Mortgage with evidence of recording thereon or, if
such original Mortgage has not been returned to Countrywide on or prior to
the Closing Date by the public recording office where such Mortgage has
been delivered for recordation, a copy of such Mortgage certified by
Countrywide to be a true and complete copy of the original Mortgage sent
for recordation.
5. Modifications: The originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording thereon,
if any.
6. Intervening Assignments: The originals of all intervening assignments of
Mortgage with evidence of recording thereon, provided that such originals
have been returned to Countrywide by the public recording office where
such intervening assignment of Mortgage has been delivered for
recordation.
7. Title Policy: If applicable, the original mortgagee title insurance policy
(or the equivalent thereof with respect to any Mortgage Loan in which the
related Mortgaged Property is located in a jurisdiction where such title
insurance is not customarily provided) if such title insurance policy has
been issued by the related title company on or prior to the Closing Date.
8. Loan Guaranty Certificate: The original Loan Guaranty Certificate, if
applicable.
9. Mortgage Insurance Certificate: The original Mortgage Insurance
Certificate, if applicable.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: [CONTACT, TITLE]
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between
Countrywide Home Loans, Inc. ("Countrywide") and Barclays Bank PLC ("Purchaser")
sets forth our agreement pursuant to which Purchaser is purchasing, and
Countrywide is selling those certain mortgage loans identified in Exhibit A
hereto and more particularly described herein, excluding the servicing rights
related thereto (the "Mortgage Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of [DATE], between Countrywide and Purchaser (as
amended herein and otherwise, the "Purchase Agreement") and that certain
Servicing Agreement dated as of [DATE] between Countrywide and Purchaser (both
the Purchase Agreement and the Servicing Agreement shall be referred to herein,
as applicable, as the "Agreement"). By executing this Purchase Confirmation,
each of Countrywide and Purchaser again makes, with respect to itself and each
Mortgage Loan, as applicable, all of the covenants, representations and
warranties made by each such party in the Agreement, except as the same may be
amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the Purchase
Agreement, Countrywide shall sell, transfer, assign and convey to Purchaser,
without recourse, but subject to the terms of the Purchase Confirmation and the
Purchase Agreement, all of the right, title and interest of Countrywide in and
to the Mortgage Loans, excluding the servicing rights relating thereto. Each
Mortgage Loan shall be serviced by Countrywide pursuant to the terms of the
Servicing Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
[d. Index: On each Interest Adjustment Date, the applicable index
rate shall be a rate per annum equal to [the weekly average yield on U.S.
Treasury securities adjusted to a constant maturity of one year, as published by
the Board of Governors of the Federal Reserve System in Statistical Release No.
H.15] [the average of interbank offered rates for six-month U.S. dollar
denominated deposits in the London market (LIBOR), as published [in the Wall
Street Journal] [by Xxxxxx Xxx] [the 11th District Cost of Funds as made
available by the Federal Home Loan Bank] [the weekly average yield on
certificates of deposit adjusted to a constant maturity of six months as
published by the Board of Governors of the Federal Reserve System in Statistical
Release No. H.15 or a similar publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C] hereto.
Notwithstanding anything contained in Section 2.04 of the Purchase Agreement to
the contrary, Countrywide's obligation to repurchase from the Purchaser the
Mortgage Loan related to a Missing Credit Document shall occur only in the event
of a default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Countrywide's obligation to deliver the Missing
Credit Document within the time specified in Section 2.04 of the Purchase
Agreement.
[f. Pending Mortgage Loans: As set forth in Exhibit [C] hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans] [each
Mortgage Loan], and as set forth in Exhibit [A] and Exhibit [B] hereto, the sum
of (a) the product of (i) the Cut-off Date Balance of [such Mortgage Loan] [such
Mortgage Loans], and (ii) the purchase price percentage set forth in Exhibit [A]
hereto for such [Mortgage Loan] [Mortgage Loans], and (b) accrued interest from
the Cut-off Date through the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the period
prior to the initial Interest Adjustment Date, [0.25]% and, thereafter,
[0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Conventional] [Government]
Mortgage Loan and a [Adjustable Rate] [Balloon] [Convertible] [Fixed Rate]
Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a perfected
[first] [second] lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten
generally in accordance with Countrywide's credit underwriting guidelines in
effect at the time such Mortgage Loan was originated] [conforms to the Xxxxxx
Xxx or Xxxxxxx Mac mortgage eligibility criteria (as such criteria applies to
Countrywide) and is eligible for sale to, and securitization by, Xxxxxx Mae or
Xxxxxxx Mac] [conforms in all material respects to the GNMA mortgage eligibility
criteria and is eligible for sale and securitization into a GNMA mortgage-backed
security] [at the time of origination was underwritten to guidelines which are
consistent with an institutional investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase
Confirmation by signing in the appropriate space below and returning this
Purchase Confirmation to the undersigned. Telecopy signatures shall be deemed
valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. BARCLAYS BANK PLC
By: ___________________________ By: _____________________________
Name: Xxxxxx Xxxxx Name:
Title: Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(attached)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(attached)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
------------------------- ------------------------- ------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
------------------------- ------------------------- ------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
EXHIBIT C
[RESERVED]
EXHIBIT D
FORM OF TRADE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: [CONTACT, TITLE]
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Barclays Bank
PLC (Deal No. yrmm-xxx)
------------------------------------------------------------
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Barclays Bank
PLC ("Purchaser") and Countrywide Home Loans, Inc. ("Countrywide") pursuant to
which Purchaser has agreed to purchase, and Countrywide has agreed to sell,
those certain mortgage loans [identified][summarized] in Exhibit A hereto (the
"Mortgage Loans"), subject to the terms set forth herein.
Closing Date: _________ __, [year][, provided, however, that the
parties shall use their best efforts to consummate the transaction prior to
[DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in Exhibit A.
[Loan-level pricing as set forth in Exhibit A.]
Product: [Jumbo]["A"][A-"]["Alt A"] [Sub-prime] [Conforming]
[Conventional] [Government] [Second Lien/HELOC] [[fixed][(x/1) Index adjustable]
rate mortgage loans]. (undefined terms should not be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Countrywide and serviced on
a [scheduled/scheduled] [actual/actual] [scheduled][actual] basis for the
servicing fee rate [equal to FEE% per annum][set forth in Exhibit A [for each
Mortgage Loan]]. [ With respect to the period prior to the initial Interest
Adjustment Date, 0.25% and, thereafter, 0.375%].
Prepayment Penalties: Barclays Bank PLC shall be entitled to any
penalties resulting from the prepayment of any Mortgage Loans by the related
mortgagor(s).
Documentation: [Assignment of a [type of agreement]] [Industry
standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation. Countrywide may, at its option, elect
to substitute comparable mortgage loans for any Mortgage Loans rejected by
Purchaser pursuant to the preceding sentence.]
[Countrywide's sale of the Mortgage Loans is expressly subject to
(a) the review of the Mortgage Loans by Purchaser to confirm conformance with
the Trade Confirmation, and (b) purchase of the Mortgage Loans by Countrywide on
or before the Closing Date from the current owner of the Mortgage Loans (the
"Current Owner"). If either of the foregoing conditions are not satisfied,
Countrywide shall have no liability to Purchaser.]
Non-Circumvent: Countrywide and Purchaser understand and agree that
Countrywide may introduce the owner of the Mortgage Loans to Purchaser, that the
Current Owner is a customer of Countrywide and that such relationship of
Countrywide is confidential. Purchaser agrees, with respect to the Current
Owner, Purchaser will not, for the purpose of purchasing other mortgage loans
[for a period of one year from the Closing Date], communicate with or purchase
such other mortgage loans from the Current Owner unless the Current Owner has
had previous business dealings (other than any transactions involving
Countrywide) with the Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. BARCLAYS BANK PLC
By: __________________________ By: ________________________________
Name: Xxxxxx Xxxxx Name:
Title: Title:
EXHIBIT A
to
TRADE CONFIRMATION
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(attached)
EXHIBIT B
to
TRADE CONFIRMATION
UNDERWRITING GUIDELINES
(attached)
EXHIBIT E
COUNTRYWIDE HOME LOANS, INC.
OFFICER'S CERTIFICATE
I, [NAME], hereby certify that I am the duly elected [TITLE] of
Countrywide Home Loans, Inc., a corporation organized under the laws of the
State of New York ( "Countrywide") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the Certificate of Incorporation of Countrywide which is in full force
and effect on the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the By-laws of Countrywide which are in effect on the date hereof.
3. Attached hereto as Exhibit 3 is a Certificate of Good Standing of
Countrywide issued within ten days of the date hereof, and no event has
occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of Countrywide
authorizing Countrywide to execute and deliver each of the [Master
Mortgage Loan Purchase Agreement and Servicing Agreement], dated as of
[DATE], by and among [PARTY] (the "Purchaser"), and Countrywide (the "Sale
and Servicing Agreement")] and to endorse the [Mortgage Notes and execute
the Assignments of Mortgages by facsimile signature], and such resolutions
are in effect on the date hereof.
5. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of Countrywide, signed (a) the [Sale and
Servicing Agreement], and (b) any other document delivered or on the date
hereof in connection with any purchase described in the agreements set
forth above was, at the respective times of such signing and delivery, and
is now, a duly elected or appointed, qualified and acting officer or
representative of Countrywide, who holds the office set forth opposite his
or her name on Exhibit 5, and the signatures of such persons appearing on
such documents are their genuine signatures.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of Countrywide.
Dated: [DATE]
By: _______________________________
Name: [NAME]
Title: [TITLE]
[SEAL]
I, [NAME OF ASSISTANT SECRETARY], an Assistant Secretary of
Countrywide, hereby certify that [NAME] is the duly elected, qualified and
acting [TITLE] of Countrywide and that the signature appearing above is her
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: [DATE]
By: _______________________________
Name: [NAME]
Title: Assistant Secretary
[SEAL]
EXHIBIT 1
to
OFFICER'S CERTIFICATE
EXHIBIT 2
to
OFFICER'S CERTIFICATE
EXHIBIT 3
to
OFFICER'S CERTIFICATE
EXHIBIT 4
to
OFFICER'S CERTIFICATE
RESOLUTIONS ADOPTED BY
THE BOARD OF DIRECTORS OF
COUNTRYWIDE HOME LOANS, INC.
AS OF [DATE]
EXHIBIT 5
to
OFFICER'S CERTIFICATE
---------------------------- ----------------------- --------------------
NAME TITLE SIGNATURE
---------------------------- ----------------------- --------------------
---------------------------- ----------------------- --------------------
---------------------------- ----------------------- --------------------
---------------------------- ----------------------- --------------------
---------------------------- ----------------------- --------------------
---------------------------- ----------------------- --------------------
---------------------------- ----------------------- --------------------
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Barclays Bank PLC from the company named on the next page (the
"Company") pursuant to that certain Mortgage Loan Purchase Agreement, dated as
of ______ __, 200_, and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Company or its designees, as of the date and time
of the sale of such Mortgage Loans to Barclays Bank PLC. Such release shall be
effective automatically without any further action by any party upon payment in
one or more installments, in immediately available funds, of $_____________, in
accordance with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
---------------------------------------
(Name)
---------------------------------------
(Address)
---------------------------------------
---------------------------------------
---------------------------------------
By:
-----------------------------------
II. Certification of Release
The Company named below hereby certifies to Barclays Bank PLC that,
as of the date and time of the sale of the above-mentioned Mortgage Loans to
Barclays Bank PLC the security interests in the Mortgage Loans released by the
above-named financial institution comprise all security interests relating to or
affecting any and all such Mortgage Loans. The Company warrants that, as of such
time, there are and will be no other security interests affecting any or all of
such Mortgage Loans.
By:
Title:
Date:
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
XXXXXX FUNDING LLC,
as Purchaser
----------------------------------------
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of February 26, 2007
----------------------------------------
Conventional Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I. DEFINITIONS
ARTICLE II. PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Due Diligence by the Purchaser................................
Section 2.02 Identification of Mortgage Loan Package.......................
Section 2.03 Post-Closing Due Diligence....................................
Section 2.04 Credit Document Deficiencies Identified During Due Diligence..
Section 2.05 Delivery of Collateral Files..................................
Section 2.06 Purchase Confirmation.........................................
Section 2.07 Closing.......................................................
Section 2.08 Payment of the Purchase Proceeds..............................
Section 2.09 Entitlement to Payments on the Mortgage Loans.................
Section 2.10 Payment of Costs and Expenses.................................
Section 2.11 MERS Mortgage Loans and the MERS System.......................
Section 2.12 Required Closing Documents....................................
ARTICLE III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.........
Section 3.02 Representations and Warranties Regarding Individual Mortgage
Loans................................................................
Section 3.03 Remedies for Breach of Representations and Warranties.........
Section 3.04 Repurchase of Convertible Mortgage Loans......................
Section 3.05 Representations and Warranties Respecting the Purchaser.......
Section 3.06 Indemnification by the Purchaser..............................
ARTICLE IV. MISCELLANEOUS
Section 4.01 Notices.......................................................
Section 4.02 Sale Treatment................................................
Section 4.03 Exhibits......................................................
Section 4.04 General Interpretive Principles...............................
Section 4.05 Reproduction of Documents.....................................
Section 4.06 Further Agreements............................................
Section 4.07 Assignment of Mortgage Loans by the Purchaser.................
Section 4.08 Conflicts between Transaction Documents.......................
Section 4.09 Governing Law.................................................
Section 4.10 Severability Clause...........................................
Section 4.11 Successors and Assigns........................................
Section 4.12 Confidentiality...............................................
Section 4.13 Entire Agreement..............................................
Section 4.14 Counterparts..................................................
Section 4.15 Waivers.......................................................
Section 4.16 No Solicitation...............................................
Section 4.17 Consent to Service of Process.................................
Exhibit A Schedule of Collateral Documents...............................
Exhibit B Form of Purchase Confirmation..................................
Exhibit C Form of Custodial Agreement....................................
Exhibit D Form of Trade Confirmation.....................................
Exhibit E Form of Countrywide's Officer's Certification..................
Exhibit F Form of Security Release Certification.........................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered into as of
February 26, 2007 (the "Agreement"), between Countrywide Home Loans, Inc.,
having an address at 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
("Countrywide"), and Xxxxxx Funding, LLC c/o Global Securitization Services,
LLC, having an address at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx
00000 the ("Purchaser").
R E C I T A L S
The Purchaser has agreed to purchase from Countrywide and
Countrywide has agreed to sell from time to time to the Purchaser all of
Countrywide's right, title and interest, excluding servicing rights, in and to
those certain mortgage loans identified in a Purchase Confirmation (as defined
below) executed by Countrywide and the Purchaser. This Agreement is intended to
set forth the terms and conditions by which Countrywide shall transfer and the
Purchaser shall acquire such mortgage loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Accepted Servicing Practices: With respect to any Mortgage Loan, those mortgage
servicing practices of prudent mortgage lending institutions which service
mortgage loans of a similar type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the related Mortgage
Note contains a provision whereby the Mortgage Interest Rate is adjusted from
time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Xxx or Xxxxxxx Mac.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Master Mortgage Loan Purchase Agreement, including all
exhibits and supplements hereto, and all amendments hereof.
Appraised Value: The value of the related Mortgaged Property as set forth in an
appraisal made in connection with the origination of a Mortgage Loan or the sale
price of the related Mortgaged Property if the proceeds of such Mortgage Loan
were used to purchase such Mortgaged Property, whichever is less.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note matures prior
to full amortization and requires a final and accelerated payment of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking and savings and loan institutions in either the State of
California, the State of New York, or the State of Texas are authorized or
obligated by law or executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Documents: The documents required to be delivered on each
Closing Date pursuant to Section 2.12.
Code: The Internal Revenue Code of 1986, as amended, or any successor
statute thereto.
Closing Date: The date on which the purchase and sale of the Mortgage Loans
constituting a Mortgage Loan Package is consummated, as set forth in the Trade
Confirmation or Purchase Confirmation.
Collateral Documents: The collateral documents pertaining to each Mortgage Loan
as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file containing each of
the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage Loan, the
ratio, expressed as a percentage, of the (a) sum of (i) the Stated Principal
Balance (or the original principal balance, if so indicated) of such Mortgage
Loan and (ii) the Stated Principal Balance (or the original principal balance,
if so indicated) as of such date of any mortgage loan or mortgage loans that are
senior or equal in priority to the Mortgage Loan and which are secured by the
same Mortgaged Property to (b) the Appraised Value of the related Mortgaged
Property.
Condemnation Proceeds: All awards or settlements in respect of a taking of an
entire Mortgaged Property by exercise of the power of eminent domain or
condemnation.
Conventional Mortgage Loan: A Mortgage Loan that is not insured by the FHA or
guaranteed by the VA.
Convertible Mortgage Loan: Any Adjustable Rate Mortgage Loan that contains a
provision whereby the Mortgagor is permitted to convert the Mortgage Loan to a
fixed-rate mortgage loan in accordance with the terms of the related Mortgage
Note.
Countrywide: Countrywide Home Loans, Inc., or any successor or assign
to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the mortgage loan
documents pertaining to a Mortgage Loan including copies of the Collateral
Documents together with the credit documentation relating to the origination of
such Mortgage Loan, which Credit File may be maintained by Countrywide on
microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained pursuant to
Section 3.04 of the Servicing Agreement, each of which shall be an Eligible
Account.
Custodial Agreement: The agreement governing the retention of the
Collateral Files by the Custodian.
Custodian: Xxxxx Fargo Bank, N.A., its successor in interest or assign,
or such other custodian that may be designated by Purchaser from time
to time.
Cut-off Date: The first day of the month in which the related Closing Date
occurs or such other date as may be set forth in the related Trade Confirmation
or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal balance of the
Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date, after
application of (i) scheduled payments of principal due on such Mortgage Loans on
or before such Cut-off Date, whether or not collected, and (ii) any Principal
Prepayments received from the Mortgagor prior to the Cut-off Date.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or replaced or to be
replaced with a Qualified Substitute Mortgage Loan by the Seller in accordance
with the terms of this Agreement.
Determination Date: The Business Day immediately preceding the related
Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a depository
institution the short term debt obligations of which are rated by a nationally
recognized statistical rating agency in one of its two (2) highest rating
categories at the time of any deposit therein, (ii) the deposits of which are
insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to an Agency.
Escrow Payments: The amounts constituting ground rents, taxes, assessments,
water rates, mortgage insurance premiums, fire and hazard insurance premiums,
flood insurance premiums, and other payments required to be escrowed by the
Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any successor
organization.
Xxxxxx Mae Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxx Xxx.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien on
the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage Interest Rate
set forth in the Mortgage Note is fixed for the term of such Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Xxxxxxx Mac Transfer: Any sale or transfer of some or all of the Mortgage Loans
to Xxxxxxx Mac under its Cash Purchase Program or MBS Program (Special Servicing
Option).
Funding Deadline: With respect to each Closing Date, one o'clock (1:00)
p.m. New York time.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note, which amount is added
to the index in accordance with the terms of the related Mortgage Note to
determine on each Interest Adjustment Date, the Mortgage Interest Rate for such
Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) that is a Section 32 Mortgage
Loan under the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), (b)
(classified as a "high cost" or similarly defined loan under any other
applicable state, federal or local law or (c) categorized as High Cost pursuant
to Appendix E of Standard & Poor's Glossary, as applicable at the time of
origination of the Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the
functions thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the
related Mortgage Note.
Interim Funder: With respect to each MERS Mortgage Loan, the Person named on the
MERS System as the interim funder pursuant to the MERS Procedures Manual.
Interest Adjustment Date: With respect to an Adjustable Rate Mortgage Loan, the
date on which an adjustment to the Mortgage Interest Rate on a Mortgage Note
becomes effective.
Investor: With respect to each MERS Mortgage Loan, the Person named on the MERS
System as the investor pursuant to the MERS Procedures Manual.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage Loan, the
absolute maximum Mortgage Interest Rate payable, above which the Mortgage
Interest Rate shall not be adjusted, as set forth in the related Mortgage Note
and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation Proceeds
and Other Insurance Proceeds, received by Countrywide in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of an
REO Property pursuant to Section 3.13 of the Servicing Agreement.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an LPMI Loan,
which is set forth on the related Mortgage Loan Schedule, to be retained by
Countrywide to pay the premium due on the PMI Policy with respect to such LPMI
Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is responsible
for paying the premium due on the related PMI Policy with the proceeds generated
by the LPMI Fee relating to such Mortgage Loan, as set forth on the related
Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a percentage) of
the Stated Principal Balance (or the original principal balance, if so
indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any successor
or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS System: The electronic system of recording transfers of mortgages
maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a Mortgage
Note, which creates a first lien, in the case of a First Lien Mortgage Loan, or
a second lien, in the case of a Second Lien Mortgage Loan, on an unsubordinated
estate in fee simple in real property securing the Mortgage Note; except that
with respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice, the
mortgage, deed of trust or other instrument securing the Mortgage Note may
secure and create a first lien, in the case of a First Lien Mortgage Loan, or a
second lien, in the case of a Second Lien Mortgage Loan, upon a leasehold estate
of the Mortgagor, as the case may be.
Mortgage Interest Rate: The annual rate at which interest accrues on any
Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as adjusted
from time to time in accordance with the provisions of the related Mortgage
Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this Agreement, as
evidenced by such mortgage loan's inclusion on the related Mortgage Loan
Schedule, which mortgage loan includes the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds (if
applicable), Government Insurance Proceeds (if applicable), Other Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan, the interest
rate payable to the Purchaser on each Remittance Date which shall equal the
Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if applicable.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package, the schedule
of Mortgage Loans included therein and made a part of the related Purchase
Confirmation, which schedule shall include, the following information with
respect to each Mortgage Loan: (i) Countrywide's loan number identifying such
Mortgage Loan; (ii) the Mortgage Interest Rate, less any LPMI Fee, as of the
Cut-off Date; (iii) with respect to any Adjustable Rate Mortgage Loan, the Gross
Margin, the Periodic Rate Cap, the Lifetime Rate Cap, the next Interest
Adjustment Date and whether such Adjustable Rate Mortgage Loan is a Convertible
Mortgage Loan, (iv) with respect to a LPMI Loan, the LPMI Fee, (v) with respect
to each First Lien Mortgage Loan, the LTV at origination and, with respect to
each Second Lien Mortgage Loan, the Combined LTV at origination; (vi) the
remaining term as of the Cut-off Date and the original term of such Mortgage
Loan, (vii) whether such Mortgage Loan is a First Lien Mortgage Loan or a Second
Lien Mortgage Loan (viii) any other information pertaining to such Mortgage Loan
as may be reasonably requested by the Purchaser, (ix) with respect to each
Option ARM Mortgage Loan, (a) the maximum negative amortization percentage, and
(b) the recast period, (x) name, address, city and zipcode of Mortgagor, (xi)
the Stated Principal Balance, (xii) appraisal amount, (xiii) purchase amount,
(xiv) loan amount, (xv) first Monthly Payment Due Date, (xvi) credit score,
(xvii) document type, (xviii) occupancy type, (xix) payment current through
date, (xx) Prepayment Penalty window - flag/term, and (xxi) interest-only term.
The information set forth in the Mortgage Loan Schedule relating to the Mortgage
Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with respect to any LPMI
Loan, as applicable, is exclusive of the LPMI Fee.
Mortgage Note: The note or other evidence of the indebtedness of a Mortgagor
secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and the
successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by (a) an assistant Vice President
or higher ranking officer and (b) by the Treasurer or the Secretary or one of
the Assistant Treasurers or Assistant Secretaries of Countrywide, and delivered
to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an employee of the
party on behalf of whom the opinion is being given.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that gives the
related Mortgagor three different payment options each month, which include: (i)
a minimum monthly payment option, (ii) an interest-only payment option or (iii)
a full principal and interest option which amortizes over 30 years or less.
Other Insurance Proceeds: Proceeds of any title policy, hazard policy, pool
policy or other insurance policy covering a Mortgage Loan, other than the PMI
Policy, if any, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the Mortgagor in
accordance with the procedures that Countrywide would follow in servicing
mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the Mortgage Loans
by the Purchaser to a trust to be formed as part of a publicly issued or
privately placed mortgaged-backed securities transaction.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an
Adjustment Date above or below the Mortgage Interest Rate previously in effect,
equal to the rate set forth on the Mortgage Loan Schedule per adjustment.
Person: Any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, limited liability corporation, unincorporated
organization or government or any agency or political subdivision thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating to a
Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or described in
a Trade Confirmation, which, subject to the Purchaser's due diligence as
contemplated in Section 2.02 of this Agreement, are intended to be sold under
this Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
Prepayment Penalty: With respect to each Mortgage Loan, a prepayment penalty,
charge, premium or fee, if any, payable upon the Principal Prepayment in full or
part of such Mortgage Loan, as set forth in the related Mortgage Note or
Mortgage.
Principal Prepayment: Any payment or other recovery of principal on a Mortgage
Loan which is received in advance of its scheduled Due Date, excluding any
prepayment penalty or premium thereon (unless the Purchase Confirmation provides
otherwise), which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment Period: As to any Remittance Date, the calendar month
preceding the month of distribution.
Purchase Confirmation: A letter agreement, substantially in the form of Exhibit
B hereto, executed by Countrywide and the Purchaser in connection with the
purchase and sale of each Mortgage Loan Package, which sets forth the terms
relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by the Purchaser
to Countrywide in exchange for the Mortgage Loan Package purchased on such
Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble to this
Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 4.07 hereof.
Qualified Insurer: An insurance company duly qualified as such under the laws of
the states in which the Mortgaged Properties are located, duly authorized and
licensed in such states to transact the applicable insurance business and to
write the insurance provided.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on the date of
such substitution, (i) have an unpaid principal balance, after deduction of all
scheduled payments due in the month of substitution (or if more than one (1)
mortgage loan is being substituted, an aggregate principal balance), not in
excess of the unpaid principal balance of the repurchased Mortgage Loan (the
amount of any shortfall will be deposited in the Custodial Account by
Countrywide in the month of substitution); (ii) have a Mortgage Interest Rate
not less than, and not more than 1% greater than, the Mortgage Interest Rate of
the repurchased Mortgage Loan; (iii) have a remaining term to maturity not
greater than, and not more than one year less than, the maturity date of the
repurchased Mortgage Loan; (iv) comply with each representation and warranty
(respecting individual Mortgage Loans) set forth in Section 3.02 hereof; (v)
shall be the same type of Mortgage Loan (i.e., a Convertible Mortgage Loan or a
Fixed Rate Mortgage Loan).
Relief Act: The Servicemembers' Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to REMICs,
which appear at Sections 860A through 860G of Subchapter M of Chapter 1,
Subtitle A, of the Code, and related provisions, and proposed, temporary and
final Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The eighteenth (18th) day of any month, beginning with the
month next following the month in which the related Cut-off Date occurs, or if
such eighteenth (18th) day is not a Business Day, the first Business Day
immediately following.
REO Disposition: The final sale by Countrywide of any REO Property or the
transfer of the management of such REO Property to the Purchaser as set forth in
Section 3.13 of the Servicing Agreement.
REO Property: A Mortgaged Property acquired by Countrywide on behalf of the
Purchaser as described in Section 3.13 of the Servicing Agreement.
RESPA: Real Estate Settlement Procedures Act, as amended from time to time.
Repurchase Price: With respect to any Mortgage Loan, a price equal to (i) the
Stated Principal Balance of the Mortgage Loan plus (ii) interest on such Stated
Principal Balance at the Mortgage Loan Remittance Rate from the last date
through which interest has been paid and distributed to the Purchaser to the
date of repurchase, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien on the
related Mortgaged Property.
Servicing Agreement: The agreement dated as of February 26, 2007 and signed by
the Purchaser and Servicing LP with respect to the administration and servicing
of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the annual fee
the Purchaser shall pay to Countrywide, which shall, for a period of one full
month, be equal to one-twelfth of the product of (i) the Servicing Fee Rate and
(ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed,
and shall be prorated (based upon the number of days of the related month
Countrywide so acted as servicer relative to the total number of days in that
month) for each part thereof. The obligation of the Purchaser to pay the
Servicing Fee is limited to, and the Servicing Fee is payable solely from, the
interest portion of such Monthly Payment collected by Countrywide, or as
otherwise provided herein. Subject to the foregoing, and with respect to each
Mortgage Loan, Countrywide shall be entitled to receive its Servicing Fee
through the disposition of any related REO Property and the Servicing Fee
payable with respect to any REO Property shall be based on the Stated Principal
Balance of the related Mortgage Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per annum set
forth in the applicable Trade Confirmation or Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited partnership,
and its successors and assigns, in its capacity as servicer hereunder.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R) Glossary
applicable at the time of origination of the Mortgage Loan.
Stated Principal Balance: With respect to each Mortgage Loan as of any date of
determination: (i) the unpaid principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, whether or not received, minus (ii) all amounts previously distributed to
the Purchaser with respect to the related Mortgage Loan representing payments or
recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of Exhibit D
hereto executed by Countrywide and the Purchaser prior to the applicable Closing
Date confirming the terms of a prospective purchase and sale of a Mortgage Loan
Package.
Transaction Documents: With respect to any Mortgage Loan, the related
Trade Confirmation, the related Purchase Confirmation, this Agreement
and the Servicing Agreement.
Underwriting Guidelines: The applicable underwriting guidelines of the
Seller, a copy of which is attached as an exhibit to the related Trade
Confirmation.
Updated LTV: With respect to any Mortgage Loan, the outstanding principal
balance of such Mortgage Loan as of the date of determination divided by the
value of the related Mortgaged Property as determined by a recent appraisal of
the Mortgaged Property.
VA: The Department of Veterans Affairs.
Whole Loan Transfer: The sale or transfer by the Purchaser of some or
all of the Mortgage Loans in a whole loan format.
ARTICLE II.
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Due Diligence by the Purchaser.
(a) Review of Credit File. At least five (5) Business Days prior to
the Closing Date, Countrywide shall make available to the Purchaser the Credit
File for each Preliminary Mortgage Loan in the related Preliminary Mortgage Loan
Package. The Purchaser shall have the right to review the Credit File for each
such Preliminary Mortgage Loan, at Countrywide's offices or such other location
agreed upon by the Purchaser and Countrywide, for the purpose of determining
whether each Preliminary Mortgage Loan conforms in all material respects to the
applicable terms contained in the Transaction Documents, which determination
shall be made in the Purchaser's reasonable and good faith discretion. In the
event that the Purchaser rejects any Preliminary Mortgage Loan based on such
review, reasonable discretion that any Mortgage Loan is not in compliance in all
material respects with the applicable terms of the Transaction Documents, such
Mortgage Loan shall be deleted from the related Mortgage Loan Schedule and
Countrywide shall have the right to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. The Purchaser shall use its reasonable best efforts
to conduct its due diligence, and to convey the results thereof to Countrywide,
within the time and in the manner necessary to permit Countrywide to rebut or
cure any Preliminary Mortgage Loan or to substitute replacement Preliminary
Mortgage Loans as permitted herein.
(b) Rejection of Preliminary Mortgage Loans. Without limiting the
generality of the foregoing, in the event that the Purchaser rejects Preliminary
Mortgage Loans (i) comprising more than ten percent (10%) of the related
Preliminary Mortgage Loan Package (as measured by unpaid principal balance), or
(ii) for reasons other than as permitted under this Agreement or the Trade
Confirmation, Countrywide may, in its sole discretion, rescind its offer to sell
any of the Preliminary Mortgage Loans relating thereto to the Purchaser and
Countrywide shall have no liability therefor.
Section 2.02 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the Purchaser shall
identify those Preliminary Mortgage Loans that the Purchaser intends to be
included in the Mortgage Loan Package.
Section 2.03 Post-Closing Due Diligence.
In the event that the Purchaser fails to complete its due diligence, as
contemplated in Section 2.01 of this Agreement, with respect to any Preliminary
Mortgage Loan, the Purchaser and Countrywide may nonetheless mutually agree to
the purchase and sale of such Mortgage Loan as contemplated hereunder, and upon
such mutual agreement, if the Purchaser provides notice to Countrywide of such
Mortgage Loan and such Mortgage Loan is identified as such in the Purchase
Confirmation (as used therein, the "Pending Mortgage Loans"), the Purchaser
shall have the right to review the related Credit File for such Mortgage Loan
within ten (10) Business Days after the Closing Date and, based on such review
and within such ten (10) Business Days period, request that Countrywide
repurchase any Pending Mortgage Loan that the Purchaser reasonably and in good
faith contends does not conform in all material respects to the applicable terms
of the Transaction Documents. Countrywide shall have ten (10) Business Days from
the date of its receipt of such request to either (a) repurchase such Mortgage
Loan at the purchase price for such Mortgage Loan (as calculated under the
related Transaction Documents, as applicable) plus accrued and unpaid interest,
or (b) provide evidence reasonably satisfactory to the Purchaser that such
Mortgage Loan does in fact conform to the terms of the Transaction Documents, as
applicable. In the event that Countrywide must repurchase any Mortgage Loan in
accordance with this Section 2.03 or pursuant to any other applicable term
contained in the Transaction Documents, Countrywide may, at its option,
substitute replacement Mortgage Loans conforming in all material respects to the
applicable terms contained in the related Transaction Documents. The rights and
remedies set forth in this Section 2.03 are in addition to those set forth in
Section 3.03 hereof.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase Confirmation
identifies any Mortgage Loan for which the related Credit File is missing
material documentation (as used therein, the "Missing Credit Documents"),
Countrywide agrees to use its best efforts to procure each such Missing Credit
Document within sixty (60) days following the related Closing Date. In the event
of a default by a Mortgagor or any material impairment of the Mortgaged
Property, in either case directly arising from a breach of Countrywide's
obligation to deliver the Missing Credit Document within the time specified
above, Countrywide shall repurchase such Mortgage Loan at the Repurchase Price.
Section 2.05 Delivery of Collateral Files.
(a) Custodial Agreement. Countrywide shall, on or before the
Business Day prior to the related Closing Date, deliver to the Custodian the
Collateral File for each Mortgage Loan in the Mortgage Loan Package. The parties
hereto shall execute the Custodial Agreement on or prior to the initial Closing
Date as required under Section 2.12. Countrywide shall comply with its
obligations under the Custodial Agreement and the Purchaser shall pay all fees
and expenses of the Custodian.
(b) Missing Collateral Documents. In the event that any of the
original Collateral Documents set forth in clauses (3) through (9) of Exhibit A
hereto are not delivered to the Custodian on or before the Closing Date (each, a
"Missing Collateral Document"), then Countrywide shall have (i) with respect to
any Missing Collateral Document sent for recording, twelve (12) months from the
related Closing Date, or (ii) with respect to all other Missing Collateral
Documents, one-hundred twenty (120) days from the Closing Date, to deliver to
the Purchaser such Missing Collateral Documents; provided, however, that with
respect to any Government Mortgage Loan, Countrywide agrees to procure each such
Missing Collateral Document within sixty (60) days following the FHA's or the
VA's, as applicable, deadline for procuring such documents. Notwithstanding the
foregoing, Countrywide shall not be deemed to be in breach of this Agreement if
its failure to deliver to the Purchaser any Missing Collateral Document within
the time specified above is due solely to (i) the failure of the applicable
recorder's office to return a Missing Collateral Document that was sent for
recording or (ii) the failure of the title insurer to issue and deliver the
original mortgagee title policy, except where such refusal to issue the policy
is based on a claim that the title insurer is under no obligation to issue such
policy.
(c) Other Documents. Countrywide shall forward to the Purchaser in a
timely manner any original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance with
this Agreement upon execution and, if applicable, recordation thereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package, Countrywide
shall prepare and deliver to the Purchaser for execution the related Purchase
Confirmation, executed by an authorized signatory of Countrywide.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the related
Closing Date and shall be subject to the satisfaction of each of the following
conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Countrywide under
this Agreement shall be true and correct in all material respects as of the
Closing Date and no event shall have occurred that, with notice or the passage
of time, would constitute a default under this Agreement;
(b) All of the representations and warranties of the Purchaser under
this Agreement shall be true and correct in all material respects as of the
Closing Date and no event shall have occurred that, with notice or the passage
of time, would constitute a default under this Agreement;
(c) Both parties shall have executed the related Trade Confirmation
and Purchase Confirmation;
(d) at least two Business Days prior to the related Closing Date,
Countrywide shall deliver to the Purchaser a listing on a loan level basis of
the necessary information to compute the Purchase Proceeds of the Mortgage Loans
delivered on such Closing Date (including accrued interest) in a format as
mutually agreed upon by Countrywide and the Purchaser, and prepare a Mortgage
Loan Schedule;
(e) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all closing documents as specified in Section
2.12 of this Agreement, in such forms as are agreed upon by the parties, duly
executed by all signatories as required pursuant to the terms hereof; and
(f) Countrywide shall have delivered to the Custodian all Collateral
Documents required pursuant to Section 2.05 of this Agreement.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07 hereof, and in consideration
for the Mortgage Loan Package to be purchased by the Purchaser on the related
Closing Date, the Purchaser shall pay to Countrywide on such Closing Date the
Purchase Proceeds by wire transfer of immediately available funds to the account
designated by Countrywide on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date).
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Countrywide shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. To the extent permitted by
applicable law, each of the Assignments of Mortgage is subject to recordation in
all appropriate public offices for real property records in all the counties or
their comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
only the first of such recordation to be effected shall be at Countrywide's
expense in the event recordation is either necessary under applicable law or
requested by the Purchaser at its sole option and all subsequent recordations
shall be at the expense of the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Countrywide pursuant to this Agreement, Countrywide shall cause the registration
of such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Countrywide shall be in lieu of Countrywide delivering to the
Purchaser an Assignment of Mortgage for such MERS Mortgage Loan. With respect to
the Mortgage and intervening assignments related to any MERS Mortgage Loan,
Countrywide shall, in accordance with Section 2.05 of this Agreement, provide
the Purchaser with the original Mortgage with evidence of registration with MERS
and, as applicable, the originals of all intervening assignments of the Mortgage
with evidence of recording thereon prior to the registration of the Mortgage
Loan with the MERS System.
With respect to each MERS Mortgage Loan, Countrywide shall designate
the Purchaser as the Investor and the Custodian as custodian, and no Person
shall be listed as Interim Funder on the MERS System.
In connection with the MERS System, Countrywide is hereby authorized
and empowered, in its own name, to register, or change the registration of any
MERS Mortgage Loan to effectuate such registration. Further, Countrywide is
authorized to cause the removal of any MERS Mortgage Loan from such
registration, and to execute and deliver on behalf of itself and the Purchaser,
any and all instruments of assignment and comparable instruments with respect to
any registration and/or removal of such MERS Mortgage Loan on or from the MERS
System.
Section 2.12 Required Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(a) this Agreement (to be executed and delivered only for the
initial Closing Date);
(b) with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
(c) the related Mortgage Loan Schedule attached to the related
Purchase Confirmation as the Mortgage Loan Schedule thereto;
(d) with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit E hereto with respect to Countrywide,
including all attachments thereto;
(e) a Security Release Certification, in the form of Exhibit F, as
applicable, hereto executed by any person, if any of the Mortgage Loans are
subject to a security interest, pledge or hypothecation for the benefit of such
person; and
Countrywide shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser that, as of each
Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan. This Agreement has been duly
executed and delivered and constitutes the valid, legal, binding and enforceable
obligation of Countrywide, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by Countrywide
to make this Agreement valid and binding upon Countrywide in accordance with its
terms;
(c) No Conflict. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by Countrywide,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of Countrywide's certificate of
incorporation or by-laws or result in a material breach of any legal restriction
or any material agreement or instrument to which Countrywide is now a party or
by which it is bound, or constitute a material default or result in an
acceleration under any of the foregoing, or result in the violation of any
material law, rule, regulation, order, judgment or decree to which Countrywide
or its property is subject;
(d) Approved Seller. Countrywide is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of HUD
pursuant to Sections 203 and 211 of the National Housing Act. No event has
occurred, including a change in insurance coverage, which would make Countrywide
unable to comply with Xxxxxx Mae, Xxxxxxx Mac or HUD eligibility requirements;
(e) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the sale of the Mortgage Loans
to the Purchaser, the ability of Countrywide to service the Mortgage Loans
hereunder in accordance with the terms hereof, or Countrywide's ability to
perform its obligations under this Agreement, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of Countrywide contemplated
herein;
(f) No Consent Required. 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,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date.
(g) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Countrywide, , and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by Countrywide pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(h) Ability to Perform; Solvency. Countrywide does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. Countrywide is solvent and the sale
of the Mortgage Loans will not cause Countrywide to become insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud any of Countrywide's creditors;
(i) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form or other document furnished
pursuant to this Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading;
(j) No Brokers. Countrywide has not dealt with any third party
broker, investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans;
(k) Sale Treatment. Countrywide intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of Countrywide and
Countrywide has determined that the disposition of the Mortgage Loans pursuant
to this Agreement will be afforded sale treatment for tax and accounting
purposes;
(l) Reasonable Purchase Price. The consideration received by
Countrywide upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans; and
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified below),
Countrywide represents and warrants to the Purchaser as of the related Closing
Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
prior to the related Cut-off Date for such Mortgage Loan under the terms of the
Mortgage Note have been made; Countrywide has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the Mortgaged Property subject to the Mortgage, directly or indirectly,
for the payment of any amount required by the Mortgage Loan; and there has been
no delinquency of more than thirty (30) days in any payment by the Mortgagor
thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. With
respect to each Mortgage Loan, there is no delinquent taxes and insurance
premiums and, to the best of Countrywide's knowledge, there is no delinquent
ground rents, water charges, sewer rents, assessments, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser or its designee, all in accordance with this
Agreement. The substance of any such waiver, alteration or modification has been
approved by the primary mortgage guaranty insurer, if any, and by the title
insurer, to the extent required by the related policy and its terms are
reflected on the related Mortgage Loan Schedule. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement approved
by the primary mortgage insurer, if any, and the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Collateral
File and the terms of which are reflected in the Mortgage Loan Schedule if
executed prior to the Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto and no Mortgagor
was a debtor in any state or Federal bankruptcy or insolvency proceedings at the
time the Mortgage Loan was originated;
(f) Hazard and Flood Insurance. All buildings or other improvements
upon the Mortgaged Property are insured by an insurer acceptable to an Agency
against loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, and such insurer
is licensed to do business in the state where the Mortgaged Property is located.
All such insurance policies contain a standard mortgagee clause naming
Countrywide, its successors and assigns as mortgagee, and all premiums thereon
have been paid. If, upon the origination of the Mortgage Loan, the Mortgaged
Property was, or was subsequently deemed to be, in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), a flood
insurance policy that meets the requirements of the current guidelines of the
Federal Insurance Administration (or any successor thereto) and conforms to the
requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. Any and all requirements of any
applicable federal, state or local law including, without limitation, usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and all anti-predatory and abusive laws
applicable to the Mortgage Loan including, without limitation, any applicable
law governing Prepayment Penalties, have been complied with;
(h) No Release of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated, or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission;
(i) Enforceability of Mortgage Documents. The Mortgage Note and the
related Mortgage are genuine and each is the legal, valid and binding obligation
of the maker thereof, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws. All parties to the Mortgage Note, and the Mortgage had legal
capacity to enter into the Mortgage Note and to execute and deliver the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly and
properly executed by such parties;
(j) Valid First or Second Lien. Each related Mortgage is a valid,
subsisting enforceable and perfected first lien (with respect to a First Lien
Mortgage Loan) or second lien (with respect to a Second Lien Mortgage Loan) on
the related Mortgaged Property, including all improvements on the Mortgaged
Property. The lien of the Mortgage is subject only to:
the lien of current real property taxes and
assessments not yet due and payable;
covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
that are acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and that do not adversely affect
the Appraised Value (as evidenced by an appraisal referred to in such
definition) of the Mortgaged Property set forth in such appraisal;
with respect to a Second Lien Mortgage Loan only, the lien
of the first mortgage on the Mortgaged Property; and
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 the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien (with respect to a First Lien
Mortgage Loan) or second lien (with respect to a Second Lien Mortgage Loan) and
first priority (with respect to a First Lien Mortgage Loan) or second priority
(with respect to a Second Lien Mortgage Loan) security interest on the property
described therein and Countrywide has full right to sell and assign the same to
the Purchaser (subject to (i)-(iv) above).
(k) Disbursements of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed, and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and recording the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) Sole Owner. Countrywide is the sole owner and holder of the
Mortgage Loan. The Mortgage Loan is not assigned or pledged, and Countrywide has
good and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest not specifically set forth in the
related Mortgage Loan Schedule and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to the terms of this Agreement;
(m) Title Insurance. Each Mortgage Loan that is a First Lien
Mortgage Loan and each Mortgage Loan that is a Second Lien Mortgage Loan with an
original principal balance greater than $100,000, in either case, is covered by
a lender's title insurance policy acceptable to an Agency, issued by a title
insurer acceptable to an Agency and qualified to do business in the jurisdiction
where the related Mortgaged Property is located, insuring (subject to the
exceptions contained in Section 3.02(j)(i), (i) and (iv) above) Countrywide, its
successors and assigns as to the first or second priority lien of the Mortgage,
as applicable. Additionally, such lender's title insurance policy affirmatively
insures ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. Countrywide is the sole insured of such
lender's title insurance policy, and such lender's title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender's 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 lender's title insurance policy;
(n) No Default. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no 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, and Countrywide has not waived any default, breach, violation or
event of acceleration, and with respect to any Second Lien Mortgage Loan,
Countrywide has not received a written notice of default of any senior mortgage
loan related to the Mortgaged Property which has not been cured;
(o) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(p) Origination and Collection Practices. The origination, servicing
and collection practices used by Countrywide with respect to each Mortgage Note
and Mortgage have been in all respects legal, proper, prudent and customary in
the mortgage origination and servicing business. With respect to escrow deposits
and Escrow Payments, if any, all such payments are in the possession of, or
under the control of, Countrywide and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or Escrow Payments or other charges or payments due
Countrywide have been capitalized under any Mortgage or the related Mortgage
Note. With respect to Adjustable Rate Mortgage Loans, all Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law and
the terms of the related Mortgage Note. Any interest required to be paid
pursuant to applicable state, federal and local law has been properly paid and
credited;
(q) No Condemnation or Damage. To the best of Countrywide's
knowledge, the Mortgaged Property is free of material damage and waste and there
is no proceeding pending for the total or partial condemnation thereof;
(r) Customary and Enforceable Provisions. The Mortgage contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby including (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. There is no homestead available to a
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(s) Collateral. The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage;
(t) Appraisal. Unless the Mortgage Loan was underwritten pursuant to
one of Countrywide's streamline documentation programs, the Credit File contains
an appraisal of the related Mortgaged Property signed prior to the approval of
the Mortgage Loan application by an appraiser who meets the minimum requisite
qualifications of an Agency and Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated thereunder
for appraisers, duly appointed by the originator, that had no interest, direct
or indirect in the Mortgaged Property, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan; the appraisal is in a form
acceptable to an Agency, with such riders as are acceptable to such Agency;
(u) Trustee for Deed of Trust. In the event the Mortgage constitutes
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 the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(v) CLTV and LTV, Private Mortgage Insurance, FHA Insurance and VA
Guarantees. No Mortgage Loan that is a Second Lien Mortgage Loan has a CLTV
greater than 100%. No Mortgage Loan has an LTV greater than 100%. Each
Conventional Mortgage Loan, except a Second Lien Mortgage Loan or a Mortgage
Loan underwritten in accordance with sub-prime credit underwriting guidelines,
with an LTV at origination in excess of eighty percent (80%) is and will be
subject to a PMI Policy, which insures that portion of the Mortgage Loan over
seventy-five percent (75%) of the Appraised Value of the related Mortgaged
Property. All provisions of such PMI Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due thereunder
have been paid. Any Mortgage subject to any such PMI Policy obligates the
Mortgagor thereunder to maintain such insurance and to pay all premiums and
charges in connection therewith or, in the case of a lender paid mortgage
insurance policy, the premiums and charges are included in the Mortgage Interest
Rate for the Mortgage Loan. Each Government Mortgage Loan either has, or will
have in due course, a valid and enforceable MIC or LGC, as applicable and, in
each case, all premiums due thereunder have been paid. Any Mortgage Loan subject
to a PMI Policy obligates the Mortgagor thereunder to maintain the PMI Policy
and to pay all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the related Mortgage Note is
net of any such insurance premium if the related PMI Policy is lender-paid;
(w) Lawfully Occupied. The Mortgaged Property is lawfully occupied
under applicable law. 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 certificates of
occupancy, have been made or obtained from the appropriate authorities;
(x) Assignment of Mortgage. Except for the absence of recording
information, the Assignment of Mortgage is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged Property
is located;
(y) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable 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. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(z) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms acceptable to an Agency;
(aa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan and no Mortgage Loan originated on or after October 1, 2002 through March
6, 2003 is governed by the Georgia Fair Lending Act;
(bb) Type of Mortgaged Property. The Mortgaged Property is a fee
simple estate or a leasehold estate located in a jurisdiction in which the use
of a leasehold estate for residential properties is an accepted practice that
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two to four residential dwelling, or an
individual residential condominium unit in a condominium project, or an
individual unit in a planned unit development, or an individual unit in a
residential cooperative housing corporation; provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform in all material respects with the Underwriting
Guidelines. At the time of origination, no portion of the Mortgaged Property was
used for commercial purposes; provided, that Mortgaged Properties which contain
a home office shall not be considered as being used for commercial purposes.
None of the Mortgaged Properties are log homes, mobile homes, geodesic domes or
any other properties not eligible for financing pursuant to the applicable
Underwriting Guidelines;
(cc) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten generally in accordance with the Underwriting
Guidelines;
(dd) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(ee) Due On Sale. The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(ff) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(hh) No Violation of Environmental Laws. There is no pending action
or proceeding directly involving any Mortgaged Property of which Countrywide is
aware in which compliance with any environmental law, rule or regulation is an
issue;
(ii) Servicemembers' Civil Relief Act. The Mortgagor has not
notified Countrywide, and Countrywide has no knowledge of any relief requested
to the Mortgagor under the Relief Act;
(jj) Disclosure Materials. The Mortgagor has received all disclosure
materials required by applicable law with respect to the making of the Mortgage
Loans;
(kk) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct to perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade in or exchange of a Mortgaged Property;
(ll) Credit Information. For each Mortgage Loan, Countrywide or its
designee has furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and requisite information on its borrower
credit files to each of the following credit repositories: Equifax Credit
Information Services, Inc., Trans Union, LLC and Experian Information Solution,
Inc., on a monthly basis;
(mm) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground lease
will not terminate earlier than five years after the maturity date of the
Mortgage Loan; (3) the ground lease does not provide for termination of the
lease in the event of lessee's default without the mortgagee being entitled to
receive written notice of, and a reasonable opportunity to cure the default; (4)
the ground lease permits the mortgaging of the related Mortgaged Property; (5)
the ground lease protects the mortgagee's interests in the event of a property
condemnation; and (6) the use of leasehold estates for residential properties is
an accepted practice in the jurisdiction in which the Mortgaged Property is
located;
(nn) Prepayment Penalty. With respect to each Mortgage Loan that has
a Prepayment Penalty, each such Prepayment Penalty is enforceable and is
permitted pursuant to applicable federal, state and local law. With respect to
Mortgage Loans originated prior to October 1, 2002, no such Prepayment Penalty
may be imposed for a term in excess of five (5) years following origination;
(oo) Payment Terms. Principal payments on the Mortgage Loan
commenced no more than seventy days after funds were disbursed in connection
with the Mortgage Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Cap are as
set forth on the related Mortgage Note. Except with respect to any Option ARM
Mortgage Loan, the Mortgage Note is payable in monthly installments of principal
and interest, which installments of interest, with respect to Adjustable Rate
Mortgage Loans, are subject to change due to the adjustments to the Mortgage
Interest Rate on each Interest Rate Adjustment Date, with interest calculated
and payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than fourty years from
commencement of amortization. Unless otherwise specified on the related Mortgage
Loan Schedule, the Mortgage Loan is payable on the first day of each month.
Except for Balloon Mortgage Loans, the Mortgage Loan does not require a balloon
payment on its stated maturity date;
(pp) Simple Interest Mortgage Loans. With respect to each Mortgage
Loan that is a simple interest Mortgage Loan, the Mortgage Loan is identified on
the related Mortgage Loan Schedule as a simple interest Mortgage Loan, the
Mortgage Loan is required to be serviced as a simple interest Mortgage Loan
pursuant to the terms of the related Mortgage Note, and the servicing and
collection practices used in connection therewith have been in accordance with
legal, proper, prudent and customary practices for servicing simple interest
Mortgage Loans;
(qq) Compliance with Anti-Money Laundering Laws. Countrywide has
established an anti-money laundering compliance program to the extent required
by applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2003, and the laws and regulations
administered by the U.S. Department of Treasury's Office of Foreign Assets
Control ("OFAC"), which prohibit dealings with certain countries, territories,
entities and individuals named in OFAC's Sanction Programs and on the Specially
Designated Nationals and Blocked Persons List. The Mortgage Loans have been
originated, and documentation related thereto shall be maintained, in material
compliance with such program; and
(rr) Fraud. No fraud, error, omission, misrepresentation or similar
occurrence, with respect to a Mortgage Loan has taken place on the part of
Countrywide or, to the best of Countrywide's knowledge, any other Person,
including without limitation, the Mortgagor, any appraiser, or any builder or
developer involved in connection with the origination of the Mortgage Loan or in
the application of any insurance in relation to such Mortgage Loan.
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 of this Agreement shall survive the sale of the
Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Collateral
Documents or Credit File. Upon discovery by either Countrywide or the Purchaser
of a breach of any of the foregoing representations and warranties that
materially and adversely affects the value of one or more of the related
Mortgage Loans, the party discovering such breach shall give prompt written
notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the earlier of
either discovery by or notice to Countrywide of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, or the Purchaser's interests therein, Countrywide shall use
its best efforts to promptly cure such breach in all material respects, and, if
such breach cannot be cured, Countrywide shall, at the Purchaser's option,
repurchase such Mortgage Loan at the Repurchase Price. In the event that a
breach shall involve any representation or warranty set forth in Section 3.01
hereof and such breach cannot be cured within sixty (60) days of the earlier of
either discovery by or notice to Countrywide of such breach, all of the Mortgage
Loans affected by such breach shall, at the Purchaser's option, be repurchased
by Countrywide at the Repurchase Price.
(c) Substitution or Repurchase. However, if the breach shall involve
a representation or warranty set forth in Section 3.02, (Countrywide shall,
rather than repurchase the Mortgage Loan as provided above, remove such Mortgage
Loan (a "Deleted Mortgage Loan") and substitute in its place a Qualified
Substitute Mortgage Loan or Loans. If Countrywide has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any repurchase
of a Mortgage Loan(s) pursuant to the provisions of this Section 3.03 shall be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price for distribution to the Purchaser on the next scheduled Remittance Date,
after deducting therefrom any amount received in respect of such repurchased
Mortgage Loan or Loans and being held in the Custodial Account for future
distribution. At the time of repurchase or substitution, the Purchaser and
Countrywide shall arrange for the reassignment of the Deleted Mortgage Loan and
release of the related Collateral File to Countrywide and the delivery to
Countrywide of any documents held by the Custodian relating to the Deleted
Mortgage Loan. In the event Countrywide determines to substitute a Qualified
Substitute Mortgage Loan for a repurchased Mortgage Loan, Countrywide shall,
simultaneously with such reassignment, give written notice to the Purchaser that
such repurchase or substitution has taken place and amend the Mortgage Loan
Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify the Qualified Substitute
Mortgage Loan(s) and amend the related Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, Countrywide shall be deemed to have made
as to such Qualified Substitute Mortgage Loan(s) the representations and
warranties except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the date of such substitution. Countrywide
shall effect such substitution by delivering to the Custodian or to such other
party as the Purchaser may designate in writing the Collateral Documents for
such Qualified Substitute Mortgage Loan(s). Countrywide shall deposit in the
Custodial Account the Monthly Payment less the Servicing Fee due on such
Qualified Substitute Mortgage Loan(s) in the month following the date of such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution shall be retained by Countrywide. For the
month of substitution, distributions to the Purchaser shall include the Monthly
Payment due on any Deleted Mortgage Loan in the month of substitution, and
Countrywide shall thereafter be entitled to retain all amounts subsequently
received by Countrywide in respect of such Deleted Mortgage Loan.
For any month in which Countrywide substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, Countrywide shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Countrywide in the month of
substitution pursuant to Section 4.01 of the Servicing Agreement. Accordingly,
on the date of such substitution, Countrywide shall deposit from its own funds
into the Custodial Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution obligation, Countrywide shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and expenses
resulting from, a breach of any representation or warranty contained in Sections
3.01 and 3.02 of this Agreement that materially and adversely affects the value
of one or more Mortgage Loans or the Purchaser's interest therein.
(d) Sole Remedy. With respect to the breach of a representation and
warranty set forth in Section 3.01 and Section 3.02 hereof with respect to a
Mortgage Loan, the obligation under this Section 3.03 of Countrywide to cure,
repurchase, indemnify or replace such Mortgage Loan shall constitute the sole
remedy against Countrywide respecting such breach available to the Purchaser.
(e) Accrual of Cause of Action. Any cause of action against
Countrywide relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 hereof shall accrue as to any Mortgage
Loan upon (i) discovery of such breach by the Purchaser or notice thereof by
Countrywide to the Purchaser, (ii) failure by Countrywide to cure such breach or
repurchase such Mortgage Loan as specified above, and (iii) demand upon
Countrywide by the Purchaser for compliance with the relevant provisions of this
Agreement.
Section 3.04 Repurchase of Convertible Mortgage Loans.
In the event a Mortgagor exercises the option to convert a
Convertible Mortgage Loan to a Fixed Rate Mortgage Loan in accordance with the
terms of the related Mortgage Note, Countrywide shall repurchase such
Convertible Mortgage Loan within thirty (30) days of such conversion taking
effect at a price equal to on hundred percent (100%) of the unpaid principal
balance of such Convertible Mortgage Loan at the time of such conversion plus
accrued interest thereon through the last day of the month of repurchase at the
Mortgage Loan Remittance Rate; provided, however, no interest shall be due and
payable if a Convertible Mortgage Loan is repurchased on the first day of a
month. Any repurchase of a Convertible Mortgage Loan(s) pursuant to the
foregoing provisions of this Section 3.04 shall be accomplished by deposit in
the Custodial Account of the amount of said repurchase price for distribution to
the Purchaser on the next scheduled Remittance Date.
Section 3.05 Representations and Warranties Respecting the
Purchaser.
The Purchaser represents, warrants and covenants to Countrywide that, as of each
Closing Date:
(a) Organization and Standing. The Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified to transact business in and is in good
standing under the laws of each state in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires such qualification;
(b) Due Authority. The Purchaser has the full power and authority to
perform, and to enter into and consummate, all transactions contemplated by this
Agreement; the Purchaser has the full power and authority to purchase and hold
each Mortgage Loan;
(c) No Conflict. Neither the acquisition of the Mortgage Loans by
the Purchaser pursuant to this Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any of
the terms, conditions or provisions of the Purchaser's charter or by-laws or
result in a material breach of any legal restriction or any material agreement
or instrument to which the Purchaser is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the
foregoing, or result in the violation of any material law, rule, regulation,
order, judgment or decree to which the Purchaser or its property is subject;
(d) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to the Purchaser's knowledge,
threatened, which either in any one instance or in the aggregate, if determined
adversely to the Purchaser would adversely affect the purchase of the Mortgage
Loans by the Purchaser hereunder, or the Purchaser's ability to perform its
obligations under this Agreement; and
(e) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser with
this Agreement or the consummation of the transactions contemplated by this
Agreement (including, but not limited to, any approval from HUD), or if
required, such consent, approval, authorization or order has been obtained prior
to the related Closing Date.
Section 3.06 Indemnification by the Purchaser.
The Purchaser shall indemnify Countrywide and hold it harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and expenses resulting from, a breach of any representation
or warranty contained in Sections 3.05. With respect to the breach of a
representation and warranty set forth in Section 3.05 hereof, the obligation
under this Section 3.06 of the Purchaser to indemnify Countrywide shall
constitute the sole remedy against the Purchaser respecting such breach
available to Countrywide.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 Notices.
All demands, notices and communications required to be provided hereunder shall
be in writing and shall be deemed to have been duly given if mailed, by
registered or certified mail, postage prepaid, and return receipt requested, or,
if by other means, when received by the other party at the address as follows:
(i) to Countrywide:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxx
With copy to: General Counsel
(ii) the Purchaser:
Xxxxxx Funding LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attention: Vice President
Fax: (000) 000-0000
With a copy to:
Barclays Bank PLC, as administrator
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
E mail: xxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
and
Attention: Xxxxxxx Xxxxxx
Fax: 000-000-0000
E mail: xxxxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx
To the address and contact set forth in the related Purchase Confirmation or
such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 4.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Countrywide and not a pledge of the Mortgage Loans by Countrywide to
the Purchaser to secure a debt or other obligation of Countrywide. Consequently,
the sale of each Mortgage Loan shall be reflected as a sale on Countrywide's
business records, tax returns and financial statements. Accordingly, Countrywide
and the Purchaser shall each treat the transaction for federal income tax
purposes as a sale by Countrywide, and a purchase by the Purchaser, of the
Mortgage Loans.
Section 4.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 4.04 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 4.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 4.06 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 4.07 Assignment of Mortgage Loans by the Purchaser.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans in a Whole Loan Transfer;
provided, however, that the transferee will not be deemed to be the Purchaser
hereunder unless such transferee shall agree in writing to be bound by the terms
of this Agreement in the form of an assignment, assumption and recognition
agreement ("AAR") reasonably acceptable to the Purchaser and Countrywide and an
original counterpart of the AAR shall have been executed by the Purchaser and
the transferee and delivered to Countrywide. Notwithstanding the foregoing, no
transfer shall be effective if such transfer would result in there being more
than three (3) "Purchasers" outstanding hereunder with respect to any Mortgage
Loan Package.
Section 4.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement and either the related Trade Confirmation
or the related Purchase Confirmation, the terms of the related Purchase
Confirmation shall control. In the event of any conflict, inconsistency or
ambiguity between the terms and conditions of the Trade Confirmation and the
Purchase Confirmation, the terms of the Purchase Confirmation shall control. In
the event of any conflict, inconsistency or ambiguity between the terms and
conditions of this Agreement and the Servicing Agreement, the terms of this
Agreement shall control.
Section 4.09 Governing Law.
This Agreement shall be deemed in effect when fully executed and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by applicable
federal law.
Section 4.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 4.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide and the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser. Except as specifically
set forth in Section 4.07 above, the Purchaser may not assign, pledge or
hypothecate this Agreement to any Person without Countrywide's prior written
consent.
Section 4.12 Confidentiality.
Countrywide and the Purchaser acknowledge and agree that the terms
of the Transaction Documents shall be kept confidential and their contents will
not be divulged to any party without the other party's consent, except to the
extent that it is appropriate for Countrywide and the Purchaser to do so in
working with legal counsel, auditors, taxing authorities, or other governmental
agencies.
Section 4.13 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to the sale of each Mortgage Loan Package and supersede all prior or
contemporaneous oral or written communications regarding same. Countrywide and
the Purchaser understand and agree that no employee, agent or other
representative of Countrywide or the Purchaser has any authority to bind such
party with regard to any statement, representation, warranty or other expression
unless said statement, representation, warranty or other expression is
specifically included within the express terms of this Agreement or the related
Trade Confirmation or Purchase Confirmation. Neither this Agreement nor the
related Trade Confirmation or Purchase Confirmation shall be modified, amended
or in any way altered except by an instrument in writing signed by both parties.
Section 4.14 Counterparts.
This Agreement may be executed simultaneously in any number of counterparts.
Each counterpart shall be deemed to be an original, and all such counterparts
shall constitute one and the same instrument.
Section 4.15 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 4.16 No Solicitation
The Purchaser shall not take any action or cause any action to be
taken by any of its employees, agents or affiliates, or by any independent
contractors acting on the Purchaser's behalf, to solicit any borrower in any
manner whatsoever, including but not limited to, soliciting a borrower to prepay
or refinance a Mortgage Loan. Furthermore, neither the Purchaser nor any of its
affiliates shall directly or indirectly provide information to any third party
for purposes of soliciting the borrowers related to the Mortgage Loans. It is
understood that promotions undertaken by the Purchaser or its affiliates which
are directed to the general public at large (i.e., newspaper advertisements,
radio or T.V. ads, etc.) and not specifically directed to the borrowers related
to the Mortgage Loans shall not constitute a breach of this section. Countrywide
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors or independent mortgage
brokerage companies on Countrywide's behalf, to personally, by telephone or
mail, solicit the borrower under any Mortgage Loan for the purpose of
refinancing such Mortgage Loan; provided, that Countrywide may solicit any
borrower for whom Countrywide has received a request for verification of
mortgage, a request for demand for payoff, a borrower initiated written or
verbal communication indicating a desire to prepay the related Mortgage Loan, or
the borrower initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Countrywide or any of its affiliates which
concern optional insurance products or other additional products shall not
constitute solicitation nor is Countrywide prohibited from responding to
unsolicited requests or inquiries made by a borrower or an agent of a borrower.
Notwithstanding the foregoing, the following solicitations, if undertaken by
Countrywide or any affiliate of Countrywide, shall not be prohibited: (i)
solicitations or promotions that are directed to the general public at large,
including, without limitation, mass mailings based on mailing lists and
newspaper, radio, television and other mass media advertisements and (ii)
borrower messages included on, and statement inserts provided with, the monthly
statements sent to borrowers; provided, however, that similar messages and
inserts are sent to all other borrowers of similar type mortgage loans serviced
by Countrywide and such affiliates, including, but not limited to, those
mortgage loans serviced for the Countrywide's and/or such affiliates own
account; and (iii) solicitations made as a part of a campaign directed to
borrowers with mortgage loans meeting certain defined parameters (other than
parameters relating to the borrowers or Mortgage Loans specifically), provided,
that such solicitations are made to all borrowers of mortgage loans serviced by
Countrywide and such affiliates with respect to mortgage loans meeting such
defined parameters, including, but not limited to, those mortgage loans serviced
for the Countrywide's and/or such affiliates own account.
Section 4.17 Consent to Service of Process.
EACH OF THE PURCHASER AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE
NON EXCLUSIVE JURISDICTION OF THE COURTS OF THE SATE OF NEW YORK AND THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN
ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT
IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF
PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS
PROVIDED FOR NOTICES HEREUNDER.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.,
Countrywide
By:____________________________________
Name:
Title:
XXXXXX FUNDING LLC,
the Purchaser
By:____________________________________
Name:
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original Mortgage Note (or a lost note affidavit in a
form acceptable to an Agency) bearing all intervening endorsements,
endorsed "Pay to the order of _____________, without recourse" and signed
in the name of Countrywide by an authorized officer.
2. Assignment of Mortgage: The original Assignment of Mortgage in blank.
3. Guarantee: The original of any guarantee executed in connection with the
Mortgage Note.
4. Mortgage: The original Mortgage with evidence of recording thereon or, if
such original Mortgage has not been returned to Countrywide on or prior to
the Closing Date by the public recording office where such Mortgage has
been delivered for recordation, a copy of such Mortgage certified by
Countrywide to be a true and complete copy of the original Mortgage sent
for recordation.
5. Modifications: The originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording thereon,
if any.
6. Intervening Assignments: The originals of all intervening assignments of
Mortgage with evidence of recording thereon, provided that such originals
have been returned to Countrywide by the public recording office where
such intervening assignment of Mortgage has been delivered for
recordation.
7. Title Policy: If applicable, the original mortgagee title insurance policy
(or the equivalent thereof with respect to any Mortgage Loan in which the
related Mortgaged Property is located in a jurisdiction where such title
insurance is not customarily provided) if such title insurance policy has
been issued by the related title company on or prior to the Closing Date.
8. Loan Guaranty Certificate: The original Loan Guaranty Certificate, if
applicable.
9. Mortgage Insurance Certificate: The original Mortgage Insurance
Certificate, if applicable.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Xxxxxx Funding LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between Countrywide
Home Loans, Inc. ("Countrywide") and Xxxxxx Funding LLC ("Purchaser") sets forth
our agreement pursuant to which Purchaser is purchasing, and Countrywide is
selling those certain mortgage loans identified in Exhibit A hereto and more
particularly described herein, excluding the servicing rights related thereto
(the "Mortgage Loans").
The purchase, sale and servicing of the Mortgage Loans as contemplated herein
shall be governed by that certain Master Mortgage Loan Purchase Agreement dated
as of February 26, 2007, between Countrywide and Purchaser (as amended herein
and otherwise, the "Purchase Agreement") and that certain Servicing Agreement
dated as of February 26, 2007 between Countrywide and Purchaser (both the
Purchase Agreement and the Servicing Agreement shall be referred to herein, as
applicable, as the "Agreement"). By executing this Purchase Confirmation, each
of Countrywide and Purchaser again makes, with respect to itself and each
Mortgage Loan, as applicable, all of the covenants, representations and
warranties made by each such party in the Agreement, except as the same may be
amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In the event
there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's payment of the
Purchase Proceeds in accordance with Section 2.08 of the Purchase Agreement,
Countrywide shall sell, transfer, assign and convey to Purchaser, without
recourse, but subject to the terms of the Purchase Confirmation and the Purchase
Agreement, all of the right, title and interest of Countrywide in and to the
Mortgage Loans, excluding the servicing rights relating thereto. Each Mortgage
Loan shall be serviced by Countrywide pursuant to the terms of the Servicing
Agreement.
2. Defined Terms. As used in the Agreement, the following defined terms shall
have meanings set forth below with respect to the related Mortgage Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
[d. Index: On each Interest Adjustment Date, the applicable index rate shall be
a rate per annum equal to [the weekly average yield on U.S. Treasury securities
adjusted to a constant maturity of one year, as published by the Board of
Governors of the Federal Reserve System in Statistical Release No. H.15] [the
average of interbank offered rates for six-month U.S. dollar denominated
deposits in the London market (LIBOR), as published [in the Wall Street Journal]
[by Xxxxxx Mae] [the 11th District Cost of Funds as made available by the
Federal Home Loan Bank] [the weekly average yield on certificates of deposit
adjusted to a constant maturity of six months as published by the Board of
Governors of the Federal Reserve System in Statistical Release No. H.15 or a
similar publication.]]
Missing Credit Documents: As set forth in Exhibit [C] hereto.
Notwithstanding anything contained in Section 2.04 of the Purchase Agreement to
the contrary, Countrywide's obligation to repurchase from the Purchaser the
Mortgage Loan related to a Missing Credit Document shall occur only in the event
of a default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Countrywide's obligation to deliver the Missing
Credit Document within the time specified in Section 2.04 of the Purchase
Agreement.
[f. Pending Mortgage Loans: As set forth in Exhibit [C] hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans] [each Mortgage Loan],
and as set forth in Exhibit [A] and Exhibit [B] hereto, the sum of (a) the
product of (i) the Cut-off Date Balance of [such Mortgage Loan] [such Mortgage
Loans], and (ii) the purchase price percentage set forth in Exhibit [A] hereto
for such [Mortgage Loan] [Mortgage Loans], and (b) accrued interest from the
Cut-off Date through the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the period prior to the
initial Interest Adjustment Date, [0.25]% and, thereafter, [0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with the
specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Conventional] [Government] Mortgage Loan
and a [Adjustable Rate] [Balloon] [Convertible] [Fixed Rate] Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a perfected [first] [second]
lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten generally in
accordance with Countrywide's credit underwriting guidelines in effect at the
time such Mortgage Loan was originated] [conforms to the Xxxxxx Mae or Xxxxxxx
Mac mortgage eligibility criteria (as such criteria applies to Countrywide) and
is eligible for sale to, and securitization by, Xxxxxx Mae or Xxxxxxx Mac]
[conforms in all material respects to the GNMA mortgage eligibility criteria and
is eligible for sale and securitization into a GNMA mortgage-backed security]
[at the time of origination was underwritten to guidelines which are consistent
with an institutional investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase Confirmation by
signing in the appropriate space below and returning this Purchase Confirmation
to the undersigned. Telecopy signatures shall be deemed valid and binding to the
same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. XXXXXX FUNDING LLC
By: _________________________________ By: _________________________________
Name: Xxxxxx Xxxxx Name:
Title: Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(attached)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(attached)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
LOAN COUNT LOAN NUMBER DOCUMENT
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
LOAN COUNT LOAN NUMBER DOCUMENT
EXHIBIT C
[RESERVED]
EXHIBIT D
FORM OF TRADE CONFIRMATION
[COUNTRYWIDE LETTERHEAD]
[DATE]
Xxxxxx Funding LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Xxxxxx Funding LLC
(Deal No. yr-mm-xxx)
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Xxxxxx
Funding LLC ("Purchaser") and Countrywide Home Loans, Inc. ("Countrywide")
pursuant to which Purchaser has agreed to purchase, and Countrywide has agreed
to sell, those certain mortgage loans [identified][summarized] in Exhibit A
hereto (the "Mortgage Loans"), subject to the terms set forth herein.
Closing Date: _________ __, [year][, provided, however,
that the parties shall use their best efforts to consummate the
transaction prior to [DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in
Exhibit A. [Loan-level pricing as set forth in Exhibit A.]
Product: [Jumbo]["A"][A-"]["Alt A"] [Sub-prime] [Conforming]
[Conventional] [Government] [Second Lien/HELOC] [[fixed][(x/1) Index adjustable]
rate mortgage loans]. (undefined terms should not be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Countrywide and
serviced on a [scheduled/scheduled] [actual/actual] [scheduled][actual]
basis for the servicing fee rate [equal to FEE% per annum][set forth in
Exhibit A [for each Mortgage Loan]]. [ With respect to the period prior
to the initial Interest Adjustment Date, 0.25% and, thereafter, 0.375%].
Prepayment Penalties: Xxxxxx Funding LLC shall be entitled
to any penalties resulting from the prepayment of any Mortgage Loans by
the related mortgagor(s).
Documentation: [Assignment of a [type of agreement]]
[Industry standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation. Countrywide may, at its option, elect
to substitute comparable mortgage loans for any Mortgage Loans rejected by
Purchaser pursuant to the preceding sentence.]
[Countrywide's sale of the Mortgage Loans is expressly subject to
(a) the review of the Mortgage Loans by Purchaser to confirm conformance with
the Trade Confirmation, and (b) purchase of the Mortgage Loans by Countrywide on
or before the Closing Date from the current owner of the Mortgage Loans (the
"Current Owner"). If either of the foregoing conditions are not satisfied,
Countrywide shall have no liability to Purchaser.]
Non-Circumvent: Countrywide and Purchaser understand and agree that
Countrywide may introduce the owner of the Mortgage Loans to Purchaser, that the
Current Owner is a customer of Countrywide and that such relationship of
Countrywide is confidential. Purchaser agrees, with respect to the Current
Owner, Purchaser will not, for the purpose of purchasing other mortgage loans
[for a period of one year from the Closing Date], communicate with or purchase
such other mortgage loans from the Current Owner unless the Current Owner has
had previous business dealings (other than any transactions involving
Countrywide) with the Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
COUNTRYWIDE HOME LOANS, INC. XXXXXX FUNDING LLC
By:___________________________________ By:___________________________________
Name: Xxxxxx Xxxxx Name:
Title: Title:
EXHIBIT A
to
TRADE CONFIRMATION
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(attached)
EXHIBIT B
to
TRADE CONFIRMATION
UNDERWRITING GUIDELINES
(attached)
EXHIBIT E
COUNTRYWIDE HOME LOANS, INC.
OFFICER'S CERTIFICATE
I, [NAME], hereby certify that I am the duly elected [TITLE] of
Countrywide Home Loans, Inc., a corporation organized under the laws of the
State of New York ( "Countrywide") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the Certificate of Incorporation of Countrywide which is in full force
and effect on the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the By-laws of Countrywide which are in effect on the date hereof.
3. Attached hereto as Exhibit 3 is a Certificate of Good Standing of
Countrywide issued within ten days of the date hereof, and no event has
occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of Countrywide
authorizing Countrywide to execute and deliver each of the [Master
Mortgage Loan Purchase Agreement and Servicing Agreement], dated as of
February 26, 2007, by and among Xxxxxx Funding LLC (the "Purchaser"), and
Countrywide (the "Sale and Servicing Agreement")] and to endorse the
[Mortgage Notes and execute the Assignments of Mortgages by facsimile
signature], and such resolutions are in effect on the date hereof.
5. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of Countrywide, signed (a) the [Sale and
Servicing Agreement], and (b) any other document delivered or on the date
hereof in connection with any purchase described in the agreements set
forth above was, at the respective times of such signing and delivery, and
is now, a duly elected or appointed, qualified and acting officer or
representative of Countrywide, who holds the office set forth opposite his
or her name on Exhibit 5, and the signatures of such persons appearing on
such documents are their genuine signatures.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of Countrywide.
Dated: [DATE]
By: ___________________________________
Name: [NAME]
Title: [TITLE]
[SEAL]
I, [NAME OF ASSISTANT SECRETARY], an Assistant Secretary of
Countrywide, hereby certify that [NAME] is the duly elected, qualified and
acting [TITLE] of Countrywide and that the signature appearing above is her
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:[DATE]
By: ___________________________________
Name: [NAME]
Title:Assistant Secretary
[SEAL]
EXHIBIT 1
to
OFFICER'S CERTIFICATE
EXHIBIT 2
to
OFFICER'S CERTIFICATE
EXHIBIT 3
to
OFFICER'S CERTIFICATE
EXHIBIT 4
to
OFFICER'S CERTIFICATE
RESOLUTIONS ADOPTED BY
THE BOARD OF DIRECTORS OF
COUNTRYWIDE HOME LOANS, INC.
AS OF [DATE]
EXHIBIT 5
to
OFFICER'S CERTIFICATE
NAME TITLE SIGNATURE
---------------------- ------------------------- -------------------------------
---------------------- ------------------------- -------------------------------
---------------------- ------------------------- -------------------------------
---------------------- ------------------------- -------------------------------
---------------------- ------------------------- -------------------------------
---------------------- ------------------------- -------------------------------
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---------------------- ------------------------- -------------------------------
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Xxxxxx Funding LLC from the company named on the next page (the
"Company") pursuant to that certain Mortgage Loan Purchase Agreement, dated as
of ______ __, 200_, and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Company or its designees, as of the date and time
of the sale of such Mortgage Loans to Xxxxxx Funding LLC. Such release shall be
effective automatically without any further action by any party upon payment in
one or more installments, in immediately available funds, of $_____________, in
accordance with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
_______________________________________
(Name)
_______________________________________
(Address)
_______________________________________
_______________________________________
_______________________________________
By:____________________________________
II. Certification of Release
The Company named below hereby certifies to Xxxxxx Funding LLC that,
as of the date and time of the sale of the above-mentioned Mortgage Loans to
Xxxxxx Funding LLC the security interests in the Mortgage Loans released by the
above-named financial institution comprise all security interests relating to or
affecting any and all such Mortgage Loans. The Company warrants that, as of such
time, there are and will be no other security interests affecting any or all of
such Mortgage Loans.
By:
Title:
Date:
EXHIBIT M-2
COUNTRYWIDE SERVICING AGREEMENT
SERVICING AGREEMENT
between
COUNTRYWIDE HOME LOANS INC.
(Countrywide)
and
BARCLAYS BANK PLC
(Purchaser)
Dated as of August 30th, 2006
Conventional Residential Mortgage Loans
PRELIMINARY STATEMENT
ARTICLE I. DEFINITIONS
ARTICLE II.
Section 2.01 Representations and Warranties Respecting Countrywide.......
ARTICLE III. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Countrywide to Act as Servicer..............................
Section 3.02 Collection of Mortgage Loan Payments........................
Section 3.03 Realization Upon Defaulted Mortgage Loans...................
Section 3.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts...................................................
Section 3.05 Permitted Withdrawals From the Custodial Account............
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.............................................................
Section 3.07 Permitted Withdrawals From Escrow Account...................
Section 3.08 Transfer of Accounts........................................
Section 3.09 Payment of Taxes, Insurance and Other Charges;
Maintenance of PMI Policies; Collections Thereunder..................
Section 3.10 Maintenance of Hazard Insurance.............................
Section 3.11 [Reserved]..................................................
Section 3.12 Fidelity Bond; Errors and Omissions Insurance...............
Section 3.13 Title, Management and Disposition of REO Property...........
Section 3.14 Notification of Adjustments.................................
Section 3.15 Notification of Maturity Date...............................
Section 3.16 Assumption Agreements.......................................
Section 3.17 Satisfaction of Mortgages and Release of Collateral Files...
Section 3.18 Servicing Compensation......................................
Section 3.19 Restoration of Mortgaged Property...........................
Section 3.20 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999................
ARTICLE IV. PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 4.01 Distributions...............................................
Section 4.02 Periodic Reports to the Purchaser...........................
Section 4.03 Monthly Advances by Countrywide.............................
Section 4.04 Annual Statement as to Compliance...........................
Section 4.05 Annual Independent Certified Public Accountants'
Servicing Report.....................................................
Section 4.06 Purchaser's Access to Countrywide's Records.................
ARTICLE V.
Section 5.01 Indemnification by Countrywide..............................
Section 5.02 Merger or Consolidation of Countrywide......................
Section 5.03 Limitation on Liability of Countrywide and Others...........
Section 5.04 No Transfer of Servicing....................................
Section 5.05 Subservicing................................................
ARTICLE VI. TERMINATION OF COUNTRYWIDE AS SERVICER
Section 6.01 Termination Due to an Event of Default......................
Section 6.02 Termination by Other Means..................................
ARTICLE VII. MISCELLANEOUS
Section 7.01 Notices.....................................................
Section 7.02 Exhibits....................................................
Section 7.03 General Interpretive Principles.............................
Section 7.04 Reproduction of Documents...................................
Section 7.05 Further Agreements..........................................
Section 7.06 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers...............................................
Section 7.07 Conflicts between Transaction Documents.....................
Section 7.08 Governing Law...............................................
Section 7.09 Severability Clause.........................................
Section 7.10 Successors and Assigns......................................
Section 7.11 Confidentiality.............................................
Section 7.12 Entire Agreement............................................
Section 7.13 Counterparts................................................
Section 7.14 Waivers.....................................................
Section 7.15 Waiver of Trial by Jury.....................................
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement") dated as of August 30th, 2006, is by
and between COUNTRYWIDE HOME LOANS INC., in its capacity as servicer
("Countrywide"), and Barclays Bank PLC, and its permitted successors and
assigns, as Purchaser (the "Purchaser").
PRELIMINARY STATEMENT
WHEREAS, the Purchaser and Countrywide have entered into that certain
Master Mortgage Loan Purchase Agreement dated as of August 30th, 2006 between
the Purchaser and Countrywide, as seller (the "Purchase Agreement"), pursuant to
which the Purchaser will purchase and Countrywide will sell from time to time,
certain Mortgage Loans (as hereinafter defined) identified in a Purchase
Confirmation;
WHEREAS, Countrywide is in the business of providing primary servicing of
mortgage loans and owns the right to service the Mortgage Loans listed on the
Mortgage Loan Schedule (as hereinafter defined);
WHEREAS, Countrywide has agreed to service the Mortgage Loans for the
Purchaser on the terms and conditions set forth herein; and
WHEREAS, Countrywide and the Purchaser desire to prescribe the terms and
conditions regarding the management, servicing, and control of such Mortgage
Loans.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Countrywide and the Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of a similar type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Mae or Xxxxxxx Mac.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Servicing Agreement, including all exhibits and
supplements hereto, and all amendments hereof.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California or the State of Texas are authorized or obligated by law or executive
order to be closed.
Cash Liquidation: Recovery of all cash proceeds by Countrywide with
respect to the termination of any defaulted Mortgage Loan other than a Mortgage
Loan which became an REO Property, including all PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds, Liquidation Proceeds, Condemnation
Proceeds and other payments or recoveries whether made at one time or over a
period of time which Countrywide deems to be finally recoverable, in connection
with the sale or assignment of such Mortgage Loan, trustee's sale, foreclosure
sale or otherwise.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A of the Purchase Agreement.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Countrywide: Countrywide Home Loans, Inc., or any successor or
assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.04 herein, each of which shall be an Eligible Account.
Custodial Agreement: The agreement governing the retention of the
Collateral Files by the Custodian.
Custodian: Xxxxx Fargo Bank, N.A., its successor in interest or
assign, or such other custodian that may be designated by Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to an Agency.
Escrow Account: The separate trust account or accounts created and
maintained pursuant to Section 3.06 herein, each of which shall be an Eligible
Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.01 of this Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
Xxxxxx Mae Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxx Xxx.
Fidelity Bond: A fidelity bond to be maintained by Countrywide
pursuant to Section 3.12 of this Agreement.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Xxxxxxx Mac Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxxx Mac under its Cash Purchase Program or MBS Program
(Special Servicing Option).
GNMA: The Government National Mortgage Association or any successor
organization.
Government Insurance Proceeds: With respect to each Government
Mortgage Loan, payments made pursuant to a MIC or LGC.
Government Mortgage Loan: A Mortgage Loan insured by the FHA or
guaranteed by the VA.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
LGC: A loan guarantee certificate issued by the VA.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds, proceeds of any REO Disposition or
otherwise, which represent late payments or collections of Monthly Payments due
but delinquent for a previous Due Period and not previously recovered.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Government
Insurance Proceeds, Condemnation Proceeds and Other Insurance Proceeds, received
by Countrywide in connection with the liquidation of a defaulted Mortgage Loan
through trustee's sale, foreclosure sale or otherwise, other than amounts
received following the acquisition of an REO Property pursuant to Section 3.13
of this Agreement.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MIC: A mortgage insurance certificate issued by HUD.
Monthly Advance: The advances made or required to be made by
Countrywide on any Remittance Date pursuant to this Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, upon a
leasehold estate of the Mortgagor, as the case may be.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Government Insurance Proceeds (if applicable), Other Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans included therein and made a part of the related
Purchase Confirmation, which schedule shall include, the following information
with respect to each Mortgage Loan: (i) Countrywide's loan number identifying
such Mortgage Loan; (ii) the Mortgage Interest Rate, less any LPMI Fee, as of
the Cut-off Date; (iii) with respect to any Adjustable Rate Mortgage Loan, the
Gross Margin, the Periodic Rate Cap, the Lifetime Rate Cap, the next Interest
Adjustment Date and whether such Adjustable Rate Mortgage Loan is a Convertible
Mortgage Loan, (iv) with respect to a LPMI Loan, the LPMI Fee, (v) with respect
to each First Lien Mortgage Loan, the LTV at origination and, with respect to
each Second Lien Mortgage Loan, the Combined LTV at origination; (vi) the
remaining term as of the Cut-off Date and the original term of such Mortgage
Loan, (vii) whether such Mortgage Loan is a First Lien Mortgage Loan or a Second
Lien Mortgage Loan (viii) any other information pertaining to such Mortgage Loan
as may be reasonably requested by the Purchaser, (ix) with respect to each
Option ARM Mortgage Loan, (a) the maximum negative amortization percentage, and
(b) the recast period, (x) name, address, city and ZIP Code of Mortgagor, (xi)
the Stated Principal Balance, (xii) appraisal amount, (xiii) purchase amount,
(xiv) loan amount, (xv) first Monthly Payment Due Date, (xvi) credit score,
(xvii) document type, (xviii) occupancy type, (xix) payment current through
date, (xx) Prepayment Penalty flag and term, and (xxi) interest-only term, if
applicable. The information set forth in the Mortgage Loan Schedule relating to
the Mortgage Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with respect
to any LPMI Loan, as applicable, is exclusive of the LPMI Fee.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor three different payment options each month, which
include: (i) a minimum monthly payment option, (ii) an interest-only payment
option or (iii) a full principal and interest option which amortizes over 30
years or less.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage backed securities transaction.
Payment Adjustment Date: As to each Mortgage Loan, the date on which
an adjustment to the Monthly Payment on a Mortgage Note becomes effective.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Prepayment Interest Shortfall Amount: With respect to any Remittance
Date and Mortgage Loan that was subject to a Principal Prepayment in full or in
part during the related Principal Prepayment Period, which Principal Prepayment
was applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
calendar month, the amount of interest (at the Mortgage Loan Remittance Rate)
that would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Prepayment Penalty: With respect to each Mortgage Loan, a prepayment
penalty, charge, premium or fee, if any, payable upon the Principal Prepayment
in full of such Mortgage Loan, as set forth in the related Mortgage Note or
Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any Prepayment Penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment Period: As to any Remittance Date, the calendar
month preceding the month of distribution.
Purchase Confirmation: A letter agreement, substantially in the form
of an exhibit to the Purchase Agreement, executed by Countrywide and the
Purchaser in connection with the purchase and sale of each Mortgage Loan
Package, which sets forth the terms relating thereto including a description of
the related Mortgage Loans (including the Mortgage Loan Schedule), the purchase
price for such Mortgage Loans, the Closing Date and the Servicing Fee Rate.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 7.06 of this Agreement.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in the related
mortgage loan purchase agreement; (v) shall be the same type of Mortgage Loan
(i.e., a Convertible Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution Agreements: The agreement or agreements entered into
by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Pass-Through Transfer or an Agency Transfer
pursuant to Section 7.06.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 7.06
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate. On such date, the Mortgage Loans transferred shall cease to be
covered by this Agreement and Countrywide's servicing responsibilities shall
cease under this Agreement with respect to the related transferred Mortgage
Loans.
Relief Act: The Servicemembers' Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of Subchapter M of Chapter
1, Subtitle A, of the Code, and related provisions, and proposed, temporary and
final Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO Property
or the transfer of the management of such REO Property to the Purchaser as set
forth in Section 3.13 of this Agreement.
REO Property: A Mortgaged Property acquired by Countrywide on behalf
of the Purchaser as described in Section 3.13 of this Agreement.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan plus (ii) interest on
such Stated Principal Balance at the Mortgage Loan Remittance Rate from the last
date through which interest has been paid and distributed to the Purchaser to
the date of repurchase, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
on the related Mortgaged Property.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by Countrywide of its
servicing obligations, including the cost of (i) the preservation, restoration
and protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of the
REO Property, (iv) with respect to Government Mortgage Loans, amounts advanced
to the Purchaser for which Countrywide may be entitled to receive reimbursement
from a government agency and (v) compliance with the obligations under this
Agreement including Section 3.09 hereof.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Countrywide, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. Solely in the event Countrywide is terminated as servicer of the
Mortgage Loans, the Servicing Fee shall be prorated (based upon the number of
days of the related month Countrywide so acted as servicer relative to the total
number of days in that month) for each part thereof. The obligation of the
Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee is
payable solely from, the interest portion of such Monthly Payment collected by
Countrywide, or as otherwise provided herein. Subject to the foregoing, and with
respect to each Mortgage Loan, Countrywide shall be entitled to receive its
Servicing Fee through the disposition of any related REO Property and the
Servicing Fee payable with respect to any REO Property shall be based on the
Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Servicing Officer: Any officer of Countrywide involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by Countrywide to
Purchaser upon request, as such list may from time to time be amended.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of
an exhibit attached to the Purchase Agreement executed by Countrywide and the
Purchaser prior to the applicable Closing Date confirming the terms of a
prospective purchase and sale of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, this Agreement
and the Purchase Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
VA: The Department of Veterans Affairs.
Whole Loan Transfer: The sale or transfer by the Purchaser of some
or all of the Mortgage Loans in a whole loan format.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan and the servicing of the Mortgage Loan in accordance with the terms of this
Agreement;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to service each Mortgage Loan. This Agreement has been duly
executed and delivered and constitutes the valid, legal, binding and enforceable
obligation of Countrywide, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by Countrywide
to make this Agreement valid and binding upon Countrywide in accordance with its
terms;
(c) No Conflict. Neither the servicing of the Mortgage Loans for the
Purchaser, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of Countrywide's organizational documents or result in a material
breach of any legal restriction or any material agreement or instrument to which
Countrywide is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any material law, rule, regulation, order, judgment or decree
to which Countrywide or its property is subject;
(d) Approved Servicer. Countrywide is an approved servicer for each
Agency in good standing. No event has occurred, including a change in insurance
coverage, which would make Countrywide unable to comply with Xxxxxx Xxx, Xxxxxxx
Mac eligibility requirements;
(e) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the servicing of the Mortgage
Loans to the Purchaser or Countrywide's ability to perform its obligations under
this Agreement;
(f) No Consent Required. 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,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date; and
(g) Reasonable Servicing Fee. Countrywide acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Countrywide, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement.
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Countrywide to Act as Servicer.
Countrywide shall service and administer Mortgage Loans sold
pursuant to this Agreement in accordance with the terms of this Agreement and
shall have full power and authority, acting alone, to do or cause to be done any
and all things, in connection with such servicing and administration, that
Countrywide may deem necessary or desirable and consistent with the terms of
this Agreement. In servicing and administering the Mortgage Loans, Countrywide
shall employ procedures in accordance with the customary and usual standards of
practice of prudent mortgage servicers. Notwithstanding anything to the contrary
contained herein, in servicing and administering Government Mortgage Loans,
Countrywide shall not take, or fail to take, any action that would result in the
denial of coverage under any LGC or MIC, as applicable. Without limiting the
generality of the foregoing, with respect to any Government Mortgage Loan,
Countrywide shall be permitted to deviate from the servicing practices set forth
herein if such deviation would be consistent with the servicing practices
employed in connection with any similar mortgage loan constituting a part of a
GNMA mortgage-backed security.
In accordance with the terms of the related mortgage loan purchase
agreement, Countrywide may waive, modify or vary any term of any Mortgage Loan
or consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if in Countrywide's reasonable and
prudent determination such waiver, modification, postponement or indulgence is
not materially adverse to the Purchaser; provided, however, that Countrywide
shall not permit any modification with respect to any Mortgage Loan that would
decrease the Mortgage Interest Rate (other than by adjustments required by the
terms of the Mortgage Note), result in the denial of coverage under a PMI
Policy, LGC or MIC, reduce the outstanding principal amount (except for actual
payments of principal) forgive the payment of principal or interest, or extend
the final maturity date on such Mortgage Loan without the Purchaser's consent.
Countrywide may permit forbearance or allow for suspension of Monthly Payments
for up to one hundred and eighty (180) days if the Mortgagor is in default or
Countrywide determines in its reasonable discretion, that default is imminent
and if Countrywide determines that granting such forbearance or suspension is in
the best interest of the Purchaser. If any modification, forbearance or
suspension permitted hereunder allows the deferral of interest or principal
payments on any Mortgage Loan, Countrywide shall include in each remittance for
any month in which any such principal or interest payment has been deferred
(without giving effect to such modification, forbearance or suspension) an
amount equal to such month's principal and one (1) month's interest at the
Mortgage Loan Remittance Rate on the then unpaid principal balance of the
Mortgage Loan and shall be entitled to reimbursement for such advances only to
the same extent as for Monthly Advances made pursuant to Section 4.03 of this
Agreement. Without limiting the generality of the foregoing, Countrywide shall
continue, and is hereby authorized and empowered to execute and deliver on
behalf of itself and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. If reasonably required by Countrywide, the Purchaser shall
furnish Countrywide with any powers of attorney and other documents necessary or
appropriate to enable Countrywide to carry out its servicing and administrative
duties under this Agreement.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, Countrywide shall not
take any action, cause the REMIC to take any action or fail to take (or fail to
cause to be taken) any action, that under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) materially and adversely affect the status
of the REMIC as a REMIC or (ii) result in the imposition of a tax upon the REMIC
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860(a)(2) of the Code and the tax on "contributions" to a REMIC set
forth in Section 860D of the Code) unless Countrywide has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not materially and adversely affect such REMIC
status or result in the imposition of any tax on the REMIC.
Section 3.02 Collection of Mortgage Loan Payments.
Countrywide shall make reasonable efforts, in accordance with the
customary and usual standards of practice of prudent mortgage servicers, to
collect all payments due under each Mortgage Loan to the extent such procedures
shall be consistent with this Agreement, the terms and provisions of any related
PMI Policy, MIC or LGC, and applicable law. Countrywide shall take special care
in ascertaining and estimating Escrow Payments in accordance with Accepted
Servicing Practices.
Section 3.03 Realization Upon Defaulted Mortgage Loans.
(a) Foreclosure. Countrywide shall use reasonable efforts to
foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments. Countrywide shall use reasonable efforts to realize upon defaulted
Mortgage Loans, in such manner as will maximize the receipt of principal and
interest by the Purchaser, taking into account, among other things, the timing
of foreclosure proceedings. The foregoing is subject to the provisions that, in
any case in which Mortgaged Property shall have suffered damage, Countrywide
shall not be required to expend its own funds toward the restoration of such
property unless it shall determine in its discretion (i) that such restoration
will increase the proceeds of liquidation of the related Mortgage Loan to the
Purchaser after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by Countrywide through PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds or Liquidation Proceeds from the
related Mortgaged Property. Countrywide shall notify the Purchaser in writing of
the commencement of foreclosure proceedings. Such notice may be contained in the
reports prepared by Countrywide and delivered to the Purchaser pursuant to the
terms and conditions of this Agreement. Countrywide shall be responsible for all
costs and expenses incurred by it in any foreclosure proceedings; provided,
however, that it shall be entitled to reimbursement thereof from proceeds from
the related Mortgaged Property.
Section 3.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts.
Countrywide shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one (1) or more
Custodial Accounts, in the form of time deposit or demand accounts and shall be
titled "[Countrywide] in trust for Barclays Bank PLC as Purchaser of Mortgage
Loans and various Mortgagors." Countrywide shall provide the Purchaser with
written evidence of the creation of such Custodial Account(s) within thirty (30)
days of the Initial Closing Date.
Countrywide shall deposit in the Custodial Account within two (2)
Business Days following receipt thereof, and retain therein, the following
payments and collections received or made by it subsequent to the Cut-off Date,
or received by it prior to the Cut-off Date but allocable to a period subsequent
thereto, other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date:
(a) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans,
adjusted to the Mortgage Loan Remittance Rate;
(c) all proceeds from a Cash Liquidation;
(d) all PMI Proceeds, Government Insurance Proceeds and Other
Insurance Proceeds, including amounts required to be deposited pursuant to
Sections 3.08 and 3.10 of this Agreement, other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Countrywide's normal
servicing procedures, the loan documents or applicable law;
(e) all Condemnation Proceeds affecting any Mortgaged Property which
are not released to the Mortgagor in accordance with Countrywide's normal
servicing procedures, the loan documents or applicable law;
(f) all Monthly Advances;
(g) all proceeds of any Mortgage Loan repurchased in accordance with
Section 3.03 or 3.04 of the Purchase Agreement, and any amount required to be
deposited by Countrywide in connection with any shortfall in principal amount of
the Qualified Substitute Mortgage Loans and the repurchased Mortgage Loans as
required pursuant to Section 3.03 of the Purchase Agreement;
(h) any amounts required to be deposited by Countrywide pursuant to
Section 3.10 of this Agreement in connection with the deductible clause in any
blanket hazard insurance policy (such deposit shall be made from Countrywide's
own funds, without reimbursement therefor);
(i) the Prepayment Interest Shortfall Amount, if any, for the month
of distribution (such deposit shall be made from Countrywide's own funds,
without reimbursement therefor up to a maximum amount per month equal to the
lesser of one half of (a) one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loans, or (b) the
aggregate Servicing Fee actually received for such month for the Mortgage
Loans); and
(j) any amounts required to be deposited by Countrywide in
connection with any REO Property pursuant to Section 3.13 of this Agreement.
The foregoing requirements for deposit in the Custodial Account are
exclusive. The Purchaser understands and agrees that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
Prepayment Penalties and assumption fees (to the extent permitted by Section
3.16 of this Agreement) need not be deposited by Countrywide in the Custodial
Account. Any interest paid by the depository institution on funds deposited in
the Custodial Account shall accrue to the benefit of Countrywide and Countrywide
shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 3.05(d) of this Agreement.
Section 3.05 Permitted Withdrawals From the Custodial Account.
Countrywide may, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(a) to make payments to the Purchaser in the amounts and in the
manner provided for in Sections 4.01 and 4.03 of this Agreement;
(b) to reimburse itself for Monthly Advances (Countrywide's
reimbursement for Monthly Advances shall be limited to amounts received on the
related Mortgage Loan (or to amounts received on the Mortgage Loans as a whole
if the Monthly Advance is made due to a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Relief Act) which represent Late
Collections, net of the related Servicing Fee and LPMI Fee, if applicable.
Countrywide's right to reimbursement hereunder shall be prior to the rights of
the Purchaser, except that, where Countrywide is required to repurchase a
Mortgage Loan pursuant to Section 3.03 or 3.04 of the Purchase Agreement,
Countrywide's right to such reimbursement shall be subsequent to the payment to
the Purchaser of the Repurchase Price and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loans. Notwithstanding the
foregoing, Countrywide may reimburse itself for Monthly Advances from any funds
in the Custodial Account if it has determined that such funds are nonrecoverable
advances or if all funds, with respect to the related Mortgage Loan, have
previously been remitted to the Purchaser);
(c) to reimburse itself for unreimbursed Servicing Advances and any
unpaid Servicing Fees (Countrywide's reimbursement for Servicing Advances and/or
Servicing Fees hereunder with respect to any Mortgage Loan shall be limited to
proceeds from Cash Liquidation, Liquidation Proceeds, Condemnation Proceeds, PMI
Proceeds, Government Insurance Proceeds and Other Insurance Proceeds; provided,
however, that Countrywide may reimburse itself for Servicing Advances and
Servicing Fees from any funds in the Custodial Account if all funds, with
respect to the related Mortgage Loan, have previously been remitted to the
Purchaser. Notwithstanding the foregoing, with respect to each Government
Mortgage Loan, Countrywide shall not be entitled to reimbursement of any
Servicing Advances that constitute losses and expenses for which an issuer of
GNMA securities would be responsible, pursuant to Chapter 4 of the GNMA Handbook
5500.2, if such Government Mortgage Loan had been included in a GNMA security);
(d) to pay to itself as servicing compensation (i) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Remittance Date), and (ii) the Servicing Fee and the
LPMI Fee, if applicable, from that portion of any payment or recovery of
interest on a particular Mortgage Loan;
(e) to pay to itself, with respect to each Mortgage Loan that has
been repurchased pursuant to Section 3.03 or 3.04 of the Purchase Agreement, all
amounts received but not distributed as of the date on which the related
Repurchase Price is determined;
(f) to reimburse itself for any amounts deposited in the Custodial
Account in error; and
(g) to clear and terminate the Custodial Account upon the
termination of this Agreement.
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
Countrywide shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one (1) or more Escrow Accounts in the form of time
deposit or demand accounts, which accounts shall be Eligible Accounts.
Countrywide shall provide the Purchaser with written evidence of the creation of
such Escrow Account(s) within thirty (30) days of the Initial Closing Date.
Countrywide shall deposit in the Escrow Account(s) within two (2)
Business Days following receipt thereof, and retain therein, (a) all Escrow
Payments collected on account of the Mortgage Loans, and (b) all Other Insurance
Proceeds that are to be applied to the restoration or repair of any Mortgaged
Property. Countrywide shall make withdrawals therefrom only to effect such
payments as are required under this Agreement, and for such other purposes in
accordance with Section 3.07 of this Agreement. Countrywide shall be entitled to
retain any interest paid by the depository institution on funds deposited in the
Escrow Account except interest on escrowed funds required by law to be paid to
the Mortgagor or the related Mortgage. Countrywide shall pay Mortgagor interest
on the escrowed funds at the rate required by law notwithstanding that the
Escrow Account is non-interest bearing or the interest paid by the depository
institution thereon is insufficient to pay the Mortgagor interest at the rate
required by law.
Section 3.07 Permitted Withdrawals From Escrow Account.
Countrywide may, from time to time, withdraw funds from the Escrow
Account(s) for the following purposes: (a) to effect timely payments of the
following items, if applicable, ground rents, taxes, assessments, water rates,
mortgage insurance premiums, fire and hazard insurance premiums, PMI Policy
premiums, if applicable, and comparable items constituting Escrow Payments for
the related Mortgage; (b) to reimburse Countrywide for any Servicing Advance
made by Countrywide with respect to a related Mortgage Loan; provided, however,
that such reimbursement shall only be made from amounts received on the related
Mortgage Loan that represent late payments or collections of Escrow Payments
thereunder; (c) to refund to the Mortgagor any funds as may be determined to be
overages; (d) for transfer to the Custodial Account in accordance with the terms
of this Agreement; (e) for application to restoration or repair of the Mortgaged
Property; (f) to pay to Countrywide, or to the Mortgagors to the extent required
by law, any interest paid on the funds deposited in the Escrow Account; (g) to
reimburse itself for any amounts deposited in the Escrow Account in error; or
(h) to clear and terminate the Escrow Account on the termination of this
Agreement.
Section 3.08 Transfer of Accounts.
Countrywide may transfer the Custodial Account or the Escrow Account
to a different depository institution from time to time provided that such
Custodial Account and Escrow Account shall at all times be Eligible Accounts.
Section 3.09 Payment of Taxes, Insurance and Other Charges;
Maintenance of PMI Policies; Collections Thereunder.
With respect to each Mortgage Loan, Countrywide shall maintain
accurate records reflecting the status of (a) ground rents, taxes, assessments,
water rates and other charges that are or may become a lien upon the Mortgaged
Property; (b) primary mortgage insurance premiums; (c) with respect to Mortgage
Loans insured by the FHA, mortgage insurance premiums, and (d) fire and hazard
insurance premiums. Countrywide shall obtain, from time to time, all bills for
the payment of such charges, including renewal premiums, and shall effect
payment thereof prior to the applicable penalty or termination date and at a
time appropriate for securing maximum discounts allowable using Escrow Payments
which shall have been estimated and accumulated by Countrywide in amounts
sufficient for such purposes. To the extent that the Mortgage does not provide
for Escrow Payments, Countrywide shall determine that any such payments are made
by the Mortgagor at the time they first become due. Countrywide assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills, irrespective of the Mortgagor's faithful performance
in the payment of same or the making of the Escrow Payments, and shall make
advances from its own funds to effect such payments.
Countrywide will maintain in full force and effect, a PMI Policy
conforming in all respects to the description set forth in Section 3.02(v) of
the Purchase Agreement, issued by an insurer described in that Section, with
respect to each Mortgage Loan for which such coverage is herein required. Such
coverage will be maintained until the LTV or the Updated LTV of the related
Mortgage Loan is reduced to 80% or less in the case of a Mortgage Loan having a
LTV at origination in excess of 80%. or Countrywide, as applicable, will not
cancel or refuse to renew any PMI Policy in effect on the Closing Date that is
required to be kept in force under this Agreement unless a replacement PMI
Policy is obtained from and maintained with an insurer that is approved by an
Agency. Countrywide shall not take any action that would result in non-coverage
under any applicable PMI Policy of any loss that, but for the actions of
Countrywide would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into pursuant
to Section 3.16 herein, Countrywide shall promptly notify the insurer under the
related PMI Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions that may be
required by such insurer as a condition to the continuation of coverage under
the PMI Policy. If such PMI Policy is terminated as a result of such assumption
or substitution of liability, Countrywide shall obtain a replacement PMI Policy
as provided above.
Unless otherwise provided in the related Purchase Confirmation, no
Mortgage Loan has in effect as of the Closing Date any mortgage pool insurance
policy or other credit enhancement, except for any PMI Policy, MIC or LGC and
the insurance or guarantee relating thereto, as applicable (excluding such
exception, the "Credit Enhancement"), and Countrywide shall not be required to
take into consideration the existence of any such Credit Enhancement for the
purposes of performing its servicing obligations hereunder. If the Purchaser
shall at any time after the related Closing Date notify Countrywide in writing
of its desire to obtain any such Credit Enhancement, the Purchaser and
Countrywide shall thereafter negotiate in good faith for the procurement and
servicing of such Credit Enhancement.
Section 3.10 Maintenance of Hazard Insurance.
Countrywide shall cause to be maintained, for each Mortgage Loan,
fire and hazard insurance with extended coverage as is customary in the area
where the Mortgaged Property is located in an amount that is equal to the lesser
of (a) the maximum insurable value of the improvements securing such Mortgage
Loan or (b) the greater of (i) the unpaid principal balance of the Mortgage
Loan, and (ii) the percentage such that the proceeds thereof shall be sufficient
to prevent the Mortgagor and/or the Mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards and such flood
insurance has been made available, Countrywide shall cause to be maintained a
flood insurance policy meeting the requirements of the current guidelines of the
National Flood Insurance Administration program (or any successor thereto) with
a generally acceptable insurance carrier and with coverage in an amount not less
than the lesser of (x) the unpaid principal balance of the Mortgage Loan; (y)
the maximum insurable value of the improvements securing such Mortgage Loan; or
(z) the maximum amount of insurance which is available under the National Flood
Insurance Reform Act of 1994. Countrywide shall also maintain on REO Property,
(1) fire and hazard insurance with extended coverage in an amount that is not
less than the maximum insurable value of the improvements that are a part of
such property; (2) liability insurance; and (3) to the extent required and
available under the National Flood Insurance Reform Act of 1994, flood insurance
in an amount as provided above. Countrywide shall deposit in the Custodial
Account all amounts collected under any such policies except (A) amounts to be
deposited in the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or REO Property and (B) amounts to be released to the
Mortgagor in accordance with Countrywide's normal servicing procedures. The
Purchaser understands and agrees that no earthquake or other additional
insurance on property acquired in respect of the Mortgage Loan shall be
maintained by Countrywide or Mortgagor. All such policies shall be endorsed with
standard mortgagee clauses with loss payable to Countrywide and shall provide
for at least thirty (30) days prior written notice to Countrywide of any
cancellation, reduction in the amount of coverage or material change in
coverage. Countrywide shall not interfere with the Mortgagor's freedom of choice
in selecting either the insurance carrier or agent; provided, however, that
Countrywide shall only accept insurance policies from insurance companies
acceptable to an Agency and licensed to do business in the state wherein the
property subject to the policy is located.
Section 3.11 [Reserved].
Section 3.12 Fidelity Bond; Errors and Omissions Insurance.
Countrywide shall cause to be maintained a blanket Fidelity Bond and
an errors and omissions insurance policy with responsible companies, with broad
coverage of all officers, employees or other persons acting in any capacity with
regard to the Mortgage Loan who handle funds, money, documents or papers
relating to the Mortgage Loans. The Fidelity Bond and errors and omissions
insurance shall be in the form of the Mortgage Banker's Blanket Bond and shall
protect and insure Countrywide against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of its officers,
employees and agents. Such Fidelity Bond shall also protect and insure
Countrywide against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.12 shall diminish
or relieve Countrywide from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to the corresponding amounts
required by an Agency for an approved seller/servicer. Upon the request of the
Purchaser, Countrywide shall provide to the Purchaser a certificate of insurance
which certifies coverage of such Fidelity Bond and errors and omissions
insurance policy under this Section 3.12. .
Section 3.13 Title, Management and Disposition of REO Property.
(a) Title. In the event that title to the Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be taken in the name of Countrywide for the benefit of
the Purchaser, or in the event the Purchaser is not authorized or permitted to
hold title to real property in the state where the REO Property is located, or
would be adversely affected under the "doing business" or tax laws of such state
by so holding title, the deed or certificate of sale shall be taken in the name
of such Person(s) as shall be consistent with an Opinion of Counsel obtained by
Countrywide from an attorney duly licensed to practice law in the state where
the REO Property is located. Any Person(s) holding such title other than the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the benefit of the Purchaser.
(b) Management. Countrywide shall either itself or through an agent
selected by Countrywide, manage, conserve, protect and operate each REO Property
in the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account. Countrywide shall cause each REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least annually thereafter or
more frequently as required by the circumstances. Countrywide shall make or
cause to be made a written report of each such inspection. Such reports shall be
retained in the Credit File and copies thereof shall be forwarded by Countrywide
to the Purchaser within five (5) days of the Purchaser's request therefor.
Countrywide shall attempt to sell the REO Property (and may temporarily rent the
same for a period not greater than one year except as otherwise provided below)
on such terms and conditions as Countrywide deems to be in the best interest of
the Purchaser. Countrywide shall deposit, or cause to be deposited, within two
(2) Business Days of following receipt receipt thereof, in the Custodial Account
all revenues received with respect to each REO Property and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of each REO Property, including the cost of maintaining any hazard insurance
pursuant to Section 3.10 hereof and the fees of any managing agent acting on
behalf of Countrywide. Notwithstanding anything contained in this Agreement to
the contrary, upon written notice to Countrywide, the Purchaser may elect to
assume the management and control of any REO Property; provided, however, that
prior to giving effect to such election, the Purchaser shall reimburse
Countrywide for all previously unreimbursed or unpaid Monthly Advances,
Servicing Advances and Servicing Fees related to such REO Property.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held,
Countrywide shall manage, conserve, protect and operate each REO Property in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by such REMIC of any "income from non permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code.
(c) Disposition. Subject to the following paragraph, Countrywide
shall use best efforts to dispose of each REO Property as soon as possible and
shall sell each REO Property no later than one (1) year after title to such REO
Property has been obtained, unless Countrywide determines, and gives an
appropriate notice to the Purchaser, that a longer period is necessary for the
orderly disposition of any REO Property. If a period longer than one (1) year is
necessary to sell any REO Property, Countrywide shall, if requested by the
Purchaser, report monthly to the Purchaser as to the progress being made in
selling such REO Property. Countrywide shall also maintain, on each REO
Property, fire and hazard insurance with extended coverage in an amount which is
at least equal to the maximum insurable value of the improvements which are a
part of such property, liability insurance and, to the extent required and
available under the National Flood Insurance Act of 1968, as amended, flood
insurance in the amount required in Section3.10 hereof.
Each REO Disposition shall be carried out by Countrywide at such
price and upon such terms and conditions as Countrywide deems to be in a manner
that maximizes the net present value of the recovery to the Purchaser. If, as of
the date title to any REO Property was acquired by Countrywide there were
outstanding unreimbursed Servicing Advances, Monthly Advances or Servicing Fees
with respect to the REO Property or the related Mortgage Loan, Countrywide upon
an REO Disposition of such REO Property, shall be entitled to reimbursement for
any related unreimbursed Servicing Advances, Monthly Advances and Servicing Fees
from proceeds received in connection with such REO Disposition. The proceeds
from the REO Disposition, net of any payment to Countrywide as provided above,
shall be promptly deposited in the Custodial Account and distributed to the
Purchaser in accordance with Section 4.01 of this Agreement.
Section 3.14 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, Countrywide
shall adjust the Mortgage Interest Rate on the related Interest Adjustment Date
and shall adjust the Monthly Payment on the related Payment Adjustment Date in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. If, pursuant to the terms of the Mortgage Note, another index is
selected for determining the Mortgage Interest Rate because the original index
is no longer available, the same index will be used with respect to each
Mortgage Note which requires a new index to be selected, provided that such
selection does not conflict with the terms of the related Mortgage Note.
Countrywide shall execute and deliver any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments.
Countrywide shall promptly, upon written request therefor, deliver to the
Purchaser such notifications and any additional applicable data regarding such
adjustments and the methods used to calculate and implement such adjustments.
Upon the discovery by Countrywide or the Purchaser that Countrywide has failed
to adjust a Mortgage Interest Rate or a Monthly Payment pursuant to the terms of
the related Mortgage Note and Mortgage, Countrywide shall immediately deposit in
the Custodial Account, from its own funds, the amount of any interest loss
caused the Purchaser thereby without reimbursement therefor.
Section 3.15 Notification of Maturity Date.
With respect to each Balloon Mortgage Loan, Countrywide shall
execute and deliver to the Mortgagor any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the maturity date and final balloon payment.
Section 3.16 Assumption Agreements.
Countrywide shall, to the extent it has knowledge of any conveyance
or prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that
Countrywide shall not exercise any such right if prohibited from doing so by law
or the terms of the Mortgage Note or if the exercise of such right would impair
or threaten to impair any recovery under the related PMI Policy, if any. If
Countrywide reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause, Countrywide shall enter into an assumption agreement
with the Person to whom the Mortgaged Property has been conveyed or is proposed
to be conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Where an assumption is allowed pursuant to this Section 3.16,
the Purchaser authorizes Countrywide, with the prior written consent of the
primary mortgage insurer, if any, to enter into a substitution of liability
agreement with the Person to whom the Mortgaged Property has been conveyed or is
proposed to be conveyed pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the related Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of liability,
Countrywide shall follow the underwriting practices and procedures employed by
Countrywide for mortgage loans originated by Countrywide for its own account in
effect at the time such assumption or substitution is made. With respect to an
assumption or substitution of liability, the Mortgage Interest Rate borne by the
related Mortgage Note, the term of the Mortgage Loan and the outstanding
principal amount of the Mortgage Loan shall not be changed. Countrywide shall
notify the Purchaser that any such substitution of liability or assumption
agreement has been completed by forwarding to the Purchaser or its designee the
original of any such substitution of liability or assumption agreement, which
document shall be added to the related Collateral File and shall, for all
purposes, be considered a part of such Collateral File to the same extent as all
other documents and instruments constituting a part thereof.
Notwithstanding anything to the contrary contained herein,
Countrywide shall not be deemed to be in default, breach or any other violation
of its obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or any assumption that Countrywide may be restricted by law
from preventing, for any reason whatsoever. For purposes of this Section 3.16,
the term "assumption" is deemed to also include a sale of the Mortgaged Property
subject to the Mortgage that is not accompanied by an assumption or substitution
of liability agreement.
Section 3.17 Satisfaction of Mortgages and Release of Collateral
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
Countrywide of a notification that payment in full will be escrowed in a manner
customary for such purposes, Countrywide shall immediately notify the Purchaser
after the Monthly Remittance Advice (as defined in Section 4.02) has been
provided in accordance with Section 4.02 and Countrywide may request the release
of any Mortgage Loan documents from the Purchaser in accordance with Section
3.17 hereof. Such notice shall include a statement to the effect that all
amounts received or to be received in connection with such payment, which are
required to be deposited in the Custodial Account pursuant to Section 3.04 of
this Agreement, have been or will be so deposited and shall request delivery to
it of the portion of the Collateral File held by the Purchaser. Upon receipt of
such notice and request, the Purchaser shall within five (5) Business Days
release or cause to be released to Countrywide the related Collateral Documents
and Countrywide shall prepare and process any satisfaction or release. In the
event that the Purchaser fails to release or cause to be released to Countrywide
the related Collateral Documents within five (5) Business Days of Countrywide's
request therefor, the Purchaser shall be liable to Countrywide for any
additional expenses or costs, including, but not limited to, outsourcing fees
and penalties, incurred by Countrywide resulting from such failure. No expense
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account.
With respect to a Mortgage Loan paid in full as set forth in the
above paragraph, if the Mortgage has been recorded in the name of MERS or its
designee, Countrywide shall take all necessary action to effect the release of
the Mortgage Loan on the records of MERS.
In the event Countrywide satisfies or releases a Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage or should it otherwise prejudice any right the Purchaser may have under
the mortgage instruments, Countrywide, upon written demand of the Purchaser,
shall promptly remit to the Purchaser the then unpaid principal balance of the
related Mortgage Loan by deposit thereof in the Custodial Account. Countrywide
shall maintain the Fidelity Bond and errors and omissions insurance policy as
provided for in Section 3.12 insuring Countrywide against any loss it may
sustain with respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
From time to time and as appropriate for the service or foreclosure
of a Mortgage Loan, including for the purpose of collection under any PMI
Policy, the Purchaser shall, within five (5) Business Days of Countrywide's
request and delivery to the Purchaser, or the Purchaser's designee, of a
servicing receipt signed by a Servicing Officer, release or cause to be released
to Countrywide the portion of the Collateral File held by the Purchaser or its
designee. Pursuant to the servicing receipt, Countrywide shall be obligated to
return to the Purchaser the related Collateral File when Countrywide no longer
needs such file, unless the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Custodial Account or the Collateral File or such document has been delivered to
an attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially. In
the event that the Purchaser fails to release or cause to be released to
Countrywide the portion of the Collateral File held by the Purchaser or its
designee within five (5) Business Days of Countrywide's request therefor, the
Purchaser shall be liable to Countrywide for any additional expenses or costs,
including, but not limited to, outsourcing fees and penalties, incurred by
Countrywide resulting from such failure. Upon receipt of notice from Countrywide
stating that such Mortgage Loan was liquidated, the Purchaser shall release
Countrywide from its obligations under the related servicing receipt.
Section 3.18 Servicing Compensation.
As compensation for its services hereunder, Countrywide shall be
entitled to withdraw from the Custodial Account, or to retain from interest
payments on the Mortgage Loans, the amounts provided for as Servicing Fees.
Additional servicing compensation in the form of assumption fees (as provided in
Section 3.16 of this Agreement), late payment charges, prepayment penalties or
otherwise shall be retained by Countrywide e to the extent not required to be
deposited in the Custodial Account. Countrywide shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided herein.
Section 3.19 Restoration of Mortgaged Property
Countrywide need not obtain the approval of the Purchaser prior to
releasing any Other Insurance Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in accordance
with Accepted Servicing Practices and the terms of this Agreement. At a minimum,
Countrywide shall comply with the following conditions in connection with any
such release of Other Insurance Proceeds.
(a) Countrywide shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with respect
thereto;
(b) Countrywide shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to requiring
waivers with respect to mechanics'and materialmen's liens; and
(c) Pending repairs and restoration, Countrywide shall place Other
Insurance Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, Countrywide
is hereby empowered to endorse any loss draft issued in respect of such a claim
in the name of the Purchaser.
Section 3.20 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999.
With respect to each Mortgage Loan, Countrywide and the Purchaser
shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended and
as applicable, and all applicable regulations promulgated thereunder, and shall
provide all notices required thereunder.
ARTICLE IV.
PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 4.01 Distributions.
On each Remittance Date, Countrywide shall distribute to the
Purchaser (a) all amounts credited to the Custodial Account as of the close of
business on the preceding Determination Date, net of charges against or
withdrawals from the Custodial Account pursuant to Section 3.05 hereof; plus (b)
all Monthly Advances, if any, that Countrywide is obligated to distribute
pursuant to Section 4.03 of this Agreement; minus (c) any amounts attributable
to Principal Prepayments received after the related Principal Prepayment Period;
minus (d) any amounts attributable to Monthly Payments collected but due on a
Due Date or Dates subsequent to the preceding Determination Date. It is
understood that, by operation of Section 3.04 hereof, the remittance on the
first Remittance Date is to include principal collected after the Cut-off Date
through the preceding Determination Date plus interest, adjusted to the Mortgage
Loan Remittance Rate, collected through such Determination Date exclusive of any
portion thereof allocable to the period prior to the Cut-off Date, with the
adjustments specified in (b), (c) and (d) above.
Section 4.02 Periodic Reports to the Purchaser.
(a) Monthly Reports. Not later than each Remittance Date,
Countrywide shall furnish to the Purchaser via an electronic medium mutually
acceptable to the parties, a monthly report in a form reasonably acceptable to
the parties ("a Monthly Remittance Advice"), which report shall include with
respect to each Mortgage Loan the following loan-level information: (i) the
scheduled balance as of the last day of the related Due Period, (ii) all
Principal Prepayments applied to the Mortgagor's account during the related
Principal Prepayment Period, and (iii) the delinquency and bankruptcy status of
the Mortgage Loan, if applicable.
(b) Miscellaneous Reports. Upon the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Purchaser pursuant to a
deed-in-lieu of foreclosure, Countrywide shall submit to the Purchaser a
liquidation report with respect to such Mortgaged Property, which report may be
included with any other reports prepared by Countrywide and delivered to the
Purchaser pursuant to the terms and conditions of this Agreement. With respect
to any REO Property, and upon the request of the Purchaser, Countrywide shall
furnish to the Purchaser a statement describing Countrywide's efforts during the
previous month in connection with the sale of such REO Property, including any
rental of such REO Property incidental to the sale thereof and an operating
statement. Following the foreclosure sale or abandonment of any Mortgaged
Property, Countrywide shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code or any successor provision thereof.
Countrywide shall also provide the Purchaser with such information concerning
the Mortgage Loans as is necessary for the Purchaser to prepare its federal
income tax return as the Purchaser may reasonably request from time to time. The
Purchaser agrees to pay for all reasonable out-of-pocket expenses incurred by
Countrywide in connection with complying with any request made by the Purchaser
hereunder if such information is not customarily provided by Countrywide in the
ordinary course of servicing mortgage loans similar to the Mortgage Loans.
Section 4.03 Monthly Advances by Countrywide.
Not later than the close of business on the Determination Date
preceding each Remittance Date, Countrywide shall deposit in the Custodial
Account an amount equal to all payments not previously advanced by Countrywide,
whether or not deferred pursuant to Section 4.01 of this Agreement, of principal
(due after the Cut-off Date) and interest not allocable to the period prior to
the Cut-off Date, adjusted to the Mortgage Loan Remittance Rate, which were due
on a Mortgage Loan and delinquent as of the close of business on the Business
Day prior to the related Determination Date. Notwithstanding anything to the
contrary herein, Countrywide may use amounts on deposit in the Custodial Account
for future distribution to the Purchaser to satisfy its obligation, if any, to
deposit delinquent amounts pursuant to the preceding sentence. To the extent
Countrywide uses any funds being held for future distribution to the Purchaser
to satisfy its obligations under this Section 4.03 hereof, Countrywide shall
deposit in the Custodial Account an amount equal to such used funds no later
than the Determination Date prior to the following Remittance Date to the extent
that funds in the Custodial Account on such Remittance Date are less than the
amounts to be remitted to the Purchaser pursuant to Section 4.01 of this
Agreement.
Countrywide's obligation to make such advances as to any Mortgage
Loan will continue through the earliest of: (a) the last Monthly Payment due
prior to the payment in full of the Mortgage Loan; (b) the Remittance Date prior
to the Remittance Date for the distribution of any Liquidation Proceeds, Other
Insurance Proceeds or Condemnation Proceeds which, in the case of Other
Insurance Proceeds and Condemnation Proceeds, satisfy in full the indebtedness
of such Mortgage Loan; or (c) the Remittance Date prior to the date the Mortgage
Loan is converted to REO Property; provided, however, with respect to any
Government Mortgage Loan that is converted to REO Property, Countrywide's
obligation to make such advances will continue in accordance with the applicable
governmental agency's guidelines. In no event shall Countrywide be obligated to
make an advance under this Section 4.03 of this Agreement if at the time of such
advance it reasonably determines that such advance will be unrecoverable.
Section 4.04 Annual Statement as to Compliance.
Countrywide shall deliver to the Purchaser on or before March 5th of
each calendar year, beginning in the year following the Closing Date, signed by
a senior officer of Countrywide stating that (a) a review of the activities of
Countrywide during the preceding fiscal year and of performance under this
Agreement have been made under such officer's supervision, (b) based on such
review, Countrywide has fulfilled all of its obligations under this Agreement
throughout such fiscal year, or, if there has been a default in the fulfillment
of any obligation, specifying each such default known to such officer and the
nature and status thereof and the actions being taken by Countrywide to cure
such default, and (iii) all reports and information provided to Purchaser by
Countrywide, pursuant to Countrywide's reporting requirements under the
Agreement, are accurate and complete in all material respects. Copies of such
statement may be provided by Purchaser to any Person identified as a prospective
purchaser of the Mortgage Loans.
Section 4.05 Annual Independent Certified Public Accountants'
Servicing Report.
Countrywide shall, on or before March 5th of each year, beginning in
the year following the Closing Date, cause, at its sole cost and expense, a firm
of independent public accountants, which is a member of the American Institute
of Certified Public Accountants, to furnish a statement to the Purchaser to the
effect that such firm has examined certain documents and records and performed
certain other procedures relating to the servicing of the Mortgage Loans during
the immediately preceding fiscal year of Countrywide and that such firm is of
the opinion that, on the basis of such examination conducted substantially in
accordance with the Uniform Single Attestation Program for Mortgage Bankers,
such servicing has been conducted in compliance therewith, except for such
exceptions as shall be set forth in such statement.
Section 4.06 Purchaser's Access to Countrywide's Records.
The Purchaser shall have access upon reasonable notice to
Countrywide, during regular business hours or at such other times as might be
reasonable under applicable circumstances, to any and all of the books and
records of Countrywide that relate to the performance or observance by
Countrywide of the terms, covenants or conditions of this Agreement. Further,
Countrywide hereby authorizes the Purchaser, in connection with a sale of the
Mortgage Loans, to make available to prospective purchasers a Consolidated
Statement of Operations of Countrywide, or its parent company, prepared by or at
the request of Countrywide for the most recently completed three (3) fiscal
years for which such a statement is available as well as a Consolidated
Statement of Condition at the end of the last two (2) fiscal years covered by
such Consolidated Statement of Operations. Se also agrees to make available to
any prospective purchaser, upon reasonable notice and during normal business
hours, a knowledgeable financial or accounting officer for the purpose of
answering questions respecting Countrywide's ability to perform under this
Agreement. The Purchaser agrees to reimburse Countrywide for any out-of-pocket
costs incurred by Countrywide in connection with its obligations under this
Section 4.06.
ARTICLE V.
COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide.
Countrywide shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and expenses and related costs,
judgments, and any other costs, fees and expenses that the Purchaser may sustain
in any way related to (a) a material breach of any of the representations or
warranties made by Countrywide in Section 2.01 of this Agreement, or (b) the
failure of Countrywide to perform its obligations hereunder including its
obligations to service and administer the Mortgage Loans in compliance with the
terms of this Agreement. Notwithstanding the foregoing, the Purchaser shall
indemnify Countrywide and hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that
Countrywide may sustain in any way related to (a) actions or inactions of
Countrywide which were taken or omitted upon the instruction or direction of the
Purchaser, (b) the failure of the Purchaser to perform its obligations
hereunder, including subsections (i) and (ii) in Section 5.03 of this Agreement,
or (c) failure of the Purchaser to comply with Section 3.20 of this Agreement.
The indemnification rights set forth in this Section 5.01 shall
survive the termination of this Agreement or the resignation or removal of
Countrywide for any reason.
Section 5.02 Merger or Consolidation of Countrywide.
Countrywide shall 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.
Notwithstanding anything to the contrary contained herein, any
Person into which Countrywide may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Countrywide
shall be a party, or any Person succeeding to the business of Countrywide, shall
be the successor of Countrywide hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however, that the successor or surviving Person shall be an institution whose
deposits are insured by FDIC or a company whose business is the servicing of
mortgage loans, unless otherwise consented to by the Purchaser, which consent
shall not be unreasonably withheld, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section 5.03 Limitation on Liability of Countrywide and Others.
Neither Countrywide nor any of the officers, employees or agents of
Countrywide shall be under any liability to the Purchaser for any action taken,
or for refraining from taking any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Countrywide or any such person against any breach of
warranties or representations made herein, or the failure to perform its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. Countrywide and any officer, employee or
agent of Countrywide may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Notwithstanding anything to the contrary contained in this
Agreement, unless one or more Event(s) of Default by Countrywide shall occur and
shall not have been remedied within the time limits set forth in Section 6.01(a)
of this Agreement, the Purchaser shall not record or cause to be recorded an
Assignment of Mortgage with the recording office. To the extent the Purchaser
records with the recording office as permitted herein an Assignment of Mortgage
which designates the Purchaser as the holder of record of the Mortgage, the
Purchaser agrees that it shall (i) provide Countrywide with immediate notice of
any action with respect to the Mortgage or the related Mortgaged Property and
ensure that the proper department or person at Countrywide receives such notice;
and (ii) immediately complete, sign and return to Countrywide any document
reasonably requested by Countrywide to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Countrywide. The Purchaser further agrees that Countrywide shall
have no liability for the Purchaser's failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Countrywide shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Countrywide
may, with the consent of the Purchaser, undertake any such action which it may
deem necessary or desirable to protect the Purchaser's interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Purchaser will be liable, and Countrywide shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to Countrywide's indemnification under Section 5.01
of this Agreement.
Section 5.04 No Transfer of Servicing.
Countrywide acknowledges that the Purchaser acts in reliance upon
Countrywide's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting the
generality of this Section, Countrywide shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the Purchaser,
which consent may not be unreasonably withheld; provided, however, that nothing
in this Agreement shall limit the right of Countrywide to assign the servicing
rights hereunder to Servicing LP. In the event Countrywide assigns the servicing
rights to Servicing LP as contemplated in this Section 5.04, the Servicing LP
shall assume all obligations of Countrywide, as servicer, under this Agreement
from and after the date of such assignment.
Section 5.05 Subservicing.
Countrywide may enter into subservicing agreements or arrangements
for the servicing and administration of any or all of the Mortgage Loans.
Countrywide will remain obligated and primarily liable to the Purchaser for the
servicing of the Mortgage Loans in accordance with the provisions of this
Agreement, without diminution of such obligation or liability by virtue of the
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 Countrywide alone were servicing the Mortgage Loans. Countrywide will be
solely liable for all fees owed by it to any subservicer.
ARTICLE VI.
TERMINATION OF COUNTRYWIDE AS SERVICER
Section 6.01 Termination Due to an Event of Default.
(a) Each of the following shall be an Event of Default by
Countrywide if it shall occur and, if applicable, be continuing for the period
of time set forth therein:
(i) any failure by Countrywide to remit to the Purchaser any
payment required to be made under the terms of this Agreement which
such failure continues unremedied for a period of three (3) Business
Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall be given to Countrywide by
the Purchaser; or
(ii) any failure on the part of Countrywide to duly observe or
perform in any material respect any of the covenants or agreements
on the part of Countrywide set forth in this Agreement which
continues unremedied for a period of thirty (30) days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to Countrywide by the Purchaser
(except that such number of days shall be fifteen in the case of a
failure to pay any premium for any insurance policy required to be
maintained under this Agreement; a failure on the part of
Countrywide to deliver the statement or report, as applicable,
required to be delivered under Section 4.04 or 4.05 of this
Agreement, which continues unremedied for nine calendar days after
receipt by Countrywide of written notice of such failure from the
Purchaser (which failure shall continue no later than March 15th of
each year ("Due Date") with respect to Section 4.04 or 4.05 of this
Agreement; provided, however, Countrywide shall have received such
written notice of such failure at least 5 Business Days prior to
such Due Date); or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against Countrywide and such decree
or order shall have remained in force undischarged or unstayed for a
period of sixty (60) days; or
(iv) Countrywide shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to Countrywide or of or relating
to all or substantially all of its property; or
(v) Countrywide shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(vi) Countrywide ceases to meet the servicer eligibility
qualifications of a Xxxxxx Xxx and Xxxxxxx Mac; or
(vii) Countrywide fails to maintain its license to do business
or service residential mortgage loans in any jurisdiction where the
Mortgaged Properties are located if such license is required, which
failure continues unremedied for a period of sixty-five (65) days,
or such other additional time as mutually agreed upon by the
Purchaser and Countrywide; provided, however, that it is understood
by the Purchaser that the failure to cure within the timeframe
provided for herein (or such additional time as mutually agreed upon
by the Purchaser and the Servicer) shall constitute an Event of
Default solely for the affected Mortgage Loan.
In case one or more Events of Default by Countrywide shall occur and
shall not have been remedied, the Purchaser, by notice in writing to Countrywide
may, in addition to whatever rights the Purchaser may have at law or equity to
damages, including injunctive relief and specific performance, terminate without
compensation (however, Countrywide shall be reimbursed for all outstanding and
unreimbursed Servicing Advances and Monthly Advances), all the rights and
obligations of Countrywide under this Agreement, the Purchase Agreement and in
and to the Mortgage Loans and the proceeds thereof. Upon the receipt by
Countrywide of such written notice, all authority and power of Countrywide under
this Agreement and the Purchase Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Purchaser. Upon written
request from the Purchaser, Countrywide shall prepare, execute and deliver, any
and all documents and other instruments and 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, at Countrywide's sole
expense. Countrywide agrees to cooperate with the Purchaser in effecting the
termination of Countrywide's responsibilities and rights hereunder, including
without limitation, the transfer to the Purchaser, for administration by it, of
all cash amounts which shall at the time be credited by Countrywide to the
Custodial Account or Escrow Account or thereafter received with respect to the
Mortgage Loans.
(b) Waiver of Event of Default. The Purchaser may waive any default
by Countrywide in the performance of Countrywide's obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Events of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereto except
to the extent expressly so waived.
Section 6.02 Termination by Other Means.
The respective obligations and responsibilities of Countrywide shall
terminate with respect to any Mortgage Loan Package upon the first to occur of:
(a) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or the disposition of all REO
Property in such Mortgage Loan Package and the remittance of all funds due
hereunder; (b) by mutual consent of Countrywide and the Purchaser in writing;
(c) the purchase by Countrywide of all outstanding Mortgage Loans and REO
Property in a Mortgage Loan Package at a price mutually agreed upon by the
parties; or (d) the Pass-Through Transfer of the last Mortgage Loan in such
Mortgage Loan Package.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx
With a copy to: General Counsel
(ii) the Purchaser:
Barclays Bank PLC
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
E-Mail: xxxxx.xxxxxxx@xxxxxxxxxxxxxxx.xxx
With a copy to: Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
E-Mail: Xxxxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx
To the address and contact set forth in the related Purchase
Confirmation or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 7.02 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 7.03 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a). the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b). accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c). references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d). reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e). the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f). the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g). reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 7.04 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 7.05 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 7.06 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans in a Whole Loan Transfer or
Pass-Through Transfer and may assign this Agreement; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement in
the form of an assignment, assumption and recognition agreement ("AAR")
reasonably acceptable to the Purchaser and Countrywide and an original
counterpart of the AAR shall have been executed by the Purchaser and the
transferee and delivered to Countrywide. Notwithstanding the foregoing, no
transfer shall be effective if such transfer would result in there being more
than three (3) "Purchasers" outstanding hereunder with respect to any Mortgage
Loan Package. Any Person or trust to which Mortgage Loans may be transferred
pursuant to this Section 7.06(a) or Section 7.06(b) hereunder shall constitute a
single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Countrywide agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 7.06(a) hereof, may effect Pass-Through
Transfers, retaining Countrywide, as the servicer thereof or subservicer if a
master servicer is employed, or as applicable the "seller/servicer." On the
related Reconstitution Date, the Mortgage Loans transferred shall cease to be
covered by this Agreement; provided, however, that, in the event that any
Mortgage Loan transferred pursuant to this Section 7.06 is rejected by the
related transferee, Countrywide shall continue to service such rejected Mortgage
Loan on behalf of the Purchaser in accordance with the terms and provisions of
this Agreement. Countrywide shall cooperate with the Purchaser in connection
with each Pass-Through Transfer in accordance with this Section 7.06. In
connection therewith Countrywide shall:
(i) negotiate in good faith an AAR required to effectuate the
Pass-Through Transfer, provided such AAR creates no greater
obligation or cost on the part of Countrywide than otherwise set
forth in this Agreement, and provided further that Countrywide shall
be entitled to a servicing fee under that agreement at a rate per
annum no less than the Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Countrywide of the type and
scope customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of Countrywide as are
reasonably believed necessary by the trustee, any rating agency or
the Purchaser, as the case may be, in connection with such
Pass-Through Transfer. The Purchaser shall pay all third party costs
associated with the preparation of the information described in
clause (ii)(A) above and the delivery of any opinions, letters or
certificates described in this clause (ii)(B). Countrywide shall not
be required to execute any AAR unless a draft of such AAR is
provided to Countrywide at least 10 days before the Reconstitution
Date, or such longer period as may reasonably be required for
Countrywide and its counsel to review and comment on the agreement.
(c) In connection with any Pass-Through Transfer, Countrywide shall
not be required to "bring down" any of the representations and warranties in
this Agreement (i.e., the representations and warranties only speak as of the
applicable date set forth in the Purchase Agreement), or, except as provided in
the following sentence, to make any other representations or warranties
whatsoever. Upon request, Countrywide will bring down the representations and
warranties in Section 2.01 of this Agreement to a date no later than the related
Reconstitution Date.
(d) Countrywide shall: (i) provide to the Purchaser any and all
necessary information and appropriate verification of information which may be
reasonably available to Countrywide, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; and (ii) execute an indemnity agreement agreed upon by the Purchaser
and Countrywide such as an Indemnification and Contribution Agreement in a form
to be mutually agreed upon by the parties. Moreover, Countrywide agrees to
cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements.
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers shall remain subject to this Agreement and shall continue
to be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
Section 7.07 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Purchase Agreement and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control. In the event of any conflict, inconsistency or
ambiguity between the terms and conditions of this Agreement and the Purchase
Agreement, the terms of this Agreement shall control.
Section 7.08 Governing Law.
This Agreement shall be deemed in effect when fully executed
counterpart and shall be deemed to have been made in the State of New York. The
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall be
deemed in accordance with the substantive laws of the State of New York (without
regard to conflict of laws principles), except to the extent preempted by
applicable federal Law.
Section 7.09 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 7.10 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide, the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser. Except as specifically
set forth in Section 7.06 above, the Purchaser may not assign, pledge or
hypothecate this Agreement to any Person without Countrywide's prior written
consent.
Section 7.11 Confidentiality.
Countrywide and the Purchaser acknowledge and agree that the terms
of the Transaction Documents shall be kept confidential and their contents will
not be divulged to any party without the other party's consent, except to the
extent that it is appropriate for Countrywide and the Purchaser to do so in
working with legal counsel, auditors, taxing authorities, or other governmental
agencies.
Section 7.12 Entire Agreement.
This Agreement and Purchase Confirmation constitute the entire
understanding between the Countrywide and the Purchaser with respect to each
Mortgage Loan Package and supersede all prior or contemporaneous oral or written
communications regarding same. Countrywide and the Purchaser understand and
agree that no employee, agent or other representative of Countrywide or the
Purchaser has any authority to bind such party with regard to any statement,
representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within the
express terms of this Agreement or the related Purchase Confirmation. Neither
this Agreement nor the related Purchase Confirmation shall be modified, amended
or in any way altered except by an instrument in writing signed by both parties.
Section 7.13 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 7.14 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 7.15 Waiver of Trial by Jury.
COUNTRYWIDE AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.16 Consent to Service of Process.
EACH OF THE PURCHASER AND COUNTRYWIDE IRREVOCABLY (I) SUBMITS TO THE
NON EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT;
(II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES
THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV)
CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED
MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
COUNTRYWIDE HOME LOANS INC.,
Countrywide
By:______________________________________
Name: Xxxxxx Xxxxx
Title:
BARCLAYS BANK PLC,
the Purchaser
By:______________________________________
Name
Title:
SERVICING AGREEMENT
between
COUNTRYWIDE HOME LOANS INC.
(Countrywide)
and
XXXXXX FUNDING LLC
(Purchaser)
Dated as of February 26th, 2007
Conventional Residential Mortgage Loans
PRELIMINARY STATEMENT
ARTICLE I. DEFINITIONS
ARTICLE II. REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties Respecting Countrywide.........
ARTICLE III. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Countrywide to Act as Servicer................................
Section 3.02 Collection of Mortgage Loan Payments..........................
Section 3.03 Realization Upon Defaulted Mortgage Loans.....................
Section 3.04 Establishment of Custodial Accounts; Deposits in Custodial
Accounts....................................................
Section 3.05 Permitted Withdrawals From the Custodial Account..............
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts....................................................
Section 3.07 Permitted Withdrawals From Escrow Account.....................
Section 3.08 Transfer of Accounts..........................................
Section 3.09 Payment of Taxes, Insurance and Other Charges; Maintenance
of PMI Policies; Collections Thereunder.....................
Section 3.10 Maintenance of Hazard Insurance...............................
Section 3.11 [Reserved]....................................................
Section 3.12 Fidelity Bond; Errors and Omissions Insurance.................
Section 3.13 Title, Management and Disposition of REO Property.............
Section 3.14 Notification of Adjustments...................................
Section 3.15 Notification of Maturity Date.................................
Section 3.16 Assumption Agreements.........................................
Section 3.17 Satisfaction of Mortgages and Release of Collateral Files.....
Section 3.18 Servicing Compensation........................................
Section 3.19 Restoration of Mortgaged Property.............................
Section 3.20 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999................
ARTICLE IV. PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 4.01 Distributions.................................................
Section 4.02 Periodic Reports to the Purchaser.............................
Section 4.03 Monthly Advances by Countrywide...............................
Section 4.04 Annual Statement as to Compliance.............................
Section 4.05 Annual Independent Certified Public Accountants' Servicing
Report......................................................
Section 4.06 Purchaser's Access to Countrywide's Records...................
ARTICLE V. COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide................................
Section 5.02 Merger or Consolidation of Countrywide........................
Section 5.03 Limitation on Liability of Countrywide and Others.............
Section 5.04 No Transfer of Servicing......................................
Section 5.05 Subservicing..................................................
ARTICLE VI. TERMINATION OF COUNTRYWIDE AS SERVICER
Section 6.01 Termination Due to an Event of Default........................
Section 6.02 Termination by Other Means....................................
ARTICLE VII. MISCELLANEOUS
Section 7.01 Notices.......................................................
Section 7.02 Exhibits......................................................
Section 7.03 General Interpretive Principles...............................
Section 7.04 Reproduction of Documents.....................................
Section 7.05 Further Agreements............................................
Section 7.06 Assignment of Mortgage Loans by the Purchaser; Pass-Through
Transfers...................................................
Section 7.07 Conflicts between Transaction Documents.......................
Section 7.08 Governing Law.................................................
Section 7.09 Severability Clause...........................................
Section 7.10 Successors and Assigns........................................
Section 7.11 Confidentiality...............................................
Section 7.12 Entire Agreement..............................................
Section 7.13 Counterparts..................................................
Section 7.14 Waivers.......................................................
Section 7.15 Waiver of Trial by Jury.......................................
SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement") dated as of February 26th, 2007, is
by and between COUNTRYWIDE HOME LOANS INC., in its capacity as servicer
("Countrywide"), and Xxxxxx Funding LLC, and its permitted successors and
assigns, as Purchaser (the "Purchaser").
PRELIMINARY STATEMENT
WHEREAS, the Purchaser and Countrywide have entered into that
certain Master Mortgage Loan Purchase Agreement dated as of February 26th, 2007
between the Purchaser and Countrywide, as seller (the "Purchase Agreement"),
pursuant to which the Purchaser will purchase and Countrywide will sell from
time to time, certain Mortgage Loans (as hereinafter defined) identified in a
Purchase Confirmation;
WHEREAS, Countrywide is in the business of providing primary
servicing of mortgage loans and owns the right to service the Mortgage Loans
listed on the Mortgage Loan Schedule (as hereinafter defined);
WHEREAS, Countrywide has agreed to service the Mortgage Loans for
the Purchaser on the terms and conditions set forth herein; and
WHEREAS, Countrywide and the Purchaser desire to prescribe the terms
and conditions regarding the management, servicing, and control of such Mortgage
Loans.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Countrywide and
the Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of a similar type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Mae or Xxxxxxx Mac.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Servicing Agreement, including all exhibits and
supplements hereto, and all amendments hereof.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California or the State of Texas are authorized or obligated by law or executive
order to be closed.
Cash Liquidation: Recovery of all cash proceeds by Countrywide with
respect to the termination of any defaulted Mortgage Loan other than a Mortgage
Loan which became an REO Property, including all PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds, Liquidation Proceeds, Condemnation
Proceeds and other payments or recoveries whether made at one time or over a
period of time which Countrywide deems to be finally recoverable, in connection
with the sale or assignment of such Mortgage Loan, trustee's sale, foreclosure
sale or otherwise.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A of the Purchase Agreement.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Countrywide: Countrywide Home Loans, Inc., or any successor or
assign to Countrywide under this Agreement as provided herein.
Credit File: The file retained by Countrywide that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Countrywide on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.04 herein, each of which shall be an Eligible Account.
Custodial Agreement: The agreement governing the retention of the
Collateral Files by the Custodian.
Custodian: Xxxxx Fargo Bank, N.A., its successor in interest or
assign, or such other custodian that may be designated by Purchaser from time
to time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Eligible Account: An account or accounts (i) maintained with a
depository institution the short term debt obligations of which are rated by a
nationally recognized statistical rating agency in one of its two (2) highest
rating categories at the time of any deposit therein, (ii) the deposits of which
are insured up to the maximum permitted by the FDIC, or (iii) maintained with an
institution and in a manner acceptable to an Agency.
Escrow Account: The separate trust account or accounts created and
maintained pursuant to Section 3.06 herein, each of which shall be an Eligible
Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.01 of this Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
Xxxxxx Mae Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxx Xxx.
Fidelity Bond: A fidelity bond to be maintained by Countrywide
pursuant to Section 3.12 of this Agreement.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first
lien on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Xxxxxxx Mac Transfer: Any sale or transfer of some or all of the
Mortgage Loans to Xxxxxxx Mac under its Cash Purchase Program or MBS Program
(Special Servicing Option).
GNMA: The Government National Mortgage Association or any
successor organization.
Government Insurance Proceeds: With respect to each Government
Mortgage Loan, payments made pursuant to a MIC or LGC.
Government Mortgage Loan: A Mortgage Loan insured by the FHA or
guaranteed by the VA.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
LGC: A loan guarantee certificate issued by the VA.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
Late Collections: With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds, proceeds of any REO Disposition or
otherwise, which represent late payments or collections of Monthly Payments due
but delinquent for a previous Due Period and not previously recovered.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Government
Insurance Proceeds, Condemnation Proceeds and Other Insurance Proceeds, received
by Countrywide in connection with the liquidation of a defaulted Mortgage Loan
through trustee's sale, foreclosure sale or otherwise, other than amounts
received following the acquisition of an REO Property pursuant to Section 3.13
of this Agreement.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Countrywide to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Countrywide is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MIC: A mortgage insurance certificate issued by HUD.
Monthly Advance: The advances made or required to be made by
Countrywide on any Remittance Date pursuant to this Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien, in the case of a First Lien Mortgage
Loan, or a second lien, in the case of a Second Lien Mortgage Loan, upon a
leasehold estate of the Mortgagor, as the case may be.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Government Insurance Proceeds (if applicable), Other Insurance
Proceeds, REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans included therein and made a part of the related
Purchase Confirmation, which schedule shall include, the following information
with respect to each Mortgage Loan: (i) Countrywide's loan number identifying
such Mortgage Loan; (ii) the Mortgage Interest Rate, less any LPMI Fee, as of
the Cut-off Date; (iii) with respect to any Adjustable Rate Mortgage Loan, the
Gross Margin, the Periodic Rate Cap, the Lifetime Rate Cap, the next Interest
Adjustment Date and whether such Adjustable Rate Mortgage Loan is a Convertible
Mortgage Loan, (iv) with respect to a LPMI Loan, the LPMI Fee, (v) with respect
to each First Lien Mortgage Loan, the LTV at origination and, with respect to
each Second Lien Mortgage Loan, the Combined LTV at origination; (vi) the
remaining term as of the Cut-off Date and the original term of such Mortgage
Loan, (vii) whether such Mortgage Loan is a First Lien Mortgage Loan or a Second
Lien Mortgage Loan (viii) any other information pertaining to such Mortgage Loan
as may be reasonably requested by the Purchaser, (ix) with respect to each
Option ARM Mortgage Loan, (a) the maximum negative amortization percentage, and
(b) the recast period, (x) name, address, city and ZIP Code of Mortgagor, (xi)
the Stated Principal Balance, (xii) appraisal amount, (xiii) purchase amount,
(xiv) loan amount, (xv) first Monthly Payment Due Date, (xvi) credit score,
(xvii) document type, (xviii) occupancy type, (xix) payment current through
date, (xx) Prepayment Penalty flag and term, and (xxi) interest-only term, if
applicable. The information set forth in the Mortgage Loan Schedule relating to
the Mortgage Interest Rate, Periodic Rate Cap and Lifetime Rate Cap with respect
to any LPMI Loan, as applicable, is exclusive of the LPMI Fee.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given.
Option ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that
gives the related Mortgagor three different payment options each month, which
include: (i) a minimum monthly payment option, (ii) an interest-only payment
option or (iii) a full principal and interest option which amortizes over 30
years or less.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, if any, to the extent such proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor in accordance with the procedures that Countrywide would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage backed securities transaction.
Payment Adjustment Date: As to each Mortgage Loan, the date on which
an adjustment to the Monthly Payment on a Mortgage Note becomes effective.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Prepayment Interest Shortfall Amount: With respect to any Remittance
Date and Mortgage Loan that was subject to a Principal Prepayment in full or in
part during the related Principal Prepayment Period, which Principal Prepayment
was applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
calendar month, the amount of interest (at the Mortgage Loan Remittance Rate)
that would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Prepayment Penalty: With respect to each Mortgage Loan, a prepayment
penalty, charge, premium or fee, if any, payable upon the Principal Prepayment
in full of such Mortgage Loan, as set forth in the related Mortgage Note or
Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any Prepayment Penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment Period: As to any Remittance Date, the calendar
month preceding the month of distribution.
Purchase Confirmation: A letter agreement, substantially in the form
of an exhibit to the Purchase Agreement, executed by Countrywide and the
Purchaser in connection with the purchase and sale of each Mortgage Loan
Package, which sets forth the terms relating thereto including a description of
the related Mortgage Loans (including the Mortgage Loan Schedule), the purchase
price for such Mortgage Loans, the Closing Date and the Servicing Fee Rate.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 7.06 of this Agreement.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Countrywide in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in the related
mortgage loan purchase agreement; (v) shall be the same type of Mortgage Loan
(i.e., a Convertible Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution Agreements: The agreement or agreements entered into
by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Pass-Through Transfer or an Agency Transfer
pursuant to Section 7.06.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 7.06
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate. On such date, the Mortgage Loans transferred shall cease to be
covered by this Agreement and Countrywide's servicing responsibilities shall
cease under this Agreement with respect to the related transferred Mortgage
Loans.
Relief Act: The Servicemembers' Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to REMICs, which appear at Sections 860A through 860G of Subchapter M of Chapter
1, Subtitle A, of the Code, and related provisions, and proposed, temporary and
final Treasury Regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Countrywide of any REO Property
or the transfer of the management of such REO Property to the Purchaser as set
forth in Section 3.13 of this Agreement.
REO Property: A Mortgaged Property acquired by Countrywide on behalf
of the Purchaser as described in Section 3.13 of this Agreement.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan plus (ii) interest on
such Stated Principal Balance at the Mortgage Loan Remittance Rate from the last
date through which interest has been paid and distributed to the Purchaser to
the date of repurchase, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
on the related Mortgaged Property.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by Countrywide of its
servicing obligations, including the cost of (i) the preservation, restoration
and protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of the
REO Property, (iv) with respect to Government Mortgage Loans, amounts advanced
to the Purchaser for which Countrywide may be entitled to receive reimbursement
from a government agency and (v) compliance with the obligations under this
Agreement including Section 3.09 hereof.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Countrywide, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. Solely in the event Countrywide is terminated as servicer of the
Mortgage Loans, the Servicing Fee shall be prorated (based upon the number of
days of the related month Countrywide so acted as servicer relative to the total
number of days in that month) for each part thereof. The obligation of the
Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee is
payable solely from, the interest portion of such Monthly Payment collected by
Countrywide, or as otherwise provided herein. Subject to the foregoing, and with
respect to each Mortgage Loan, Countrywide shall be entitled to receive its
Servicing Fee through the disposition of any related REO Property and the
Servicing Fee payable with respect to any REO Property shall be based on the
Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Servicing LP: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors and assigns, in its capacity as servicer
hereunder.
Servicing Officer: Any officer of Countrywide involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by Countrywide to
Purchaser upon request, as such list may from time to time be amended.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of
an exhibit attached to the Purchase Agreement executed by Countrywide and the
Purchaser prior to the applicable Closing Date confirming the terms of a
prospective purchase and sale of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, this Agreement
and the Purchase Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
VA: The Department of Veterans Affairs.
Whole Loan Transfer: The sale or transfer by the Purchaser of
some or all of the Mortgage Loans in a whole loan format.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties Respecting Countrywide.
Countrywide represents, warrants and covenants to the Purchaser
that, as of each Closing Date:
(a) Organization and Standing. Countrywide is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan and the servicing of the Mortgage Loan in accordance with the terms of this
Agreement;
(b) Due Authority. Countrywide has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to service each Mortgage Loan. This Agreement has been duly
executed and delivered and constitutes the valid, legal, binding and enforceable
obligation of Countrywide, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by Countrywide
to make this Agreement valid and binding upon Countrywide in accordance with its
terms;
(c) No Conflict. Neither the servicing of the Mortgage Loans for the
Purchaser, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of Countrywide's organizational documents or result in a material
breach of any legal restriction or any material agreement or instrument to which
Countrywide is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any material law, rule, regulation, order, judgment or decree
to which Countrywide or its property is subject;
(d) Approved Servicer. Countrywide is an approved servicer for each
Agency in good standing. No event has occurred, including a change in insurance
coverage, which would make Countrywide unable to comply with Xxxxxx Xxx, Xxxxxxx
Mac eligibility requirements;
(e) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Countrywide's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Countrywide would materially and adversely affect the servicing of the Mortgage
Loans to the Purchaser or Countrywide's ability to perform its obligations under
this Agreement;
(f) No Consent Required. 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,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date; and
(g) Reasonable Servicing Fee. Countrywide acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Countrywide, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement.
ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Countrywide to Act as Servicer.
Countrywide shall service and administer Mortgage Loans sold
pursuant to this Agreement in accordance with the terms of this Agreement and
shall have full power and authority, acting alone, to do or cause to be done any
and all things, in connection with such servicing and administration, that
Countrywide may deem necessary or desirable and consistent with the terms of
this Agreement. In servicing and administering the Mortgage Loans, Countrywide
shall employ procedures in accordance with the customary and usual standards of
practice of prudent mortgage servicers. Notwithstanding anything to the contrary
contained herein, in servicing and administering Government Mortgage Loans,
Countrywide shall not take, or fail to take, any action that would result in the
denial of coverage under any LGC or MIC, as applicable. Without limiting the
generality of the foregoing, with respect to any Government Mortgage Loan,
Countrywide shall be permitted to deviate from the servicing practices set forth
herein if such deviation would be consistent with the servicing practices
employed in connection with any similar mortgage loan constituting a part of a
GNMA mortgage-backed security.
In accordance with the terms of the related mortgage loan purchase
agreement, Countrywide may waive, modify or vary any term of any Mortgage Loan
or consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if in Countrywide's reasonable and
prudent determination such waiver, modification, postponement or indulgence is
not materially adverse to the Purchaser; provided, however, that Countrywide
shall not permit any modification with respect to any Mortgage Loan that would
decrease the Mortgage Interest Rate (other than by adjustments required by the
terms of the Mortgage Note), result in the denial of coverage under a PMI
Policy, LGC or MIC, reduce the outstanding principal amount (except for actual
payments of principal) forgive the payment of principal or interest, or extend
the final maturity date on such Mortgage Loan without the Purchaser's consent.
Countrywide may permit forbearance or allow for suspension of Monthly Payments
for up to one hundred and eighty (180) days if the Mortgagor is in default or
Countrywide determines in its reasonable discretion, that default is imminent
and if Countrywide determines that granting such forbearance or suspension is in
the best interest of the Purchaser. If any modification, forbearance or
suspension permitted hereunder allows the deferral of interest or principal
payments on any Mortgage Loan, Countrywide shall include in each remittance for
any month in which any such principal or interest payment has been deferred
(without giving effect to such modification, forbearance or suspension) an
amount equal to such month's principal and one (1) month's interest at the
Mortgage Loan Remittance Rate on the then unpaid principal balance of the
Mortgage Loan and shall be entitled to reimbursement for such advances only to
the same extent as for Monthly Advances made pursuant to Section 4.03 of this
Agreement. Without limiting the generality of the foregoing, Countrywide shall
continue, and is hereby authorized and empowered to execute and deliver on
behalf of itself and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. If reasonably required by Countrywide, the Purchaser shall
furnish Countrywide with any powers of attorney and other documents necessary or
appropriate to enable Countrywide to carry out its servicing and administrative
duties under this Agreement.
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, Countrywide shall not
take any action, cause the REMIC to take any action or fail to take (or fail to
cause to be taken) any action, that under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) materially and adversely affect the status
of the REMIC as a REMIC or (ii) result in the imposition of a tax upon the REMIC
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860(a)(2) of the Code and the tax on "contributions" to a REMIC set
forth in Section 860D of the Code) unless Countrywide has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not materially and adversely affect such REMIC
status or result in the imposition of any tax on the REMIC.
Section 3.02 Collection of Mortgage Loan Payments.
Countrywide shall make reasonable efforts, in accordance with the
customary and usual standards of practice of prudent mortgage servicers, to
collect all payments due under each Mortgage Loan to the extent such procedures
shall be consistent with this Agreement, the terms and provisions of any related
PMI Policy, MIC or LGC, and applicable law. Countrywide shall take special care
in ascertaining and estimating Escrow Payments in accordance with Accepted
Servicing Practices.
Section 3.03 Realization Upon Defaulted Mortgage Loans.
(a) Foreclosure. Countrywide shall use reasonable efforts to
foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments. Countrywide shall use reasonable efforts to realize upon defaulted
Mortgage Loans, in such manner as will maximize the receipt of principal and
interest by the Purchaser, taking into account, among other things, the timing
of foreclosure proceedings. The foregoing is subject to the provisions that, in
any case in which Mortgaged Property shall have suffered damage, Countrywide
shall not be required to expend its own funds toward the restoration of such
property unless it shall determine in its discretion (i) that such restoration
will increase the proceeds of liquidation of the related Mortgage Loan to the
Purchaser after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by Countrywide through PMI Proceeds, Government
Insurance Proceeds, Other Insurance Proceeds or Liquidation Proceeds from the
related Mortgaged Property. Countrywide shall notify the Purchaser in writing of
the commencement of foreclosure proceedings. Such notice may be contained in the
reports prepared by Countrywide and delivered to the Purchaser pursuant to the
terms and conditions of this Agreement. Countrywide shall be responsible for all
costs and expenses incurred by it in any foreclosure proceedings; provided,
however, that it shall be entitled to reimbursement thereof from proceeds from
the related Mortgaged Property.
Section 3.04 Establishment of Custodial Accounts; Deposits in
Custodial Accounts.
Countrywide shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one (1) or more
Custodial Accounts, in the form of time deposit or demand accounts and shall be
titled "[Countrywide] in trust for Xxxxxx Funding LLC as Purchaser of Mortgage
Loans and various Mortgagors." Countrywide shall provide the Purchaser with
written evidence of the creation of such Custodial Account(s) within thirty (30)
days of the Initial Closing Date.
Countrywide shall deposit in the Custodial Account within two (2)
Business Days following receipt thereof, and retain therein, the following
payments and collections received or made by it subsequent to the Cut-off Date,
or received by it prior to the Cut-off Date but allocable to a period subsequent
thereto, other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date:
(a) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans,
adjusted to the Mortgage Loan Remittance Rate;
(c) all proceeds from a Cash Liquidation;
(d) all PMI Proceeds, Government Insurance Proceeds and Other
Insurance Proceeds, including amounts required to be deposited pursuant to
Sections 3.08 and 3.10 of this Agreement, other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Countrywide's normal
servicing procedures, the loan documents or applicable law;
(e) all Condemnation Proceeds affecting any Mortgaged Property which
are not released to the Mortgagor in accordance with Countrywide's normal
servicing procedures, the loan documents or applicable law;
(f) all Monthly Advances;
(g) all proceeds of any Mortgage Loan repurchased in accordance with
Section 3.03 or 3.04 of the Purchase Agreement, and any amount required to be
deposited by Countrywide in connection with any shortfall in principal amount of
the Qualified Substitute Mortgage Loans and the repurchased Mortgage Loans as
required pursuant to Section 3.03 of the Purchase Agreement;
(h) any amounts required to be deposited by Countrywide pursuant to
Section 3.10 of this Agreement in connection with the deductible clause in any
blanket hazard insurance policy (such deposit shall be made from Countrywide's
own funds, without reimbursement therefor);
(i) the Prepayment Interest Shortfall Amount, if any, for the month
of distribution (such deposit shall be made from Countrywide's own funds,
without reimbursement therefor up to a maximum amount per month equal to the
lesser of one half of (a) one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loans, or (b) the
aggregate Servicing Fee actually received for such month for the Mortgage
Loans); and
(j) any amounts required to be deposited by Countrywide in
connection with any REO Property pursuant to Section 3.13 of this Agreement.
The foregoing requirements for deposit in the Custodial Account are
exclusive. The Purchaser understands and agrees that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
Prepayment Penalties and assumption fees (to the extent permitted by Section
3.16 of this Agreement) need not be deposited by Countrywide in the Custodial
Account. Any interest paid by the depository institution on funds deposited in
the Custodial Account shall accrue to the benefit of Countrywide and Countrywide
shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 3.05(d) of this Agreement.
Section 3.05 Permitted Withdrawals From the Custodial Account.
Countrywide may, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(a) to make payments to the Purchaser in the amounts and in the
manner provided for in Sections 4.01 and 4.03 of this Agreement;
(b) to reimburse itself for Monthly Advances (Countrywide's
reimbursement for Monthly Advances shall be limited to amounts received on the
related Mortgage Loan (or to amounts received on the Mortgage Loans as a whole
if the Monthly Advance is made due to a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Relief Act) which represent Late
Collections, net of the related Servicing Fee and LPMI Fee, if applicable.
Countrywide's right to reimbursement hereunder shall be prior to the rights of
the Purchaser, except that, where Countrywide is required to repurchase a
Mortgage Loan pursuant to Section 3.03 or 3.04 of the Purchase Agreement,
Countrywide's right to such reimbursement shall be subsequent to the payment to
the Purchaser of the Repurchase Price and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loans. Notwithstanding the
foregoing, Countrywide may reimburse itself for Monthly Advances from any funds
in the Custodial Account if it has determined that such funds are nonrecoverable
advances or if all funds, with respect to the related Mortgage Loan, have
previously been remitted to the Purchaser);
(c) to reimburse itself for unreimbursed Servicing Advances and any
unpaid Servicing Fees (Countrywide's reimbursement for Servicing Advances and/or
Servicing Fees hereunder with respect to any Mortgage Loan shall be limited to
proceeds from Cash Liquidation, Liquidation Proceeds, Condemnation Proceeds, PMI
Proceeds, Government Insurance Proceeds and Other Insurance Proceeds; provided,
however, that Countrywide may reimburse itself for Servicing Advances and
Servicing Fees from any funds in the Custodial Account if all funds, with
respect to the related Mortgage Loan, have previously been remitted to the
Purchaser. Notwithstanding the foregoing, with respect to each Government
Mortgage Loan, Countrywide shall not be entitled to reimbursement of any
Servicing Advances that constitute losses and expenses for which an issuer of
GNMA securities would be responsible, pursuant to Chapter 4 of the GNMA Handbook
5500.2, if such Government Mortgage Loan had been included in a GNMA security);
(d) to pay to itself as servicing compensation (i) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Remittance Date), and (ii) the Servicing Fee and the
LPMI Fee, if applicable, from that portion of any payment or recovery of
interest on a particular Mortgage Loan;
(e) to pay to itself, with respect to each Mortgage Loan that has
been repurchased pursuant to Section 3.03 or 3.04 of the Purchase Agreement, all
amounts received but not distributed as of the date on which the related
Repurchase Price is determined;
(f) to reimburse itself for any amounts deposited in the Custodial
Account in error; and
(g) to clear and terminate the Custodial Account upon the
termination of this Agreement.
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
Countrywide shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one (1) or more Escrow Accounts in the form of time
deposit or demand accounts, which accounts shall be Eligible Accounts.
Countrywide shall provide the Purchaser with written evidence of the creation of
such Escrow Account(s) within thirty (30) days of the Initial Closing Date.
Countrywide shall deposit in the Escrow Account(s) within two (2)
Business Days following receipt thereof, and retain therein, (a) all Escrow
Payments collected on account of the Mortgage Loans, and (b) all Other Insurance
Proceeds that are to be applied to the restoration or repair of any Mortgaged
Property. Countrywide shall make withdrawals therefrom only to effect such
payments as are required under this Agreement, and for such other purposes in
accordance with Section 3.07 of this Agreement. Countrywide shall be entitled to
retain any interest paid by the depository institution on funds deposited in the
Escrow Account except interest on escrowed funds required by law to be paid to
the Mortgagor or the related Mortgage. Countrywide shall pay Mortgagor interest
on the escrowed funds at the rate required by law notwithstanding that the
Escrow Account is non-interest bearing or the interest paid by the depository
institution thereon is insufficient to pay the Mortgagor interest at the rate
required by law.
Section 3.07 Permitted Withdrawals From Escrow Account.
Countrywide may, from time to time, withdraw funds from the Escrow
Account(s) for the following purposes: (a) to effect timely payments of the
following items, if applicable, ground rents, taxes, assessments, water rates,
mortgage insurance premiums, fire and hazard insurance premiums, PMI Policy
premiums, if applicable, and comparable items constituting Escrow Payments for
the related Mortgage; (b) to reimburse Countrywide for any Servicing Advance
made by Countrywide with respect to a related Mortgage Loan; provided, however,
that such reimbursement shall only be made from amounts received on the related
Mortgage Loan that represent late payments or collections of Escrow Payments
thereunder; (c) to refund to the Mortgagor any funds as may be determined to be
overages; (d) for transfer to the Custodial Account in accordance with the terms
of this Agreement; (e) for application to restoration or repair of the Mortgaged
Property; (f) to pay to Countrywide, or to the Mortgagors to the extent required
by law, any interest paid on the funds deposited in the Escrow Account; (g) to
reimburse itself for any amounts deposited in the Escrow Account in error; or
(h) to clear and terminate the Escrow Account on the termination of this
Agreement.
Section 3.08 Transfer of Accounts.
Countrywide may transfer the Custodial Account or the Escrow Account
to a different depository institution from time to time provided that such
Custodial Account and Escrow Account shall at all times be Eligible Accounts.
Section 3.09 Payment of Taxes, Insurance and Other Charges;
Maintenance of PMI Policies; Collections Thereunder.
With respect to each Mortgage Loan, Countrywide shall maintain
accurate records reflecting the status of (a) ground rents, taxes, assessments,
water rates and other charges that are or may become a lien upon the Mortgaged
Property; (b) primary mortgage insurance premiums; (c) with respect to Mortgage
Loans insured by the FHA, mortgage insurance premiums, and (d) fire and hazard
insurance premiums. Countrywide shall obtain, from time to time, all bills for
the payment of such charges, including renewal premiums, and shall effect
payment thereof prior to the applicable penalty or termination date and at a
time appropriate for securing maximum discounts allowable using Escrow Payments
which shall have been estimated and accumulated by Countrywide in amounts
sufficient for such purposes. To the extent that the Mortgage does not provide
for Escrow Payments, Countrywide shall determine that any such payments are made
by the Mortgagor at the time they first become due. Countrywide assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills, irrespective of the Mortgagor's faithful performance
in the payment of same or the making of the Escrow Payments, and shall make
advances from its own funds to effect such payments.
Countrywide will maintain in full force and effect, a PMI Policy
conforming in all respects to the description set forth in Section 3.02(v) of
the Purchase Agreement, issued by an insurer described in that Section, with
respect to each Mortgage Loan for which such coverage is herein required. Such
coverage will be maintained until the LTV or the Updated LTV of the related
Mortgage Loan is reduced to 80% or less in the case of a Mortgage Loan having a
LTV at origination in excess of 80%. or Countrywide, as applicable, will not
cancel or refuse to renew any PMI Policy in effect on the Closing Date that is
required to be kept in force under this Agreement unless a replacement PMI
Policy is obtained from and maintained with an insurer that is approved by an
Agency. Countrywide shall not take any action that would result in non-coverage
under any applicable PMI Policy of any loss that, but for the actions of
Countrywide would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into pursuant
to Section 3.16 herein, Countrywide shall promptly notify the insurer under the
related PMI Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions that may be
required by such insurer as a condition to the continuation of coverage under
the PMI Policy. If such PMI Policy is terminated as a result of such assumption
or substitution of liability, Countrywide shall obtain a replacement PMI Policy
as provided above.
Unless otherwise provided in the related Purchase Confirmation, no
Mortgage Loan has in effect as of the Closing Date any mortgage pool insurance
policy or other credit enhancement, except for any PMI Policy, MIC or LGC and
the insurance or guarantee relating thereto, as applicable (excluding such
exception, the "Credit Enhancement"), and Countrywide shall not be required to
take into consideration the existence of any such Credit Enhancement for the
purposes of performing its servicing obligations hereunder. If the Purchaser
shall at any time after the related Closing Date notify Countrywide in writing
of its desire to obtain any such Credit Enhancement, the Purchaser and
Countrywide shall thereafter negotiate in good faith for the procurement and
servicing of such Credit Enhancement.
Section 3.10 Maintenance of Hazard Insurance.
Countrywide shall cause to be maintained, for each Mortgage Loan,
fire and hazard insurance with extended coverage as is customary in the area
where the Mortgaged Property is located in an amount that is equal to the lesser
of (a) the maximum insurable value of the improvements securing such Mortgage
Loan or (b) the greater of (i) the unpaid principal balance of the Mortgage
Loan, and (ii) the percentage such that the proceeds thereof shall be sufficient
to prevent the Mortgagor and/or the Mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards and such flood
insurance has been made available, Countrywide shall cause to be maintained a
flood insurance policy meeting the requirements of the current guidelines of the
National Flood Insurance Administration program (or any successor thereto) with
a generally acceptable insurance carrier and with coverage in an amount not less
than the lesser of (x) the unpaid principal balance of the Mortgage Loan; (y)
the maximum insurable value of the improvements securing such Mortgage Loan; or
(z) the maximum amount of insurance which is available under the National Flood
Insurance Reform Act of 1994. Countrywide shall also maintain on REO Property,
(1) fire and hazard insurance with extended coverage in an amount that is not
less than the maximum insurable value of the improvements that are a part of
such property; (2) liability insurance; and (3) to the extent required and
available under the National Flood Insurance Reform Act of 1994, flood insurance
in an amount as provided above. Countrywide shall deposit in the Custodial
Account all amounts collected under any such policies except (A) amounts to be
deposited in the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or REO Property and (B) amounts to be released to the
Mortgagor in accordance with Countrywide's normal servicing procedures. The
Purchaser understands and agrees that no earthquake or other additional
insurance on property acquired in respect of the Mortgage Loan shall be
maintained by Countrywide or Mortgagor. All such policies shall be endorsed with
standard mortgagee clauses with loss payable to Countrywide and shall provide
for at least thirty (30) days prior written notice to Countrywide of any
cancellation, reduction in the amount of coverage or material change in
coverage. Countrywide shall not interfere with the Mortgagor's freedom of choice
in selecting either the insurance carrier or agent; provided, however, that
Countrywide shall only accept insurance policies from insurance companies
acceptable to an Agency and licensed to do business in the state wherein the
property subject to the policy is located.
Section 3.11 [Reserved].
Section 3.12 Fidelity Bond; Errors and Omissions Insurance.
Countrywide shall cause to be maintained a blanket Fidelity Bond and
an errors and omissions insurance policy with responsible companies, with broad
coverage of all officers, employees or other persons acting in any capacity with
regard to the Mortgage Loan who handle funds, money, documents or papers
relating to the Mortgage Loans. The Fidelity Bond and errors and omissions
insurance shall be in the form of the Mortgage Banker's Blanket Bond and shall
protect and insure Countrywide against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of its officers,
employees and agents. Such Fidelity Bond shall also protect and insure
Countrywide against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.12 shall diminish
or relieve Countrywide from its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to the corresponding amounts
required by an Agency for an approved seller/servicer. Upon the request of the
Purchaser, Countrywide shall provide to the Purchaser a certificate of insurance
which certifies coverage of such Fidelity Bond and errors and omissions
insurance policy under this Section 3.12. .
Section 3.13 Title, Management and Disposition of REO Property.
(a) Title. In the event that title to the Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be taken in the name of Countrywide for the benefit of
the Purchaser, or in the event the Purchaser is not authorized or permitted to
hold title to real property in the state where the REO Property is located, or
would be adversely affected under the "doing business" or tax laws of such state
by so holding title, the deed or certificate of sale shall be taken in the name
of such Person(s) as shall be consistent with an Opinion of Counsel obtained by
Countrywide from an attorney duly licensed to practice law in the state where
the REO Property is located. Any Person(s) holding such title other than the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the benefit of the Purchaser.
(b) Management. Countrywide shall either itself or through an agent
selected by Countrywide, manage, conserve, protect and operate each REO Property
in the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account. Countrywide shall cause each REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least annually thereafter or
more frequently as required by the circumstances. Countrywide shall make or
cause to be made a written report of each such inspection. Such reports shall be
retained in the Credit File and copies thereof shall be forwarded by Countrywide
to the Purchaser within five (5) days of the Purchaser's request therefor.
Countrywide shall attempt to sell the REO Property (and may temporarily rent the
same for a period not greater than one year except as otherwise provided below)
on such terms and conditions as Countrywide deems to be in the best interest of
the Purchaser. Countrywide shall deposit, or cause to be deposited, within two
(2) Business Days of following receipt thereof, in the Custodial Account all
revenues received with respect to each REO Property and shall withdraw therefrom
funds necessary for the proper operation, management and maintenance of each REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 3.10 hereof and the fees of any managing agent acting on behalf of
Countrywide. Notwithstanding anything contained in this Agreement to the
contrary, upon written notice to Countrywide, the Purchaser may elect to assume
the management and control of any REO Property; provided, however, that prior to
giving effect to such election, the Purchaser shall reimburse Countrywide for
all previously unreimbursed or unpaid Monthly Advances, Servicing Advances and
Servicing Fees related to such REO Property.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held,
Countrywide shall manage, conserve, protect and operate each REO Property in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by such REMIC of any "income from non permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code.
(c) Disposition. Subject to the following paragraph, Countrywide
shall use best efforts to dispose of each REO Property as soon as possible and
shall sell each REO Property no later than one (1) year after title to such REO
Property has been obtained, unless Countrywide determines, and gives an
appropriate notice to the Purchaser, that a longer period is necessary for the
orderly disposition of any REO Property. If a period longer than one (1) year is
necessary to sell any REO Property, Countrywide shall, if requested by the
Purchaser, report monthly to the Purchaser as to the progress being made in
selling such REO Property. Countrywide shall also maintain, on each REO
Property, fire and hazard insurance with extended coverage in an amount which is
at least equal to the maximum insurable value of the improvements which are a
part of such property, liability insurance and, to the extent required and
available under the National Flood Insurance Act of 1968, as amended, flood
insurance in the amount required in Section 3.10 hereof.
Each REO Disposition shall be carried out by Countrywide at such
price and upon such terms and conditions as Countrywide deems to be in a manner
that maximizes the net present value of the recovery to the Purchaser. If, as of
the date title to any REO Property was acquired by Countrywide there were
outstanding unreimbursed Servicing Advances, Monthly Advances or Servicing Fees
with respect to the REO Property or the related Mortgage Loan, Countrywide upon
an REO Disposition of such REO Property, shall be entitled to reimbursement for
any related unreimbursed Servicing Advances, Monthly Advances and Servicing Fees
from proceeds received in connection with such REO Disposition. The proceeds
from the REO Disposition, net of any payment to Countrywide as provided above,
shall be promptly deposited in the Custodial Account and distributed to the
Purchaser in accordance with Section 4.01 of this Agreement.
Section 3.14 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, Countrywide
shall adjust the Mortgage Interest Rate on the related Interest Adjustment Date
and shall adjust the Monthly Payment on the related Payment Adjustment Date in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. If, pursuant to the terms of the Mortgage Note, another index is
selected for determining the Mortgage Interest Rate because the original index
is no longer available, the same index will be used with respect to each
Mortgage Note which requires a new index to be selected, provided that such
selection does not conflict with the terms of the related Mortgage Note.
Countrywide shall execute and deliver any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments.
Countrywide shall promptly, upon written request therefor, deliver to the
Purchaser such notifications and any additional applicable data regarding such
adjustments and the methods used to calculate and implement such adjustments.
Upon the discovery by Countrywide or the Purchaser that Countrywide has failed
to adjust a Mortgage Interest Rate or a Monthly Payment pursuant to the terms of
the related Mortgage Note and Mortgage, Countrywide shall immediately deposit in
the Custodial Account, from its own funds, the amount of any interest loss
caused the Purchaser thereby without reimbursement therefor.
Section 3.15 Notification of Maturity Date.
With respect to each Balloon Mortgage Loan, Countrywide shall
execute and deliver to the Mortgagor any and all necessary notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the maturity date and final balloon payment.
Section 3.16 Assumption Agreements.
Countrywide shall, to the extent it has knowledge of any conveyance
or prospective conveyance by any Mortgagor of the Mortgaged Property (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under any
"due-on-sale" clause to the extent permitted by law; provided, however, that
Countrywide shall not exercise any such right if prohibited from doing so by law
or the terms of the Mortgage Note or if the exercise of such right would impair
or threaten to impair any recovery under the related PMI Policy, if any. If
Countrywide reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause, Countrywide shall enter into an assumption agreement
with the Person to whom the Mortgaged Property has been conveyed or is proposed
to be conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Where an assumption is allowed pursuant to this Section 3.16,
the Purchaser authorizes Countrywide, with the prior written consent of the
primary mortgage insurer, if any, to enter into a substitution of liability
agreement with the Person to whom the Mortgaged Property has been conveyed or is
proposed to be conveyed pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the related Mortgage Note. Any such substitution of liability agreement
shall be in lieu of an assumption agreement.
In connection with any such assumption or substitution of liability,
Countrywide shall follow the underwriting practices and procedures employed by
Countrywide for mortgage loans originated by Countrywide for its own account in
effect at the time such assumption or substitution is made. With respect to an
assumption or substitution of liability, the Mortgage Interest Rate borne by the
related Mortgage Note, the term of the Mortgage Loan and the outstanding
principal amount of the Mortgage Loan shall not be changed. Countrywide shall
notify the Purchaser that any such substitution of liability or assumption
agreement has been completed by forwarding to the Purchaser or its designee the
original of any such substitution of liability or assumption agreement, which
document shall be added to the related Collateral File and shall, for all
purposes, be considered a part of such Collateral File to the same extent as all
other documents and instruments constituting a part thereof.
Notwithstanding anything to the contrary contained herein,
Countrywide shall not be deemed to be in default, breach or any other violation
of its obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or any assumption that Countrywide may be restricted by law
from preventing, for any reason whatsoever. For purposes of this Section 3.16,
the term "assumption" is deemed to also include a sale of the Mortgaged Property
subject to the Mortgage that is not accompanied by an assumption or substitution
of liability agreement.
Section 3.17 Satisfaction of Mortgages and Release of Collateral
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
Countrywide of a notification that payment in full will be escrowed in a manner
customary for such purposes, Countrywide shall immediately notify the Purchaser
after the Monthly Remittance Advice (as defined in Section 4.02) has been
provided in accordance with Section 4.02 and Countrywide may request the release
of any Mortgage Loan documents from the Purchaser in accordance with Section
3.17 hereof. Such notice shall include a statement to the effect that all
amounts received or to be received in connection with such payment, which are
required to be deposited in the Custodial Account pursuant to Section 3.04 of
this Agreement, have been or will be so deposited and shall request delivery to
it of the portion of the Collateral File held by the Purchaser. Upon receipt of
such notice and request, the Purchaser shall within five (5) Business Days
release or cause to be released to Countrywide the related Collateral Documents
and Countrywide shall prepare and process any satisfaction or release. In the
event that the Purchaser fails to release or cause to be released to Countrywide
the related Collateral Documents within five (5) Business Days of Countrywide's
request therefor, the Purchaser shall be liable to Countrywide for any
additional expenses or costs, including, but not limited to, outsourcing fees
and penalties, incurred by Countrywide resulting from such failure. No expense
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Custodial Account.
With respect to a Mortgage Loan paid in full as set forth in the
above paragraph, if the Mortgage has been recorded in the name of MERS or its
designee, Countrywide shall take all necessary action to effect the release of
the Mortgage Loan on the records of MERS.
In the event Countrywide satisfies or releases a Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage or should it otherwise prejudice any right the Purchaser may have under
the mortgage instruments, Countrywide, upon written demand of the Purchaser,
shall promptly remit to the Purchaser the then unpaid principal balance of the
related Mortgage Loan by deposit thereof in the Custodial Account. Countrywide
shall maintain the Fidelity Bond and errors and omissions insurance policy as
provided for in Section 3.12 insuring Countrywide against any loss it may
sustain with respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
From time to time and as appropriate for the service or foreclosure
of a Mortgage Loan, including for the purpose of collection under any PMI
Policy, the Purchaser shall, within five (5) Business Days of Countrywide's
request and delivery to the Purchaser, or the Purchaser's designee, of a
servicing receipt signed by a Servicing Officer, release or cause to be released
to Countrywide the portion of the Collateral File held by the Purchaser or its
designee. Pursuant to the servicing receipt, Countrywide shall be obligated to
return to the Purchaser the related Collateral File when Countrywide no longer
needs such file, unless the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Custodial Account or the Collateral File or such document has been delivered to
an attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially. In
the event that the Purchaser fails to release or cause to be released to
Countrywide the portion of the Collateral File held by the Purchaser or its
designee within five (5) Business Days of Countrywide's request therefor, the
Purchaser shall be liable to Countrywide for any additional expenses or costs,
including, but not limited to, outsourcing fees and penalties, incurred by
Countrywide resulting from such failure. Upon receipt of notice from Countrywide
stating that such Mortgage Loan was liquidated, the Purchaser shall release
Countrywide from its obligations under the related servicing receipt.
Section 3.18 Servicing Compensation.
As compensation for its services hereunder, Countrywide shall be
entitled to withdraw from the Custodial Account, or to retain from interest
payments on the Mortgage Loans, the amounts provided for as Servicing Fees.
Additional servicing compensation in the form of assumption fees (as provided in
Section 3.16 of this Agreement), late payment charges, prepayment penalties or
otherwise shall be retained by Countrywide e to the extent not required to be
deposited in the Custodial Account. Countrywide shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided herein.
Section 3.19 Restoration of Mortgaged Property
Countrywide need not obtain the approval of the Purchaser prior to
releasing any Other Insurance Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in accordance
with Accepted Servicing Practices and the terms of this Agreement. At a minimum,
Countrywide shall comply with the following conditions in connection with any
such release of Other Insurance Proceeds.
(a) Countrywide shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with respect
thereto;
(b) Countrywide shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to requiring
waivers with respect to mechanics' and materialmen's liens; and
(c) Pending repairs and restoration, Countrywide shall place Other
Insurance Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, Countrywide
is hereby empowered to endorse any loss draft issued in respect of such a claim
in the name of the Purchaser.
Section 3.20 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999.
With respect to each Mortgage Loan, Countrywide and the Purchaser
shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended and
as applicable, and all applicable regulations promulgated thereunder, and shall
provide all notices required thereunder.
ARTICLE IV.
PROVISIONS OF PAYMENTS AND REPORTS TO PURCHASER
Section 4.01 Distributions.
On each Remittance Date, Countrywide shall distribute to the
Purchaser (a) all amounts credited to the Custodial Account as of the close of
business on the preceding Determination Date, net of charges against or
withdrawals from the Custodial Account pursuant to Section 3.05 hereof; plus (b)
all Monthly Advances, if any, that Countrywide is obligated to distribute
pursuant to Section 4.03 of this Agreement; minus (c) any amounts attributable
to Principal Prepayments received after the related Principal Prepayment Period;
minus (d) any amounts attributable to Monthly Payments collected but due on a
Due Date or Dates subsequent to the preceding Determination Date. It is
understood that, by operation of Section 3.04 hereof, the remittance on the
first Remittance Date is to include principal collected after the Cut-off Date
through the preceding Determination Date plus interest, adjusted to the Mortgage
Loan Remittance Rate, collected through such Determination Date exclusive of any
portion thereof allocable to the period prior to the Cut-off Date, with the
adjustments specified in (b), (c) and (d) above.
Section 4.02 Periodic Reports to the Purchaser.
(a) Monthly Reports. Not later than each Remittance Date,
Countrywide shall furnish to the Purchaser via an electronic medium mutually
acceptable to the parties, a monthly report in a form reasonably acceptable to
the parties ("a Monthly Remittance Advice"), which report shall include with
respect to each Mortgage Loan the following loan-level information: (i) the
scheduled balance as of the last day of the related Due Period, (ii) all
Principal Prepayments applied to the Mortgagor's account during the related
Principal Prepayment Period, and (iii) the delinquency and bankruptcy status of
the Mortgage Loan, if applicable.
(b) Miscellaneous Reports. Upon the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Purchaser pursuant to a
deed-in-lieu of foreclosure, Countrywide shall submit to the Purchaser a
liquidation report with respect to such Mortgaged Property, which report may be
included with any other reports prepared by Countrywide and delivered to the
Purchaser pursuant to the terms and conditions of this Agreement. With respect
to any REO Property, and upon the request of the Purchaser, Countrywide shall
furnish to the Purchaser a statement describing Countrywide's efforts during the
previous month in connection with the sale of such REO Property, including any
rental of such REO Property incidental to the sale thereof and an operating
statement. Following the foreclosure sale or abandonment of any Mortgaged
Property, Countrywide shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code or any successor provision thereof.
Countrywide shall also provide the Purchaser with such information concerning
the Mortgage Loans as is necessary for the Purchaser to prepare its federal
income tax return as the Purchaser may reasonably request from time to time. The
Purchaser agrees to pay for all reasonable out-of-pocket expenses incurred by
Countrywide in connection with complying with any request made by the Purchaser
hereunder if such information is not customarily provided by Countrywide in the
ordinary course of servicing mortgage loans similar to the Mortgage Loans.
Section 4.03 Monthly Advances by Countrywide.
Not later than the close of business on the Determination Date
preceding each Remittance Date, Countrywide shall deposit in the Custodial
Account an amount equal to all payments not previously advanced by Countrywide,
whether or not deferred pursuant to Section 4.01 of this Agreement, of principal
(due after the Cut-off Date) and interest not allocable to the period prior to
the Cut-off Date, adjusted to the Mortgage Loan Remittance Rate, which were due
on a Mortgage Loan and delinquent as of the close of business on the Business
Day prior to the related Determination Date. Notwithstanding anything to the
contrary herein, Countrywide may use amounts on deposit in the Custodial Account
for future distribution to the Purchaser to satisfy its obligation, if any, to
deposit delinquent amounts pursuant to the preceding sentence. To the extent
Countrywide uses any funds being held for future distribution to the Purchaser
to satisfy its obligations under this Section 4.03 hereof, Countrywide shall
deposit in the Custodial Account an amount equal to such used funds no later
than the Determination Date prior to the following Remittance Date to the extent
that funds in the Custodial Account on such Remittance Date are less than the
amounts to be remitted to the Purchaser pursuant to Section 4.01 of this
Agreement.
Countrywide's obligation to make such advances as to any Mortgage
Loan will continue through the earliest of: (a) the last Monthly Payment due
prior to the payment in full of the Mortgage Loan; (b) the Remittance Date prior
to the Remittance Date for the distribution of any Liquidation Proceeds, Other
Insurance Proceeds or Condemnation Proceeds which, in the case of Other
Insurance Proceeds and Condemnation Proceeds, satisfy in full the indebtedness
of such Mortgage Loan; or (c) the Remittance Date prior to the date the Mortgage
Loan is converted to REO Property; provided, however, with respect to any
Government Mortgage Loan that is converted to REO Property, Countrywide's
obligation to make such advances will continue in accordance with the applicable
governmental agency's guidelines. In no event shall Countrywide be obligated to
make an advance under this Section 4.03 of this Agreement if at the time of such
advance it reasonably determines that such advance will be unrecoverable.
Section 4.04 Annual Statement as to Compliance.
Countrywide shall deliver to the Purchaser on or before March 5th of
each calendar year, beginning in the year following the Closing Date, signed by
a senior officer of Countrywide stating that (a) a review of the activities of
Countrywide during the preceding fiscal year and of performance under this
Agreement have been made under such officer's supervision, (b) based on such
review, Countrywide has fulfilled all of its obligations under this Agreement
throughout such fiscal year, or, if there has been a default in the fulfillment
of any obligation, specifying each such default known to such officer and the
nature and status thereof and the actions being taken by Countrywide to cure
such default, and (iii) all reports and information provided to Purchaser by
Countrywide, pursuant to Countrywide's reporting requirements under the
Agreement, are accurate and complete in all material respects. Copies of such
statement may be provided by Purchaser to any Person identified as a prospective
purchaser of the Mortgage Loans.
Section 4.05 Annual Independent Certified Public Accountants'
Servicing Report.
Countrywide shall, on or before March 5th of each year, beginning in
the year following the Closing Date, cause, at its sole cost and expense, a firm
of independent public accountants, which is a member of the American Institute
of Certified Public Accountants, to furnish a statement to the Purchaser to the
effect that such firm has examined certain documents and records and performed
certain other procedures relating to the servicing of the Mortgage Loans during
the immediately preceding fiscal year of Countrywide and that such firm is of
the opinion that, on the basis of such examination conducted substantially in
accordance with the Uniform Single Attestation Program for Mortgage Bankers,
such servicing has been conducted in compliance therewith, except for such
exceptions as shall be set forth in such statement.
Section 4.06 Purchaser's Access to Countrywide's Records.
The Purchaser shall have access upon reasonable notice to
Countrywide, during regular business hours or at such other times as might be
reasonable under applicable circumstances, to any and all of the books and
records of Countrywide that relate to the performance or observance by
Countrywide of the terms, covenants or conditions of this Agreement. Further,
Countrywide hereby authorizes the Purchaser, in connection with a sale of the
Mortgage Loans, to make available to prospective purchasers a Consolidated
Statement of Operations of Countrywide, or its parent company, prepared by or at
the request of Countrywide for the most recently completed three (3) fiscal
years for which such a statement is available as well as a Consolidated
Statement of Condition at the end of the last two (2) fiscal years covered by
such Consolidated Statement of Operations. Se also agrees to make available to
any prospective purchaser, upon reasonable notice and during normal business
hours, a knowledgeable financial or accounting officer for the purpose of
answering questions respecting Countrywide's ability to perform under this
Agreement. The Purchaser agrees to reimburse Countrywide for any out-of-pocket
costs incurred by Countrywide in connection with its obligations under this
Section 4.06.
ARTICLE V.
COVENANTS BY COUNTRYWIDE
Section 5.01 Indemnification by Countrywide.
Countrywide shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and expenses and related costs,
judgments, and any other costs, fees and expenses that the Purchaser may sustain
in any way related to (a) a material breach of any of the representations or
warranties made by Countrywide in Section 2.01 of this Agreement, or (b) the
failure of Countrywide to perform its obligations hereunder including its
obligations to service and administer the Mortgage Loans in compliance with the
terms of this Agreement. Notwithstanding the foregoing, the Purchaser shall
indemnify Countrywide and hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that
Countrywide may sustain in any way related to (a) actions or inactions of
Countrywide which were taken or omitted upon the instruction or direction of the
Purchaser, (b) the failure of the Purchaser to perform its obligations
hereunder, including subsections (i) and (ii) in Section 5.03 of this Agreement,
or (c) failure of the Purchaser to comply with Section 3.20 of this Agreement.
The indemnification rights set forth in this Section 5.01 shall
survive the termination of this Agreement or the resignation or removal of
Countrywide for any reason.
Section 5.02 Merger or Consolidation of Countrywide.
Countrywide shall 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.
Notwithstanding anything to the contrary contained herein, any
Person into which Countrywide may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Countrywide
shall be a party, or any Person succeeding to the business of Countrywide, shall
be the successor of Countrywide hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided,
however, that the successor or surviving Person shall be an institution whose
deposits are insured by FDIC or a company whose business is the servicing of
mortgage loans, unless otherwise consented to by the Purchaser, which consent
shall not be unreasonably withheld, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section 5.03 Limitation on Liability of Countrywide and Others.
Neither Countrywide nor any of the officers, employees or agents of
Countrywide shall be under any liability to the Purchaser for any action taken,
or for refraining from taking any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Countrywide or any such person against any breach of
warranties or representations made herein, or the failure to perform its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. Countrywide and any officer, employee or
agent of Countrywide may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Notwithstanding anything to the contrary contained in this
Agreement, unless one or more Event(s) of Default by Countrywide shall occur and
shall not have been remedied within the time limits set forth in Section 6.01(a)
of this Agreement, the Purchaser shall not record or cause to be recorded an
Assignment of Mortgage with the recording office. To the extent the Purchaser
records with the recording office as permitted herein an Assignment of Mortgage
which designates the Purchaser as the holder of record of the Mortgage, the
Purchaser agrees that it shall (i) provide Countrywide with immediate notice of
any action with respect to the Mortgage or the related Mortgaged Property and
ensure that the proper department or person at Countrywide receives such notice;
and (ii) immediately complete, sign and return to Countrywide any document
reasonably requested by Countrywide to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Countrywide. The Purchaser further agrees that Countrywide shall
have no liability for the Purchaser's failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Countrywide shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Countrywide
may, with the consent of the Purchaser, undertake any such action which it may
deem necessary or desirable to protect the Purchaser's interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Purchaser will be liable, and Countrywide shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to Countrywide's indemnification under Section 5.01
of this Agreement.
Section 5.04 No Transfer of Servicing.
Countrywide acknowledges that the Purchaser acts in reliance upon
Countrywide's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting the
generality of this Section, Countrywide shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the Purchaser,
which consent may not be unreasonably withheld; provided, however, that nothing
in this Agreement shall limit the right of Countrywide to assign the servicing
rights hereunder to Servicing LP. In the event Countrywide assigns the servicing
rights to Servicing LP as contemplated in this Section 5.04, the Servicing LP
shall assume all obligations of Countrywide, as servicer, under this Agreement
from and after the date of such assignment.
Section 5.05 Subservicing.
Countrywide may enter into subservicing agreements or arrangements
for the servicing and administration of any or all of the Mortgage Loans.
Countrywide will remain obligated and primarily liable to the Purchaser for the
servicing of the Mortgage Loans in accordance with the provisions of this
Agreement, without diminution of such obligation or liability by virtue of the
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 Countrywide alone were servicing the Mortgage Loans. Countrywide will be
solely liable for all fees owed by it to any subservicer.
ARTICLE VI.
TERMINATION OF COUNTRYWIDE AS SERVICER
Section 6.01 Termination Due to an Event of Default.
(a) Each of the following shall be an Event of Default by
Countrywide if it shall occur and, if applicable, be continuing for the period
of time set forth therein:
(i) any failure by Countrywide to remit to the Purchaser any
payment required to be made under the terms of this Agreement which
such failure continues unremedied for a period of three (3) Business
Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall be given to Countrywide by
the Purchaser; or
(ii) any failure on the part of Countrywide to duly observe or
perform in any material respect any of the covenants or agreements
on the part of Countrywide set forth in this Agreement which
continues unremedied for a period of thirty (30) days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to Countrywide by the Purchaser
(except that such number of days shall be fifteen in the case of a
failure to pay any premium for any insurance policy required to be
maintained under this Agreement; a failure on the part of
Countrywide to deliver the statement or report, as applicable,
required to be delivered under Section 4.04 or 4.05 of this
Agreement, which continues unremedied for nine calendar days after
receipt by Countrywide of written notice of such failure from the
Purchaser (which failure shall continue no later than March 15th of
each year ("Due Date") with respect to Section 4.04 or 4.05 of this
Agreement; provided, however, Countrywide shall have received such
written notice of such failure at least 5 Business Days prior to
such Due Date); or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against Countrywide and such decree
or order shall have remained in force undischarged or unstayed for a
period of sixty (60) days; or
(iv) Countrywide shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to Countrywide or of or relating
to all or substantially all of its property; or
(v) Countrywide shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(vi) Countrywide ceases to meet the servicer eligibility
qualifications of a Xxxxxx Xxx and Xxxxxxx Mac; or
(vii) Countrywide fails to maintain its license to do business
or service residential mortgage loans in any jurisdiction where the
Mortgaged Properties are located if such license is required, which
failure continues unremedied for a period of sixty-five (65) days,
or such other additional time as mutually agreed upon by the
Purchaser and Countrywide; provided, however, that it is understood
by the Purchaser that the failure to cure within the timeframe
provided for herein (or such additional time as mutually agreed upon
by the Purchaser and the Servicer) shall constitute an Event of
Default solely for the affected Mortgage Loan.
In case one or more Events of Default by Countrywide shall occur and
shall not have been remedied, the Purchaser, by notice in writing to Countrywide
may, in addition to whatever rights the Purchaser may have at law or equity to
damages, including injunctive relief and specific performance, terminate without
compensation (however, Countrywide shall be reimbursed for all outstanding and
unreimbursed Servicing Advances and Monthly Advances), all the rights and
obligations of Countrywide under this Agreement, the Purchase Agreement and in
and to the Mortgage Loans and the proceeds thereof. Upon the receipt by
Countrywide of such written notice, all authority and power of Countrywide under
this Agreement and the Purchase Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Purchaser. Upon written
request from the Purchaser, Countrywide shall prepare, execute and deliver, any
and all documents and other instruments and 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, at Countrywide's sole
expense. Countrywide agrees to cooperate with the Purchaser in effecting the
termination of Countrywide's responsibilities and rights hereunder, including
without limitation, the transfer to the Purchaser, for administration by it, of
all cash amounts which shall at the time be credited by Countrywide to the
Custodial Account or Escrow Account or thereafter received with respect to the
Mortgage Loans.
(b) Waiver of Event of Default. The Purchaser may waive any default
by Countrywide in the performance of Countrywide's obligations hereunder and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Events of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereto except
to the extent expressly so waived.
Section 6.02 Termination by Other Means.
The respective obligations and responsibilities of Countrywide shall
terminate with respect to any Mortgage Loan Package upon the first to occur of:
(a) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or the disposition of all REO
Property in such Mortgage Loan Package and the remittance of all funds due
hereunder; (b) by mutual consent of Countrywide and the Purchaser in writing;
(c) the purchase by Countrywide of all outstanding Mortgage Loans and REO
Property in a Mortgage Loan Package at a price mutually agreed upon by the
parties; or (d) the Pass-Through Transfer of the last Mortgage Loan in such
Mortgage Loan Package.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Countrywide:
Countrywide Home Loans Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx
With a copy to: General Counsel
(ii) the Purchaser:
Xxxxxx Funding LLC
c/o Global Securitization Services, LLC
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attn: Vice President
Facsimile: (000) 000-0000
With a copy to: Barclays Bank PLC, as administrator
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
Facsimile: (000) 000-0000
E-Mail: xxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
and
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
E-Mail: xxxxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx
To the address and contact set forth in the related Purchase
Confirmation or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 7.02 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Countrywide and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 7.03 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 7.04 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 7.05 Further Agreements.
Countrywide shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Countrywide such
reasonable and appropriate additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 7.06 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans in a Whole Loan Transfer or
Pass-Through Transfer and may assign this Agreement; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement in
the form of an assignment, assumption and recognition agreement ("AAR")
reasonably acceptable to the Purchaser and Countrywide and an original
counterpart of the AAR shall have been executed by the Purchaser and the
transferee and delivered to Countrywide. Notwithstanding the foregoing, no
transfer shall be effective if such transfer would result in there being more
than three (3) "Purchasers" outstanding hereunder with respect to any Mortgage
Loan Package. Any Person or trust to which Mortgage Loans may be transferred
pursuant to this Section 7.06(a) or Section 7.06(b) hereunder shall constitute a
single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Countrywide agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 7.06(a) hereof, may effect Pass-Through
Transfers, retaining Countrywide, as the servicer thereof or subservicer if a
master servicer is employed, or as applicable the "seller/servicer." On the
related Reconstitution Date, the Mortgage Loans transferred shall cease to be
covered by this Agreement; provided, however, that, in the event that any
Mortgage Loan transferred pursuant to this Section 7.06 is rejected by the
related transferee, Countrywide shall continue to service such rejected Mortgage
Loan on behalf of the Purchaser in accordance with the terms and provisions of
this Agreement. Countrywide shall cooperate with the Purchaser in connection
with each Pass-Through Transfer in accordance with this Section 7.06. In
connection therewith Countrywide shall:
(i) negotiate in good faith an AAR required to effectuate the
Pass-Through Transfer, provided such AAR creates no greater
obligation or cost on the part of Countrywide than otherwise set
forth in this Agreement, and provided further that Countrywide shall
be entitled to a servicing fee under that agreement at a rate per
annum no less than the Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Countrywide of the type and
scope customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of Countrywide as are
reasonably believed necessary by the trustee, any rating agency or
the Purchaser, as the case may be, in connection with such
Pass-Through Transfer. The Purchaser shall pay all third party costs
associated with the preparation of the information described in
clause (ii)(A) above and the delivery of any opinions, letters or
certificates described in this clause (ii)(B). Countrywide shall not
be required to execute any AAR unless a draft of such AAR is
provided to Countrywide at least 10 days before the Reconstitution
Date, or such longer period as may reasonably be required for
Countrywide and its counsel to review and comment on the agreement.
(c) In connection with any Pass-Through Transfer, Countrywide shall
not be required to "bring down" any of the representations and warranties in
this Agreement (i.e., the representations and warranties only speak as of the
applicable date set forth in the Purchase Agreement), or, except as provided in
the following sentence, to make any other representations or warranties
whatsoever. Upon request, Countrywide will bring down the representations and
warranties in Section 2.01 of this Agreement to a date no later than the related
Reconstitution Date.
(d) Countrywide shall: (i) provide to the Purchaser any and all
necessary information and appropriate verification of information which may be
reasonably available to Countrywide, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; and (ii) execute an indemnity agreement agreed upon by the Purchaser
and Countrywide such as an Indemnification and Contribution Agreement in a form
to be mutually agreed upon by the parties. Moreover, Countrywide agrees to
cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements.
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers shall remain subject to this Agreement and shall continue
to be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
Section 7.07 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Purchase Agreement and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control. In the event of any conflict, inconsistency or
ambiguity between the terms and conditions of this Agreement and the Purchase
Agreement, the terms of this Agreement shall control.
Section 7.08 Governing Law.
This Agreement shall be deemed in effect when fully executed
counterpart and shall be deemed to have been made in the State of New York. The
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall be
deemed in accordance with the substantive laws of the State of New York (without
regard to conflict of laws principles), except to the extent preempted by
applicable federal Law.
Section 7.09 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 7.10 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Countrywide, the Purchaser and the respective permitted
successors and assigns of Countrywide and the Purchaser. Except as specifically
set forth in Section 7.06 above, the Purchaser may not assign, pledge or
hypothecate this Agreement to any Person without Countrywide's prior written
consent.
Section 7.11 Confidentiality.
Countrywide and the Purchaser acknowledge and agree that the terms
of the Transaction Documents shall be kept confidential and their contents will
not be divulged to any party without the other party's consent, except to the
extent that it is appropriate for Countrywide and the Purchaser to do so in
working with legal counsel, auditors, taxing authorities, or other governmental
agencies.
Section 7.12 Entire Agreement.
This Agreement and Purchase Confirmation constitute the entire
understanding between the Countrywide and the Purchaser with respect to each
Mortgage Loan Package and supersede all prior or contemporaneous oral or written
communications regarding same. Countrywide and the Purchaser understand and
agree that no employee, agent or other representative of Countrywide or the
Purchaser has any authority to bind such party with regard to any statement,
representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within the
express terms of this Agreement or the related Purchase Confirmation. Neither
this Agreement nor the related Purchase Confirmation shall be modified, amended
or in any way altered except by an instrument in writing signed by both parties.
Section 7.13 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 7.14 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 7.15 Waiver of Trial by Jury.
COUNTRYWIDE AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.16 Consent to Service of Process.
EACH OF THE PURCHASER AND COUNTRYWIDE IRREVOCABLY (I) SUBMITS TO THE
NON EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT;
(II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES
THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV)
CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED
MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Countrywide and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
COUNTRYWIDE HOME LOANS INC.,
Countrywide
By:____________________________________
Name:
Title:
XXXXXX FUNDING LLC,
the Purchaser
By:____________________________________
Name:
Title:
EXHIBIT M-3
AMENDMENT REG AB
AMENDMENT REG AB
TO THE MASTER MORTGAGE LOAN PURCHASE AGREEMENT AND THE SERVICING
AGREEMENT
This is Amendment Reg AB ("Amendment Reg AB"), dated as of August
30, 2006, by and between Barclays Bank PLC (the "Purchaser") and Countrywide
Home Loans, Inc. (the "Company"), to that certain Master Mortgage Loan Purchase
Agreement (the "Purchase Agreement") and that certain Servicing Agreement (the
"Servicing Agreement"), each dated as of August 30, 2006 and each by and between
the Company and the Purchaser (as amended, modified or supplemented, the
"Existing Agreements").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Purchaser have agreed, subject to the
terms and conditions of this Amendment Reg AB that the Existing Agreements be
amended to reflect agreed upon revisions to the terms of the Existing
Agreements.
Accordingly, the Company and the Purchaser hereby agree, in
consideration of the mutual premises and mutual obligations set forth herein,
that the Existing Agreements are hereby amended as follows:
1. Capitalized terms used herein but not otherwise defined shall
have the meanings set forth in the Existing Agreements. The Existing Agreements
are hereby amended by adding the following definitions in their proper
alphabetical order:
Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Section 2(g)(i)(A)(1).
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Exchange Act. The Securities Exchange Act of 1934, as amended.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were either (x) originated pursuant to an agreement between the
Company and such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to the Company, in accordance with
underwriting guidelines designated by the Company ("Designated Guidelines") or
guidelines that do not vary materially from such Designated Guidelines or (y)
individually re-underwritten by the Company to the Designated Guidelines at the
time such Mortgage Loans were acquired by the Company; (ii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Company on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Company; and (iii) the Company employed, at the time such
Mortgage Loans were acquired by the Company, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that either Persons from which it
purchased mortgage loans properly applied the underwriting criteria designated
by the Company or the Mortgage Loans purchased by the Company substantially
comply with the Designated Guidelines.
Reconstitution: Any Securitization Transaction or Whole
Loan Transfer.
Reconstitution Agreement: An agreement or agreements entered into by
the Company and the Purchaser and/or certain third parties in connection with a
Reconstitution with respect to any or all of the Mortgage Loans serviced under
the Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction subject to Regulation AB
involving either (1) a sale or other transfer of some or all of the Mortgage
Loans directly or indirectly to an issuing entity in connection with an issuance
of publicly offered, rated mortgage-backed securities or (2) an issuance of
publicly offered, rated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage Loans.
Servicer: As defined in Section 2(c)(iii).
Servicing Criteria: The "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to time.
Static Pool Information: Static pool information as
described in Item 1105.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Company under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB; provided, however, that the term "Subservicer" shall
not include any master servicer, or any special servicer engaged at the request
of a Depositor, Purchaser or investor in a Securitization Transaction, nor any
"back-up servicer" or trustee performing servicing functions on behalf of a
Securitization Transaction.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
2. The Purchaser and the Company agree that the Existing Agreements
is hereby amended by adding the following provisions:
(a) Intent of the Parties; Reasonableness. The Purchaser and the
Company acknowledge and agree that the purpose of Article 2 of this Agreement is
to facilitate compliance by the Purchaser and any Depositor with the provisions
of Regulation AB and related rules and regulations of the Commission. Neither
the Purchaser nor any Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder. The
Company acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, and agrees to negotiate in good faith with the
Purchaser or any Depositor with regard to any reasonable requests for delivery
of information under these provisions on the basis of evolving interpretations
of Regulation AB. In connection with any Securitization Transaction, the Company
shall cooperate fully with the Purchaser to deliver to the Purchaser (including
any of its assignees or designees) and any Depositor, any and all statements,
reports, certifications, records and any other information necessary to permit
the Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Company, and any parties or items
identified in writing by the Purchaser, including, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans necessary in order to effect such compliance.
The Purchaser agrees that it will cooperate with the Company and
provide sufficient and timely notice of any information requirements pertaining
to a Securitization Transaction. The Purchaser will make all reasonable efforts
to contain requests for information, reports or any other materials to items
required for compliance with Regulation AB, and shall not request information
which is not required for such compliance.
(b) Additional Representations and Warranties of the Company.
(i) The Company shall be deemed to represent to the Purchaser
and to any Depositor, as of the date on which information is first
provided to the Purchaser or any Depositor under Section 2(c) that,
except as disclosed in writing to the Purchaser or such Depositor
prior to such date: (i) the Company is not aware and has not
received notice that any default, early amortization or other
performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Company; (ii)
the Company has not been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or
to application of a servicing performance test or trigger; (iii) no
material noncompliance with the applicable servicing criteria with
respect to other securitizations of residential mortgage loans
involving the Company as servicer has been disclosed or reported by
the Company; (iv) no material changes to the Company's policies or
procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreement for mortgage
loans of a type similar to the Mortgage Loans have occurred during
the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the
Company's financial condition that could have a material adverse
effect on the performance by the Company of its servicing
obligations under this Agreement or any Reconstitution Agreement;
(vi) there are no material legal or governmental proceedings pending
(or known to be contemplated) against the Company, any Subservicer
or any Third-Party Originator; and (vii) there are no affiliations,
relationships or transactions required to be disclosed under Item
1119 between the Company and any of the parties listed in Section
2(c)(i)(D)(1)-(9) which are identified in writing by the Purchaser
or Depositor in advance of the Securitization Transaction pursuant
to Section 2(c)(i)(D) of this Amendment Reg AB.
(ii) If so requested by the Purchaser or any Depositor on any
date following the date on which information is first provided to
the Purchaser or any Depositor under Section 2(c), the Company
shall, within ten Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth
in paragraph (i) of this Section or, if any such representation and
warranty is not accurate as of the date of such request, provide
reasonably adequate disclosure of the pertinent facts, in writing,
to the requesting party.
(c) Information to Be Provided by the Company. In connection with
any Securitization Transaction the Company shall (1) within ten Business
Days following request by the Purchaser or any Depositor, provide to the
Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator and each Subservicer to provide), in writing reasonably
required for compliance with Regulation AB, the information and materials
specified in paragraphs (i), (ii), (iii) and (vi) of this Section 2(c),
and (2) as promptly as practicable following notice to or discovery by the
Company, provide to the Purchaser and any Depositor (as required by
Regulation AB) the information specified in paragraph (iv) of this
Section.
(i) If so requested by the Purchaser or any Depositor, the
Company shall provide such information regarding (x) the Company, as
originator of the Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified Correspondent, if applicable), or
(y) as applicable, each Third-Party Originator, and (z) as
applicable, each Subservicer, as is requested for the purpose of
compliance with Items 1103(a)(1), 1105 (subject to paragraph (b)
below), 1110, 1117 and 1119 of Regulation AB. Such information shall
include, at a minimum:
(A) the originator's form of organization;
(B) to the extent material, a description of the
originator's origination program and how long the originator
has been engaged in originating residential mortgage loans,
which description shall include a discussion of the
originator's experience in originating mortgage loans of a
similar type as the Mortgage Loans; if material, information
regarding the size and composition of the originator's
origination portfolio; and information that may be material to
an analysis of the performance of the Mortgage Loans,
including the originators' credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the Mortgage
Loans and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a brief description of any material legal or
governmental proceedings pending (or known to be contemplated
by a governmental authority) against the Company, each
Third-Party Originator, if applicable, and each Subservicer;
and
(D) a description of any affiliation or relationship
between the Company, each Third-Party Originator, if
applicable, each Subservicer and any of the following parties
to a Securitization Transaction, as such parties are
identified to the Company by the Purchaser or any Depositor in
writing within ten days in advance of such Securitization
Transaction:
(1) any servicer;
(2) any trustee;
(3) any originator;
(4) any significant obligor;
(5) any enhancement or support provider; and
(6) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor, and
required by Regulation AB, the Company shall provide (or, as
applicable, cause each Third-Party Originator to provide) Static
Pool Information with respect to the mortgage loans (of a similar
type as the Mortgage Loans, as reasonably identified by the
Purchaser as provided below) originated by (a) the Company, if the
Company is an originator of Mortgage Loans (including as an acquirer
of Mortgage Loans from a Qualified Correspondent, if applicable),
and/or (b) as applicable, each Third-Party Originator. Such Static
Pool Information shall be prepared by the Company (or, if
applicable, the Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that there is
reasonably available to the Company (or Third-Party Originator, as
applicable) Static Pool Information with respect to more than one
mortgage loan type, the Purchaser or any Depositor shall be entitled
to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content of such Static Pool
Information may be in the form customarily provided by the Company,
and need not be customized for the Purchaser or any Depositor. Such
Static Pool Information for each vintage origination year or prior
securitized pool, as applicable, shall be presented in increments no
less frequently than quarterly over the life of the mortgage loans
included in the vintage origination year or prior securitized pool.
The most recent periodic increment must be as of a date no later
than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or
incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of
the information provided, such as a portable document format (pdf)
file, or other such electronic format mutually agreed upon by the
Purchaser and the Company; provided, however, that to the extent the
Company provides Static Pool Information via weblink, the Company
agrees to comply with the applicable provisions of Rule 312(a)(2),
(a)(3), and (a)(4) of Regulation S-T under the Act.
Promptly following notice or discovery of a material error, as
determined in the Company's judgment, in Static Pool Information
provided pursuant to the immediately preceding paragraph (including
an omission to include therein information required to be provided
pursuant to such paragraph) during the applicable offering period
for the securities, the Company shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the
same format in which Static Pool Information was previously provided
to such party by the Company.
If so requested by the Purchaser or any Depositor, the Company
shall provide (or, as applicable, cause each Third-Party Originator
to provide), at the expense of the requesting party (to the extent
of any additional incremental expense associated with delivery
pursuant to this Agreement), procedures letters of certified public
accountants pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1,
2006 or, in the case of Static Pool Information with respect to the
Company's or, if applicable, Third-Party Originator's originations
or purchases, to calendar months commencing January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such
statements and letters shall be addressed to and be for the benefit
of such parties as the Purchaser or such Depositor shall designate,
which shall be limited to any Sponsor, any Depositor, any broker
dealer acting as underwriter, placement agent or initial purchaser
with respect to a Securitization Transaction or any other party that
is reasonably and customarily entitled to receive such statements
and letters in a Securitization Transaction. Any such statement or
letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by
the addressees designated by the Purchaser or such Depositor.
(iii) If reasonably requested by the Purchaser or any
Depositor, the Company shall provide such information regarding the
Company, as servicer of the Mortgage Loans, and each Subservicer
(each of the Company and each Subservicer, for purposes of this
paragraph, a "Servicer"), as is reasonably requested for the purpose
of compliance with Item 1108 of Regulation AB. Such information
shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been
servicing residential mortgage loans; a general discussion of
the Servicer's experience in servicing assets of any type as
well as a more detailed discussion of the Servicer's
experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution
Agreements; information regarding the size, composition and
growth of the Servicer's portfolio of residential mortgage
loans of a type similar to the Mortgage Loans and information
on factors related to the Servicer that may be material, in
the reasonable determination of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage
Loans or the related asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving
the Servicer have defaulted or experienced an early
amortization or other performance triggering event
because of servicing during the three-year period
immediately preceding the related Securitization
Transaction;
(2) the extent of outsourcing the Servicer
utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing
criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as a
servicer during the three-year period immediately
preceding the related Securitization Transaction;
(4) whether the Servicer has been terminated as
servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related
Securitization Transaction to the Servicer's policies or
procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreements
for mortgage loans of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's financial
condition, to the extent that there is a material risk that an
adverse financial event or circumstance involving the Servicer
could have a material adverse effect on the performance by the
Company of its servicing obligations under this Agreement or
any Reconstitution Agreement;
(E) information regarding advances made by the Servicer
on the Mortgage Loans and the Servicer's overall servicing
portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an
authorized officer of the Servicer to the effect that the
Servicer has made all advances required to be made on
residential mortgage loans serviced by it during such period,
or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as
required, and the reasons for such failure to advance;
(F) a description of the Servicer's processes and
procedures designed to address any special or unique factors
involved in servicing loans of a similar type as the Mortgage
Loans;
(G) a description of the Servicer's processes for
handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of mortgaged properties, sale of
defaulted mortgage loans or workouts; and
(H) information as to how the Servicer defines or
determines delinquencies and charge-offs, including the effect
of any grace period, re-aging, restructuring, partial payments
considered current or other practices with respect to
delinquency and loss experience.
(iv) For the purpose of satisfying its reporting obligation
under the Exchange Act with respect to any class of asset-backed
securities, the Company shall (or shall cause each Subservicer and,
if applicable, any Third-Party Originator to) (a) provide prompt
notice to the Purchaser, any Master Servicer and any Depositor in
writing of (1) any merger, consolidation or sale of substantially
all of the assets of the Company, (2) the Company's entry into an
agreement with a Subservicer to perform or assist in the performance
of any of the Company's obligations under the Agreement or any
Reconstitution Agreement that qualifies as an "entry into a material
definitive agreement" under Item 1.01 of the form 8-K, (3) any Event
of Default under the terms of the Agreement or any Reconstitution
Agreement to the extent not known by such Purchaser, Master Servicer
or Depositor and (4) any material litigation or governmental
proceedings involving the Company, any Subservicer or any Third
Party Originator.
(v) As a condition to the succession to the Company or any
Subservicer as servicer or subservicer under this Agreement or any
applicable Reconstitution Agreement related thereto by any Person
(i) into which the Company or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the
Company or any Subservicer, the Company shall provide to the
Purchaser, the Master Servicer and any Depositor, at least 15
calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor
of such succession or appointment and (y) in writing, all
information reasonably requested by the Purchaser or any Depositor
in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to any class of asset-backed securities.
(vi) The Company shall provide to the Purchaser and any
Depositor a description of any affiliation or relationship required
to be disclosed under Item 1119 of Regulation AB between the Company
and any of the parties listed in Items 1119 (a)(1)-(6) of Regulation
AB that develops following the closing date of a Securitization
Transaction (other than an affiliation or relationship that the
Purchaser, the Depositor or the issuing entity is required to
disclose under Item 1119 of Regulation AB) no later than 15 calendar
days prior to the date the Depositor is required to file its Form 10
K disclosing such affiliation or relationship. For purposes of the
foregoing, the Company (1) shall be entitled to assume that the
parties to the Securitization Transaction with whom affiliations or
relations must be disclosed are the same as on the closing date if
it provides a written request (which may be by e-mail) to the
Depositor or Master Servicer, as applicable, requesting such
confirmation and either obtains such confirmation or receives no
response within three (3) Business Days, (2) shall not be obligated
to disclose any affiliations or relationships that may develop after
the closing date for the Securitization Transaction with any parties
not identified to the Company pursuant to clause (D) of paragraph
(i) of this Section 2(c), and (3) shall be entitled to rely upon any
written identification of parties provided by the Depositor, the
Purchaser or any master servicer.
(vii) Not later than ten days prior to the deadline for the
filing of any distribution report on Form 10-D in respect of any
Securitization Transaction that includes any of the Mortgage Loans
serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or such
Subservicer has knowledge, provide to the party responsible for
filing such report (including, if applicable, the Master Servicer)
notice of the occurrence of any of the following events along with
all information, data, and materials related thereto as may be
required to be included in the related distribution report on Form
10-D :
(a) any material modifications, extensions or waivers of
Mortgage Loan terms, fees, penalties or payments during the
distribution period;
(b) material breaches of Mortgage Loan representations or
warranties or transaction covenants under the Existing Agreements,
as amended herein; and
(c) information regarding any Mortgage Loan changes (such as,
additions, substitutions or repurchases) and with respect to a
mortgage loan that the Company has substituted as a replacement for
a Mortgage Loan ("Substituted Mortgage Loan"), the origination,
underwriting and, if applicable, other Company criteria for the
acquisition or selection of such Substituted Mortgage Loan.
(d) Servicer Compliance Statement. On or before March 5 of each
calendar year, commencing in 2007, the Company shall deliver to the Purchaser,
the Master Servicer and any Depositor a statement of compliance addressed to the
Purchaser and such Depositor and signed by an authorized officer of the Company,
to the effect that (i) a review of the Company's servicing activities during the
immediately preceding calendar year (or applicable portion thereof) and of its
performance under the servicing provisions of this Agreement and any applicable
Reconstitution Agreement during such period has been made under such officer's
supervision, and (ii) to the best of such officers' knowledge, based on such
review, the Company has fulfilled all of its servicing obligations under this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
(e) Report on Assessment of Compliance and Attestation.
(i) On or before March 5 of each calendar year, commencing in
2007, the Company shall:
(A) deliver to the Purchaser, the Master Servicer and
any Depositor a report regarding the Company's assessment of
compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB.
Such report shall be addressed to the Purchaser and such
Depositor and signed by an authorized officer of the Company,
and shall address each of the applicable Servicing Criteria
specified on Exhibit A hereto (wherein "Investor" shall mean
the Master Servicer);
(B) deliver to the Purchaser, the Master Servicer and
any Depositor a report of a registered public accounting firm
that attests to, and reports on, the assessment of compliance
made by the Company and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities
Act and the Exchange Act;
(C) if required by Regulation AB, cause each Subservicer
and each Subcontractor determined by the Company pursuant to
Section 2(f)(ii) to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB
(each, a "Participating Entity"), to deliver to the Purchaser,
the Master Servicer and any Depositor an assessment of
compliance and accountants' attestation as and when provided
in paragraphs (i) and (ii) of this Section 2(e); and
(D) deliver or cause each Subservicer and Subcontractor
described in Section 2(e)(i)(C) above to deliver to the
Purchaser, the Master Servicer, Depositor or any other Person
that will be responsible for signing the certification (a
"Sarbanes Certification") required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of
the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed
issuer with respect to a Securitization Transaction, a
certification signed by an appropriate officer of the Company,
in the form attached hereto as Exhibit B; provided that such
certification delivered by the Company may not be filed as an
exhibit to, or included in, any filing with the Commission.
The Company acknowledges that the party identified in clause (i)(D)
above may rely on the certification provided by the Company pursuant to such
clause in signing a Sarbanes Certification and filing such with the Commission.
(ii) Each assessment of compliance provided by a Subservicer
pursuant to Section 2(e)(i)(A) shall address each of the applicable
Servicing Criteria specified on Exhibit A hereto (wherein "Investor"
shall mean the Master Servicer) delivered to the Purchaser
concurrently with the execution of this Agreement or, in the case of
a Subservicer subsequently appointed as such, on or prior to the
date of such appointment. An assessment of compliance provided by a
Participating Entity pursuant to Section 2(e)(i)(C) need not address
any elements of the Servicing Criteria other than those specified by
the Company pursuant to Section 2(f).
If reasonably requested by the Purchaser or the Master Servicer, the
Company shall provide to the Purchaser or the Master Servicer, evidence of the
authorization of the person signing any certification or statement provided
pursuant to this Amendment Reg AB.
(f) Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer under
this Agreement or any related Reconstitution Agreement unless the Company
complies with the provisions of paragraph (i) of this Subsection (f). The
Company shall not hire or otherwise utilize the services of any Subcontractor,
and shall not permit any Subservicer to hire or otherwise utilize the services
of any Subcontractor, to fulfill any of the obligations of the Company as
servicer under this Agreement or any related Reconstitution Agreement unless the
Company complies with the provisions of paragraph (ii) of this Subsection (f).
(i) It shall not be necessary for the Company to seek the
consent of the Purchaser, the Master Servicer or any Depositor to
the utilization of any Subservicer. If required by Regulation AB,
after reasonable notice from the Purchaser of the parties involved
in the Purchaser's Securitization Transaction, the Company shall
cause any Subservicer used by the Company (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with
the provisions of this Section and with Sections 2(b), 2(c)(iii),
2(c)(v), 2(d), and 2(e) of this Agreement, and to provide the
information required with respect to such Subservicer under Section
2(c)(iv) of this Agreement. The Company shall be responsible for
obtaining from each Subservicer and delivering to the Purchaser and
any Depositor any servicer compliance statement required to be
delivered by such Subservicer under Section 2(d), any assessment of
compliance and attestation required to be delivered by such
Subservicer under Section 2(e) and any certification required to be
delivered to the Person that will be responsible for signing the
Sarbanes Certification under Section 2(e) as and when required to be
delivered.
(ii) It shall not be necessary for the Company to seek the
consent of the Purchaser or any Depositor to the utilization of any
Subcontractor. If required by Regulation AB, after reasonable notice
from the Purchaser of the parties involved in the Purchaser's
Securitization Transaction, the Company shall promptly upon request
provide to the Purchaser or any Depositor (or any designee of the
Depositor, such as a master servicer or administrator) of the role
and function of each Subcontractor utilized by the Company or any
Subservicer, specifying (A) the identity of each such Subcontractor,
(B) which (if any) of such Subcontractors are Participating
Entities, and (C) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each
Participating Entity identified pursuant to clause (B)of this
paragraph.
The Company shall cause any such Participating Entity used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Section 2(e) of this Agreement. The
Company shall be responsible for obtaining from each Participating Entity and
delivering to the Purchaser, the Master Servicer and any Depositor any
assessment of compliance and attestation and certificate required to be
delivered by such Participating Entity under Section 2(e), in each case as and
when required to be delivered.
(g) Indemnification; Remedies.
(i) The Company shall indemnify the Purchaser and the
Depositor and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each
Person responsible for the execution or filing of any report
required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act
with respect to such Securitization Transaction; each Person who
controls any of such parties (within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers and employees of
each of the foregoing and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal
fees and expenses and related costs, judgments, and any other costs,
fees and expenses that any of them may sustain arising out of or
based upon:
(A)(1) any untrue statement of a material fact contained
or alleged to be contained in any information, report,
certification or other material provided in written or
electronic form under this Amendment Reg AB by or on behalf of
the Company (including any Static Pool Information provided by
the Company pursuant to Section 2(c)(ii)), or provided under
this Amendment Reg AB by or on behalf of any Subservicer,
Participating Entity or, if applicable, Third-Party Originator
(collectively, the "Company Information"), or (2) the omission
or alleged omission to state in the Company Information a
material fact required to be stated in the Company Information
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (2)
of this paragraph shall be construed solely by reference to
the Company Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Company Information
or any portion thereof is presented together with or
separately from such other information;
(B) any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to deliver
any information, report, certification, accountants' letter or
other material when and as required under this Amendment Reg
AB, including any failure by the Company to identify pursuant
to Section 2(f)(ii) any Participating Entity; or
(C) any breach by the Company of a representation or
warranty set forth in Section 2(b)(i) or in a writing
furnished pursuant to Section 2(b)(ii) and made as of a date
prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Company of a
representation or warranty in a writing pursuant to under
Section 2(b)(ii) to the extent made as of a date subsequent to
such closing date; or
(D) the Company's failure to comply with applicable
provisions of Rule 312(a)(2), (a)(3), and (a)(4) of Regulation
S-T under the Act.
In the case of any failure of performance described in clause (i)(B)
of this Section, the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator.
(ii) (A) Any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or other
material when and as required under this Amendment Reg AB, which
continues unremedied for three Business Days after receipt by the
Company and the applicable Subservicer, Subcontractor, or
Third-Party Originator, so long as their addresses for notices have
been provided in writing previously to the Purchaser or the
Depositor, of written notice of such failure from the Purchaser or
Depositor shall, except as provided in clause (B) of this paragraph,
constitute an Event of Default with respect to the Company under
this Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser or Depositor, as applicable, in its sole
discretion to terminate the rights and obligations of the Company as
servicer under this Agreement and/or any applicable Reconstitution
Agreement related thereto without payment (notwithstanding anything
in this Agreement or any applicable Reconstitution Agreement related
thereto to the contrary) of any compensation to the Company (and if
the Company is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably
acceptable to any Master Servicer for such Securitization
Transaction); provided, however it is understood that the Company
shall remain entitled to receive reimbursement for all unreimbursed
Monthly Advances and Servicing Advances made by the Company under
this Agreement and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein, to the
extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Company
as servicer, such provision shall be given effect.
(B) Any failure by the Company, any Subservicer or any
Participating Entity to deliver any information, report,
certification or accountants' letter required under Regulation
AB when and as required under Section 2(d) or 2(e), including
any failure by the Company to identify a Participating Entity,
which continues unremedied for nine calendar days after
receipt by the Company of written notice of such failure from
the Purchaser or Depositor (which failure shall continue no
later than March 15th of each year ("Due Date") with respect
to Section 2(d) or 2(e); provided, however the Company shall
have received such written notice of such failure at least 5
Business Days prior to such Due Date) shall constitute an
Event of Default with respect to the Company under this
Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser or Depositor, as applicable, in
its sole discretion to terminate the rights and obligations of
the Company as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary)
of any compensation to the Company; provided, however it is
understood that the Company shall remain entitled to receive
reimbursement for all unreimbursed Monthly Advances and
Servicing Advances made by the Company under this Agreement
and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein, to
the extent that any provision of this Agreement and/or any
applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following
termination of the Company as servicer, such provision shall
be given effect.
(C) The Company shall promptly reimburse the Purchaser
(or any affected designee of the Purchaser, such as a master
servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such
Depositor as such are incurred, in connection with the
termination of the Company as servicer and the transfer of
servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights
the Company, the Purchaser or any Depositor may have under
other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at
law, such as an action for damages, specific performance or
injunctive relief.
(iii) The Purchaser agrees to indemnify and hold harmless the
Company, any Subservicer, any Participating Entity, and, if
applicable, any Third-Party Originator, each Person who controls any
of such parties (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the respective present
and former directors, officers and employees of each of the
foregoing from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain
arising out of or based upon any untrue statement or alleged untrue
statement of any material fact contained in any filing with the
Commission or the omission or alleged omission to state in any
filing with the Commission a material fact required to be stated or
necessary to be stated in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that
such untrue statement, alleged untrue statement, omission, or
alleged omission relates to any filing with the Commission other
than the Company Information. [Still open]
(iv) The indemnification obligations provided for in Section
2(g) shall survive the termination of this Amendment Reg AB or the
termination of any party to this Amendment Reg AB.
3. Notwithstanding any other provision of this Amendment Reg AB, the
Company shall seek the consent of the Purchaser for the utilization of all
Subservicers and Participating Entities, when required by and in accordance with
the terms of the Existing Agreements.
4. The Servicing Agreement is hereby amended by adding the Exhibit
attached hereto as Exhibit A to the end thereto. References in this Amendment
Reg AB to "this Agreement" or words of similar import (including indirect
references to the Agreement) shall be deemed to be references to the Existing
Agreements as amended by this Amendment Reg AB. Except as expressly amended and
modified by this Amendment Reg AB, the Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms. In the event of a
conflict between this Amendment Reg AB and any other document or agreement,
including without limitation the Existing Agreements, this Amendment Reg AB
shall control.
5. This Amendment Reg AB may be executed in one or more counterparts
and by different parties hereto on separate counterparts, each of which, when so
executed, shall constitute one and the same agreement. This Amendment Reg AB
will become effective as of the date first mentioned above. This Amendment Reg
AB shall bind and inure to the benefit of and be enforceable by the Company and
the Purchaser and the respective permitted successors and assigns of the Company
and the successors and assigns of the Purchaser.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
BARCLAYS BANK PLC
Purchaser
By:____________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
Company
By:____________________________________
Name:
Title:
EXHIBIT A
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name
of Subservicer] shall address, at a minimum, the applicable criteria identified
below as "Applicable Servicing Criteria":
---------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
----------------------------------------------------------------------------- --------------
Reference Criteria
----------------- ---------------------------------------------------------- --------------
General Servicing Considerations
----------------- ---------------------------------------------------------- --------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements. X
----------------- ---------------------------------------------------------- --------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and
compliance with such servicing activities. X
----------------- ---------------------------------------------------------- --------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
maintained.
----------------- ---------------------------------------------------------- --------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance X
with the terms of the transaction agreements.
----------------- ---------------------------------------------------------- --------------
Cash Collection and Administration
----------------- ---------------------------------------------------------- --------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days X
specified in the transaction agreements.
----------------- ---------------------------------------------------------- --------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
personnel. X
----------------- ---------------------------------------------------------- --------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements. X
----------------- ---------------------------------------------------------- --------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained X
(e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
----------------- ---------------------------------------------------------- --------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities X
Exchange Act.
----------------- ---------------------------------------------------------- --------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent X
unauthorized access.
----------------- ---------------------------------------------------------- --------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for
all asset-backed securities related bank accounts,
including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number
of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling X
items are resolved within 90 calendar days of their
original identification, or such other number of days
specified in the transaction agreements.
----------------- ---------------------------------------------------------- --------------
Investor Remittances and Reporting
----------------- ---------------------------------------------------------- --------------
1122(d)(3)(i) Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the X
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
----------------- ---------------------------------------------------------- --------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements. X
----------------- ---------------------------------------------------------- --------------
1122(d)(3)(iii) Disbursements made to an investor are posted within
two business days to the Servicer's investor records,
or such other number of days specified in the X
transaction agreements.
----------------- ---------------------------------------------------------- --------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, X
or custodial bank statements.
----------------- ---------------------------------------------------------- --------------
Pool Asset Administration
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction agreements
or related mortgage loan documents. X
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance
with any conditions or requirements in the transaction
agreements. X
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance X
with the related mortgage loan documents.
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an
obligor's unpaid principal balance. X
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset X
documents.
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by X
the transaction agreements.
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling X
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based
on the related mortgage loan documents. X
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of X
the related mortgage loans, or such other number of
days specified in the transaction agreements.
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the X
transaction agreements.
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the X
obligor's error or omission.
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of X
days specified in the transaction agreements.
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
transaction agreements. X
----------------- ---------------------------------------------------------- --------------
1122(d)(4)(xv) Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
----------------- ---------------------------------------------------------- --------------
[NAME OF COMPANY][NAME OF SUBSERVICER]
Date: _______________________________
By: ______________________________
Name:
Title:
EXHIBIT B
FORM OF ANNUAL CERTIFICATION
Re: The [__] agreement dated as of [__], 200[_] (the "Agreement"),
among [IDENTIFY PARTIES]
I, ________________________________, the _______________________ of
Countrywide Home Loans, Inc., certify to [the Purchaser], [the Depositor],
[Master Servicer], [Securities Administrator] or [Trustee], and its officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Company during 200[_] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator] or
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
or [Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement; and
[Intentionally Left Blank]
(5) The Compliance Statement required to be delivered by the Company
pursuant to this Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by each Subservicer and
Participating Entity pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:__________________________________
By:____________________________________
Name:
Title:
AMENDMENT REG AB
TO THE MASTER MORTGAGE LOAN PURCHASE AGREEMENT AND THE SERVICING
AGREEMENT
This is Amendment Reg AB ("Amendment Reg AB"), dated as of February
26, 2007, by and between Xxxxxx Funding LLC (the "Purchaser") and Countrywide
Home Loans, Inc. (the "Company"), to that certain Master Mortgage Loan Purchase
Agreement (the "Purchase Agreement") and that certain Servicing Agreement (the
"Servicing Agreement"), each dated as of February 26, 2007 and each by and
between the Company and the Purchaser (as amended, modified or supplemented, the
"Existing Agreements").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Purchaser have agreed, subject to the
terms and conditions of this Amendment Reg AB that the Existing Agreements be
amended to reflect agreed upon revisions to the terms of the Existing
Agreements.
Accordingly, the Company and the Purchaser hereby agree, in
consideration of the mutual premises and mutual obligations set forth herein,
that the Existing Agreements are hereby amended as follows:
1. Capitalized terms used herein but not otherwise defined shall
have the meanings set forth in the Existing Agreements. The Existing Agreements
are hereby amended by adding the following definitions in their proper
alphabetical order:
Commission: The United States Securities and Exchange
Commission.
Company Information: As defined in Section 2(g)(i)(A)(1).
Depositor: The depositor, as such term is defined in
Regulation AB, with respect to any Securitization Transaction.
Exchange Act. The Securities Exchange Act of 1934, as
amended.
Master Servicer: With respect to any Securitization
Transaction, the "master servicer," if any, identified in the related
transaction documents.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were either (x) originated pursuant to an agreement between the
Company and such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to the Company, in accordance with
underwriting guidelines designated by the Company ("Designated Guidelines") or
guidelines that do not vary materially from such Designated Guidelines or (y)
individually re-underwritten by the Company to the Designated Guidelines at the
time such Mortgage Loans were acquired by the Company; (ii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Company on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Company; and (iii) the Company employed, at the time such
Mortgage Loans were acquired by the Company, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that either Persons from which it
purchased mortgage loans properly applied the underwriting criteria designated
by the Company or the Mortgage Loans purchased by the Company substantially
comply with the Designated Guidelines.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreement: An agreement or agreements entered into by
the Company and the Purchaser and/or certain third parties in connection with a
Reconstitution with respect to any or all of the Mortgage Loans serviced under
the Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction subject to Regulation AB
involving either (1) a sale or other transfer of some or all of the Mortgage
Loans directly or indirectly to an issuing entity in connection with an issuance
of publicly offered, rated mortgage-backed securities or (2) an issuance of
publicly offered, rated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage Loans.
Servicer: As defined in Section 2(c)(iii).
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Static Pool Information: Static pool information as described in
Item 1105.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Company under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB; provided, however, that the term "Subservicer" shall
not include any master servicer, or any special servicer engaged at the request
of a Depositor, Purchaser or investor in a Securitization Transaction, nor any
"back-up servicer" or trustee performing servicing functions on behalf of a
Securitization Transaction.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
2. The Purchaser and the Company agree that the Existing Agreements
is hereby amended by adding the following provisions:
(a) Intent of the Parties; Reasonableness. The Purchaser and the Company
acknowledge and agree that the purpose of Article 2 of this Agreement is to
facilitate compliance by the Purchaser and any Depositor with the provisions of
Regulation AB and related rules and regulations of the Commission. Neither the
Purchaser nor any Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder. The
Company acknowledges that interpretations of the requirements of Regulation AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, and agrees to negotiate in good faith with the
Purchaser or any Depositor with regard to any reasonable requests for delivery
of information under these provisions on the basis of evolving interpretations
of Regulation AB. In connection with any Securitization Transaction, the Company
shall cooperate fully with the Purchaser to deliver to the Purchaser (including
any of its assignees or designees) and any Depositor, any and all statements,
reports, certifications, records and any other information necessary to permit
the Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Company, and any parties or items
identified in writing by the Purchaser, including, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans necessary in order to effect such compliance.
The Purchaser agrees that it will cooperate with the Company and
provide sufficient and timely notice of any information requirements pertaining
to a Securitization Transaction. The Purchaser will make all reasonable efforts
to contain requests for information, reports or any other materials to items
required for compliance with Regulation AB, and shall not request information
which is not required for such compliance.
(b) Additional Representations and Warranties of the Company.
(i) The Company shall be deemed to represent to the Purchaser
and to any Depositor, as of the date on which information is first
provided to the Purchaser or any Depositor under Section 2(c) that,
except as disclosed in writing to the Purchaser or such Depositor
prior to such date: (i) the Company is not aware and has not
received notice that any default, early amortization or other
performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Company; (ii)
the Company has not been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or
to application of a servicing performance test or trigger; (iii) no
material noncompliance with the applicable servicing criteria with
respect to other securitizations of residential mortgage loans
involving the Company as servicer has been disclosed or reported by
the Company; (iv) no material changes to the Company's policies or
procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreement for mortgage
loans of a type similar to the Mortgage Loans have occurred during
the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the
Company's financial condition that could have a material adverse
effect on the performance by the Company of its servicing
obligations under this Agreement or any Reconstitution Agreement;
(vi) there are no material legal or governmental proceedings pending
(or known to be contemplated) against the Company, any Subservicer
or any Third-Party Originator; and (vii) there are no affiliations,
relationships or transactions required to be disclosed under Item
1119 between the Company and any of the parties listed in Section
2(c)(i)(D)(1)-(9) which are identified in writing by the Purchaser
or Depositor in advance of the Securitization Transaction pursuant
to Section 2(c)(i)(D) of this Amendment Reg AB.
(ii) If so requested by the Purchaser or any Depositor on any
date following the date on which information is first provided to
the Purchaser or any Depositor under Section 2(c), the Company
shall, within ten Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth
in paragraph (i) of this Section or, if any such representation and
warranty is not accurate as of the date of such request, provide
reasonably adequate disclosure of the pertinent facts, in writing,
to the requesting party.
(c) Information to Be Provided by the Company. In connection with
any Securitization Transaction the Company shall (1) within ten Business Days
following request by the Purchaser or any Depositor, provide to the Purchaser
and such Depositor (or, as applicable, cause each Third-Party Originator and
each Subservicer to provide), in writing reasonably required for compliance with
Regulation AB, the information and materials specified in paragraphs (i), (ii),
(iii) and (vi) of this Section 2(c), and (2) as promptly as practicable
following notice to or discovery by the Company, provide to the Purchaser and
any Depositor (as required by Regulation AB) the information specified in
paragraph (iv) of this Section.
(i) If so requested by the Purchaser or any Depositor, the
Company shall provide such information regarding (x) the Company, as
originator of the Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified Correspondent, if applicable), or
(y) as applicable, each Third-Party Originator, and (z) as
applicable, each Subservicer, as is requested for the purpose of
compliance with Items 1103(a)(1), 1105 (subject to paragraph (b)
below), 1110, 1117 and 1119 of Regulation AB. Such information shall
include, at a minimum:
(A) the originator's form of organization;
(B) to the extent material, a description of the
originator's origination program and how long the originator
has been engaged in originating residential mortgage loans,
which description shall include a discussion of the
originator's experience in originating mortgage loans of a
similar type as the Mortgage Loans; if material, information
regarding the size and composition of the originator's
origination portfolio; and information that may be material to
an analysis of the performance of the Mortgage Loans,
including the originators' credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the Mortgage
Loans and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a brief description of any material legal or
governmental proceedings pending (or known to be contemplated
by a governmental authority) against the Company, each
Third-Party Originator, if applicable, and each Subservicer;
and
(D) a description of any affiliation or relationship
between the Company, each Third-Party Originator, if
applicable, each Subservicer and any of the following parties
to a Securitization Transaction, as such parties are
identified to the Company by the Purchaser or any Depositor in
writing within ten days in advance of such Securitization
Transaction:
(1) any servicer;
(2) any trustee;
(3) any originator;
(4) any significant obligor;
(5) any enhancement or support provider; and
(6) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor, and
required by Regulation AB, the Company shall provide (or, as
applicable, cause each Third-Party Originator to provide) Static
Pool Information with respect to the mortgage loans (of a similar
type as the Mortgage Loans, as reasonably identified by the
Purchaser as provided below) originated by (a) the Company, if the
Company is an originator of Mortgage Loans (including as an acquirer
of Mortgage Loans from a Qualified Correspondent, if applicable),
and/or (b) as applicable, each Third-Party Originator. Such Static
Pool Information shall be prepared by the Company (or, if
applicable, the Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that there is
reasonably available to the Company (or Third-Party Originator, as
applicable) Static Pool Information with respect to more than one
mortgage loan type, the Purchaser or any Depositor shall be entitled
to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content of such Static Pool
Information may be in the form customarily provided by the Company,
and need not be customized for the Purchaser or any Depositor. Such
Static Pool Information for each vintage origination year or prior
securitized pool, as applicable, shall be presented in increments no
less frequently than quarterly over the life of the mortgage loans
included in the vintage origination year or prior securitized pool.
The most recent periodic increment must be as of a date no later
than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or
incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of
the information provided, such as a portable document format (pdf)
file, or other such electronic format mutually agreed upon by the
Purchaser and the Company; provided, however, that to the extent the
Company provides Static Pool Information via weblink, the Company
agrees to comply with the applicable provisions of Rule 312(a)(2),
(a)(3), and (a)(4) of Regulation S-T under the Act.
Promptly following notice or discovery of a material error, as
determined in the Company's judgment, in Static Pool Information
provided pursuant to the immediately preceding paragraph (including
an omission to include therein information required to be provided
pursuant to such paragraph) during the applicable offering period
for the securities, the Company shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the
same format in which Static Pool Information was previously provided
to such party by the Company.
If so requested by the Purchaser or any Depositor, the Company
shall provide (or, as applicable, cause each Third-Party Originator
to provide), at the expense of the requesting party (to the extent
of any additional incremental expense associated with delivery
pursuant to this Agreement), procedures letters of certified public
accountants pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1,
2006 or, in the case of Static Pool Information with respect to the
Company's or, if applicable, Third-Party Originator's originations
or purchases, to calendar months commencing January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such
statements and letters shall be addressed to and be for the benefit
of such parties as the Purchaser or such Depositor shall designate,
which shall be limited to any Sponsor, any Depositor, any broker
dealer acting as underwriter, placement agent or initial purchaser
with respect to a Securitization Transaction or any other party that
is reasonably and customarily entitled to receive such statements
and letters in a Securitization Transaction. Any such statement or
letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by
the addressees designated by the Purchaser or such Depositor.
(iii) If reasonably requested by the Purchaser or any
Depositor, the Company shall provide such information regarding the
Company, as servicer of the Mortgage Loans, and each Subservicer
(each of the Company and each Subservicer, for purposes of this
paragraph, a "Servicer"), as is reasonably requested for the purpose
of compliance with Item 1108 of Regulation AB. Such information
shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been
servicing residential mortgage loans; a general discussion of
the Servicer's experience in servicing assets of any type as
well as a more detailed discussion of the Servicer's
experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution
Agreements; information regarding the size, composition and
growth of the Servicer's portfolio of residential mortgage
loans of a type similar to the Mortgage Loans and information
on factors related to the Servicer that may be material, in
the reasonable determination of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage
Loans or the related asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving
the Servicer have defaulted or experienced an early
amortization or other performance triggering event
because of servicing during the three-year period
immediately preceding the related Securitization
Transaction;
(2) the extent of outsourcing the Servicer
utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing
criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as a
servicer during the three-year period immediately
preceding the related Securitization Transaction;
(4) whether the Servicer has been terminated as
servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related
Securitization Transaction to the Servicer's policies or
procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreements
for mortgage loans of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's financial
condition, to the extent that there is a material risk that an
adverse financial event or circumstance involving the Servicer
could have a material adverse effect on the performance by the
Company of its servicing obligations under this Agreement or
any Reconstitution Agreement;
(E) information regarding advances made by the Servicer
on the Mortgage Loans and the Servicer's overall servicing
portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an
authorized officer of the Servicer to the effect that the
Servicer has made all advances required to be made on
residential mortgage loans serviced by it during such period,
or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as
required, and the reasons for such failure to advance;
(F) a description of the Servicer's processes and
procedures designed to address any special or unique factors
involved in servicing loans of a similar type as the Mortgage
Loans;
(G) a description of the Servicer's processes for
handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of mortgaged properties, sale of
defaulted mortgage loans or workouts; and
(H) information as to how the Servicer defines or
determines delinquencies and charge-offs, including the effect
of any grace period, re-aging, restructuring, partial payments
considered current or other practices with respect to
delinquency and loss experience.
(iv) For the purpose of satisfying its reporting obligation
under the Exchange Act with respect to any class of asset-backed
securities, the Company shall (or shall cause each Subservicer and,
if applicable, any Third-Party Originator to) (a) provide prompt
notice to the Purchaser, any Master Servicer and any Depositor in
writing of (1) any merger, consolidation or sale of substantially
all of the assets of the Company, (2) the Company's entry into an
agreement with a Subservicer to perform or assist in the performance
of any of the Company's obligations under the Agreement or any
Reconstitution Agreement that qualifies as an "entry into a material
definitive agreement" under Item 1.01 of the form 8-K, (3) any Event
of Default under the terms of the Agreement or any Reconstitution
Agreement to the extent not known by such Purchaser, Master Servicer
or Depositor and (4) any material litigation or governmental
proceedings involving the Company, any Subservicer or any Third
Party Originator.
(v) As a condition to the succession to the Company or any
Subservicer as servicer or subservicer under this Agreement or any
applicable Reconstitution Agreement related thereto by any Person
(i) into which the Company or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the
Company or any Subservicer, the Company shall provide to the
Purchaser, the Master Servicer and any Depositor, at least 15
calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor
of such succession or appointment and (y) in writing, all
information reasonably requested by the Purchaser or any Depositor
in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to any class of asset-backed securities.
(vi) The Company shall provide to the Purchaser and any
Depositor a description of any affiliation or relationship required
to be disclosed under Item 1119 of Regulation AB between the Company
and any of the parties listed in Items 1119 (a)(1)-(6) of Regulation
AB that develops following the closing date of a Securitization
Transaction (other than an affiliation or relationship that the
Purchaser, the Depositor or the issuing entity is required to
disclose under Item 1119 of Regulation AB) no later than 15 calendar
days prior to the date the Depositor is required to file its Form 10
K disclosing such affiliation or relationship. For purposes of the
foregoing, the Company (1) shall be entitled to assume that the
parties to the Securitization Transaction with whom affiliations or
relations must be disclosed are the same as on the closing date if
it provides a written request (which may be by e-mail) to the
Depositor or Master Servicer, as applicable, requesting such
confirmation and either obtains such confirmation or receives no
response within three (3) Business Days, (2) shall not be obligated
to disclose any affiliations or relationships that may develop after
the closing date for the Securitization Transaction with any parties
not identified to the Company pursuant to clause (D) of paragraph
(i) of this Section 2(c), and (3) shall be entitled to rely upon any
written identification of parties provided by the Depositor, the
Purchaser or any master servicer.
(vii) Not later than ten days prior to the deadline for the
filing of any distribution report on Form 10-D in respect of any
Securitization Transaction that includes any of the Mortgage Loans
serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or such
Subservicer has knowledge, provide to the party responsible for
filing such report (including, if applicable, the Master Servicer)
notice of the occurrence of any of the following events along with
all information, data, and materials related thereto as may be
required to be included in the related distribution report on Form
10-D:
(a) any material modifications, extensions or waivers of
Mortgage Loan terms, fees, penalties or payments during the
distribution period;
(b) material breaches of Mortgage Loan representations or
warranties or transaction covenants under the Existing Agreements,
as amended herein; and
(c) information regarding any Mortgage Loan changes (such as,
additions, substitutions or repurchases) and with respect to a
mortgage loan that ithe Company has substituted as a replacement for
a Mortgage Loan ("Substituted Mortgage Loan"), the origination,
underwriting and, if applicable, other Company criteria for the
acquisition or selection of such Substituted Mortgage Loan.
(d) Servicer Compliance Statement. On or before March 5 of
each calendar year, commencing in 2007, the Company shall deliver to
the Purchaser, the Master Servicer and any Depositor a statement of
compliance addressed to the Purchaser and such Depositor and signed
by an authorized officer of the Company, to the effect that (i) a
review of the Company's servicing activities during the immediately
preceding calendar year (or applicable portion thereof) and of its
performance under the servicing provisions of this Agreement and any
applicable Reconstitution Agreement during such period has been made
under such officer's supervision, and (ii) to the best of such
officers' knowledge, based on such review, the Company has fulfilled
all of its servicing obligations under this Agreement and any
applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if
there has been a failure to fulfill any such obligation in any
material respect, specifically identifying each such failure known
to such officer and the nature and the status thereof.
(e) Report on Assessment of Compliance and Attestation.
(i) On or before March 5 of each calendar year,
commencing in 2007, the Company shall:
(A) deliver to the Purchaser, the Master Servicer
and any Depositor a report regarding the Company's
assessment of compliance with the Servicing Criteria
during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange
Act and Item 1122 of Regulation AB. Such report shall be
addressed to the Purchaser and such Depositor and signed
by an authorized officer of the Company, and shall
address each of the applicable Servicing Criteria
specified on Exhibit A hereto (wherein "Investor" shall
mean the Master Servicer);
(B) deliver to the Purchaser, the Master Servicer
and any Depositor a report of a registered public
accounting firm that attests to, and reports on, the
assessment of compliance made by the Company and
delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act
and the Exchange Act;
(C) if required by Regulation AB, cause each
Subservicer and each Subcontractor determined by the
Company pursuant to Section 2(f)(ii) to be
"participating in the servicing function" within the
meaning of Item 1122 of Regulation AB (each, a
"Participating Entity"), to deliver to the Purchaser,
the Master Servicer and any Depositor an assessment of
compliance and accountants' attestation as and when
provided in paragraphs (i) and (ii) of this Section
2(e); and
(D) deliver or cause each Subservicer and
Subcontractor described in Section 2(e)(i)(C) above to
deliver to the Purchaser, the Master Servicer, Depositor
or any other Person that will be responsible for signing
the certification (a "Sarbanes Certification") required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of
2002) on behalf of an asset-backed issuer with respect
to a Securitization Transaction, a certification signed
by an appropriate officer of the Company, in the form
attached hereto as Exhibit B; provided that such
certification delivered by the Company may not be filed
as an exhibit to, or included in, any filing with the
Commission.
The Company acknowledges that the party identified in clause (i)(D)
above may rely on the certification provided by the Company pursuant to such
clause in signing a Sarbanes Certification and filing such with the Commission.
(ii) Each assessment of compliance provided by a Subservicer
pursuant to Section 2(e)(i)(A) shall address each of the applicable
Servicing Criteria specified on Exhibit A hereto (wherein "Investor"
shall mean the Master Servicer) delivered to the Purchaser
concurrently with the execution of this Agreement or, in the case of
a Subservicer subsequently appointed as such, on or prior to the
date of such appointment. An assessment of compliance provided by a
Participating Entity pursuant to Section 2(e)(i)(C) need not address
any elements of the Servicing Criteria other than those specified by
the Company pursuant to Section 2(f).
If reasonably requested by the Purchaser or the Master Servicer, the
Company shall provide to the Purchaser or the Master Servicer, evidence of the
authorization of the person signing any certification or statement provided
pursuant to this Amendment Reg AB.
(f) Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer under
this Agreement or any related Reconstitution Agreement unless the Company
complies with the provisions of paragraph (i) of this Subsection (f). The
Company shall not hire or otherwise utilize the services of any Subcontractor,
and shall not permit any Subservicer to hire or otherwise utilize the services
of any Subcontractor, to fulfill any of the obligations of the Company as
servicer under this Agreement or any related Reconstitution Agreement unless the
Company complies with the provisions of paragraph (ii) of this Subsection (f).
(i) It shall not be necessary for the Company to seek the
consent of the Purchaser, the Master Servicer or any Depositor to
the utilization of any Subservicer. If required by Regulation AB,
after reasonable notice from the Purchaser of the parties involved
in the Purchaser's Securitization Transaction, the Company shall
cause any Subservicer used by the Company (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with
the provisions of this Section and with Sections 2(b), 2(c)(iii),
2(c)(v), 2(d), and 2(e) of this Agreement, and to provide the
information required with respect to such Subservicer under Section
2(c)(iv) of this Agreement. The Company shall be responsible for
obtaining from each Subservicer and delivering to the Purchaser and
any Depositor any servicer compliance statement required to be
delivered by such Subservicer under Section 2(d), any assessment of
compliance and attestation required to be delivered by such
Subservicer under Section 2(e) and any certification required to be
delivered to the Person that will be responsible for signing the
Sarbanes Certification under Section 2(e) as and when required to be
delivered.
(ii) It shall not be necessary for the Company to seek the
consent of the Purchaser or any Depositor to the utilization of any
Subcontractor. If required by Regulation AB, after reasonable notice
from the Purchaser of the parties involved in the Purchaser's
Securitization Transaction, the Company shall promptly upon request
provide to the Purchaser or any Depositor (or any designee of the
Depositor, such as a master servicer or administrator) of the role
and function of each Subcontractor utilized by the Company or any
Subservicer, specifying (A) the identity of each such Subcontractor,
(B) which (if any) of such Subcontractors are Participating
Entities, and (C) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each
Participating Entity identified pursuant to clause (B)of this
paragraph.
The Company shall cause any such Participating Entity used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Section 2(e) of this Agreement. The
Company shall be responsible for obtaining from each Participating Entity and
delivering to the Purchaser, the Master Servicer and any Depositor any
assessment of compliance and attestation and certificate required to be
delivered by such Participating Entity under Section 2(e), in each case as and
when required to be delivered.
(g) Indemnification; Remedies.
(i) The Company shall indemnify the Purchaser and the
Depositor and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each
Person responsible for the execution or filing of any report
required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act
with respect to such Securitization Transaction; each Person who
controls any of such parties (within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers and employees of
each of the foregoing and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal
fees and expenses and related costs, judgments, and any other costs,
fees and expenses that any of them may sustain arising out of or
based upon:
(A)(1) any untrue statement of a material fact contained
or alleged to be contained in any information, report,
certification or other material provided in written or
electronic form under this Amendment Reg AB by or on behalf of
the Company (including any Static Pool Information provided by
the Company pursuant to Section 2(c)(ii)), or provided under
this Amendment Reg AB by or on behalf of any Subservicer,
Participating Entity or, if applicable, Third-Party Originator
(collectively, the "Company Information"), or (2) the omission
or alleged omission to state in the Company Information a
material fact required to be stated in the Company Information
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (2)
of this paragraph shall be construed solely by reference to
the Company Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Company Information
or any portion thereof is presented together with or
separately from such other information;
(B) any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to deliver
any information, report, certification, accountants' letter or
other material when and as required under this Amendment Reg
AB, including any failure by the Company to identify pursuant
to Section 2(f)(ii) any Participating Entity; or
(C) any breach by the Company of a representation or
warranty set forth in Section 2(b)(i) or in a writing
furnished pursuant to Section 2(b)(ii) and made as of a date
prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Company of a
representation or warranty in a writing pursuant to under
Section 2(b)(ii) to the extent made as of a date subsequent to
such closing date; or
(D) the Company's failure to comply with applicable
provisions of Rule 312(a)(2), (a)(3), and (a)(4) of Regulation
S-T under the Act.
In the case of any failure of performance described in clause (i)(B)
of this Section, the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator.
(ii) (A) Any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or other
material when and as required under this Amendment Reg AB, which
continues unremedied for three Business Days after receipt by the
Company and the applicable Subservicer, Subcontractor, or
Third-Party Originator, so long as their addresses for notices have
been provided in writing previously to the Purchaser or the
Depositor, of written notice of such failure from the Purchaser or
Depositor shall, except as provided in clause (B) of this paragraph,
constitute an Event of Default with respect to the Company under
this Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser or Depositor, as applicable, in its sole
discretion to terminate the rights and obligations of the Company as
servicer under this Agreement and/or any applicable Reconstitution
Agreement related thereto without payment (notwithstanding anything
in this Agreement or any applicable Reconstitution Agreement related
thereto to the contrary) of any compensation to the Company (and if
the Company is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably
acceptable to any Master Servicer for such Securitization
Transaction); provided, however it is understood that the Company
shall remain entitled to receive reimbursement for all unreimbursed
Monthly Advances and Servicing Advances made by the Company under
this Agreement and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein, to the
extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Company
as servicer, such provision shall be given effect.
(B) Any failure by the Company, any Subservicer or any
Participating Entity to deliver any information, report,
certification or accountants' letter required under Regulation
AB when and as required under Section 2(d) or 2(e), including
any failure by the Company to identify a Participating Entity,
which continues unremedied for nine calendar days after
receipt by the Company of written notice of such failure from
the Purchaser or Depositor (which failure shall continue no
later than March 15th of each year ("Due Date") with respect
to Section 2(d) or 2(e); provided, however the Company shall
have received such written notice of such failure at least 5
Business Days prior to such Due Date) shall constitute an
Event of Default with respect to the Company under this
Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser or Depositor, as applicable, in
its sole discretion to terminate the rights and obligations of
the Company as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary)
of any compensation to the Company; provided, however it is
understood that the Company shall remain entitled to receive
reimbursement for all unreimbursed Monthly Advances and
Servicing Advances made by the Company under this Agreement
and/or any applicable Reconstitution Agreement.
Notwithstanding anything to the contrary set forth herein, to
the extent that any provision of this Agreement and/or any
applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following
termination of the Company as servicer, such provision shall
be given effect.
(C) The Company shall promptly reimburse the Purchaser
(or any affected designee of the Purchaser, such as a master
servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such
Depositor as such are incurred, in connection with the
termination of the Company as servicer and the transfer of
servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights
the Company, the Purchaser or any Depositor may have under
other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at
law, such as an action for damages, specific performance or
injunctive relief.
(iii) The Purchaser agrees to indemnify and hold harmless the
Company, any Subservicer, any Participating Entity, and, if
applicable, any Third-Party Originator, each Person who controls any
of such parties (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the respective present
and former directors, officers and employees of each of the
foregoing from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain
arising out of or based upon any untrue statement or alleged untrue
statement of any material fact contained in any filing with the
Commission or the omission or alleged omission to state in any
filing with the Commission a material fact required to be stated or
necessary to be stated in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that
such untrue statement, alleged untrue statement, omission, or
alleged omission relates to any filing with the Commission other
than the Company Information.
(iv) The indemnification obligations provided for in Section
2(g) shall survive the termination of this Amendment Reg AB or the
termination of any party to this Amendment Reg AB.
3. Notwithstanding any other provision of this Amendment Reg AB, the
Company shall seek the consent of the Purchaser for the utilization of all
Subservicers and Participating Entities, when required by and in accordance with
the terms of the Existing Agreements.
4. The Servicing Agreement is hereby amended by adding the Exhibit
attached hereto as Exhibit A to the end thereto. References in this Amendment
Reg AB to "this Agreement" or words of similar import (including indirect
references to the Agreement) shall be deemed to be references to the Existing
Agreements as amended by this Amendment Reg AB. Except as expressly amended and
modified by this Amendment Reg AB, the Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms. In the event of a
conflict between this Amendment Reg AB and any other document or agreement,
including without limitation the Existing Agreements, this Amendment Reg AB
shall control.
5. This Amendment Reg AB may be executed in one or more counterparts
and by different parties hereto on separate counterparts, each of which, when so
executed, shall constitute one and the same agreement. This Amendment Reg AB
will become effective as of the date first mentioned above. This Amendment Reg
AB shall bind and inure to the benefit of and be enforceable by the Company and
the Purchaser and the respective permitted successors and assigns of the Company
and the successors and assigns of the Purchaser.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
XXXXXX FUNDING LLC
Purchaser
By:____________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
Company
By:____________________________________
Name:
Title:
EXHIBIT A
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name
of Subservicer] shall address, at a minimum, the applicable criteria identified
below as "Applicable Servicing Criteria":
----------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------- ------------------
Reference Criteria
----------------- ------------------------------------------------------- ------------------
General Servicing Considerations
----------------- ------------------------------------------------------- ------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements. X
----------------- ------------------------------------------------------- ------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and
compliance with such servicing activities. X
----------------- ------------------------------------------------------- ------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
maintained.
----------------- ------------------------------------------------------- ------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance X
with the terms of the transaction agreements.
----------------- ------------------------------------------------------- ------------------
Cash Collection and Administration
----------------- ------------------------------------------------------- ------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days X
specified in the transaction agreements.
----------------- ------------------------------------------------------- ------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
personnel. X
----------------- ------------------------------------------------------- ------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements. X
----------------- ------------------------------------------------------- ------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained X
(e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
----------------- ------------------------------------------------------- ------------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities X
Exchange Act.
----------------- ------------------------------------------------------- ------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent X
unauthorized access.
----------------- ------------------------------------------------------- ------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for
all asset-backed securities related bank accounts,
including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number
of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling X
items are resolved within 90 calendar days of their
original identification, or such other number of days
specified in the transaction agreements.
----------------- ------------------------------------------------------- ------------------
Investor Remittances and Reporting
----------------- ------------------------------------------------------- ------------------
1122(d)(3)(i) Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the X
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
----------------- ------------------------------------------------------- ------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements. X
----------------- ------------------------------------------------------- ------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within
two business days to the Servicer's investor records,
or such other number of days specified in the X
transaction agreements.
----------------- ------------------------------------------------------- ------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, X
or custodial bank statements.
----------------- ------------------------------------------------------- ------------------
Pool Asset Administration
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction agreements
or related mortgage loan documents. X
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as
required by the transaction agreements X
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance
with any conditions or requirements in the transaction
agreements. X
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance X
with the related mortgage loan documents.
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an
obligor's unpaid principal balance. X
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset X
documents.
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by X
the transaction agreements.
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling X
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based
on the related mortgage loan documents. X
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of X
the related mortgage loans, or such other number of
days specified in the transaction agreements.
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the X
transaction agreements.
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the X
obligor's error or omission.
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of X
days specified in the transaction agreements.
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
transaction agreements. X
----------------- ------------------------------------------------------- ------------------
1122(d)(4)(xv) Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
----------------- ------------------------------------------------------- ------------------
[NAME OF COMPANY] [NAME OF
SUBSERVICER]
Date:__________________________________
By:____________________________________
Name:
Title:
EXHIBIT B
FORM OF ANNUAL CERTIFICATION
Re: The [__] agreement dated as of [__], 200[_] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________ of
Countrywide Home Loans, Inc., certify to [the Purchaser], [the Depositor],
[Master Servicer], [Securities Administrator] or [Trustee], and its officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Company during 200[_] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator] or
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
or [Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement; and
[Intentionally Left Blank]
(5) The Compliance Statement required to be delivered by the Company
pursuant to this Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by each Subservicer and
Participating Entity pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:__________________________________
By:____________________________________
Name:
Title:
EXHIBIT N
INTEREST RATE SWAP AGREEMENT AND INTEREST RATE CAP AGREEMENT
[BARCLAYS CAPITAL LOGO]
Barclays Bank PLC
5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel x00 (0)00 0000 0000
DATE: September 21, 2007
TO: Xxxxx Fargo Bank, National Association, not
individually, but solely as Securities
Administrator for BCAP LLC Trust 2007-AA5,
Mortgage Pass-Through Certificates, Series
2007-AA5 (the "Trust")
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
ATTENTION: Client Manager - BCAP 2007-AA5
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Barclays Bank PLC
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER: 1960759B
The purpose of this long-form confirmation ("Confirmation") is to confirm the
terms and conditions of the Transaction entered into on the Trade Date specified
below (the "Transaction") between Barclays Bank PLC ("Party A") and Xxxxx Fargo
Bank, National Association, not individually, but solely as securities
administrator (the "Securities Administrator") on behalf of the trust with
respect to the BCAP LLC Trust 2007-AA5, Mortgage Pass-Through Certificates,
Series 2007-AA5 (the "Trust") ("Party B") created under the Pooling and
Servicing Agreement, dated as of September 1, 2007, among BCAP LLC, as
Depositor, Xxxxx Fargo Bank, National Association, as Securities Administrator,
Master Servicer and Custodian and HSBC Bank USA, National Association, as
Trustee (the "Base Agreement"). This Confirmation evidences a complete and
binding agreement between you and us to enter into the Transaction on the terms
set forth below and replaces any previous agreement between us with respect to
the subject matter hereof. Item 2 of this Confirmation constitutes a
"Confirmation" as referred to in the ISDA Master Agreement (defined below); Item
3 of this Confirmation constitutes a "Schedule" as referred to in the ISDA
Master Agreement; and Annex A hereto constitutes Paragraph 13 of a Credit
Support Annex to the Schedule.
1. The Confirmation set forth at Item 2 hereof shall supplement, form a part
of, and be subject to an agreement in the form of the ISDA Master
Agreement (Multicurrency - Cross Border) as published and copyrighted in
1992 by the International Swaps and Derivatives Association, Inc. (the
"ISDA Master Agreement"), as if Party A and Party B had executed an
agreement in such form on the date hereof, with a Schedule as set forth in
Item 3 of this Confirmation, and an ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc., with Paragraph 13 thereof as set forth in Annex A
hereto (the "Credit Support Annex"). For the avoidance of doubt, the
Transaction described herein shall be the sole Transaction governed by
such ISDA Master Agreement.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: With respect to any Calculation Period, the
amount set forth for such period on Schedule
I attached hereto.
Trade Date: September 21, 2007
Effective Date: September 25, 2009
Termination Date: August 25, 2014, which for the purpose of
the final Fixed Rate Payer Calculation
Period is subject to No Adjustment, and for
the purpose of the final Floating Rate Payer
Calculation Period is subject to adjustment
in accordance with the Business Day
Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer
Period End Dates: The 25th calendar day of each month during
the Term of this Transaction, commencing
October 25, 2009, subject to No Adjustment.
Fixed Rate Payer
Payment Dates: Early Payment shall be applicable. For each
Calculation Period, the Fixed Rate Payer
Payment Date shall be the first Business Day
prior to the related Fixed Rate Payer Period
End Date.
Fixed Rate: 4.975%
Fixed Rate Day
Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during
the Term of this Transaction, commencing
October 25, 2009, subject to adjustment in
accordance with the Business Day Convention.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. For each
Calculation Period, the Floating Rate Payer
Payment Date shall be the first Business Day
prior to the related Floating Rate Payer
Period End Date.
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Business Days: New York
Business Day
Convention: Modified Following
Calculation Agent: Party A
Account Details and Settlement Information:
Payments to Party A: Correspondent: BARCLAYS BANK PLC NEW YORK
FEED: 000000000
Beneficiary: BARCLAYS SWAPS
Beneficiary Account: 000-00000-0
Payments to Party B: Xxxxx Fargo Bank, National Association
ABA #: 121 000 248
Acct #: 0000000000
Acct. Name: SAS Trust Clearing
FFC: 53178001
BCAP 2007-AA5 Supplemental Interest Account
3. Provisions Deemed Incorporated in a Schedule to the ISDA Master Agreement:
Part 1. Termination Provisions.
For the purposes of this Agreement:-
(a) "Specified Entity" will not apply to Party A or Party B for any purpose.
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) Events of Default.
The statement below that an Event of Default will apply to a specific
party means that upon the occurrence of such an Event of Default with
respect to such party, the other party shall have the rights of a
Non-defaulting Party under Section 6 of this Agreement; conversely, the
statement below that such event will not apply to a specific party means
that the other party shall not have such rights.
(i) The "Failure to Pay or Deliver" provisions of Section 5(a)(i) will
apply to Party A and will apply to Party B.
(ii) The "Breach of Agreement" provisions of Section 5(a)(ii) will apply
to Party A and will not apply to Party B; provided, however, that
notwithstanding anything to the contrary in Section 5(a)(ii), any
failure by Party A to comply with or perform any obligation to be
complied with or performed by Party A under the Credit Support
Annex shall not constitute an Event of Default under Section
5(a)(ii) unless (A) a Xxxxx'x Second Trigger Downgrade Event has
occurred and been continuing for 30 or more Local Business Days,
(B) an S&P Required Ratings Downgrade Event has occurred and been
continuing for 10 or more Local Business Days, or (C) a Fitch
Required Ratings Downgrade Event has occurred and been continuing
for 30 or more days.
(iii) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support Annex;
provided, however, that notwithstanding anything to the contrary in
Section 5(a)(iii)(1), any failure by Party A to comply with or
perform any obligation to be complied with or performed by Party A
under the Credit Support Annex shall not constitute an Event of
Default under Section 5(a)(iii) unless (A) a Xxxxx'x Second Trigger
Downgrade Event has occurred and been continuing for 30 or more
Local Business Days, (B) an S&P Required Ratings Downgrade Event
has occurred and been continuing for 10 or more Local Business
Days, or (C) a Fitch Required Ratings Downgrade Event has occurred
and been continuing for 30 or more days.
(iv) The "Misrepresentation" provisions of Section 5(a)(iv) will apply
to Party A and will not apply to Party B.
(v) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A and will not apply to Party B.
(vi) The "Cross Default" provisions of Section 5(a)(vi) will apply to
Party A and will not apply to Party B. For purposes of Section
5(a)(vi), solely with respect to Party A:
"Specified Indebtedness" will have the meaning specified in Section
14, except that such term shall not include obligations in respect
of deposits received in the ordinary course of Party A's banking
business.
"Threshold Amount" means with respect to Party A an amount equal to
three percent (3%) of the Shareholders' Equity of Party A or, if
applicable, a guarantor under an Eligible Guarantee with credit
ratings at least equal to the S&P Required Ratings Threshold, the
Xxxxx'x Second Trigger Threshold and the Fitch Approved Ratings
Threshold.
"Shareholders' Equity" means with respect to an entity, at any
time, such party's shareholders' equity (on a consolidated basis)
determined in accordance with generally accepted accounting
principles in such party's jurisdiction of incorporation or
organization as at the end of such party's most recently completed
fiscal year.
(vii) The "Bankruptcy" provisions of Section 5(a)(vii) will apply to Party
A and will apply to Party B; provided, however, that, for purposes
of applying Section 5(a)(vii) to Party B: (A) Section 5(a)(vii)(2)
shall not apply, (B) Section 5(a)(vii)(3) shall not apply to any
assignment, arrangement or composition that is effected by or
pursuant to the Base Agreement, (C) Section 5(a)(vii)(4) shall not
apply to a proceeding instituted, or a petition presented, by Party
A or any of its Affiliates (notwithstanding anything to the contrary
in this Agreement, for purposes of Section 5(a)(vii)(4), Affiliate
shall have the meaning set forth in Section 14 of the ISDA Master
Agreement), (D) Section 5(a)(vii)(6) shall not apply to any
appointment that is effected by or pursuant to the Base Agreement,
or any appointment to which Party B has not yet become subject; (E)
Section 5(a)(vii) (7) shall not apply; (F) Section 5(a)(vii)(8)
shall apply only to the extent of any event which has an effect
analogous to any of the events specified in clauses (1), (3), (4),
(5) or (6) of Section 5(a)(vii), in each case as modified in this
Part 1(c)(vii), and (G) Section 5(a)(vii)(9) shall not apply.
(viii) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will not apply to Party B.
(d) Termination Events.
The statement below that a Termination Event will apply to a specific
party means that upon the occurrence of such a Termination Event, if such
specific party is the Affected Party with respect to a Tax Event, the
Burdened Party with respect to a Tax Event Upon Merger (except as noted
below) or the non-Affected Party with respect to a Credit Event Upon
Merger, as the case may be, such specific party shall have the right to
designate an Early Termination Date in accordance with Section 6 of this
Agreement; conversely, the statement below that such an event will not
apply to a specific party means that such party shall not have such right;
provided, however, with respect to "Illegality" the statement that such
event will apply to a specific party means that upon the occurrence of
such a Termination Event with respect to such party, either party shall
have the right to designate an Early Termination Date in accordance with
Section 6 of this Agreement.
(i) The "Illegality" provisions of Section 5(b)(i) will apply to Party A
and will apply to Party B.
(ii) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party A
and will apply to Party B.
(iii) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will apply to Party B, provided that Party A
shall not be entitled to designate an Early Termination Date by
reason of a Tax Event upon Merger in respect of which it is the
Affected Party.
(iv) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply to Party A and will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply, provided, however, that, in the event
of a Derivative Provider Trigger Event, the following provisions
will apply:
(A) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"Market Quotation" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by a
Reference Market-maker that is an Eligible Replacement, (2)
for an amount that would be paid to Party B (expressed as a
negative number) or by Party B (expressed as a positive
number) in consideration of an agreement between Party B and
such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of Transactions
are to be excluded but, without limitation, any payment or
delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination
Date is to be included.
(B) The definition of Settlement Amount shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early
Termination Date, an amount equal to:
(a) if, on or prior to such Early Termination Date, a Market
Quotation for the relevant Terminated Transaction or
group of Terminated Transactions is accepted by Party B
so as to become legally binding, the Termination
Currency Equivalent of the amount (whether positive or
negative) of such Market Quotation;
(b) if, on such Early Termination Date, no Market Quotation
for the relevant Terminated Transaction or group of
Terminated Transactions has been accepted by Party B so
as to become legally binding and one or more Market
Quotations from Approved Replacements have been
communicated to Party B and remain capable of becoming
legally binding upon acceptance by Party B, the
Termination Currency Equivalent of the amount (whether
positive or negative) of the lowest of such Market
Quotations (for the avoidance of doubt, (i) a Market
Quotation expressed as a negative number is lower than a
Market Quotation expressed as a positive number and (ii)
the lower of two Market Quotations expressed as negative
numbers is the one with the largest absolute value); or
(c) if, on such Early Termination Date, no Market Quotation
for the relevant Terminated Transaction or group of
Terminated Transactions is accepted by Party B so as to
become legally binding and no Market Quotation from an
Approved Replacement has been communicated to Party B
and remains capable of becoming legally binding upon
acceptance by Party B, Party B's Loss (whether positive
or negative and without reference to any Unpaid Amounts)
for the relevant Terminated Transaction or group of
Terminated Transactions.
(C) If Party B requests Party A in writing to obtain Market
Quotations, Party A shall use its reasonable efforts to do so
before the Early Termination Date.
(D) If the Settlement Amount is a negative number, Section
6(e)(i)(3) shall be deleted in its entirety and replaced with
the following:
"(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, (I) Party B shall pay to Party A
an amount equal to the absolute value of the Settlement Amount
in respect of the Terminated Transactions, (II) Party B shall
pay to Party A the Termination Currency Equivalent of the
Unpaid Amounts owing to Party A and (III) Party A shall pay to
Party B the Termination Currency Equivalent of the Unpaid
Amounts owing to Party B; provided, however, that (x) the
amounts payable under the immediately preceding clauses (II)
and (III) shall be subject to netting in accordance with
Section 2(c) of this Agreement and (y) notwithstanding any
other provision of this Agreement, any amount payable by Party
A under the immediately preceding clause (III) shall not be
netted against any amount payable by Party B under the
immediately preceding clause (I)."
(E) At any time on or before the Early Termination Date at which
two or more Market Quotations from Approved Replacements have
been communicated to Party B and remain capable of becoming
legally binding upon acceptance by Party B, Party B shall be
entitled to accept only the lowest of such Market Quotations
(for the avoidance of doubt, (i) a Market Quotation expressed
as a negative number is lower than a Market Quotation
expressed as a positive number and (ii) the lower of two
Market Quotations expressed as negative numbers is the one
with the largest absolute value).
(ii) The Second Method will apply.
(g) "Termination Currency" means USD.
(h) Additional Termination Events. Additional Termination Events will apply as
provided in Part 5(c).
Part 2. Tax Matters.
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(ii) Payee Representations. For the purpose of Section 3(f) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(b) Tax Provisions.
(i) Indemnifiable Tax. Notwithstanding the definition of "Indemnifiable
Tax" in Section 14 of this Agreement, all Taxes in relation to
payments by Party A shall be Indemnifiable Taxes unless (i) such
Taxes are assessed directly against Party B and not by deduction or
withholding by Party A or (ii) arise as a result of a Change in Tax
Law (in which case such Tax shall be an Indemnifiable Tax only if
such Tax satisfies the definition of Indemnifiable Tax provided in
Section 14). In relation to payments by Party B, no Tax shall be an
Indemnifiable Tax, unless the Tax is due to a Change in Tax Law and
otherwise satisfies the definition of Indemnifiable Tax provided in
Section 14.
Part 3. Agreement to Deliver Documents.
(a) For the purpose of Section 4(a)(i), tax forms, documents, or certificates
to be delivered are:
Party required to Form/Document/ Date by which to
deliver document Certificate be delivered
Party A Any form or document required or Promptly upon reasonable demand by
reasonably requested to allow Party B Party B.
to make payments under the Agreement
without any deduction or withholding
for or on account of any Tax, or with
such deduction or withholding at a
reduced rate.
Party B (i) A correct, complete and duly In each case (i) upon entering into
executed IRS Form W-9 (or any this Agreement, (ii) in the case of a
successor thereto) of the Trust that W-8ECI, W-8IMY, and W-8BEN that does
eliminates U.S. federal withholding not include a U.S. taxpayer
and backup withholding tax on payments identification number in line 6,
under this Agreement, (ii) if before December 31 of each third
requested by Party A, a correct, succeeding calendar year, (iii)
complete and executed Form W-8IMY of promptly upon reasonable demand by
the Trust, and (iii) a complete and Party A, and (iv) promptly upon
executed IRS Form X-0, X-0XXX, X-0XXX, actual knowledge that any such Form
or W-8IMY (with attachments) (as previously provided by Party B has
appropriate) from each become obsolete or incorrect.
Certificateholder that is not an
"exempt recipient" as that term is
defined in Treasury regulations
section 1.6049-4(c)(1)(ii), that
eliminates U.S. federal withholding
and backup withholding tax on payments
under this Agreement.
(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by
deliver document Certificate be delivered Section 3(d)
Representation
Party A and Any documents reasonably required Upon the execution and Yes
Party B by the receiving party to delivery of this Agreement
evidence the authority of the
delivering party or its Credit
Support Provider, if any, for it
to execute and deliver the
Agreement, this Confirmation, and
any Credit Support Documents to
which it is a party, and to
evidence the authority of the
delivering party or its Credit
Support Provider to perform its
obligations under the Agreement,
this Confirmation and any Credit
Support Document, as the case may
be
Party A and A certificate of an authorized Upon the execution and Yes
Party B officer of the party, as to the delivery of this Agreement
incumbency and authority of the
respective officers of the party
signing the Agreement, this
Confirmation, and any relevant
Credit Support Document, as the
case may be
Party A An opinion of counsel to Party A Upon the execution and No
reasonably satisfactory to Party B. delivery of this Agreement
Party B An opinion of counsel to Party B Upon the execution and No
reasonably satisfactory to Party A. delivery of this Agreement
Party B An executed copy of the Base Within 30 days after the No
Agreement date of this Agreement.
Part 4. Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile: 00(00) 000 00000
Phone: 00(00) 000 00000
(For all purposes)
Address for notices or communications to Party B:
Address: Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Client Manager - BCAP 2007-AA5
Facsimile: 000 000 0000
Phone: 000 000 0000
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through its London and New York
Offices.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A; provided, however,
that if an Event of Default shall have occurred with respect to Party A,
Party B shall have the right to appoint as Calculation Agent a financial
institution which would qualify as a Reference Market-maker, reasonably
acceptable to Party A, the cost for which shall be borne by Party A.
(f) Credit Support Document.
Party A: The Credit Support Annex, and any guarantee in support of
Party A's obligations under this Agreement.
Party B: The Credit Support Annex, solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support Annex.
(g) Credit Support Provider.
Party A: The guarantor under any guarantee in support of Party A's
obligations under this Agreement.
Party B: None.
(h) Governing Law. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole
(including any claim or controversy arising out of or relating to this
Agreement), without regard to the conflict of law provisions thereof other
than New York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will apply to each
Transaction hereunder.
(j) Affiliate. "Affiliate" shall have the meaning assigned thereto in Section
14; provided, however, that Party B shall be deemed to have no Affiliates
for purposes of this Agreement, including for purposes of Section
6(b)(ii).
Part 5. Other Provisions.
(a) Definitions. Unless otherwise specified in a Confirmation, this Agreement
and each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the "Definitions"), and will be
governed in all relevant respects by the provisions set forth in the
Definitions, without regard to any amendment to the Definitions subsequent
to the date hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a "Swap Transaction"
shall be deemed references to a "Transaction" for purposes of this
Agreement, and (ii) references to a "Transaction" in this Agreement shall
be deemed references to a "Swap Transaction" for purposes of the
Definitions. Each term capitalized but not defined in this Agreement shall
have the meaning assigned thereto in the Base Agreement.
Each reference herein to a "Section" (unless specifically referencing the
Base Agreement) or to a "Section" "of this Agreement" will be construed as
a reference to a Section of the ISDA Master Agreement; each herein
reference to a "Part" will be construed as a reference to the Schedule to
the ISDA Master Agreement; each reference herein to a "Paragraph" will be
construed as a reference to a Paragraph of the Credit Support Annex.
(b) Amendments to ISDA Master Agreement.
(i) Single Agreement. Section 1(c) is hereby amended by the adding the
words "including, for the avoidance of doubt, the Credit Support
Annex" after the words "Master Agreement".
(ii) Change of Account. Section 2(b) is hereby amended by the addition of
the following after the word "delivery" in the first line thereof:
"to another account in the same legal and tax jurisdiction as the
original account".
(iii) Representations. Section 3 is hereby amended by adding at the end
thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into
that Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication
(written or oral) of the other party as investment
advice or as a recommendation to enter into that
Transaction, it being understood that information and
explanations related to the terms and conditions of a
Transaction will not be considered investment advice or
a recommendation to enter into that Transaction. No
communication (written or oral) received from the other
party will be deemed to be an assurance or guarantee as
to the expected results of that Transaction.
(2) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and risks
of that Transaction. It is also capable of assuming, and
assumes, the risks of that Transaction.
(3) Purpose. It is entering into the Transaction for the
purposes of managing its borrowings or investments,
hedging its underlying assets or liabilities or in
connection with a line of business.
(4) Status of Parties. The other party is not acting as
fiduciary for or advisor to it in respect of the
Transaction.
(5) Eligible Contract Participant. It is an "eligible
contract participant" as defined in Section 1a(12) of
the Commodity Exchange Act, as amended."
(iv) Transfer to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words "or if a Tax Event Upon Merger
occurs and the Burdened Party is the Affected Party," and (ii) by
deleting the words "to transfer" and inserting the words "to effect
a Permitted Transfer" in lieu thereof.
(v) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in
the second line of subparagraph (i) thereof the word "non-", (ii)
deleting "; and" from the end of subparagraph (i) and inserting "."
in lieu thereof, and (iii) deleting the final paragraph thereof.
(vi) Local Business Day. The definition of Local Business Day in Section
14 is hereby amended by the addition of the words "or any Credit
Support Document" after "Section 2(a)(i)" and the addition of the
words "or Credit Support Document" after "Confirmation".
(c) Additional Termination Events. The following Additional Termination Events
will apply:
(i) First Rating Trigger Collateral. If Party A has failed to comply
with or perform any obligation to be complied with or performed by
Party A in accordance with the Credit Support Annex and such failure
has not given rise to an Event of Default under Section 5(a)(i) or
Section 5(a)(iii), then an Additional Termination Event shall have
occurred with respect to Party A and Party A shall be the sole
Affected Party with respect to such Additional Termination Event.
(ii) Second Rating Trigger Replacement. The occurrence of any event
described in this Part 5(c)(ii) shall constitute an Additional
Termination Event with respect to Party A and Party A shall be the
sole Affected Party with respect to such Additional Termination
Event.
(A) A Moody's Second Trigger Downgrade Event has occurred and been
continuing for 30 or more Local Business Days and at least one
Eligible Replacement has made a Firm Offer that would,
assuming the occurrence of an Early Termination Date, qualify
as a Market Quotation (on the basis that paragraphs (i) and
(ii) of Part 1(f) (Payments on Early Termination) apply) and
which remains capable of becoming legally binding upon
acceptance.
(B) An S&P Required Ratings Downgrade Event has occurred and been
continuing for 60 or more calendar days.
(C) A Fitch Required Ratings Downgrade Event has occurred and been
continuing for 30 or more calendar days.
(iii) Amendment of Base Agreement. If, without the prior written consent
of Party A where such consent is required under the Base Agreement,
an amendment is made to the Base Agreement which amendment could
reasonably be expected to have a material adverse effect on the
interests of Party A (excluding, for the avoidance of doubt, any
amendment to the Base Agreement that is entered into solely for the
purpose of appointing a successor servicer, master servicer,
securities administrator, trustee or other service provider) under
this Agreement, an Additional Termination Event shall have occurred
with respect to Party B and Party B shall be the sole Affected Party
with respect to such Additional Termination Event; provided,
however, that notwithstanding Section 6(b)(iv) of this Agreement,
both Party A and Party B shall have the right to designate an Early
Termination Date in respect of this Additional Termination Event.
(iv) Termination of Trust. If, the Trust is terminated pursuant to the
Base Agreement and all rated certificates or notes, as applicable,
have been paid in accordance with the terms of the Base Agreement,
an Additional Termination Event shall have occurred with respect to
Party B and Party B shall be the sole Affected Party with respect to
such Additional Termination Event; provided, however, that
notwithstanding Section 6(b)(iv) of this Agreement, both Party A and
Party B shall have the right to designate an Early Termination Date
in respect of this Additional Termination Event.
(v) Securitization Unwind. If a Securitization Unwind (as hereinafter
defined) occurs, an Additional Termination Event shall have occurred
with respect to Party B and Party B shall be the sole Affected Party
with respect to such Additional Termination Event; provided,
however, that notwithstanding Section 6(b)(iv) of this Agreement,
both Party A and Party B shall have the right to designate an Early
Termination Date in respect of this Additional Termination Event.
The Early Termination Date in respect of such Additional Termination
Event shall be not earlier than the latest possible date that the
amount of a termination payment may be submitted to a party
exercising a clean-up call in order to be included in the clean-up
call price. As used herein, "Securitization Unwind" means notice of
the requisite amount of a party's intention to exercise its option
to purchase the underlying mortgage loans pursuant the Base
Agreement is given by the Trustee or Securities Administrator to
certificateholders or noteholders, as applicable, pursuant to the
Base Agreement.
(d) Required Ratings Downgrade Event. In the event that no Relevant Entity has
credit ratings at least equal to the Required Ratings Threshold of each
relevant Rating Agency (such event, a "Required Ratings Downgrade Event"),
then Party A shall, as soon as reasonably practicable and so long as a
Required Ratings Downgrade Event is in effect, at its own expense, use
commercially reasonable efforts to procure either (A) a Permitted Transfer
or (B) an Eligible Guarantee.
(e) Transfers.
(i) Section 7 is hereby amended to read in its entirety as follows:
"Subject to Section 6(b)(ii), neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security
or otherwise) as a whole or in part any of its rights, obligations
or interests under the Agreement or any Transaction without (a) the
prior written consent of the other party and (b) satisfaction of the
Rating Agency Condition, except that:
(a) a party may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation with, or merger with or into,
or transfer of all or substantially all its assets to, another
entity (but without prejudice to any other right or remedy
under this Agreement);
(b) a party may make such a transfer of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e); and
(c) Party A may transfer or assign this Agreement to any Person,
including, without limitation, another of Party A's offices,
branches or affiliates (any such Person, office, branch or
affiliate, a "Transferee") on at least five Business Days'
prior written notice to Party B and the Securities
Administrator; provided that, with respect to this clause (c),
(A) as of the date of such transfer the Transferee will not be
required to withhold or deduct on account of a Tax from any
payments under this Agreement unless the Transferee will be
required to make payments of additional amounts pursuant to
Section 2(d)(i)(4) of this Agreement in respect of such Tax
(B) a Termination Event or Event of Default does not occur
under this Agreement as a result of such transfer; (C) such
notice is accompanied by a written instrument pursuant to
which the Transferee acquires and assumes the rights and
obligations of Party A so transferred; (D) Party A will be
responsible for any costs or expenses incurred in connection
with such transfer and (E) Party A obtains in respect of such
transfer a written acknowledgement of satisfaction of the
Rating Agency Condition (except for Moody's). Party B will
execute such documentation provided to it as is reasonably
deemed necessary by Party A for the effectuation of any such
transfer."
(ii) If an Eligible Replacement has made a Firm Offer (which remains an
offer that will become legally binding upon acceptance by Party B)
to be the transferee pursuant to a Permitted Transfer, Party B
shall, at Party A's written request and at Party A's expense,
execute such documentation provided to it as is reasonably deemed
necessary by Party A to effect such transfer.
(iii) Upon any transfer of this Agreement, each of the transferee and the
transferor must be a "dealer in notional principal contracts" for
purposes of Treasury regulations section 1.1001-4(a).
(f) Non-Recourse. Party A acknowledges and agree that, notwithstanding any
provision in this Agreement to the contrary, the obligations of Party B
hereunder are limited recourse obligations of Party B, payable solely from
the Trust and the proceeds thereof, in accordance with the priority of
payments and other terms of the Base Agreement and that Party A will not
have any recourse to any of the directors, officers, employees,
shareholders or affiliates of Party B with respect to any claims, losses,
damages, liabilities, indemnities or other obligations in connection with
any transactions contemplated hereby. In the event that the Trust and the
proceeds thereof, should be insufficient to satisfy all claims outstanding
and following the realization of the account held by the Trust and the
proceeds thereof, any claims against or obligations of Party B under the
ISDA Master Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not revive. The
Securities Administrator shall not have liability for any failure or delay
in making a payment hereunder to Party A due to any failure or delay in
receiving amounts in the account held by the Trust from the Trust created
pursuant to the Base Agreement. This provision will survive the
termination of this Agreement.
(g) Rating Agency Notifications. Notwithstanding any other provision of this
Agreement, no Early Termination Date shall be effectively designated
hereunder by Party B and no transfer of any rights or obligations under
this Agreement shall be made by either party unless each Rating Agency has
been given prior written notice of such designation or transfer.
(h) No Set-off. Except as expressly provided for in Section 2(c), Section 6 or
Part 1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net, recoup
or otherwise withhold or suspend or condition payment or performance of
any obligation between it and the other party hereunder against any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence: "The
amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off."
(i) Amendment. Notwithstanding any provision to the contrary in this
Agreement, no amendment of either this Agreement or any Transaction under
this Agreement shall be permitted by either party unless each of the
Rating Agencies has been provided prior written notice of the same and
such amendment satisfies the Rating Agency Condition with respect to S&P
and Fitch.
(j) Notice of Certain Events or Circumstances. Each Party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or both
would constitute) an Event of Default or Termination Event with respect to
such party, promptly to give the other Party and to each Rating Agency
notice of such event or condition; provided that failure to provide notice
of such event or condition pursuant to this Part 5(j) shall not constitute
an Event of Default or a Termination Event.
(k) Proceedings. No Relevant Entity shall institute against, or cause any
other person to institute against, or join any other person in instituting
against Party B, the Trust, or the trust formed pursuant to the Base
Agreement, in any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of the
Certificates and any Notes; provided, however, that nothing will preclude,
or be deemed to stop, Party A (i) from taking any action prior to the
expiration of the aforementioned one year and one day period, or if longer
the applicable preference period then in effect, in (A) any case or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar proceeding.
This provision will survive the termination of this Agreement.
(l) Securities Administrator Liability Limitations. It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed by
Xxxxx Fargo Bank, National Association ("X") not in its individual
capacity, but solely as Securities Administrator under the Base Agreement
in the exercise of the powers and authority conferred and invested in it
thereunder; (b) X has been directed pursuant to the Base Agreement to
enter into this Agreement and to perform its obligations hereunder; (c)
each of the representations, undertakings and agreements herein made on
behalf of the Trust is made and intended not as personal representations
of the Securities Administrator but is made and intended for the purpose
of binding only the Trust; and (d) under no circumstances shall X in its
individual capacity be personally liable for any payments hereunder or for
the breach or failure of any obligation, representation, warranty or
covenant made or undertaken under this Agreement.
(m) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall
be held to be invalid or unenforceable (in whole or in part) in any
respect, the remaining terms, provisions, covenants, and conditions hereof
shall continue in full force and effect as if this Agreement had been
executed with the invalid or unenforceable portion eliminated, so long as
this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter of
this Agreement and the deletion of such portion of this Agreement will not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used in or
in connection with any such Section) shall be so held to be invalid or
unenforceable.
The parties shall endeavor to engage in good faith negotiations to replace
any invalid or unenforceable term, provision, covenant or condition with a
valid or enforceable term, provision, covenant or condition, the economic
effect of which comes as close as possible to that of the invalid or
unenforceable term, provision, covenant or condition.
(n) Consent to Recording. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any
and all communications between trading, marketing, and operations
personnel of the parties and their Affiliates, waives any further notice
of such monitoring or recording, and agrees to notify such personnel of
such monitoring or recording.
(o) Waiver of Jury Trial. Each party waives any right it may have to a trial
by jury in respect of any in respect of any suit, action or proceeding
relating to this Agreement or any Credit Support Document.
(p) Regarding Party A. Party B acknowledges and agrees that Party A, in its
capacity as swap provider, has had and will have no involvement in and,
accordingly Party A accepts no responsibility for: (i) the establishment,
structure, or choice of assets of Party B; (ii) the selection of any
person performing services for or acting on behalf of Party B; (iii) the
selection of Party A as the Counterparty; (iv) the terms of the
Certificates; (v) the preparation of or passing on the disclosure and
other information (other than disclosure and information furnished by
Party A) contained in any offering circular for the Certificates, the Base
Agreement, or any other agreements or documents used by Party B or any
other party in connection with the marketing and sale of the Certificates;
(vi) the ongoing operations and administration of Party B, including the
furnishing of any information to Party B which is not specifically
required under this Agreement; or (vii) any other aspect of Party B's
existence.
(q) Rating Agency Requirements. Notwithstanding anything to the contrary
herein, to the extent any Rating Agency does not assign a rating to the
notes or certificates, as applicable, issued pursuant to the Base
Agreement, references to the requirements of such Rating Agency herein
shall be ignored for purposes of this Agreement.
(r) Additional Definitions.
As used in this Agreement, the following terms shall have the meanings set
forth below, unless the context clearly requires otherwise:
"Approved Ratings Threshold" means each of the S&P Approved Ratings
Threshold, the Moody's First Trigger Ratings Threshold and the Fitch
Approved Ratings Threshold.
"Approved Replacement" means, with respect to a Market Quotation, an
entity making such Market Quotation, which entity would satisfy
conditions (a), (b), (c) and (d) of the definition of Permitted
Transfer if such entity were a Transferee, as defined in the
definition of Permitted Transfer.
"Derivative Provider Trigger Event" means (i) an Event of Default
with respect to which Party A is a Defaulting Party, (ii) a
Termination Event (other than an Illegality or Tax Event) with
respect to which Party A is the sole Affected Party or (iii) an
Additional Termination Event with respect to which Party A is the
sole Affected Party.
"Eligible Guarantee" means an unconditional and irrevocable
guarantee of all present and future obligations of Party A under
this Agreement (or, solely for purposes of the definition of
Eligible Replacement, all present and future obligations of such
Eligible Replacement under this Agreement or its replacement, as
applicable) which is provided by a guarantor as principal debtor
rather than surety and which is directly enforceable by Party B, the
form and substance of which guarantee are subject to the Rating
Agency Condition with respect to S&P and Fitch, and either (A) a law
firm has given a legal opinion confirming that none of the
guarantor's payments to Party B under such guarantee will be subject
to deduction or Tax collected by withholding, or (B) such guarantee
provides that, in the event that any of such guarantor's payments to
Party B are subject to deduction or Tax collected by withholding,
such guarantor is required to pay such additional amount as is
necessary to ensure that the net amount actually received by Party B
(free and clear of any Tax collected by withholding) will equal the
full amount Party B would have received had no such deduction or
withholding been required, or (C) in the event that any payment
under such guarantee is made net of deduction or withholding for
Tax, Party A is required, under Section 2(a)(i), to make such
additional payment as is necessary to ensure that the net amount
actually received by Party B from the guarantor will equal the full
amount Party B would have received had no such deduction or
withholding been required.
"Eligible Replacement" means an entity (A) (I) (x) which has credit
ratings from S&P at least equal to the S&P Required Ratings
Threshold or (y) all present and future obligations of which entity
owing to Party B under this Agreement (or its replacement, as
applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from S&P at least equal
to the S&P Required Ratings Threshold, in either case if S&P is a
Rating Agency, (II) (x) which has credit ratings from Moody's at
least equal to the Moody's Second Trigger Ratings Threshold or (y)
all present and future obligations of which entity owing to Party B
under this Agreement (or its replacement, as applicable) are
guaranteed pursuant to an Eligible Guarantee provided by a guarantor
with credit ratings from Moody's at least equal to the Moody's
Second Trigger Ratings Threshold, in either case if Xxxxx'x is a
Rating Agency, and (III) (x) which has credit ratings from Fitch at
least equal to the applicable Fitch Approved Ratings Threshold or
(y) all present and future obligations of which entity owing to
Party B under this Agreement (or its replacement, as applicable) are
guaranteed pursuant to an Eligible Guarantee provided by a guarantor
with credit ratings from Fitch at least equal to the Fitch Approved
Ratings Threshold, in either case if Fitch is a Rating Agency. All
credit ratings described in this definition of "Eligible
Replacement" shall be provided to Party B by any such Eligible
Replacement in writing.
"Financial Institution" means a bank, broker/dealer, insurance
company, structured investment company or derivative product
company.
"Firm Offer" means a quotation from an Eligible Replacement (i) in
an amount equal to the actual amount payable by or to Party B in
consideration of an agreement between Party B and such Eligible
Replacement to replace Party A as the counterparty to this Agreement
by way of novation or, if such novation is not possible, an
agreement between Party B and such Eligible Replacement to enter
into a Replacement Transaction (assuming that all Transactions
hereunder become Terminated Transactions), and (ii) that constitutes
an offer by such Eligible Replacement to replace Party A as the
counterparty to this Agreement or enter a Replacement Transaction
that will become legally binding upon such Eligible Replacement upon
acceptance by Party B.
"Fitch" means Fitch Ratings Ltd., or any successor thereto.
"Fitch Approved Ratings Threshold" means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible
Replacement, a long-term unsecured and unsubordinated debt rating
from Fitch of "A" and a short-term unsecured and unsubordinated debt
rating from Fitch of "F1".
"Fitch Required Ratings Downgrade Event" means that no Relevant
Entity has credit ratings from Fitch at least equal to the Fitch
Required Ratings Threshold.
"Fitch Required Ratings Threshold" means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible
Replacement, a long-term unsecured and unsubordinated debt rating
from Fitch of "BBB+" and a short-term unsecured and unsubordinated
debt rating from Fitch of "F2".
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Moody's First Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee, or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A2" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-1", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's, a long-term unsecured and unsubordinated debt
rating or counterparty rating from Moody's of "A1".
"Moody's Second Trigger Downgrade Event" means that no Relevant
Entity has credit ratings from Moody's at least equal to the Moody's
Second Trigger Ratings Threshold.
"Moody's Second Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee, or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A3" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-2", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A3".
"Permitted Transfer" means a transfer by novation by Party A to a
transferee (the "Transferee") of all, but not less than all, of
Party A's rights, liabilities, duties and obligations under this
Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible
Replacement that is a recognized dealer in interest rate swaps, (b)
as of the date of such transfer the Transferee would not be required
to withhold or deduct on account of Tax from any payments under this
Agreement or would be required to gross up for such Tax under
Section 2(d)(i)(4), (c) an Event of Default or Termination Event
would not occur as a result of such transfer (d) pursuant to a
written instrument (the "Transfer Agreement"), the Transferee
acquires and assumes all rights and obligations of Party A under the
Agreement and the relevant Transaction, (e) such Transfer Agreement
is effective to transfer to the Transferee all, but not less than
all, of Party A's rights and obligations under the Agreement and all
relevant Transactions; (f) Party A will be responsible for any costs
or expenses incurred in connection with such transfer (including any
replacement cost of entering into a replacement transaction); (g)
Moody's has been given prior written notice of such transfer and the
Rating Agency Condition (other than with respect to Xxxxx'x) is
satisfied; and (h) such transfer otherwise complies with the terms
of the Base Agreement.
"Rating Agencies" means, with respect to any date of determination,
each of S&P, Xxxxx'x and Fitch, to the extent that each such rating
agency is then providing a rating for any of the related notes or
certificates, as applicable.
"Rating Agency Condition" means, with respect to any particular
proposed act or omission to act hereunder and each Rating Agency
specified in connection with such proposed act or omission, that the
party proposing such act or failure to act must consult with each of
the specified Rating Agencies and receive from each such Rating
Agency prior written confirmation that the proposed action or
inaction would not cause a downgrade or withdrawal of the
then-current rating of any Certificates or Notes.
"Relevant Entity" means Party A and, to the extent applicable, a
guarantor under an Eligible Guarantee.
"Replacement Transaction" means, with respect to any Terminated
Transaction or group of Terminated Transactions, a transaction or
group of transactions that (i) would have the effect of preserving
for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that date, and (ii) has terms which are substantially
the same as this Agreement, including, without limitation, rating
triggers, Regulation AB compliance and credit support documentation,
save for the exclusion of provisions relating to Transactions that
are not Terminated Transactions.
"Required Ratings Downgrade Event" means that no Relevant Entity has
credit ratings at least equal to the Required Ratings Threshold.
"Required Ratings Threshold" means each of the S&P Required Ratings
Threshold, the Moody's Second Trigger Ratings Threshold and the
Fitch Required Ratings Threshold.
"S&P" means Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"S&P Approved Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a
short-term unsecured and unsubordinated debt rating of "A-1" from
S&P, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of "A+" from S&P.
"S&P Required Ratings Downgrade Event" means that no Relevant Entity
has credit ratings from S&P at least equal to the S&P Required
Ratings Threshold.
"S&P Required Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement,
(I) if such entity is a Financial Institution, a short-term
unsecured and unsubordinated debt rating of "A-2" from S&P, or, if
such entity does not have a short-term unsecured and unsubordinated
debt rating from S&P, a long-term unsecured and unsubordinated debt
rating or counterparty rating of "BBB+" from S&P, or (II) if such
entity is not a Financial Institution, a short-term unsecured and
unsubordinated debt rating of "A-1" from S&P, or, if such entity
does not have a short-term unsecured and unsubordinated debt rating
from S&P, a long-term unsecured and unsubordinated debt rating or
counterparty rating of "A+" from S&P.
[Remainder of this page intentionally left blank.]
The time of dealing will be confirmed by Party A upon written request. Barclays
is regulated by the Financial Services Authority. Barclays is acting for its own
account in respect of this Transaction.
Please confirm that the foregoing correctly sets forth all the terms and
conditions of our agreement with respect to the Transaction by responding within
three (3) Business Days by promptly signing in the space provided below and both
(i) faxing the signed copy to Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operations,
Fax x(00) 00-0000-0000/6857, Tel x(00) 00-0000-0000/6904/6965, and (ii) mailing
the signed copy to Barclays Bank PLC, 5 Xxx Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx,
Xxxxxx X00 0XX, Attention of Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operation.
Your failure to respond within such period shall not affect the validity or
enforceability of the Transaction against you. This facsimile shall be the only
documentation in respect of the Transaction and accordingly no hard copy
versions of this Confirmation for this Transaction shall be provided unless
Party B requests such a copy.
------------------------------------- ------------------------------------------
For and on behalf of For and on behalf of
BARCLAYS BANK PLC BCAP LLC Trust 2007-AA5
By: Xxxxx Fargo Bank, National
Association, not individually, but
solely as securities administrator of
the Trust
------------------------------------- ------------------------------------------
Name: Xxxxx Xxxxxxxxxxx Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory Title: Vice President
Date: September 21, 2007 Date: September 21, 2007
------------------------------------- ------------------------------------------
Barclays Bank PLC and its Affiliates, including Barclays Capital Inc., may share
with each other information, including non-public credit information, concerning
its clients and prospective clients. If you do not want such information to be
shared, you must write to the Director of Compliance, Barclays Bank PLC, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
SCHEDULE I
From and including To but excluding Notional Amount (USD)
------------------ ---------------- ---------------------
25-Sep-09 25-Oct-09 170,935,516.43
25-Oct-09 25-Nov-09 167,775,095.64
25-Nov-09 25-Dec-09 164,673,047.94
25-Dec-09 25-Jan-10 159,214,368.99
25-Jan-10 25-Feb-10 156,270,328.15
25-Feb-10 25-Mar-10 153,380,668.19
25-Mar-10 25-Apr-10 150,544,385.38
25-Apr-10 25-May-10 147,760,494.49
25-May-10 25-Jun-10 145,028,028.46
25-Jun-10 25-Jul-10 142,346,038.09
25-Jul-10 25-Aug-10 139,713,591.67
25-Aug-10 25-Sep-10 137,129,774.68
25-Sep-10 25-Oct-10 134,593,689.51
25-Oct-10 25-Nov-10 132,104,455.05
25-Nov-10 25-Dec-10 129,661,206.48
25-Dec-10 25-Jan-11 127,263,094.94
25-Jan-11 25-Feb-11 124,909,287.22
25-Feb-11 25-Mar-11 122,598,965.46
25-Mar-11 25-Apr-11 120,331,326.94
25-Apr-11 25-May-11 117,993,698.23
25-May-11 25-Jun-11 115,811,138.19
25-Jun-11 25-Jul-11 113,668,902.94
25-Jul-11 25-Aug-11 111,566,248.03
25-Aug-11 25-Sep-11 109,502,442.78
25-Sep-11 25-Oct-11 107,476,769.97
25-Oct-11 25-Nov-11 105,488,525.64
25-Nov-11 25-Dec-11 102,425,340.53
25-Dec-11 25-Jan-12 100,531,948.50
25-Jan-12 25-Feb-12 98,673,522.35
25-Feb-12 25-Mar-12 88,882,008.49
25-Mar-12 25-Apr-12 68,054,444.09
25-Apr-12 25-May-12 65,867,289.10
25-May-12 25-Jun-12 64,648,306.13
25-Jun-12 25-Jul-12 63,451,852.45
25-Jul-12 25-Aug-12 62,277,512.05
25-Aug-12 25-Sep-12 61,124,876.61
25-Sep-12 25-Oct-12 59,993,545.36
25-Oct-12 25-Nov-12 58,883,124.90
25-Nov-12 25-Dec-12 57,793,229.09
25-Dec-12 25-Jan-13 56,723,478.93
25-Jan-13 25-Feb-13 55,673,502.42
25-Feb-13 25-Mar-13 54,642,934.39
25-Mar-13 25-Apr-13 53,631,416.44
25-Apr-13 25-May-13 52,638,596.78
25-May-13 25-Jun-13 51,664,130.09
25-Jun-13 25-Jul-13 50,707,677.45
25-Jul-13 25-Aug-13 49,768,906.20
25-Aug-13 25-Sep-13 48,847,489.79
25-Sep-13 25-Oct-13 47,943,107.70
25-Oct-13 25-Nov-13 47,055,445.33
25-Nov-13 25-Dec-13 46,184,193.92
25-Dec-13 25-Jan-14 45,329,050.35
25-Jan-14 25-Feb-14 44,489,717.14
25-Feb-14 25-Mar-14 43,665,902.27
25-Mar-14 25-Apr-14 42,857,319.14
25-Apr-14 25-May-14 42,063,686.41
25-May-14 25-Jun-14 41,101,146.94
25-Jun-14 25-Jul-14 6,304,716.15
25-Jul-14 25-Aug-14 374,515.78
Annex A
Paragraph 13 of the Credit Support Annex
ANNEX A
ISDA(R)
CREDIT SUPPORT ANNEX
to the Schedule to the
ISDA Master Agreement
dated as of September 21, 2007 between
Barclays Bank PLC (hereinafter referred to as "Party A" or "Pledgor")
and
Xxxxx Fargo Bank, National Association, not individually, but solely as
securities administrator (the "Securities Administrator") for BCAP LLC
Trust 2007-AA5, Mortgage Pass-Through Certificates, Series 2007-AA5 (the
"Trust") (hereinafter referred to as "Party B" or "Secured Party")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Paragraph 13. Elections and Variables.
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes the following additional obligations:
With respect to Party A: not applicable.
With respect to Party B: not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a),
except that:
(I) the words "upon a demand made by the Secured Party on or
promptly following a Valuation Date" shall be deleted
and replaced with the words "not later than the close of
business on each Valuation Date", and
(II) the sentence beginning "Unless otherwise specified in
Paragraph 13" and ending "(ii) the Value as of that
Valuation Date of all Posted Credit Support held by the
Secured Party." shall be deleted in its entirety and
replaced with the following:
"The "Delivery Amount" applicable to the Pledgor for any
Valuation Date will equal the greatest of
(1) the amount by which (a) the S&P Credit Support
Amount for such Valuation Date exceeds (b) the S&P
Value, as of such Valuation Date, of all Posted
Credit Support held by the Secured Party,
(2) the amount by which (a) the Xxxxx'x Credit Support
Amount for such Valuation Date exceeds (b) the
Xxxxx'x Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party,
and
(3) the amount by which (a) the Fitch Credit Support
Amount for such Valuation Date exceeds (b) the
Fitch Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party."
(B) "Return Amount" has the meaning specified in Paragraph 3(b),
except that:
(I) the sentence beginning "Unless otherwise specified in
Paragraph 13" and ending "(ii) the Credit Support
Amount." shall be deleted in its entirety and replaced
with the following:
"The "Return Amount" applicable to the Secured Party for
any Valuation Date will equal the least of
(1) the amount by which (a) the S&P Value, as of such
Valuation Date, of all Posted Credit Support held
by the Secured Party exceeds (b) the S&P Credit
Support Amount for such Valuation Date,
(2) the amount by which (a) the Xxxxx'x Value, as of
such Valuation Date, of all Posted Credit Support
held by the Secured Party exceeds (b) the Moody's
Credit Support Amount for such Valuation Date, and
(3) the amount by which (a) the Fitch Value, as of
such Valuation Date, of all Posted Credit Support
held by the Secured Party exceeds (b) the Fitch
Credit Support Amount for such Valuation Date."
(C) "Credit Support Amount" shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any
Valuation Date, reference shall be made to the S&P Credit
Support Amount, the Xxxxx'x Credit Support Amount, or the
Fitch Credit Support Amount, in each case for such Valuation
Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
(ii) Eligible Collateral.
On any date, the following items will qualify as "Eligible
Collateral" (for the avoidance of doubt, all Eligible Collateral to
be denominated in USD):
S&P S&P Xxxxx'x Xxxxx'x
Approved Required First Second
Ratings Ratings Trigger Trigger Fitch
Valuation Valuation Valuation Valuation Valuation
Collateral Percentage Percentage Percentage Percentage Percentage
---------- ---------- ---------- ---------- ---------- ----------
(A) Cash 100% 80% 100% 100% 100%
(B) Fixed-rate negotiable
debt obligations issued
by the U.S. Treasury
Department having a
remaining maturity on
such date of not more 98.9% 79.1% 100% 100% 97.5%
than one year
(C) Fixed-rate negotiable
debt obligations issued
by the U.S. Treasury
Department having a
remaining maturity on
such date of more than
one year but not more 92.6% 74.1% 100% 94% 86.3%
than ten years
(D) Fixed-rate negotiable
debt obligations issued
by the U.S. Treasury
Department having a
remaining maturity on
such date of more than N/A N/A 100% 87% 79%
ten years
Notwithstanding the Valuation Percentages set forth in the preceding
table, upon the first Transfer of Eligible Collateral under this
Annex, the Pledgor may, at the Pledgor's expense, agree the Valuation
Percentages in relation to (B) through (D) above with the relevant
rating agency (to the extent such rating agency is providing a rating
for the Certificates), and upon such agreement (as evidenced in
writing), such Valuation Percentages shall supersede those set forth
in the preceding table.
(iii) Other Eligible Support.
The following items will qualify as "Other Eligible Support" for the
party specified:
Such Other Eligible Support as the Pledgor may designate; provided,
at the expense of the Pledgor, the prior written consent of the
relevant rating agency (to the extent such rating agency is
providing a rating for the Certificates) shall have been obtained.
For the avoidance of doubt, there are no items that qualify as Other
Eligible Support as of the date of this Annex.
(iv) Threshold.
(A) "Independent Amount" means zero with respect to Party A and
Party B.
(B) "Moody's Threshold" means, with respect to Party A and any
Valuation Date, if a Moody's First Trigger Downgrade Event has
occurred and is continuing and such Moody's First Trigger
Downgrade Event has been continuing for at least 30 Local
Business Days or since this Annex was executed, zero;
otherwise, infinity.
"S&P Threshold" means, with respect to Party A and any
Valuation Date, if an S&P Approved Threshold Downgrade Event
has occurred and is continuing and such S&P Approved Threshold
Downgrade Event has been continuing for at least 10 Local
Business Days or since this Annex was executed, zero;
otherwise, infinity.
"Fitch Threshold" means, with respect to Party A and any
Valuation Date, if a Fitch Approved Threshold Downgrade Event
has occurred and is continuing and such Fitch Approved
Threshold Downgrade Event has been continuing for at least 30
calendar days or since this Annex was executed, zero;
otherwise, infinity
"Threshold" means, with respect to Party B and any Valuation
Date, infinity.
(C) "Minimum Transfer Amount" means USD 100,000; provided,
however, that if the aggregate Class Certificate Balance of
Certificates rated by S&P ceases to be more than USD
50,000,000, "Minimum Transfer Amount" means USD 50,000;
provided further, with respect to the Secured Party at any
time when the Secured Party is a Defaulting Party, "Minimum
Transfer Amount" means zero.
(D) Rounding: The Delivery Amount will be rounded up and the
Return Amount will be rounded down to the nearest integral
multiple of USD 1000.
(c) Valuation and Timing.
(i) "Valuation Agent" means Party A. The Valuation Agent's calculations
shall be made in accordance with standard market practices using
commonly accepted third party sources such as Bloomberg or Reuters.
(ii) "Valuation Date" means each Local Business Day.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided that
the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv) "Notification Time" means 11:00 a.m., New York time, on a Local
Business Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. The
following Termination Events will be a "Specified Condition" for the party
specified (that party being the Affected Party if the Termination Event
occurs with respect to that party): None.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. If specified here as applicable, then the Pledgor must
obtain the Secured Party's consent for any substitution pursuant to
Paragraph 4(d): Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m. New York time on the Local
Business Day following the date on which the notice of the dispute
is given under Paragraph 5.
(ii) Value. Notwithstanding anything to the contrary in Paragraph 12, for
the purpose of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Moody's
Value, and Fitch Value, on any date, of Eligible Collateral will be
calculated as follows:
For Eligible Collateral comprised of Cash, the amount of such Cash.
For Eligible Collateral comprising securities, the sum of (A) the
product of (1)(x) the bid price at the Valuation Time for such
securities on the principal national securities exchange on which
such securities are listed, or (y) if such securities are not listed
on a national securities exchange, the bid price for such securities
quoted at the Valuation Time by any principal market maker for such
securities selected by the Valuation Agent, or (z) if no such bid
price is listed or quoted for such date, the bid price listed or
quoted (as the case may be) at the Valuation Time for the day next
preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and
(B) the accrued interest on such securities (except to the extent
Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or
included in the applicable price referred to in the immediately
preceding clause (A)) as of such date.
(iii) Alternative. The provisions of Paragraph 5 will apply; provided,
that the obligation of the appropriate party to deliver the
undisputed amount to the other party will not arise prior to the
time that would otherwise have applied to the Transfer pursuant to,
or deemed made, under Paragraph 3 if no dispute had arisen.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians.
(1) Party B is not and will not be entitled to hold Posted
Collateral. Party B's Custodian will be entitled to hold
Posted Collateral pursuant to Paragraph 6(b); provided
that the Custodian for Party B shall be the same banking
institution that acts as Securities Administrator for
the Certificates (as defined in the Pooling and
Servicing Agreement).
Initially, the Custodian for Party B is: the Securities
Administrator.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will not
apply to Party B; therefore, Party B will not have any of the rights
specified in Paragraph 6(c)(i) or 6(c)(ii); provided, however, that
the Securities Administrator shall invest Cash Posted Credit Support
in such investments as designated by Party A, with losses (net of
gains) incurred in respect of such investments to be for the account
of Party A; provided further, that such investments designated by
Party A shall be limited to money market funds rated "AAAm" or
"AAAm-G" by S&P and from which such invested Cash Posted Credit
Support may be withdrawn upon no more than 2 Local Business Day's
notice of a request for withdrawal.
(h) Distributions and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be the actual interest rate
earned on Posted Collateral in the form of Cash pursuant to
Paragraph 13(g)(ii).
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made on the second Local Business Day following the end of
each calendar month and on any other Local Business Day on which
Posted Collateral in the form of Cash is Transferred to the Pledgor
pursuant to Paragraph 3(b); provided, however, that the obligation
of Party B to Transfer any Interest Amount to Party A shall be
limited to the extent that Party B has earned and received such
funds and such funds are available to Party B.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). There are no additional representations by
either party.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time pursuant to Paragraph 13(b)(iii).
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time pursuant to Paragraph 13(b)(iii).
(k) Demands and Notices.All demands, specifications and notices under this
Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to or made
at the following addresses, or at such other address as the relevant party
may from time to time designate by giving notice (in accordance with the
terms of this paragraph) to the other party:
If to Party A:
0 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX, England
Attention: Swaps Documentation
Facsimile No.: 0000-000-0000/6858
Telephone No.: 0000-000-0000/6904
with a copy to:
General Counsel's Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Notices to Party A shall not be deemed effective unless delivered to
the London address set forth above.
If to Party B's Custodian:
BCAP LLC Trust 2007-AA5
c/o Wells Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - BCAP 2007-AA5
(l) Address for Transfers. Each Transfer hereunder shall be made to the
address specified in writing from time to time by the party to which such
Transfer will be made.
If to Party A:
For Cash:
Barclays Bank PLC, NY
ABA #000-000-000
F/O Barclays Swaps & Options Group NY
A/C #: 050019228
REF: Collateral
For Treasury Securities:
Bank of NYC/BBPLCLDN
ABA #000-000-000
If to Party B:
Xxxxx Fargo Bank, National Association
San Francisco, CA
ABA No.: 121 000 248
Account No.: 0000000000
Account Name: SAS Trust Clearing
FFC: 53178003, BCAP 2007-AA5 Posted Collateral Account
(m) Other Provisions.
(i) Collateral Account. The Secured Party shall cause any Custodian
appointed hereunder to open and maintain a segregated trust account
and to hold, record and identify all the Posted Collateral in such
segregated trust account and, subject to Paragraph 8(a), such
Posted Collateral shall at all times be and remain the property of
the Pledgor and shall at no time constitute the property of, or be
commingled with the property of, the Secured Party or the
Custodian.
(ii) Agreement as to Single Secured Party and Single Pledgor. Party A
and Party B hereby agree that, notwithstanding anything to the
contrary in this Annex, (a) the term "Secured Party" as used in
this Annex means only Party B, (b) the term "Pledgor" as used in
this Annex means only Party A, (c) only Party A makes the pledge
and grant in Paragraph 2, the acknowledgement in the final sentence
of Paragraph 8(a) and the representations in Paragraph 9.
(iii) Calculation of Value. Paragraph 4(c) is hereby amended by deleting
the word "Value" and inserting in lieu thereof "S&P Value, Xxxxx'x
Value, Fitch Value". Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words "a Value" and inserting in lieu thereof "an S&P
Value, a Xxxxx'x Value, and a Fitch Value" and (B) deleting the
words "the Value" and inserting in lieu thereof "S&P Value, Xxxxx'x
Value, and Fitch Value". Paragraph 5 (flush language) is hereby
amended by deleting the word "Value" and inserting in lieu thereof
"S&P Value, Xxxxx'x Value, or Fitch Value". Paragraph 5(i) (flush
language) is hereby amended by deleting the word "Value" and
inserting in lieu thereof "S&P Value, Xxxxx'x Value, and Fitch
Value". Paragraph 5(i)(C) is hereby amended by deleting the word
"the Value, if" and inserting in lieu thereof "any one or more of
the S&P Value, Xxxxx'x Value, or Fitch Value, as may be". Paragraph
5(ii) is hereby amended by (1) deleting the first instance of the
words "the Value" and inserting in lieu thereof "any one or more of
the S&P Value, Xxxxx'x Value, or Fitch Value" and (2) deleting the
second instance of the words "the Value" and inserting in lieu
thereof "such disputed S&P Value, Xxxxx'x Value, or Fitch Value".
Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended
by deleting the word "Value" and inserting in lieu thereof "least
of the S&P Value, Xxxxx'x Value or Fitch Value".
(iv) Form of Annex. Party A and Party B hereby agree that the text of
Paragraphs 1 through 12, inclusive, of this Annex is intended to be
the printed form of ISDA Credit Support Annex (Bilateral Form -
ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
(v) Events of Default. Paragraph 7 will not apply to cause any Event of
Default to exist with respect to Party B except that Paragraph 7(i)
will apply to Party B solely in respect of Party B's obligations
under Paragraph 3(b) of the Credit Support Annex. Notwithstanding
anything to the contrary in Paragraph 7, any failure by Party A to
comply with or perform any obligation to be complied with or
performed by Party A under the Credit Support Annex shall only be
an Event of Default if (A) a Xxxxx'x Second Trigger Downgrade Event
has occurred and been continuing for 30 or more Local Business
Days, (B) an S&P Required Ratings Downgrade Event has occurred and
been continuing for 10 or more Local Business Days, or (C) a Fitch
Required Ratings Downgrade Event has occurred and been continuing
for 30 or more days.
(vi) Expenses. Notwithstanding anything to the contrary in Paragraph 10,
the Pledgor will be responsible for, and will reimburse the Secured
Party for, all transfer and other taxes and other costs involved in
any Transfer of Eligible Collateral.
(vii) Withholding. Paragraph 6(d)(ii) is hereby amended by inserting
immediately after "the Interest Amount" in the fourth line thereof
the words "less any applicable withholding taxes."
(viii) Additional Definitions. As used in this Annex:
"Exposure" has the meaning specified in Paragraph 12, except that
(1) after the word "Agreement" the words "(assuming, for this
purpose only, that Part 1(f)(i)(A)-(E) of the Schedule is deleted)"
shall be inserted and (2) at the end of the definition of Exposure,
the words "with terms that are, in all material respects, no less
beneficial for Party B than those of this Agreement" shall be
added.
"Fitch Approved Ratings Downgrade Event" means that no Relevant
Entity has credit ratings from Fitch at least equal to the Fitch
Approved Ratings Threshold.
"Fitch Credit Support Amount" means, for any Valuation Date, the
excess, if any, of
(I) (A) for any Valuation Date on which a Fitch
Approved Ratings Downgrade Event has occurred
and been continuing for at least 30 days, an
amount equal to the sum of (1) 100.0% of the
Secured Party's Exposure for such Valuation
Date and (2) the product of the Fitch
Volatility Cushion for each Transaction to
which this Annex relates and the Notional
Amount of each such Transaction for the
Calculation Period which includes such
Valuation Date, or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"Fitch Valuation Percentage" means, for any Valuation Date and each
item of Eligible Collateral, means, with respect to a Valuation
Date and each item of Eligible Collateral, the corresponding
percentage for such Eligible Collateral in the column headed "Fitch
Valuation Percentage".
"Fitch Value" means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price
obtained by the Valuation Agent for such Eligible Collateral and
(y) the Fitch Valuation Percentage for such Eligible Collateral set
forth in paragraph 13(b)(ii). The Fitch Value of Cash will be the
amount of such Cash.
"Fitch Volatility Cushion" means, for any Transaction, the related
percentage set forth in the following table.
----------------------------------------------------------------------------------
The higher of the Remaining Weighted Average Maturity
Fitch credit rating (years)
of (i) Party A and
(ii) the Credit
Support Provider of ----------------------------------------------------------
Party A, if applicable 1 2 3 4 5 6 7 8
----------------------- ------ ------- ------ ------ ------- ------ ------ -------
At least "AA-" 0.8% 1.7% 2.5% 3.3% 4.0% 4.7% 5.3% 5.9%
----------------------- ------ ------- ------ ------ ------- ------ ------ -------
"A+/A" 0.6% 1.2% 1.8% 2.3% 2.8% 3.3% 3.8% 4.2%
----------------------- ------ ------- ------ ------ ------- ------ ------ -------
"A-/BBB+" or lower 0.5% 1.0% 1.6% 2.0% 2.5% 2.9% 3.3% 3.6%
----------------------- ----------------------------------------------------------
The higher of the Remaining Weighted Average Maturity
Fitch credit rating (years)
of (i) Party A and ----------------------------------------------------------
(ii) the Credit Greater than
Support Provider of or equal to
Party A, if applicable 9 10 11 12 13 14 15
----------------------- ------ ------- ------ ------ ------- ------ --------------
At least "AA-" 6.5% 7.0% 7.5% 8.0% 8.5% 9.0% 9.5%
----------------------- ------ ------- ------ ------ ------- ------ --------------
"A+/A" 4.6% 5.0% 5.3% 5.7% 6.0% 6.4% 6.7%
----------------------- ------ ------- ------ ------ ------- ------ --------------
"A-/BBB+" or lower 4.0% 4.3% 4.7% 5.0% 5.3% 5.6% 5.9%
----------------------- ------ ------- ------ ------ ------- ------ --------------
"Local Business Day" means, for purposes of this Annex: any day on
which (A) commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in New York and
the location of Party A, Party B and any Custodian, and (B) in
relation to a Transfer of Eligible Collateral, any day on which the
clearance system agreed between the parties for the delivery of
Eligible Collateral is open for acceptance and execution of
settlement instructions (or in the case of a Transfer of Cash or
other Eligible Collateral for which delivery is contemplated by
other means a day on which commercial banks are open for business
(including dealings in foreign exchange and foreign deposits) in New
York and the location of Party A, Party B and any Custodian.
"Xxxxx'x Credit Support Amount" means, for any Valuation Date:
(A) if the Xxxxx'x Threshold for such Valuation Date is zero and
it is not the case that a Xxxxx'x Second Trigger Downgrade
Event has occurred and been continuing for at least 30 Local
Business Days, an amount equal to the greater of (x) zero and
(y) the sum of the Secured Party's Exposure and the aggregate
of Xxxxx'x First Trigger Additional Amounts for each
Transaction and such Valuation Date;
(B) if a Xxxxx'x Second Trigger Downgrade Event has occurred and
been continuing for at least 30 Local Business Days, an amount
equal to the greatest of (x) zero, (y) the aggregate amount of
the Next Payments for each Transaction and such Valuation
Date, and (z) the sum of the Secured Party's Exposure and the
aggregate of Xxxxx'x Second Trigger Additional Amounts for
each Transaction and such Valuation Date; or
(C) if the Xxxxx'x Threshold for such Valuation Date is infinity,
zero.
"Xxxxx'x First Trigger Additional Amount" means, for any Valuation
Date and any Transaction, the product of (i) the applicable Xxxxx'x
First Trigger Factor set forth in Table 1, (ii) the Scale Factor, if
any, for such Transaction, or, if no Scale Factor is applicable for
such Transaction, one, and (iii) the Notional Amount for such
Transaction for the Calculation Period for such Transaction (each as
defined in the related Confirmation) which includes such Valuation
Date.
"Xxxxx'x First Trigger Downgrade Event" means that no Relevant
Entity has credit ratings from Xxxxx'x at least equal to the Xxxxx'x
First Trigger Ratings Threshold.
"Xxxxx'x Second Trigger Additional Amount" means, for any
Valuation Date and any Transaction,
(A) if such Transaction is not a Transaction-Specific Hedge, the
product of (i) the applicable Xxxxx'x Second Trigger Factor set
forth in Table 2, (ii) the Scale Factor, if any, for such
Transaction, or, if no Scale Factor is applicable for such
Transaction, one, and (iii) the Notional Amount for such Transaction
for the Calculation Period for such Transaction (each as defined in
the related Confirmation) which includes such Valuation Date; or
(B) if such Transaction is a Transaction-Specific Hedge, the product
of (i) the applicable Xxxxx'x Second Trigger Factor set forth in
Table 3, (ii) the Scale Factor, if any, for such Transaction, or, if
no Scale Factor is applicable for such Transaction, one, and (iii)
the Notional Amount for such Transaction for the Calculation Period
for such Transaction (each as defined in the related Confirmation)
which includes such Valuation Date;
"Xxxxx'x Valuation Percentage" means, with respect to a Valuation
Date and each item of Eligible Collateral, (i) if the Xxxxx'x
Threshold for such Valuation Date is zero and it is not the case
that a Xxxxx'x Second Trigger Downgrade Event has occurred and been
continuing for at least 30 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed
"Xxxxx'x First Trigger Valuation Percentage" or (ii) if a Xxxxx'x
Second Trigger Ratings Event has occurred and been continuing for at
least 30 Local Business Days, the corresponding percentage for such
Eligible Collateral in the column headed "Xxxxx'x Second Trigger
Valuation Percentage".
"Xxxxx'x Value" means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price
obtained by the Valuation Agent and (y) the applicable Xxxxx'x
Valuation Percentage set forth in Paragraph 13(b)(ii). The Xxxxx'x
Value of Cash will be the amount of such Cash.
"Next Payment" means, for each Transaction and each Valuation Date,
the greater of (i) the aggregate amount of any payments due to be
made by Party A under Section 2(a) in respect of such Transaction on
the related Next Payment Date less the aggregate amount of any
payments due to be made by Party B under Section 2(a) on such Next
Payment Date (any such payments determined based on rates prevailing
on such Valuation Date) and (ii) zero.
"Next Payment Date" means, for each Transaction, the date on which
the next scheduled payment under such Transaction is due to be paid.
"S&P Approved Ratings Downgrade Event" means that no Relevant
Entity has credit ratings from S&P at least equal to the S&P
Approved Ratings Threshold.
"S&P Credit Support Amount" means, for any Valuation Date:
(A) if the S&P Threshold for such Valuation Date is zero and it is
not the case that an S&P Required Ratings Downgrade Event has
occurred and been continuing for at least 10 Local Business
Days, an amount equal to the Secured Party's Exposure;
(B) if an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, an amount
equal to 125% of the Secured Party's Exposure; or
(C) if the S&P Threshold for such Valuation Date is infinity,
zero.
"S&P Valuation Percentage" means, with respect to a Valuation Date
and each item of Eligible Collateral, (i) if the S&P Threshold for
such Valuation Date is zero and it is not the case that a S&P
Required Ratings Downgrade Event has occurred and been continuing
for at least 10 Local Business Days, the corresponding percentage
for such Eligible Collateral in the column headed "S&P Approved
Ratings Valuation Percentage" or (ii) if an S&P Required Ratings
Downgrade Event has occurred and been continuing for at least 10
Local Business Days, the corresponding percentage for such Eligible
Collateral in the column headed "S&P Required Ratings Valuation
Percentage".
"S&P Value" means, on any date and with respect to any Eligible
Collateral, the product of (x) the bid price obtained by the
Valuation Agent for such Eligible Collateral and (y) the applicable
S&P Valuation Percentage for such Eligible Collateral set forth in
paragraph 13(b)(ii). The S&P Value of Cash will be the face amount
of such Cash.
"Transaction-Specific Hedge" means any Transaction in respect of
which (x) the notional amount is "balance guaranteed" or (y) the
notional amount for any Calculation Period (as defined in the
related Confirmation) otherwise is not a specific dollar amount that
is fixed at the inception of the Transaction.
"Valuation Percentage" shall mean, for purposes of determining the
S&P Value, Xxxxx'x Value and Fitch Value with respect to any
Eligible Collateral or Posted Collateral, the applicable S&P
Valuation Percentage, Xxxxx'x Valuation Percentage, or Fitch
Valuation Percentage for such Eligible Collateral or Posted
Collateral, respectively, in each case as set forth in Paragraph
13(b)(ii).
"Value" shall mean, in respect of any date, the related S&P Value,
the related Xxxxx'x Value, and the related Fitch Value.
[Remainder of this page intentionally left blank]
Table 1
-----------------------------------------------------------------------------
Remaining Xxxxx'x First Trigger
Weighted Average Life Factor--Single Currency Xxxxx'x First Trigger
of Hedge in Years Interest Rate Xxxxxx Factor--Currency Xxxxxx
-----------------------------------------------------------------------------
Equal to or less than 1 0.15% 1.10%
-----------------------------------------------------------------------------
Greater than 1 but less
than or equal to 2 0.30% 1.20%
-----------------------------------------------------------------------------
Greater than 2 but less 0.40%
than or equal to 3 1.30%
-----------------------------------------------------------------------------
Greater than 3 but less
than or equal to 4 0.60% 1.40%
-----------------------------------------------------------------------------
Greater than 4 but less
than or equal to 5 0.70% 1.50%
-----------------------------------------------------------------------------
Greater than 5 but less
than or equal to 6 0.80% 1.60%
-----------------------------------------------------------------------------
Greater than 6 but less
than or equal to 7 1.00% 1.60%
-----------------------------------------------------------------------------
Greater than 7 but less
than or equal to 8 1.10% 1.70%
-----------------------------------------------------------------------------
Greater than 8 but less
than or equal to 9 1.20% 1.80%
-----------------------------------------------------------------------------
Greater than 9 but less
than or equal to 10 1.30% 1.90%
-----------------------------------------------------------------------------
Greater than 10 but less
than or equal to 11 1.40% 1.90%
-----------------------------------------------------------------------------
Greater than 11 but less
than or equal to 12 1.50% 2.00%
-----------------------------------------------------------------------------
Greater than 12 but less
than or equal to 13 1.60% 2.10%
-----------------------------------------------------------------------------
Greater than 13 but less
than or equal to 14 1.70% 2.10%
-----------------------------------------------------------------------------
Greater than 14 but less
than or equal to 15 1.80% 2.20%
-----------------------------------------------------------------------------
Greater than 15 but less
than or equal to 16 1.90% 2.30%
-----------------------------------------------------------------------------
Greater than 16 but less
than or equal to 17 2.00% 2.30%
-----------------------------------------------------------------------------
Greater than 17 but less
than or equal to 18 2.00% 2.40%
-----------------------------------------------------------------------------
Greater than 18 but less
than or equal to 19 2.00% 2.40%
-----------------------------------------------------------------------------
Greater than 19 but less
than or equal to 20 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 20 but less
than or equal to 21 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 21 but less
than or equal to 22 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 22 but less
than or equal to 23 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 23 but less
than or equal to 24 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 24 but less
than or equal to 25 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 25 but less
than or equal to 26 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 26 but less
than or equal to 27 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 27 but less
than or equal to 28 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 28 but less
than or equal to 29 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 29 2.00% 2.50%
-----------------------------------------------------------------------------
Table 2
-------
-----------------------------------------------------------------------------
Xxxxx'x Second
Remaining Trigger Factor--Single Xxxxx'x Second
Weighted Average Life Currency Interest Trigger
of Hedge in Years Rate Swaps Factor--Currency Swaps
-----------------------------------------------------------------------------
Equal to or less than 1 0.50% 6.10%
-----------------------------------------------------------------------------
Greater than 1 but less 1.00% 6.30%
than or equal to 2
-----------------------------------------------------------------------------
Greater than 2 but less 1.50% 6.40%
than or equal to 3
-----------------------------------------------------------------------------
Greater than 3 but less 1.90% 6.60%
than or equal to 4
-----------------------------------------------------------------------------
Greater than 4 but less 2.40% 6.70%
than or equal to 5
-----------------------------------------------------------------------------
Greater than 5 but less 2.80% 6.80%
than or equal to 6
-----------------------------------------------------------------------------
Greater than 6 but less 3.20% 7.00%
than or equal to 7
-----------------------------------------------------------------------------
Greater than 7 but less 3.60% 7.10%
than or equal to 8
-----------------------------------------------------------------------------
Greater than 8 but less 4.00% 7.20%
than or equal to 9
-----------------------------------------------------------------------------
Greater than 9 but less 4.40% 7.30%
than or equal to 10
-----------------------------------------------------------------------------
Greater than 10 but less 4.70% 7.40%
than or equal to 11
-----------------------------------------------------------------------------
Greater than 11 but less 5.00% 7.50%
than or equal to 12
-----------------------------------------------------------------------------
Greater than 12 but less 5.40% 7.60%
than or equal to 13
-----------------------------------------------------------------------------
Greater than 13 but less 5.70% 7.70%
than or equal to 14
-----------------------------------------------------------------------------
Greater than 14 but less 6.00% 7.80%
than or equal to 15
-----------------------------------------------------------------------------
Greater than 15 but less 6.30% 7.90%
than or equal to 16
-----------------------------------------------------------------------------
Greater than 16 but less 6.60% 8.00%
than or equal to 17
-----------------------------------------------------------------------------
Greater than 17 but less 6.90% 8.10%
than or equal to 18
-----------------------------------------------------------------------------
Greater than 18 but less 7.20% 8.20%
than or equal to 19
-----------------------------------------------------------------------------
Greater than 19 but less 7.50% 8.20%
than or equal to 20
-----------------------------------------------------------------------------
Greater than 20 but less 7.80% 8.30%
than or equal to 21
-----------------------------------------------------------------------------
Greater than 21 but less 8.00% 8.40%
than or equal to 22
-----------------------------------------------------------------------------
Greater than 22 but less 8.00% 8.50%
than or equal to 23
-----------------------------------------------------------------------------
Greater than 23 but less 8.00% 8.60%
than or equal to 24
-----------------------------------------------------------------------------
Greater than 24 but less 8.00% 8.60%
than or equal to 25
-----------------------------------------------------------------------------
Greater than 25 but less 8.00% 8.70%
than or equal to 26
-----------------------------------------------------------------------------
Greater than 26 but less 8.00% 8.80%
than or equal to 27
-----------------------------------------------------------------------------
Greater than 27 but less 8.00% 8.80%
than or equal to 28
-----------------------------------------------------------------------------
Greater than 28 but less 8.00% 8.90%
than or equal to 29
-----------------------------------------------------------------------------
Greater than 29 8.00% 9.00%
-----------------------------------------------------------------------------
Table 3
-------
-------------------------------------------------------------------------
Xxxxx'x Second Xxxxx'x Second
Remaining Trigger Factor--Single Trigger
Weighted Average Life Currency Interest Factor--Currency
of Hedge in Years Rate Xxxxxx Xxxxxx
-------------------------------------------------------------------------
Equal to or less than 1 0.65% 6.30%
-------------------------------------------------------------------------
Greater than 1 but less 1.30% 6.60%
than or equal to 2
-------------------------------------------------------------------------
Greater than 2 but less 1.90% 6.90%
than or equal to 3
-------------------------------------------------------------------------
Greater than 3 but less 2.50% 7.10%
than or equal to 4
-------------------------------------------------------------------------
Greater than 4 but less 3.10% 7.40%
than or equal to 5
-------------------------------------------------------------------------
Greater than 5 but less 3.60% 7.70%
than or equal to 6
-------------------------------------------------------------------------
Greater than 6 but less 4.20% 7.90%
than or equal to 7
-------------------------------------------------------------------------
Greater than 7 but less 4.70% 8.20%
than or equal to 8
-------------------------------------------------------------------------
Greater than 8 but less 5.20% 8.40%
than or equal to 9
-------------------------------------------------------------------------
Greater than 9 but less 5.70% 8.60%
than or equal to 10
-------------------------------------------------------------------------
Greater than 10 but less 6.10% 8.80%
than or equal to 11
-------------------------------------------------------------------------
Greater than 11 but less 6.50% 9.00%
than or equal to 12
-------------------------------------------------------------------------
Greater than 12 but less 7.00% 9.20%
than or equal to 13
-------------------------------------------------------------------------
Greater than 13 but less 7.40% 9.40%
than or equal to 14
-------------------------------------------------------------------------
Greater than 14 but less 7.80% 9.60%
than or equal to 15
-------------------------------------------------------------------------
Greater than 15 but less 8.20% 9.80%
than or equal to 16
-------------------------------------------------------------------------
Greater than 16 but less 8.60% 10.00%
than or equal to 17
-------------------------------------------------------------------------
Greater than 17 but less 9.00% 10.10%
than or equal to 18
-------------------------------------------------------------------------
Greater than 18 but less 9.40% 10.30%
than or equal to 19
-------------------------------------------------------------------------
Greater than 19 but less 9.70% 10.50%
than or equal to 20
-------------------------------------------------------------------------
Greater than 20 but less 10.00% 10.70%
than or equal to 21
-------------------------------------------------------------------------
Greater than 21 but less 10.00% 10.80%
than or equal to 22
-------------------------------------------------------------------------
Greater than 22 but less 10.00% 11.00%
than or equal to 23
-------------------------------------------------------------------------
Greater than 23 but less 10.00% 11.00%
than or equal to 24
-------------------------------------------------------------------------
Greater than 24 but less 10.00% 11.00%
than or equal to 25
-------------------------------------------------------------------------
Greater than 25 but less 10.00% 11.00%
than or equal to 26
-------------------------------------------------------------------------
Greater than 26 but less 10.00% 11.00%
than or equal to 27
-------------------------------------------------------------------------
Greater than 27 but less 10.00% 11.00%
than or equal to 28
-------------------------------------------------------------------------
Greater than 28 but less 10.00% 11.00%
than or equal to 29
-------------------------------------------------------------------------
Greater than 29 10.00% 11.00%
-------------------------------------------------------------------------
REFERENCE NUMBER: 1960759B
[BARCLAYS CAPITAL LOGO]
Barclays Bank PLC
5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel x00 (0)00 0000 0000
DATE: September 21, 2007
TO: Xxxxx Fargo Bank, National Association, not
individually, but solely as Securities
Administrator for BCAP LLC Trust 2007-AA5,
Mortgage Pass-Through Certificates, Series
2007-AA5 (the "Trust")
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
ATTENTION: Client Manager - BCAP 2007-AA5
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Barclays Bank PLC
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER: 1957307B/1961766B
The purpose of this long-form confirmation ("Confirmation") is to confirm the
terms and conditions of the Transaction entered into on the Trade Date specified
below (the "Transaction") between Barclays Bank PLC ("Party A") and Xxxxx Fargo
Bank, National Association, not individually, but solely as securities
administrator (the "Securities Administrator") on behalf of the trust with
respect to the BCAP LLC Trust 2007-AA5, Mortgage Pass-Through Certificates,
Series 2007-AA5 (the "Trust") ("Party B") created under the Pooling and
Servicing Agreement, dated as of September 1, 2007, among BCAP LLC, as
Depositor, Xxxxx Fargo Bank, National Association, as Securities Administrator,
Master Servicer and Custodian and HSBC Bank USA, National Association, as
Trustee (the "Base Agreement"). This Confirmation evidences a complete and
binding agreement between you and us to enter into the Transaction on the terms
set forth below and replaces any previous agreement between us with respect to
the subject matter hereof. Item 2 of this Confirmation constitutes a
"Confirmation" as referred to in the ISDA Master Agreement (defined below); Item
3 of this Confirmation constitutes a "Schedule" as referred to in the ISDA
Master Agreement; and Annex A hereto constitutes Paragraph 13 of a Credit
Support Annex to the Schedule.
1. The Confirmation set forth at Item 2 hereof shall supplement, form a part
of, and be subject to an agreement in the form of the ISDA Master
Agreement (Multicurrency - Cross Border) as published and copyrighted in
1992 by the International Swaps and Derivatives Association, Inc. (the
"ISDA Master Agreement"), as if Party A and Party B had executed an
agreement in such form on the date hereof, with a Schedule as set forth in
Item 3 of this Confirmation, and an ISDA Credit Support Annex (Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc., with Paragraph 13 thereof as set forth in Annex A
hereto (the "Credit Support Annex"). For the avoidance of doubt, the
Transaction described herein shall be the sole Transaction governed by
such ISDA Master Agreement.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: An amount equal to the applicable Cap
Notional Amount (amortizing in accordance
with the Cap Notional Amount Amortization
Schedule attached in Annex I).
Trade Date: September 21, 2007
Effective Date: September 21, 2007
Termination Date: September 25, 2009; subject to adjustment in
accordance with the Business Day Convention
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer
Payment Dates: September 21, 2007
Fixed Amount: USD 60,000
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: 6.50%
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during
the Term of this Transaction, commencing
October 25, 2007, subject to adjustment in
accordance with the Business Day
Convention.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. For
each Calculation Period, the Floating Rate
Payer Payment Date shall be the first
Business Day prior to the related Floating
Rate Payer Period End Date.
Floating Rate Option: With respect to any Calculation Period, the
lesser of (i) USD-LIBOR-BBA and (ii) 11.00%
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Business Days: New York
Business Day
Convention: Modified Following
Calculation Agent: Party A
Account Details and Settlement Information:
Payments to Party A: Correspondent: BARCLAYS BANK PLC NEW YORK
FEED: 000000000
Beneficiary: BARCLAYS SWAPS
Beneficiary Account: 000-00000-0
Payments to Party B: Xxxxx Fargo Bank, National Association
ABA #: 121 000 248
Acct #: 0000000000
Acct. Name: SAS Trust Clearing
FFC: 53178001
BCAP 2007-AA5 Supplemental Interest Account
3. Provisions Deemed Incorporated in a Schedule to the ISDA Master Agreement:
Part 1. Termination Provisions.
For the purposes of this Agreement:-
(a) "Specified Entity" will not apply to Party A or Party B for any purpose.
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) Events of Default.
The statement below that an Event of Default will apply to a specific
party means that upon the occurrence of such an Event of Default with
respect to such party, the other party shall have the rights of a
Non-defaulting Party under Section 6 of this Agreement; conversely, the
statement below that such event will not apply to a specific party means
that the other party shall not have such rights.
(i) The "Failure to Pay or Deliver" provisions of Section 5(a)(i) will
apply to Party A and will apply to Party B.
(ii) The "Breach of Agreement" provisions of Section 5(a)(ii) will apply
to Party A and will not apply to Party B; provided, however, that
notwithstanding anything to the contrary in Section 5(a)(ii), any
failure by Party A to comply with or perform any obligation to be
complied with or performed by Party A under the Credit Support
Annex shall not constitute an Event of Default under Section
5(a)(ii) unless (A) a Xxxxx'x Second Trigger Downgrade Event has
occurred and been continuing for 30 or more Local Business Days,
(B) an S&P Required Ratings Downgrade Event has occurred and been
continuing for 10 or more Local Business Days, or (C) a Fitch
Required Ratings Downgrade Event has occurred and been continuing
for 30 or more days.
(iii) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support Annex;
provided, however, that notwithstanding anything to the contrary in
Section 5(a)(iii)(1), any failure by Party A to comply with or
perform any obligation to be complied with or performed by Party A
under the Credit Support Annex shall not constitute an Event of
Default under Section 5(a)(iii) unless (A) a Xxxxx'x Second Trigger
Downgrade Event has occurred and been continuing for 30 or more
Local Business Days, (B) an S&P Required Ratings Downgrade Event
has occurred and been continuing for 10 or more Local Business
Days, or (C) a Fitch Required Ratings Downgrade Event has occurred
and been continuing for 30 or more days.
(iv) The "Misrepresentation" provisions of Section 5(a)(iv) will apply
to Party A and will not apply to Party B.
(v) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A and will not apply to Party B.
(vi) The "Cross Default" provisions of Section 5(a)(vi) will apply to
Party A and will not apply to Party B. For purposes of Section
5(a)(vi), solely with respect to Party A:
"Specified Indebtedness" will have the meaning specified in Section
14, except that such term shall not include obligations in respect
of deposits received in the ordinary course of Party A's banking
business.
"Threshold Amount" means with respect to Party A an amount equal to
three percent (3%) of the Shareholders' Equity of Party A or, if
applicable, a guarantor under an Eligible Guarantee with credit
ratings at least equal to the S&P Required Ratings Threshold, the
Xxxxx'x Second Trigger Threshold and the Fitch Approved Ratings
Threshold.
"Shareholders' Equity" means with respect to an entity, at any
time, such party's shareholders' equity (on a consolidated basis)
determined in accordance with generally accepted accounting
principles in such party's jurisdiction of incorporation or
organization as at the end of such party's most recently completed
fiscal year.
(vii) The "Bankruptcy" provisions of Section 5(a)(vii) will apply to Party
A and will apply to Party B; provided, however, that, for purposes
of applying Section 5(a)(vii) to Party B: (A) Section 5(a)(vii)(2)
shall not apply, (B) Section 5(a)(vii)(3) shall not apply to any
assignment, arrangement or composition that is effected by or
pursuant to the Base Agreement, (C) Section 5(a)(vii)(4) shall not
apply to a proceeding instituted, or a petition presented, by Party
A or any of its Affiliates (notwithstanding anything to the contrary
in this Agreement, for purposes of Section 5(a)(vii)(4), Affiliate
shall have the meaning set forth in Section 14 of the ISDA Master
Agreement), (D) Section 5(a)(vii)(6) shall not apply to any
appointment that is effected by or pursuant to the Base Agreement,
or any appointment to which Party B has not yet become subject; (E)
Section 5(a)(vii) (7) shall not apply; (F) Section 5(a)(vii)(8)
shall apply only to the extent of any event which has an effect
analogous to any of the events specified in clauses (1), (3), (4),
(5) or (6) of Section 5(a)(vii), in each case as modified in this
Part 1(c)(vii), and (G) Section 5(a)(vii)(9) shall not apply.
(viii) The "Merger Without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will not apply to Party B.
(d) Termination Events.
The statement below that a Termination Event will apply to a specific
party means that upon the occurrence of such a Termination Event, if such
specific party is the Affected Party with respect to a Tax Event, the
Burdened Party with respect to a Tax Event Upon Merger (except as noted
below) or the non-Affected Party with respect to a Credit Event Upon
Merger, as the case may be, such specific party shall have the right to
designate an Early Termination Date in accordance with Section 6 of this
Agreement; conversely, the statement below that such an event will not
apply to a specific party means that such party shall not have such right;
provided, however, with respect to "Illegality" the statement that such
event will apply to a specific party means that upon the occurrence of
such a Termination Event with respect to such party, either party shall
have the right to designate an Early Termination Date in accordance with
Section 6 of this Agreement.
(i) The "Illegality" provisions of Section 5(b)(i) will apply to Party A
and will apply to Party B.
(ii) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party A
and will apply to Party B.
(iii) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will apply to Party B, provided that Party A
shall not be entitled to designate an Early Termination Date by
reason of a Tax Event upon Merger in respect of which it is the
Affected Party.
(iv) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply to Party A and will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply, provided, however, that, in the event
of a Derivative Provider Trigger Event, the following provisions
will apply:
(A) The definition of Market Quotation in Section 14 shall be
deleted in its entirety and replaced with the following:
"Market Quotation" means, with respect to one or more
Terminated Transactions, a Firm Offer which is (1) made by a
Reference Market-maker that is an Eligible Replacement, (2)
for an amount that would be paid to Party B (expressed as a
negative number) or by Party B (expressed as a positive
number) in consideration of an agreement between Party B and
such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in
respect of the Terminated Transaction or group of Transactions
are to be excluded but, without limitation, any payment or
delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination
Date is to be included.
(B) The definition of Settlement Amount shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early
Termination Date, an amount equal to:
(a) if, on or prior to such Early Termination Date, a Market
Quotation for the relevant Terminated Transaction or
group of Terminated Transactions is accepted by Party B
so as to become legally binding, the Termination
Currency Equivalent of the amount (whether positive or
negative) of such Market Quotation;
(b) if, on such Early Termination Date, no Market Quotation
for the relevant Terminated Transaction or group of
Terminated Transactions has been accepted by Party B so
as to become legally binding and one or more Market
Quotations from Approved Replacements have been
communicated to Party B and remain capable of becoming
legally binding upon acceptance by Party B, the
Termination Currency Equivalent of the amount (whether
positive or negative) of the lowest of such Market
Quotations (for the avoidance of doubt, (i) a Market
Quotation expressed as a negative number is lower than a
Market Quotation expressed as a positive number and (ii)
the lower of two Market Quotations expressed as negative
numbers is the one with the largest absolute value); or
(c) if, on such Early Termination Date, no Market Quotation
for the relevant Terminated Transaction or group of
Terminated Transactions is accepted by Party B so as to
become legally binding and no Market Quotation from an
Approved Replacement has been communicated to Party B
and remains capable of becoming legally binding upon
acceptance by Party B, Party B's Loss (whether positive
or negative and without reference to any Unpaid Amounts)
for the relevant Terminated Transaction or group of
Terminated Transactions.
(C) If Party B requests Party A in writing to obtain Market
Quotations, Party A shall use its reasonable efforts to do so
before the Early Termination Date.
(D) If the Settlement Amount is a negative number, Section
6(e)(i)(3) shall be deleted in its entirety and replaced with
the following:
"(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, (I) Party B shall pay to Party A
an amount equal to the absolute value of the Settlement Amount
in respect of the Terminated Transactions, (II) Party B shall
pay to Party A the Termination Currency Equivalent of the
Unpaid Amounts owing to Party A and (III) Party A shall pay to
Party B the Termination Currency Equivalent of the Unpaid
Amounts owing to Party B; provided, however, that (x) the
amounts payable under the immediately preceding clauses (II)
and (III) shall be subject to netting in accordance with
Section 2(c) of this Agreement and (y) notwithstanding any
other provision of this Agreement, any amount payable by Party
A under the immediately preceding clause (III) shall not be
netted against any amount payable by Party B under the
immediately preceding clause (I)."
(E) At any time on or before the Early Termination Date at which
two or more Market Quotations from Approved Replacements have
been communicated to Party B and remain capable of becoming
legally binding upon acceptance by Party B, Party B shall be
entitled to accept only the lowest of such Market Quotations
(for the avoidance of doubt, (i) a Market Quotation expressed
as a negative number is lower than a Market Quotation
expressed as a positive number and (ii) the lower of two
Market Quotations expressed as negative numbers is the one
with the largest absolute value).
(ii) The Second Method will apply.
(g) "Termination Currency" means USD.
(h) Additional Termination Events. Additional Termination Events will apply as
provided in Part 5(c).
Part 2. Tax Matters.
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(ii) Payee Representations. For the purpose of Section 3(f) of this
Agreement:
(A) Party A makes the following representation(s):
None.
(B) Party B makes the following representation(s):
None.
(b) Tax Provisions.
(i) Indemnifiable Tax. Notwithstanding the definition of "Indemnifiable
Tax" in Section 14 of this Agreement, all Taxes in relation to
payments by Party A shall be Indemnifiable Taxes unless (i) such
Taxes are assessed directly against Party B and not by deduction or
withholding by Party A or (ii) arise as a result of a Change in Tax
Law (in which case such Tax shall be an Indemnifiable Tax only if
such Tax satisfies the definition of Indemnifiable Tax provided in
Section 14). In relation to payments by Party B, no Tax shall be an
Indemnifiable Tax, unless the Tax is due to a Change in Tax Law and
otherwise satisfies the definition of Indemnifiable Tax provided in
Section 14.
Part 3. Agreement to Deliver Documents.
(a) For the purpose of Section 4(a)(i), tax forms, documents, or certificates
to be delivered are:
Party required to Form/Document/ Date by which to
deliver document Certificate be delivered
Party A Any form or document required or Promptly upon reasonable demand by
reasonably requested to allow Party B Party B.
to make payments under the Agreement
without any deduction or withholding
for or on account of any Tax, or with
such deduction or withholding at a
reduced rate.
Party B (i) A correct, complete and duly In each case (i) upon entering into
executed IRS Form W-9 (or any this Agreement, (ii) in the case of a
successor thereto) of the Trust that W-8ECI, W-8IMY, and W-8BEN that does
eliminates U.S. federal withholding not include a U.S. taxpayer
and backup withholding tax on payments identification number in line 6,
under this Agreement, (ii) if before December 31 of each third
requested by Party A, a correct, succeeding calendar year, (iii)
complete and executed Form W-8IMY of promptly upon reasonable demand by
the Trust, and (iii) a complete and Party A, and (iv) promptly upon
executed IRS Form X-0, X-0XXX, X-0XXX, actual knowledge that any such Form
or W-8IMY (with attachments) (as previously provided by Party B has
appropriate) from each become obsolete or incorrect.
Certificateholder that is not an
"exempt recipient" as that term is
defined in Treasury regulations
section 1.6049-4(c)(1)(ii), that
eliminates U.S. federal withholding
and backup withholding tax on payments
under this Agreement.
(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by
deliver document Certificate be delivered Section 3(d)
Representation
Party A and Any documents reasonably required Upon the execution and Yes
Party B by the receiving party to delivery of this Agreement
evidence the authority of the
delivering party or its Credit
Support Provider, if any, for it
to execute and deliver the
Agreement, this Confirmation, and
any Credit Support Documents to
which it is a party, and to
evidence the authority of the
delivering party or its Credit
Support Provider to perform its
obligations under the Agreement,
this Confirmation and any Credit
Support Document, as the case may
be
Party A and A certificate of an authorized Upon the execution and Yes
Party B officer of the party, as to the delivery of this Agreement
incumbency and authority of the
respective officers of the party
signing the Agreement, this
Confirmation, and any relevant
Credit Support Document, as the
case may be
Party A An opinion of counsel to Party A Upon the execution and No
reasonably satisfactory to Party B. delivery of this Agreement
Party B An opinion of counsel to Party B Upon the execution and No
reasonably satisfactory to Party A. delivery of this Agreement
Party B An executed copy of the Base Within 30 days after the No
Agreement date of this Agreement.
Part 4. Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile: 00(00) 000 00000
Phone: 00(00) 000 00000
(For all purposes)
Address for notices or communications to Party B:
Address: Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Client Manager - BCAP 2007-AA5
Facsimile: 000 000 0000
Phone: 000 000 0000
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through its London and New York
Offices.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A; provided, however,
that if an Event of Default shall have occurred with respect to Party A,
Party B shall have the right to appoint as Calculation Agent a financial
institution which would qualify as a Reference Market-maker, reasonably
acceptable to Party A, the cost for which shall be borne by Party A.
(f) Credit Support Document.
Party A: The Credit Support Annex, and any guarantee in support of
Party A's obligations under this Agreement.
Party B: The Credit Support Annex, solely in respect of Party B's
obligations under Paragraph 3(b) of the Credit Support Annex.
(g) Credit Support Provider.
Party A: The guarantor under any guarantee in support of Party A's
obligations under this Agreement.
Party B: None.
(h) Governing Law. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole
(including any claim or controversy arising out of or relating to this
Agreement), without regard to the conflict of law provisions thereof other
than New York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will apply to each
Transaction hereunder.
(j) Affiliate. "Affiliate" shall have the meaning assigned thereto in Section
14; provided, however, that Party B shall be deemed to have no Affiliates
for purposes of this Agreement, including for purposes of Section
6(b)(ii).
Part 5. Other Provisions.
(a) Definitions. Unless otherwise specified in a Confirmation, this Agreement
and each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the "Definitions"), and will be
governed in all relevant respects by the provisions set forth in the
Definitions, without regard to any amendment to the Definitions subsequent
to the date hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a "Swap Transaction"
shall be deemed references to a "Transaction" for purposes of this
Agreement, and (ii) references to a "Transaction" in this Agreement shall
be deemed references to a "Swap Transaction" for purposes of the
Definitions. Each term capitalized but not defined in this Agreement shall
have the meaning assigned thereto in the Base Agreement.
Each reference herein to a "Section" (unless specifically referencing the
Base Agreement) or to a "Section" "of this Agreement" will be construed as
a reference to a Section of the ISDA Master Agreement; each herein
reference to a "Part" will be construed as a reference to the Schedule to
the ISDA Master Agreement; each reference herein to a "Paragraph" will be
construed as a reference to a Paragraph of the Credit Support Annex.
(b) Amendments to ISDA Master Agreement.
(i) Single Agreement. Section 1(c) is hereby amended by the adding the
words "including, for the avoidance of doubt, the Credit Support
Annex" after the words "Master Agreement".
(ii) Change of Account. Section 2(b) is hereby amended by the addition of
the following after the word "delivery" in the first line thereof:
"to another account in the same legal and tax jurisdiction as the
original account".
(iii) Representations. Section 3 is hereby amended by adding at the end
thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into
that Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication
(written or oral) of the other party as investment
advice or as a recommendation to enter into that
Transaction, it being understood that information and
explanations related to the terms and conditions of a
Transaction will not be considered investment advice or
a recommendation to enter into that Transaction. No
communication (written or oral) received from the other
party will be deemed to be an assurance or guarantee as
to the expected results of that Transaction.
(2) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and risks
of that Transaction. It is also capable of assuming, and
assumes, the risks of that Transaction.
(3) Purpose. It is entering into the Transaction for the
purposes of managing its borrowings or investments,
hedging its underlying assets or liabilities or in
connection with a line of business.
(4) Status of Parties. The other party is not acting as
fiduciary for or advisor to it in respect of the
Transaction.
(5) Eligible Contract Participant. It is an "eligible
contract participant" as defined in Section 1a(12) of
the Commodity Exchange Act, as amended."
(iv) Transfer to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words "or if a Tax Event Upon Merger
occurs and the Burdened Party is the Affected Party," and (ii) by
deleting the words "to transfer" and inserting the words "to effect
a Permitted Transfer" in lieu thereof.
(v) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in
the second line of subparagraph (i) thereof the word "non-", (ii)
deleting "; and" from the end of subparagraph (i) and inserting "."
in lieu thereof, and (iii) deleting the final paragraph thereof.
(vi) Local Business Day. The definition of Local Business Day in Section
14 is hereby amended by the addition of the words "or any Credit
Support Document" after "Section 2(a)(i)" and the addition of the
words "or Credit Support Document" after "Confirmation".
(c) Additional Termination Events. The following Additional Termination Events
will apply:
(i) First Rating Trigger Collateral. If Party A has failed to comply
with or perform any obligation to be complied with or performed by
Party A in accordance with the Credit Support Annex and such failure
has not given rise to an Event of Default under Section 5(a)(i) or
Section 5(a)(iii), then an Additional Termination Event shall have
occurred with respect to Party A and Party A shall be the sole
Affected Party with respect to such Additional Termination Event.
(ii) Second Rating Trigger Replacement. The occurrence of any event
described in this Part 5(c)(ii) shall constitute an Additional
Termination Event with respect to Party A and Party A shall be the
sole Affected Party with respect to such Additional Termination
Event.
(A) A Moody's Second Trigger Downgrade Event has occurred and been
continuing for 30 or more Local Business Days and at least one
Eligible Replacement has made a Firm Offer that would,
assuming the occurrence of an Early Termination Date, qualify
as a Market Quotation (on the basis that paragraphs (i) and
(ii) of Part 1(f) (Payments on Early Termination) apply) and
which remains capable of becoming legally binding upon
acceptance.
(B) An S&P Required Ratings Downgrade Event has occurred and been
continuing for 60 or more calendar days.
(C) A Fitch Required Ratings Downgrade Event has occurred and been
continuing for 30 or more calendar days.
(iii) Amendment of Base Agreement. If, without the prior written consent
of Party A where such consent is required under the Base Agreement,
an amendment is made to the Base Agreement which amendment could
reasonably be expected to have a material adverse effect on the
interests of Party A (excluding, for the avoidance of doubt, any
amendment to the Base Agreement that is entered into solely for the
purpose of appointing a successor servicer, master servicer,
securities administrator, trustee or other service provider) under
this Agreement, an Additional Termination Event shall have occurred
with respect to Party B and Party B shall be the sole Affected Party
with respect to such Additional Termination Event; provided,
however, that notwithstanding Section 6(b)(iv) of this Agreement,
both Party A and Party B shall have the right to designate an Early
Termination Date in respect of this Additional Termination Event.
(iv) Termination of Trust. If, the Trust is terminated pursuant to the
Base Agreement and all rated certificates or notes, as applicable,
have been paid in accordance with the terms of the Base Agreement,
an Additional Termination Event shall have occurred with respect to
Party B and Party B shall be the sole Affected Party with respect to
such Additional Termination Event; provided, however, that
notwithstanding Section 6(b)(iv) of this Agreement, both Party A and
Party B shall have the right to designate an Early Termination Date
in respect of this Additional Termination Event.
(v) Securitization Unwind. If a Securitization Unwind (as hereinafter
defined) occurs, an Additional Termination Event shall have occurred
with respect to Party B and Party B shall be the sole Affected Party
with respect to such Additional Termination Event; provided,
however, that notwithstanding Section 6(b)(iv) of this Agreement,
both Party A and Party B shall have the right to designate an Early
Termination Date in respect of this Additional Termination Event.
The Early Termination Date in respect of such Additional Termination
Event shall be not earlier than the latest possible date that the
amount of a termination payment may be submitted to a party
exercising a clean-up call in order to be included in the clean-up
call price. As used herein, "Securitization Unwind" means notice of
the requisite amount of a party's intention to exercise its option
to purchase the underlying mortgage loans pursuant the Base
Agreement is given by the Trustee or Securities Administrator to
certificateholders or noteholders, as applicable, pursuant to the
Base Agreement.
(d) Required Ratings Downgrade Event. In the event that no Relevant Entity has
credit ratings at least equal to the Required Ratings Threshold of each
relevant Rating Agency (such event, a "Required Ratings Downgrade Event"),
then Party A shall, as soon as reasonably practicable and so long as a
Required Ratings Downgrade Event is in effect, at its own expense, use
commercially reasonable efforts to procure either (A) a Permitted Transfer
or (B) an Eligible Guarantee.
(e) Transfers.
(i) Section 7 is hereby amended to read in its entirety as follows:
"Subject to Section 6(b)(ii), neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security
or otherwise) as a whole or in part any of its rights, obligations
or interests under the Agreement or any Transaction without (a) the
prior written consent of the other party and (b) satisfaction of the
Rating Agency Condition, except that:
(a) a party may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation with, or merger with or into,
or transfer of all or substantially all its assets to, another
entity (but without prejudice to any other right or remedy
under this Agreement);
(b) a party may make such a transfer of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e); and
(c) Party A may transfer or assign this Agreement to any Person,
including, without limitation, another of Party A's offices,
branches or affiliates (any such Person, office, branch or
affiliate, a "Transferee") on at least five Business Days'
prior written notice to Party B and the Securities
Administrator; provided that, with respect to this clause (c),
(A) as of the date of such transfer the Transferee will not be
required to withhold or deduct on account of a Tax from any
payments under this Agreement unless the Transferee will be
required to make payments of additional amounts pursuant to
Section 2(d)(i)(4) of this Agreement in respect of such Tax
(B) a Termination Event or Event of Default does not occur
under this Agreement as a result of such transfer; (C) such
notice is accompanied by a written instrument pursuant to
which the Transferee acquires and assumes the rights and
obligations of Party A so transferred; (D) Party A will be
responsible for any costs or expenses incurred in connection
with such transfer and (E) Party A obtains in respect of such
transfer a written acknowledgement of satisfaction of the
Rating Agency Condition (except for Moody's). Party B will
execute such documentation provided to it as is reasonably
deemed necessary by Party A for the effectuation of any such
transfer."
(ii) If an Eligible Replacement has made a Firm Offer (which remains an
offer that will become legally binding upon acceptance by Party B)
to be the transferee pursuant to a Permitted Transfer, Party B
shall, at Party A's written request and at Party A's expense,
execute such documentation provided to it as is reasonably deemed
necessary by Party A to effect such transfer.
(iii) Upon any transfer of this Agreement, each of the transferee and the
transferor must be a "dealer in notional principal contracts" for
purposes of Treasury regulations section 1.1001-4(a).
(f) Non-Recourse. Party A acknowledges and agree that, notwithstanding any
provision in this Agreement to the contrary, the obligations of Party B
hereunder are limited recourse obligations of Party B, payable solely from
the Trust and the proceeds thereof, in accordance with the priority of
payments and other terms of the Base Agreement and that Party A will not
have any recourse to any of the directors, officers, employees,
shareholders or affiliates of Party B with respect to any claims, losses,
damages, liabilities, indemnities or other obligations in connection with
any transactions contemplated hereby. In the event that the Trust and the
proceeds thereof, should be insufficient to satisfy all claims outstanding
and following the realization of the account held by the Trust and the
proceeds thereof, any claims against or obligations of Party B under the
ISDA Master Agreement or any other confirmation thereunder still
outstanding shall be extinguished and thereafter not revive. The
Securities Administrator shall not have liability for any failure or delay
in making a payment hereunder to Party A due to any failure or delay in
receiving amounts in the account held by the Trust from the Trust created
pursuant to the Base Agreement. This provision will survive the
termination of this Agreement.
(g) Rating Agency Notifications. Notwithstanding any other provision of this
Agreement, no Early Termination Date shall be effectively designated
hereunder by Party B and no transfer of any rights or obligations under
this Agreement shall be made by either party unless each Rating Agency has
been given prior written notice of such designation or transfer.
(h) No Set-off. Except as expressly provided for in Section 2(c), Section 6 or
Part 1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net, recoup
or otherwise withhold or suspend or condition payment or performance of
any obligation between it and the other party hereunder against any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence: "The
amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off."
(i) Amendment. Notwithstanding any provision to the contrary in this
Agreement, no amendment of either this Agreement or any Transaction under
this Agreement shall be permitted by either party unless each of the
Rating Agencies has been provided prior written notice of the same and
such amendment satisfies the Rating Agency Condition with respect to S&P
and Fitch.
(j) Notice of Certain Events or Circumstances. Each Party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or both
would constitute) an Event of Default or Termination Event with respect to
such party, promptly to give the other Party and to each Rating Agency
notice of such event or condition; provided that failure to provide notice
of such event or condition pursuant to this Part 5(j) shall not constitute
an Event of Default or a Termination Event.
(k) Proceedings. No Relevant Entity shall institute against, or cause any
other person to institute against, or join any other person in instituting
against Party B, the Trust, or the trust formed pursuant to the Base
Agreement, in any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of the
Certificates and any Notes; provided, however, that nothing will preclude,
or be deemed to stop, Party A (i) from taking any action prior to the
expiration of the aforementioned one year and one day period, or if longer
the applicable preference period then in effect, in (A) any case or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person other
than Party A, or (ii) from commencing against Party B or any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar proceeding.
This provision will survive the termination of this Agreement.
(l) Securities Administrator Liability Limitations. It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed by
Xxxxx Fargo Bank, National Association ("X") not in its individual
capacity, but solely as Securities Administrator under the Base Agreement
in the exercise of the powers and authority conferred and invested in it
thereunder; (b) X has been directed pursuant to the Base Agreement to
enter into this Agreement and to perform its obligations hereunder; (c)
each of the representations, undertakings and agreements herein made on
behalf of the Trust is made and intended not as personal representations
of the Securities Administrator but is made and intended for the purpose
of binding only the Trust; and (d) under no circumstances shall X in its
individual capacity be personally liable for any payments hereunder or for
the breach or failure of any obligation, representation, warranty or
covenant made or undertaken under this Agreement.
(m) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall
be held to be invalid or unenforceable (in whole or in part) in any
respect, the remaining terms, provisions, covenants, and conditions hereof
shall continue in full force and effect as if this Agreement had been
executed with the invalid or unenforceable portion eliminated, so long as
this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter of
this Agreement and the deletion of such portion of this Agreement will not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used in or
in connection with any such Section) shall be so held to be invalid or
unenforceable.
The parties shall endeavor to engage in good faith negotiations to replace
any invalid or unenforceable term, provision, covenant or condition with a
valid or enforceable term, provision, covenant or condition, the economic
effect of which comes as close as possible to that of the invalid or
unenforceable term, provision, covenant or condition.
(n) Consent to Recording. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any
and all communications between trading, marketing, and operations
personnel of the parties and their Affiliates, waives any further notice
of such monitoring or recording, and agrees to notify such personnel of
such monitoring or recording.
(o) Waiver of Jury Trial. Each party waives any right it may have to a trial
by jury in respect of any in respect of any suit, action or proceeding
relating to this Agreement or any Credit Support Document.
(p) Regarding Party A. Party B acknowledges and agrees that Party A, in its
capacity as cap provider, has had and will have no involvement in and,
accordingly Party A accepts no responsibility for: (i) the establishment,
structure, or choice of assets of Party B; (ii) the selection of any
person performing services for or acting on behalf of Party B; (iii) the
selection of Party A as the Counterparty; (iv) the terms of the
Certificates; (v) the preparation of or passing on the disclosure and
other information (other than disclosure and information furnished by
Party A) contained in any offering circular for the Certificates, the Base
Agreement, or any other agreements or documents used by Party B or any
other party in connection with the marketing and sale of the Certificates;
(vi) the ongoing operations and administration of Party B, including the
furnishing of any information to Party B which is not specifically
required under this Agreement; or (vii) any other aspect of Party B's
existence.
(q) Rating Agency Requirements. Notwithstanding anything to the contrary
herein, to the extent any Rating Agency does not assign a rating to the
notes or certificates, as applicable, issued pursuant to the Base
Agreement, references to the requirements of such Rating Agency herein
shall be ignored for purposes of this Agreement.
(r) Additional Definitions.
As used in this Agreement, the following terms shall have the meanings set
forth below, unless the context clearly requires otherwise:
"Approved Ratings Threshold" means each of the S&P Approved Ratings
Threshold, the Moody's First Trigger Ratings Threshold and the Fitch
Approved Ratings Threshold.
"Approved Replacement" means, with respect to a Market Quotation, an
entity making such Market Quotation, which entity would satisfy
conditions (a), (b), (c) and (d) of the definition of Permitted
Transfer if such entity were a Transferee, as defined in the
definition of Permitted Transfer.
"Derivative Provider Trigger Event" means (i) an Event of Default
with respect to which Party A is a Defaulting Party, (ii) a
Termination Event (other than an Illegality or Tax Event) with
respect to which Party A is the sole Affected Party or (iii) an
Additional Termination Event with respect to which Party A is the
sole Affected Party.
"Eligible Guarantee" means an unconditional and irrevocable
guarantee of all present and future obligations of Party A under
this Agreement (or, solely for purposes of the definition of
Eligible Replacement, all present and future obligations of such
Eligible Replacement under this Agreement or its replacement, as
applicable) which is provided by a guarantor as principal debtor
rather than surety and which is directly enforceable by Party B, the
form and substance of which guarantee are subject to the Rating
Agency Condition with respect to S&P and Fitch, and either (A) a law
firm has given a legal opinion confirming that none of the
guarantor's payments to Party B under such guarantee will be subject
to deduction or Tax collected by withholding, or (B) such guarantee
provides that, in the event that any of such guarantor's payments to
Party B are subject to deduction or Tax collected by withholding,
such guarantor is required to pay such additional amount as is
necessary to ensure that the net amount actually received by Party B
(free and clear of any Tax collected by withholding) will equal the
full amount Party B would have received had no such deduction or
withholding been required, or (C) in the event that any payment
under such guarantee is made net of deduction or withholding for
Tax, Party A is required, under Section 2(a)(i), to make such
additional payment as is necessary to ensure that the net amount
actually received by Party B from the guarantor will equal the full
amount Party B would have received had no such deduction or
withholding been required.
"Eligible Replacement" means an entity (A) (I) (x) which has credit
ratings from S&P at least equal to the S&P Required Ratings
Threshold or (y) all present and future obligations of which entity
owing to Party B under this Agreement (or its replacement, as
applicable) are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor with credit ratings from S&P at least equal
to the S&P Required Ratings Threshold, in either case if S&P is a
Rating Agency, (II) (x) which has credit ratings from Moody's at
least equal to the Moody's Second Trigger Ratings Threshold or (y)
all present and future obligations of which entity owing to Party B
under this Agreement (or its replacement, as applicable) are
guaranteed pursuant to an Eligible Guarantee provided by a guarantor
with credit ratings from Moody's at least equal to the Moody's
Second Trigger Ratings Threshold, in either case if Xxxxx'x is a
Rating Agency, and (III) (x) which has credit ratings from Fitch at
least equal to the applicable Fitch Approved Ratings Threshold or
(y) all present and future obligations of which entity owing to
Party B under this Agreement (or its replacement, as applicable) are
guaranteed pursuant to an Eligible Guarantee provided by a guarantor
with credit ratings from Fitch at least equal to the Fitch Approved
Ratings Threshold, in either case if Fitch is a Rating Agency. All
credit ratings described in this definition of "Eligible
Replacement" shall be provided to Party B by any such Eligible
Replacement in writing.
"Financial Institution" means a bank, broker/dealer, insurance
company, structured investment company or derivative product
company.
"Firm Offer" means a quotation from an Eligible Replacement (i) in
an amount equal to the actual amount payable by or to Party B in
consideration of an agreement between Party B and such Eligible
Replacement to replace Party A as the counterparty to this Agreement
by way of novation or, if such novation is not possible, an
agreement between Party B and such Eligible Replacement to enter
into a Replacement Transaction (assuming that all Transactions
hereunder become Terminated Transactions), and (ii) that constitutes
an offer by such Eligible Replacement to replace Party A as the
counterparty to this Agreement or enter a Replacement Transaction
that will become legally binding upon such Eligible Replacement upon
acceptance by Party B.
"Fitch" means Fitch Ratings Ltd., or any successor thereto.
"Fitch Approved Ratings Threshold" means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible
Replacement, a long-term unsecured and unsubordinated debt rating
from Fitch of "A" and a short-term unsecured and unsubordinated debt
rating from Fitch of "F1".
"Fitch Required Ratings Downgrade Event" means that no Relevant
Entity has credit ratings from Fitch at least equal to the Fitch
Required Ratings Threshold.
"Fitch Required Ratings Threshold" means, with respect to Party A,
the guarantor under an Eligible Guarantee, or an Eligible
Replacement, a long-term unsecured and unsubordinated debt rating
from Fitch of "BBB+" and a short-term unsecured and unsubordinated
debt rating from Fitch of "F2".
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Moody's First Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee, or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A2" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-1", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's, a long-term unsecured and unsubordinated debt
rating or counterparty rating from Moody's of "A1".
"Moody's Second Trigger Downgrade Event" means that no Relevant
Entity has credit ratings from Moody's at least equal to the Moody's
Second Trigger Ratings Threshold.
"Moody's Second Trigger Ratings Threshold" means, with respect to
Party A, the guarantor under an Eligible Guarantee, or an Eligible
Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody's, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's of
"A3" and a short-term unsecured and unsubordinated debt rating from
Moody's of "Prime-2", or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating from Moody's, a
long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody's of "A3".
"Permitted Transfer" means a transfer by novation by Party A to a
transferee (the "Transferee") of all, but not less than all, of
Party A's rights, liabilities, duties and obligations under this
Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible
Replacement that is a recognized dealer in interest rate swaps, (b)
as of the date of such transfer the Transferee would not be required
to withhold or deduct on account of Tax from any payments under this
Agreement or would be required to gross up for such Tax under
Section 2(d)(i)(4), (c) an Event of Default or Termination Event
would not occur as a result of such transfer (d) pursuant to a
written instrument (the "Transfer Agreement"), the Transferee
acquires and assumes all rights and obligations of Party A under the
Agreement and the relevant Transaction, (e) such Transfer Agreement
is effective to transfer to the Transferee all, but not less than
all, of Party A's rights and obligations under the Agreement and all
relevant Transactions; (f) Party A will be responsible for any costs
or expenses incurred in connection with such transfer (including any
replacement cost of entering into a replacement transaction); (g)
Moody's has been given prior written notice of such transfer and the
Rating Agency Condition (other than with respect to Xxxxx'x) is
satisfied; and (h) such transfer otherwise complies with the terms
of the Base Agreement.
"Rating Agencies" means, with respect to any date of determination,
each of S&P, Xxxxx'x and Fitch, to the extent that each such rating
agency is then providing a rating for any of the related notes or
certificates, as applicable.
"Rating Agency Condition" means, with respect to any particular
proposed act or omission to act hereunder and each Rating Agency
specified in connection with such proposed act or omission, that the
party proposing such act or failure to act must consult with each of
the specified Rating Agencies and receive from each such Rating
Agency prior written confirmation that the proposed action or
inaction would not cause a downgrade or withdrawal of the
then-current rating of any Certificates or Notes.
"Relevant Entity" means Party A and, to the extent applicable, a
guarantor under an Eligible Guarantee.
"Replacement Transaction" means, with respect to any Terminated
Transaction or group of Terminated Transactions, a transaction or
group of transactions that (i) would have the effect of preserving
for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by
the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for
the occurrence of the relevant Early Termination Date, have been
required after that date, and (ii) has terms which are substantially
the same as this Agreement, including, without limitation, rating
triggers, Regulation AB compliance and credit support documentation,
save for the exclusion of provisions relating to Transactions that
are not Terminated Transactions.
"Required Ratings Downgrade Event" means that no Relevant Entity has
credit ratings at least equal to the Required Ratings Threshold.
"Required Ratings Threshold" means each of the S&P Required Ratings
Threshold, the Moody's Second Trigger Ratings Threshold and the
Fitch Required Ratings Threshold.
"S&P" means Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"S&P Approved Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement, a
short-term unsecured and unsubordinated debt rating of "A-1" from
S&P, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of "A+" from S&P.
"S&P Required Ratings Downgrade Event" means that no Relevant Entity
has credit ratings from S&P at least equal to the S&P Required
Ratings Threshold.
"S&P Required Ratings Threshold" means, with respect to Party A, the
guarantor under an Eligible Guarantee, or an Eligible Replacement,
(I) if such entity is a Financial Institution, a short-term
unsecured and unsubordinated debt rating of "A-2" from S&P, or, if
such entity does not have a short-term unsecured and unsubordinated
debt rating from S&P, a long-term unsecured and unsubordinated debt
rating or counterparty rating of "BBB+" from S&P, or (II) if such
entity is not a Financial Institution, a short-term unsecured and
unsubordinated debt rating of "A-1" from S&P, or, if such entity
does not have a short-term unsecured and unsubordinated debt rating
from S&P, a long-term unsecured and unsubordinated debt rating or
counterparty rating of "A+" from S&P.
[Remainder of this page intentionally left blank.]
The time of dealing will be confirmed by Party A upon written request. Barclays
is regulated by the Financial Services Authority. Barclays is acting for its own
account in respect of this Transaction.
Please confirm that the foregoing correctly sets forth all the terms and
conditions of our agreement with respect to the Transaction by responding within
three (3) Business Days by promptly signing in the space provided below and both
(i) faxing the signed copy to Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operations,
Fax x(00) 00-0000-0000/6857, Tel x(00) 00-0000-0000/6904/6965, and (ii) mailing
the signed copy to Barclays Bank PLC, 5 Xxx Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx,
Xxxxxx X00 0XX, Attention of Incoming Transaction Documentation, Barclays
Capital Global OTC Transaction Documentation & Management, Global Operation.
Your failure to respond within such period shall not affect the validity or
enforceability of the Transaction against you. This facsimile shall be the only
documentation in respect of the Transaction and accordingly no hard copy
versions of this Confirmation for this Transaction shall be provided unless
Party B requests such a copy.
------------------------------------- ------------------------------------------
For and on behalf of For and on behalf of
BARCLAYS BANK PLC BCAP LLC Trust 2007-AA5
By: Xxxxx Fargo Bank, National
Association, not individually, but
solely as securities administrator of
the Trust
------------------------------------- ------------------------------------------
Name: Xxxxx Xxxxxxxxxxx Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory Title: Vice President
Date: September 21, 2007 Date: September 21, 2007
------------------------------------- ------------------------------------------
Barclays Bank PLC and its Affiliates, including Barclays Capital Inc., may share
with each other information, including non-public credit information, concerning
its clients and prospective clients. If you do not want such information to be
shared, you must write to the Director of Compliance, Barclays Bank PLC, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
ANNEX I
Cap Notional Amount Amortization Schedule
Cap Notional
Period Period Start Date Period End Date Amount (in USD)
------ ----------------- --------------- ---------------
1 21-Sep-07 25-Oct-07 $267,487,000.00
2 25-Oct-07 25-Nov-07 $265,133,200.41
3 25-Nov-07 25-Dec-07 $262,800,029.83
4 25-Dec-07 25-Jan-08 $260,487,307.75
5 25-Jan-08 25-Feb-08 $258,194,855.23
6 25-Feb-08 25-Mar-08 $255,922,494.91
7 25-Mar-08 25-Apr-08 $253,670,050.96
8 25-Apr-08 25-May-08 $251,437,349.11
9 25-May-08 25-Jun-08 $249,224,216.60
10 25-Jun-08 25-Jul-08 $247,030,482.20
11 25-Jul-08 25-Aug-08 $244,855,976.14
12 25-Aug-08 25-Sep-08 $242,700,530.16
13 25-Sep-08 25-Oct-08 $240,563,977.46
14 25-Oct-08 25-Nov-08 $238,446,152.73
15 25-Nov-08 25-Dec-08 $236,346,892.08
16 25-Dec-08 25-Jan-09 $234,266,033.04
17 25-Jan-09 25-Feb-09 $232,203,414.57
18 25-Feb-09 25-Mar-09 $230,158,877.08
19 25-Mar-09 25-Apr-09 $228,132,262.30
20 25-Apr-09 25-May-09 $226,123,413.41
21 25-May-09 25-Jun-09 $224,132,174.93
22 25-Jun-09 25-Jul-09 $222,158,392.75
23 25-Jul-09 25-Aug-09 $220,201,914.10
24 25-Aug-09 25-Sep-09 $218,262,587.55
ANNEX II
Swap Notional Amount Amortization Schedule
Period From and including To but excluding Notional Amount (USD)
------ ------------------ ---------------- ---------------------
1 25-Sep-09 25-Oct-09 170,935,516.43
2 25-Oct-09 25-Nov-09 167,775,095.64
3 25-Nov-09 25-Dec-09 164,673,047.94
4 25-Dec-09 25-Jan-10 159,214,368.99
5 25-Jan-10 25-Feb-10 156,270,328.15
6 25-Feb-10 25-Mar-10 153,380,668.19
7 25-Mar-10 25-Apr-10 150,544,385.38
8 25-Apr-10 25-May-10 147,760,494.49
9 25-May-10 25-Jun-10 145,028,028.46
10 25-Jun-10 25-Jul-10 142,346,038.09
11 25-Jul-10 25-Aug-10 139,713,591.67
12 25-Aug-10 25-Sep-10 137,129,774.68
13 25-Sep-10 25-Oct-10 134,593,689.51
14 25-Oct-10 25-Nov-10 132,104,455.05
15 25-Nov-10 25-Dec-10 129,661,206.48
16 25-Dec-10 25-Jan-11 127,263,094.94
17 25-Jan-11 25-Feb-11 124,909,287.22
18 25-Feb-11 25-Mar-11 122,598,965.46
19 25-Mar-11 25-Apr-11 120,331,326.94
20 25-Apr-11 25-May-11 117,993,698.23
21 25-May-11 25-Jun-11 115,811,138.19
22 25-Jun-11 25-Jul-11 113,668,902.94
23 25-Jul-11 25-Aug-11 111,566,248.03
24 25-Aug-11 25-Sep-11 109,502,442.78
25 25-Sep-11 25-Oct-11 107,476,769.97
26 25-Oct-11 25-Nov-11 105,488,525.64
27 25-Nov-11 25-Dec-11 102,425,340.53
28 25-Dec-11 25-Jan-12 100,531,948.50
29 25-Jan-12 25-Feb-12 98,673,522.35
30 25-Feb-12 25-Mar-12 88,882,008.49
31 25-Mar-12 25-Apr-12 68,054,444.09
32 25-Apr-12 25-May-12 65,867,289.10
33 25-May-12 25-Jun-12 64,648,306.13
34 25-Jun-12 25-Jul-12 63,451,852.45
35 25-Jul-12 25-Aug-12 62,277,512.05
36 25-Aug-12 25-Sep-12 61,124,876.61
37 25-Sep-12 25-Oct-12 59,993,545.36
38 25-Oct-12 25-Nov-12 58,883,124.90
39 25-Nov-12 25-Dec-12 57,793,229.09
40 25-Dec-12 25-Jan-13 56,723,478.93
41 25-Jan-13 25-Feb-13 55,673,502.42
42 25-Feb-13 25-Mar-13 54,642,934.39
43 25-Mar-13 25-Apr-13 53,631,416.44
44 25-Apr-13 25-May-13 52,638,596.78
45 25-May-13 25-Jun-13 51,664,130.09
46 25-Jun-13 25-Jul-13 50,707,677.45
47 25-Jul-13 25-Aug-13 49,768,906.20
48 25-Aug-13 25-Sep-13 48,847,489.79
49 25-Sep-13 25-Oct-13 47,943,107.70
50 25-Oct-13 25-Nov-13 47,055,445.33
51 25-Nov-13 25-Dec-13 46,184,193.92
52 25-Dec-13 25-Jan-14 45,329,050.35
53 25-Jan-14 25-Feb-14 44,489,717.14
54 25-Feb-14 25-Mar-14 43,665,902.27
55 25-Mar-14 25-Apr-14 42,857,319.14
56 25-Apr-14 25-May-14 42,063,686.41
57 25-May-14 25-Jun-14 41,101,146.94
58 25-Jun-14 25-Jul-14 6,304,716.15
59 25-Jul-14 25-Aug-14 374,515.78
Annex A
Paragraph 13 of the Credit Support Annex
ANNEX A
ISDA(R)
CREDIT SUPPORT ANNEX
to the Schedule to the
ISDA Master Agreement
dated as of September 21, 2007 between
Barclays Bank PLC (hereinafter referred to as "Party A" or "Pledgor")
and
Xxxxx Fargo Bank, National Association, not individually, but solely as
securities administrator (the "Securities Administrator") for BCAP LLC
Trust 2007-AA5, Mortgage Pass-Through Certificates, Series 2007-AA5 (the
"Trust") (hereinafter referred to as "Party B" or "Secured Party")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Paragraph 13. Elections and Variables.
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes the following additional obligations:
With respect to Party A: not applicable.
With respect to Party B: not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a),
except that:
(I) the words "upon a demand made by the Secured Party on or
promptly following a Valuation Date" shall be deleted
and replaced with the words "not later than the close of
business on each Valuation Date", and
(II) the sentence beginning "Unless otherwise specified in
Paragraph 13" and ending "(ii) the Value as of that
Valuation Date of all Posted Credit Support held by the
Secured Party." shall be deleted in its entirety and
replaced with the following:
"The "Delivery Amount" applicable to the Pledgor for any
Valuation Date will equal the greatest of
(1) the amount by which (a) the S&P Credit Support
Amount for such Valuation Date exceeds (b) the S&P
Value, as of such Valuation Date, of all Posted
Credit Support held by the Secured Party,
(2) the amount by which (a) the Xxxxx'x Credit Support
Amount for such Valuation Date exceeds (b) the
Xxxxx'x Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party,
and
(3) the amount by which (a) the Fitch Credit Support
Amount for such Valuation Date exceeds (b) the
Fitch Value, as of such Valuation Date, of all
Posted Credit Support held by the Secured Party."
(B) "Return Amount" has the meaning specified in Paragraph 3(b),
except that:
(I) the sentence beginning "Unless otherwise specified in
Paragraph 13" and ending "(ii) the Credit Support
Amount." shall be deleted in its entirety and replaced
with the following:
"The "Return Amount" applicable to the Secured Party for
any Valuation Date will equal the least of
(1) the amount by which (a) the S&P Value, as of such
Valuation Date, of all Posted Credit Support held
by the Secured Party exceeds (b) the S&P Credit
Support Amount for such Valuation Date,
(2) the amount by which (a) the Xxxxx'x Value, as of
such Valuation Date, of all Posted Credit Support
held by the Secured Party exceeds (b) the Moody's
Credit Support Amount for such Valuation Date, and
(3) the amount by which (a) the Fitch Value, as of
such Valuation Date, of all Posted Credit Support
held by the Secured Party exceeds (b) the Fitch
Credit Support Amount for such Valuation Date."
(C) "Credit Support Amount" shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any
Valuation Date, reference shall be made to the S&P Credit
Support Amount, the Xxxxx'x Credit Support Amount, or the
Fitch Credit Support Amount, in each case for such Valuation
Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
(ii) Eligible Collateral.
On any date, the following items will qualify as "Eligible
Collateral" (for the avoidance of doubt, all Eligible Collateral to
be denominated in USD):
S&P S&P Xxxxx'x Xxxxx'x
Approved Required First Second
Ratings Ratings Trigger Trigger Fitch
Valuation Valuation Valuation Valuation Valuation
Collateral Percentage Percentage Percentage Percentage Percentage
---------- ---------- ---------- ---------- ---------- ----------
(A) Cash 100% 80% 100% 100% 100%
(B) Fixed-rate negotiable
debt obligations issued
by the U.S. Treasury
Department having a
remaining maturity on
such date of not more 98.9% 79.1% 100% 100% 97.5%
than one year
(C) Fixed-rate negotiable
debt obligations issued
by the U.S. Treasury
Department having a
remaining maturity on
such date of more than
one year but not more 92.6% 74.1% 100% 94% 86.3%
than ten years
(D) Fixed-rate negotiable
debt obligations issued
by the U.S. Treasury
Department having a
remaining maturity on
such date of more than N/A N/A 100% 87% 79%
ten years
Notwithstanding the Valuation Percentages set forth in the preceding
table, upon the first Transfer of Eligible Collateral under this
Annex, the Pledgor may, at the Pledgor's expense, agree the Valuation
Percentages in relation to (B) through (D) above with the relevant
rating agency (to the extent such rating agency is providing a rating
for the Certificates), and upon such agreement (as evidenced in
writing), such Valuation Percentages shall supersede those set forth
in the preceding table.
(iii) Other Eligible Support.
The following items will qualify as "Other Eligible Support" for the
party specified:
Such Other Eligible Support as the Pledgor may designate; provided,
at the expense of the Pledgor, the prior written consent of the
relevant rating agency (to the extent such rating agency is
providing a rating for the Certificates) shall have been obtained.
For the avoidance of doubt, there are no items that qualify as Other
Eligible Support as of the date of this Annex.
(iv) Threshold.
(A) "Independent Amount" means zero with respect to Party A and
Party B.
(B) "Moody's Threshold" means, with respect to Party A and any
Valuation Date, if a Moody's First Trigger Downgrade Event has
occurred and is continuing and such Moody's First Trigger
Downgrade Event has been continuing for at least 30 Local
Business Days or since this Annex was executed, zero;
otherwise, infinity.
"S&P Threshold" means, with respect to Party A and any
Valuation Date, if an S&P Approved Threshold Downgrade Event
has occurred and is continuing and such S&P Approved Threshold
Downgrade Event has been continuing for at least 10 Local
Business Days or since this Annex was executed, zero;
otherwise, infinity.
"Fitch Threshold" means, with respect to Party A and any
Valuation Date, if a Fitch Approved Threshold Downgrade Event
has occurred and is continuing and such Fitch Approved
Threshold Downgrade Event has been continuing for at least 30
calendar days or since this Annex was executed, zero;
otherwise, infinity
"Threshold" means, with respect to Party B and any Valuation
Date, infinity.
(C) "Minimum Transfer Amount" means USD 100,000; provided,
however, that if the aggregate Class Certificate Balance of
Certificates rated by S&P ceases to be more than USD
50,000,000, "Minimum Transfer Amount" means USD 50,000;
provided further, with respect to the Secured Party at any
time when the Secured Party is a Defaulting Party, "Minimum
Transfer Amount" means zero.
(D) Rounding: The Delivery Amount will be rounded up and the
Return Amount will be rounded down to the nearest integral
multiple of USD 1000.
(c) Valuation and Timing.
(i) "Valuation Agent" means Party A. The Valuation Agent's calculations
shall be made in accordance with standard market practices using
commonly accepted third party sources such as Bloomberg or Reuters.
(ii) "Valuation Date" means each Local Business Day.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding the
Valuation Date or date of calculation, as applicable; provided that
the calculations of Value and Exposure will be made as of
approximately the same time on the same date.
(iv) "Notification Time" means 11:00 a.m., New York time, on a Local
Business Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. The
following Termination Events will be a "Specified Condition" for the party
specified (that party being the Affected Party if the Termination Event
occurs with respect to that party): None.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. If specified here as applicable, then the Pledgor must
obtain the Secured Party's consent for any substitution pursuant to
Paragraph 4(d): Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m. New York time on the Local
Business Day following the date on which the notice of the dispute
is given under Paragraph 5.
(ii) Value. Notwithstanding anything to the contrary in Paragraph 12, for
the purpose of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Moody's
Value, and Fitch Value, on any date, of Eligible Collateral will be
calculated as follows:
For Eligible Collateral comprised of Cash, the amount of such Cash.
For Eligible Collateral comprising securities, the sum of (A) the
product of (1)(x) the bid price at the Valuation Time for such
securities on the principal national securities exchange on which
such securities are listed, or (y) if such securities are not listed
on a national securities exchange, the bid price for such securities
quoted at the Valuation Time by any principal market maker for such
securities selected by the Valuation Agent, or (z) if no such bid
price is listed or quoted for such date, the bid price listed or
quoted (as the case may be) at the Valuation Time for the day next
preceding such date on which such prices were available and (2) the
applicable Valuation Percentage for such Eligible Collateral, and
(B) the accrued interest on such securities (except to the extent
Transferred to the Pledgor pursuant to Paragraph 6(d)(ii) or
included in the applicable price referred to in the immediately
preceding clause (A)) as of such date.
(iii) Alternative. The provisions of Paragraph 5 will apply; provided,
that the obligation of the appropriate party to deliver the
undisputed amount to the other party will not arise prior to the
time that would otherwise have applied to the Transfer pursuant to,
or deemed made, under Paragraph 3 if no dispute had arisen.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians.
(1) Party B is not and will not be entitled to hold Posted
Collateral. Party B's Custodian will be entitled to hold
Posted Collateral pursuant to Paragraph 6(b); provided
that the Custodian for Party B shall be the same banking
institution that acts as Securities Administrator for
the Certificates (as defined in the Pooling and
Servicing Agreement) for Party B.
Initially, the Custodian for Party B is: to be advised in writing
by Party B to Party A.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will not
apply to Party B; therefore, Party B will not have any of the rights
specified in Paragraph 6(c)(i) or 6(c)(ii); provided, however, that
the Securities Administrator shall invest Cash Posted Credit Support
in such investments as designated by Party A, with losses (net of
gains) incurred in respect of such investments to be for the account
of Party A; provided further, that such investments designated by
Party A shall be limited to money market funds rated "AAAm" or
"AAAm-G" by S&P and from which such invested Cash Posted Credit
Support may be withdrawn upon no more than 2 Local Business Day's
notice of a request for withdrawal.
(h) Distributions and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be the actual interest rate
earned on Posted Collateral in the form of Cash pursuant to
Paragraph 13(g)(ii).
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made on the second Local Business Day following the end of
each calendar month and on any other Local Business Day on which
Posted Collateral in the form of Cash is Transferred to the Pledgor
pursuant to Paragraph 3(b); provided, however, that the obligation
of Party B to Transfer any Interest Amount to Party A shall be
limited to the extent that Party B has earned and received such
funds and such funds are available to Party B.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). There are no additional representations by
either party.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time pursuant to Paragraph 13(b)(iii).
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support shall have such meaning as the parties shall agree in
writing from time to time pursuant to Paragraph 13(b)(iii).
(k) Demands and Notices.All demands, specifications and notices under this
Annex will be made pursuant to the Notices Section of this Agreement,
except that any demand, specification or notice shall be given to or made
at the following addresses, or at such other address as the relevant party
may from time to time designate by giving notice (in accordance with the
terms of this paragraph) to the other party:
If to Party A:
0 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX, England
Attention: Swaps Documentation
Facsimile No.: 0000-000-0000/6858
Telephone No.: 0000-000-0000/6904
with a copy to:
General Counsel's Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Notices to Party A shall not be deemed effective unless delivered to
the London address set forth above.
If to Party B's Custodian:
BCAP LLC Trust 2007-AA5
c/o Wells Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Client Manager - BCAP 2007-AA5
(l) Address for Transfers. Each Transfer hereunder shall be made to the
address specified in writing from time to time by the party to which such
Transfer will be made.
If to Party A:
For Cash:
Barclays Bank PLC, NY
ABA #000-000-000
F/O Barclays Swaps & Options Group NY
A/C #: 050019228
REF: Collateral
For Treasury Securities:
Bank of NYC/BBPLCLDN
ABA #000-000-000
If to Party B:
Xxxxx Fargo Bank, National Association
San Francisco, CA
ABA No.: 121 000 248
Account No.: 0000000000
Account Name: SAS Trust Clearing
FFC: 53178003, BCAP 2007-AA5 Posted Collateral Account
(m) Other Provisions.
(i) Collateral Account. The Secured Party shall cause any Custodian
appointed hereunder to open and maintain a segregated trust account
and to hold, record and identify all the Posted Collateral in such
segregated trust account and, subject to Paragraph 8(a), such
Posted Collateral shall at all times be and remain the property of
the Pledgor and shall at no time constitute the property of, or be
commingled with the property of, the Secured Party or the
Custodian.
(ii) Agreement as to Single Secured Party and Single Pledgor. Party A
and Party B hereby agree that, notwithstanding anything to the
contrary in this Annex, (a) the term "Secured Party" as used in
this Annex means only Party B, (b) the term "Pledgor" as used in
this Annex means only Party A, (c) only Party A makes the pledge
and grant in Paragraph 2, the acknowledgement in the final sentence
of Paragraph 8(a) and the representations in Paragraph 9.
(iii) Calculation of Value. Paragraph 4(c) is hereby amended by deleting
the word "Value" and inserting in lieu thereof "S&P Value, Xxxxx'x
Value, Fitch Value". Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words "a Value" and inserting in lieu thereof "an S&P
Value, a Xxxxx'x Value, and a Fitch Value" and (B) deleting the
words "the Value" and inserting in lieu thereof "S&P Value, Xxxxx'x
Value, and Fitch Value". Paragraph 5 (flush language) is hereby
amended by deleting the word "Value" and inserting in lieu thereof
"S&P Value, Xxxxx'x Value, or Fitch Value". Paragraph 5(i) (flush
language) is hereby amended by deleting the word "Value" and
inserting in lieu thereof "S&P Value, Xxxxx'x Value, and Fitch
Value". Paragraph 5(i)(C) is hereby amended by deleting the word
"the Value, if" and inserting in lieu thereof "any one or more of
the S&P Value, Xxxxx'x Value, or Fitch Value, as may be". Paragraph
5(ii) is hereby amended by (1) deleting the first instance of the
words "the Value" and inserting in lieu thereof "any one or more of
the S&P Value, Xxxxx'x Value, or Fitch Value" and (2) deleting the
second instance of the words "the Value" and inserting in lieu
thereof "such disputed S&P Value, Xxxxx'x Value, or Fitch Value".
Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended
by deleting the word "Value" and inserting in lieu thereof "least
of the S&P Value, Xxxxx'x Value or Fitch Value".
(iv) Form of Annex. Party A and Party B hereby agree that the text of
Paragraphs 1 through 12, inclusive, of this Annex is intended to be
the printed form of ISDA Credit Support Annex (Bilateral Form -
ISDA Agreements Subject to New York Law Only version) as published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
(v) Events of Default. Paragraph 7 will not apply to cause any Event of
Default to exist with respect to Party B except that Paragraph 7(i)
will apply to Party B solely in respect of Party B's obligations
under Paragraph 3(b) of the Credit Support Annex. Notwithstanding
anything to the contrary in Paragraph 7, any failure by Party A to
comply with or perform any obligation to be complied with or
performed by Party A under the Credit Support Annex shall only be
an Event of Default if (A) a Xxxxx'x Second Trigger Downgrade Event
has occurred and been continuing for 30 or more Local Business
Days, (B) an S&P Required Ratings Downgrade Event has occurred and
been continuing for 10 or more Local Business Days, or (C) a Fitch
Required Ratings Downgrade Event has occurred and been continuing
for 30 or more days.
(vi) Expenses. Notwithstanding anything to the contrary in Paragraph 10,
the Pledgor will be responsible for, and will reimburse the Secured
Party for, all transfer and other taxes and other costs involved in
any Transfer of Eligible Collateral.
(vii) Withholding. Paragraph 6(d)(ii) is hereby amended by inserting
immediately after "the Interest Amount" in the fourth line thereof
the words "less any applicable withholding taxes."
(viii) Additional Definitions. As used in this Annex:
"Exposure" has the meaning specified in Paragraph 12, except that
(1) after the word "Agreement" the words "(assuming, for this
purpose only, that Part 1(f)(i)(A)-(E) of the Schedule is deleted)"
shall be inserted and (2) at the end of the definition of Exposure,
the words "with terms that are, in all material respects, no less
beneficial for Party B than those of this Agreement" shall be
added.
"Fitch Approved Ratings Downgrade Event" means that no Relevant
Entity has credit ratings from Fitch at least equal to the Fitch
Approved Ratings Threshold.
"Fitch Credit Support Amount" means, for any Valuation Date, the
excess, if any, of
(I) (A) for any Valuation Date on which a Fitch
Approved Ratings Downgrade Event has occurred
and been continuing for at least 30 days, an
amount equal to the sum of (1) 100.0% of the
Secured Party's Exposure for such Valuation
Date and (2) the product of the Fitch
Volatility Cushion for each Transaction to
which this Annex relates and the Notional
Amount of each such Transaction for the
Calculation Period which includes such
Valuation Date, or
(B) for any other Valuation Date, zero, over
(II) the Threshold for Party A for such Valuation Date.
"Fitch Valuation Percentage" means, for any Valuation Date and each
item of Eligible Collateral, means, with respect to a Valuation
Date and each item of Eligible Collateral, the corresponding
percentage for such Eligible Collateral in the column headed "Fitch
Valuation Percentage".
"Fitch Value" means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price
obtained by the Valuation Agent for such Eligible Collateral and
(y) the Fitch Valuation Percentage for such Eligible Collateral set
forth in paragraph 13(b)(ii). The Fitch Value of Cash will be the
amount of such Cash.
"Fitch Volatility Cushion" means, for any Transaction, the related
percentage set forth in the following table.
----------------------------------------------------------------------------------
The higher of the Remaining Weighted Average Maturity
Fitch credit rating (years)
of (i) Party A and
(ii) the Credit
Support Provider of ----------------------------------------------------------
Party A, if applicable 1 2 3 4 5 6 7 8
----------------------- ------ ------- ------ ------ ------- ------ ------ -------
At least "AA-" 0.8% 1.7% 2.5% 3.3% 4.0% 4.7% 5.3% 5.9%
----------------------- ------ ------- ------ ------ ------- ------ ------ -------
"A+/A" 0.6% 1.2% 1.8% 2.3% 2.8% 3.3% 3.8% 4.2%
----------------------- ------ ------- ------ ------ ------- ------ ------ -------
"A-/BBB+" or lower 0.5% 1.0% 1.6% 2.0% 2.5% 2.9% 3.3% 3.6%
----------------------- ----------------------------------------------------------
The higher of the Remaining Weighted Average Maturity
Fitch credit rating (years)
of (i) Party A and ----------------------------------------------------------
(ii) the Credit Greater than
Support Provider of or equal to
Party A, if applicable 9 10 11 12 13 14 15
----------------------- ------ ------- ------ ------ ------- ------ --------------
At least "AA-" 6.5% 7.0% 7.5% 8.0% 8.5% 9.0% 9.5%
----------------------- ------ ------- ------ ------ ------- ------ --------------
"A+/A" 4.6% 5.0% 5.3% 5.7% 6.0% 6.4% 6.7%
----------------------- ------ ------- ------ ------ ------- ------ --------------
"A-/BBB+" or lower 4.0% 4.3% 4.7% 5.0% 5.3% 5.6% 5.9%
----------------------- ------ ------- ------ ------ ------- ------ --------------
"Local Business Day" means, for purposes of this Annex: any day on
which (A) commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in New York and
the location of Party A, Party B and any Custodian, and (B) in
relation to a Transfer of Eligible Collateral, any day on which the
clearance system agreed between the parties for the delivery of
Eligible Collateral is open for acceptance and execution of
settlement instructions (or in the case of a Transfer of Cash or
other Eligible Collateral for which delivery is contemplated by
other means a day on which commercial banks are open for business
(including dealings in foreign exchange and foreign deposits) in New
York and the location of Party A, Party B and any Custodian.
"Xxxxx'x Credit Support Amount" means, for any Valuation Date:
(A) if the Xxxxx'x Threshold for such Valuation Date is zero and
it is not the case that a Xxxxx'x Second Trigger Downgrade
Event has occurred and been continuing for at least 30 Local
Business Days, an amount equal to the greater of (x) zero and
(y) the sum of the Secured Party's Exposure and the aggregate
of Xxxxx'x First Trigger Additional Amounts for each
Transaction and such Valuation Date;
(B) if a Xxxxx'x Second Trigger Downgrade Event has occurred and
been continuing for at least 30 Local Business Days, an amount
equal to the greatest of (x) zero, (y) the aggregate amount of
the Next Payments for each Transaction and such Valuation
Date, and (z) the sum of the Secured Party's Exposure and the
aggregate of Xxxxx'x Second Trigger Additional Amounts for
each Transaction and such Valuation Date; or
(C) if the Xxxxx'x Threshold for such Valuation Date is infinity,
zero.
"Xxxxx'x First Trigger Additional Amount" means, for any Valuation
Date and any Transaction, the product of (i) the applicable Xxxxx'x
First Trigger Factor set forth in Table 1, (ii) the Scale Factor, if
any, for such Transaction, or, if no Scale Factor is applicable for
such Transaction, one, and (iii) the Notional Amount for such
Transaction for the Calculation Period for such Transaction (each as
defined in the related Confirmation) which includes such Valuation
Date.
"Xxxxx'x First Trigger Downgrade Event" means that no Relevant
Entity has credit ratings from Xxxxx'x at least equal to the Xxxxx'x
First Trigger Ratings Threshold.
"Xxxxx'x Second Trigger Additional Amount" means, for any
Valuation Date and any Transaction,
(A) if such Transaction is not a Transaction-Specific Hedge, the
product of (i) the applicable Xxxxx'x Second Trigger Factor set
forth in Table 2, (ii) the Scale Factor, if any, for such
Transaction, or, if no Scale Factor is applicable for such
Transaction, one, and (iii) the Notional Amount for such Transaction
for the Calculation Period for such Transaction (each as defined in
the related Confirmation) which includes such Valuation Date; or
(B) if such Transaction is a Transaction-Specific Hedge, the product
of (i) the applicable Xxxxx'x Second Trigger Factor set forth in
Table 3, (ii) the Scale Factor, if any, for such Transaction, or, if
no Scale Factor is applicable for such Transaction, one, and (iii)
the Notional Amount for such Transaction for the Calculation Period
for such Transaction (each as defined in the related Confirmation)
which includes such Valuation Date;
"Xxxxx'x Valuation Percentage" means, with respect to a Valuation
Date and each item of Eligible Collateral, (i) if the Xxxxx'x
Threshold for such Valuation Date is zero and it is not the case
that a Xxxxx'x Second Trigger Downgrade Event has occurred and been
continuing for at least 30 Local Business Days, the corresponding
percentage for such Eligible Collateral in the column headed
"Xxxxx'x First Trigger Valuation Percentage" or (ii) if a Xxxxx'x
Second Trigger Ratings Event has occurred and been continuing for at
least 30 Local Business Days, the corresponding percentage for such
Eligible Collateral in the column headed "Xxxxx'x Second Trigger
Valuation Percentage".
"Xxxxx'x Value" means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (x) the bid price
obtained by the Valuation Agent and (y) the applicable Xxxxx'x
Valuation Percentage set forth in Paragraph 13(b)(ii). The Xxxxx'x
Value of Cash will be the amount of such Cash.
"Next Payment" means, for each Transaction and each Valuation Date,
the greater of (i) the aggregate amount of any payments due to be
made by Party A under Section 2(a) in respect of such Transaction on
the related Next Payment Date less the aggregate amount of any
payments due to be made by Party B under Section 2(a) on such Next
Payment Date (any such payments determined based on rates prevailing
on such Valuation Date) and (ii) zero.
"Next Payment Date" means, for each Transaction, the date on which
the next scheduled payment under such Transaction is due to be paid.
"S&P Approved Ratings Downgrade Event" means that no Relevant
Entity has credit ratings from S&P at least equal to the S&P
Approved Ratings Threshold.
"S&P Credit Support Amount" means, for any Valuation Date:
(A) if the S&P Threshold for such Valuation Date is zero and it is
not the case that an S&P Required Ratings Downgrade Event has
occurred and been continuing for at least 10 Local Business
Days, an amount equal to the Secured Party's Exposure;
(B) if an S&P Required Ratings Downgrade Event has occurred and
been continuing for at least 10 Local Business Days, an amount
equal to 125% of the Secured Party's Exposure; or
(C) if the S&P Threshold for such Valuation Date is infinity,
zero.
"S&P Valuation Percentage" means, with respect to a Valuation Date
and each item of Eligible Collateral, (i) if the S&P Threshold for
such Valuation Date is zero and it is not the case that a S&P
Required Ratings Downgrade Event has occurred and been continuing
for at least 10 Local Business Days, the corresponding percentage
for such Eligible Collateral in the column headed "S&P Approved
Ratings Valuation Percentage" or (ii) if an S&P Required Ratings
Downgrade Event has occurred and been continuing for at least 10
Local Business Days, the corresponding percentage for such Eligible
Collateral in the column headed "S&P Required Ratings Valuation
Percentage".
"S&P Value" means, on any date and with respect to any Eligible
Collateral, the product of (x) the bid price obtained by the
Valuation Agent for such Eligible Collateral and (y) the applicable
S&P Valuation Percentage for such Eligible Collateral set forth in
paragraph 13(b)(ii). The S&P Value of Cash will be the face amount
of such Cash.
"Transaction-Specific Hedge" means any Transaction in respect of
which (x) the notional amount is "balance guaranteed" or (y) the
notional amount for any Calculation Period (as defined in the
related Confirmation) otherwise is not a specific dollar amount that
is fixed at the inception of the Transaction.
"Valuation Percentage" shall mean, for purposes of determining the
S&P Value, Xxxxx'x Value and Fitch Value with respect to any
Eligible Collateral or Posted Collateral, the applicable S&P
Valuation Percentage, Xxxxx'x Valuation Percentage, or Fitch
Valuation Percentage for such Eligible Collateral or Posted
Collateral, respectively, in each case as set forth in Paragraph
13(b)(ii).
"Value" shall mean, in respect of any date, the related S&P Value,
the related Xxxxx'x Value, and the related Fitch Value.
[Remainder of this page intentionally left blank]
Table 1
-----------------------------------------------------------------------------
Remaining Xxxxx'x First Trigger
Weighted Average Life Factor--Single Currency Xxxxx'x First Trigger
of Hedge in Years Interest Rate Xxxxxx Factor--Currency Xxxxxx
-----------------------------------------------------------------------------
Equal to or less than 1 0.15% 1.10%
-----------------------------------------------------------------------------
Greater than 1 but less
than or equal to 2 0.30% 1.20%
-----------------------------------------------------------------------------
Greater than 2 but less 0.40%
than or equal to 3 1.30%
-----------------------------------------------------------------------------
Greater than 3 but less
than or equal to 4 0.60% 1.40%
-----------------------------------------------------------------------------
Greater than 4 but less
than or equal to 5 0.70% 1.50%
-----------------------------------------------------------------------------
Greater than 5 but less
than or equal to 6 0.80% 1.60%
-----------------------------------------------------------------------------
Greater than 6 but less
than or equal to 7 1.00% 1.60%
-----------------------------------------------------------------------------
Greater than 7 but less
than or equal to 8 1.10% 1.70%
-----------------------------------------------------------------------------
Greater than 8 but less
than or equal to 9 1.20% 1.80%
-----------------------------------------------------------------------------
Greater than 9 but less
than or equal to 10 1.30% 1.90%
-----------------------------------------------------------------------------
Greater than 10 but less
than or equal to 11 1.40% 1.90%
-----------------------------------------------------------------------------
Greater than 11 but less
than or equal to 12 1.50% 2.00%
-----------------------------------------------------------------------------
Greater than 12 but less
than or equal to 13 1.60% 2.10%
-----------------------------------------------------------------------------
Greater than 13 but less
than or equal to 14 1.70% 2.10%
-----------------------------------------------------------------------------
Greater than 14 but less
than or equal to 15 1.80% 2.20%
-----------------------------------------------------------------------------
Greater than 15 but less
than or equal to 16 1.90% 2.30%
-----------------------------------------------------------------------------
Greater than 16 but less
than or equal to 17 2.00% 2.30%
-----------------------------------------------------------------------------
Greater than 17 but less
than or equal to 18 2.00% 2.40%
-----------------------------------------------------------------------------
Greater than 18 but less
than or equal to 19 2.00% 2.40%
-----------------------------------------------------------------------------
Greater than 19 but less
than or equal to 20 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 20 but less
than or equal to 21 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 21 but less
than or equal to 22 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 22 but less
than or equal to 23 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 23 but less
than or equal to 24 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 24 but less
than or equal to 25 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 25 but less
than or equal to 26 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 26 but less
than or equal to 27 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 27 but less
than or equal to 28 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 28 but less
than or equal to 29 2.00% 2.50%
-----------------------------------------------------------------------------
Greater than 29 2.00% 2.50%
-----------------------------------------------------------------------------
Table 2
-------
-----------------------------------------------------------------------------
Xxxxx'x Second
Remaining Trigger Factor--Single Xxxxx'x Second
Weighted Average Life Currency Interest Trigger
of Hedge in Years Rate Swaps Factor--Currency Swaps
-----------------------------------------------------------------------------
Equal to or less than 1 0.50% 6.10%
-----------------------------------------------------------------------------
Greater than 1 but less 1.00% 6.30%
than or equal to 2
-----------------------------------------------------------------------------
Greater than 2 but less 1.50% 6.40%
than or equal to 3
-----------------------------------------------------------------------------
Greater than 3 but less 1.90% 6.60%
than or equal to 4
-----------------------------------------------------------------------------
Greater than 4 but less 2.40% 6.70%
than or equal to 5
-----------------------------------------------------------------------------
Greater than 5 but less 2.80% 6.80%
than or equal to 6
-----------------------------------------------------------------------------
Greater than 6 but less 3.20% 7.00%
than or equal to 7
-----------------------------------------------------------------------------
Greater than 7 but less 3.60% 7.10%
than or equal to 8
-----------------------------------------------------------------------------
Greater than 8 but less 4.00% 7.20%
than or equal to 9
-----------------------------------------------------------------------------
Greater than 9 but less 4.40% 7.30%
than or equal to 10
-----------------------------------------------------------------------------
Greater than 10 but less 4.70% 7.40%
than or equal to 11
-----------------------------------------------------------------------------
Greater than 11 but less 5.00% 7.50%
than or equal to 12
-----------------------------------------------------------------------------
Greater than 12 but less 5.40% 7.60%
than or equal to 13
-----------------------------------------------------------------------------
Greater than 13 but less 5.70% 7.70%
than or equal to 14
-----------------------------------------------------------------------------
Greater than 14 but less 6.00% 7.80%
than or equal to 15
-----------------------------------------------------------------------------
Greater than 15 but less 6.30% 7.90%
than or equal to 16
-----------------------------------------------------------------------------
Greater than 16 but less 6.60% 8.00%
than or equal to 17
-----------------------------------------------------------------------------
Greater than 17 but less 6.90% 8.10%
than or equal to 18
-----------------------------------------------------------------------------
Greater than 18 but less 7.20% 8.20%
than or equal to 19
-----------------------------------------------------------------------------
Greater than 19 but less 7.50% 8.20%
than or equal to 20
-----------------------------------------------------------------------------
Greater than 20 but less 7.80% 8.30%
than or equal to 21
-----------------------------------------------------------------------------
Greater than 21 but less 8.00% 8.40%
than or equal to 22
-----------------------------------------------------------------------------
Greater than 22 but less 8.00% 8.50%
than or equal to 23
-----------------------------------------------------------------------------
Greater than 23 but less 8.00% 8.60%
than or equal to 24
-----------------------------------------------------------------------------
Greater than 24 but less 8.00% 8.60%
than or equal to 25
-----------------------------------------------------------------------------
Greater than 25 but less 8.00% 8.70%
than or equal to 26
-----------------------------------------------------------------------------
Greater than 26 but less 8.00% 8.80%
than or equal to 27
-----------------------------------------------------------------------------
Greater than 27 but less 8.00% 8.80%
than or equal to 28
-----------------------------------------------------------------------------
Greater than 28 but less 8.00% 8.90%
than or equal to 29
-----------------------------------------------------------------------------
Greater than 29 8.00% 9.00%
-----------------------------------------------------------------------------
Table 3
-------
-------------------------------------------------------------------------
Xxxxx'x Second Xxxxx'x Second
Remaining Trigger Factor--Single Trigger
Weighted Average Life Currency Interest Factor--Currency
of Hedge in Years Rate Xxxxxx Xxxxxx
-------------------------------------------------------------------------
Equal to or less than 1 0.65% 6.30%
-------------------------------------------------------------------------
Greater than 1 but less 1.30% 6.60%
than or equal to 2
-------------------------------------------------------------------------
Greater than 2 but less 1.90% 6.90%
than or equal to 3
-------------------------------------------------------------------------
Greater than 3 but less 2.50% 7.10%
than or equal to 4
-------------------------------------------------------------------------
Greater than 4 but less 3.10% 7.40%
than or equal to 5
-------------------------------------------------------------------------
Greater than 5 but less 3.60% 7.70%
than or equal to 6
-------------------------------------------------------------------------
Greater than 6 but less 4.20% 7.90%
than or equal to 7
-------------------------------------------------------------------------
Greater than 7 but less 4.70% 8.20%
than or equal to 8
-------------------------------------------------------------------------
Greater than 8 but less 5.20% 8.40%
than or equal to 9
-------------------------------------------------------------------------
Greater than 9 but less 5.70% 8.60%
than or equal to 10
-------------------------------------------------------------------------
Greater than 10 but less 6.10% 8.80%
than or equal to 11
-------------------------------------------------------------------------
Greater than 11 but less 6.50% 9.00%
than or equal to 12
-------------------------------------------------------------------------
Greater than 12 but less 7.00% 9.20%
than or equal to 13
-------------------------------------------------------------------------
Greater than 13 but less 7.40% 9.40%
than or equal to 14
-------------------------------------------------------------------------
Greater than 14 but less 7.80% 9.60%
than or equal to 15
-------------------------------------------------------------------------
Greater than 15 but less 8.20% 9.80%
than or equal to 16
-------------------------------------------------------------------------
Greater than 16 but less 8.60% 10.00%
than or equal to 17
-------------------------------------------------------------------------
Greater than 17 but less 9.00% 10.10%
than or equal to 18
-------------------------------------------------------------------------
Greater than 18 but less 9.40% 10.30%
than or equal to 19
-------------------------------------------------------------------------
Greater than 19 but less 9.70% 10.50%
than or equal to 20
-------------------------------------------------------------------------
Greater than 20 but less 10.00% 10.70%
than or equal to 21
-------------------------------------------------------------------------
Greater than 21 but less 10.00% 10.80%
than or equal to 22
-------------------------------------------------------------------------
Greater than 22 but less 10.00% 11.00%
than or equal to 23
-------------------------------------------------------------------------
Greater than 23 but less 10.00% 11.00%
than or equal to 24
-------------------------------------------------------------------------
Greater than 24 but less 10.00% 11.00%
than or equal to 25
-------------------------------------------------------------------------
Greater than 25 but less 10.00% 11.00%
than or equal to 26
-------------------------------------------------------------------------
Greater than 26 but less 10.00% 11.00%
than or equal to 27
-------------------------------------------------------------------------
Greater than 27 but less 10.00% 11.00%
than or equal to 28
-------------------------------------------------------------------------
Greater than 28 but less 10.00% 11.00%
than or equal to 29
-------------------------------------------------------------------------
Greater than 29 10.00% 11.00%
-------------------------------------------------------------------------
REFERENCE NUMBER: 1957307B/1961766B
EXHIBIT O
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Securities Administrator],
[the Master Servicer], [each Custodian], [the Servicer], [each Subservicer] and
[each Subcontractor] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria." The responsibilities set forth herein
may be amended without amending the Pooling and Servicing Agreement upon mutual
agreement among the applicable party requesting such amendment and the other
parties to the Agreement.
------------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------
General Servicing Considerations
------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any Securities
performance or other triggers and events of default in Administrator/Servicer
accordance with the transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to Securities
third parties, policies and procedures are instituted Administrator/Servicer
to monitor the third party's performance and
compliance with such servicing activities.
------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to N/A
maintain a back-up servicer for the mortgage loans are
maintained.
------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in Servicer/Master Servicer
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
------------------------------------------------------------------------------------------------------
Cash Collection and Administration
------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the Servicer/Master Servicer
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an Servicer/Securities
obligor or to an investor are made only by authorized Administrator/Master
personnel. Servicer
------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, Servicer/Master Servicer
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash Servicer/Securities
reserve accounts or accounts established as a form of Administrator/Master
overcollateralization, are separately maintained Servicer
(e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally Servicer/Securities
insured depository institution as set forth in the Administrator/Master
transaction agreements. For purposes of this Servicer
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent Servicer/Securities
unauthorized access. Administrator/Master
Servicer
------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for Servicer/Securities
all asset-backed securities related bank accounts, Administrator/Master
including custodial accounts and related bank clearing Servicer
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number
of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling
items are resolved within 90 calendar days of their
original identification, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with Securities
the Commission, are maintained in accordance with the Administrator/Servicer/
transaction agreements and applicable Commission Master Servicer
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
securities administrator's records as to the total
unpaid principal balance and number of mortgage loans
serviced by the Servicer.
------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Securities
accordance with timeframes, distribution priority and Administrator/Servicer/
other terms set forth in the transaction agreements. Master Servicer
------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within Securities
two business days to the Servicer's investor records, Administrator/Servicer/
or such other number of days specified in the Master Servicer
transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports Securities
agree with cancelled checks, or other form of payment, Administrator/Servicer/
or custodial bank statements. Master Servicer
------------------------------------------------------------------------------------------------------
Pool Asset Administration
------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is Custodian/ Securities
maintained as required by the transaction agreements Administrator/Servicer
or related mortgage loan documents.
------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Custodian/Securities
required by the transaction agreements Administrator/Servicer
------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset Servicer
pool are made, reviewed and approved in accordance
with any conditions or requirements in the transaction
agreements.
------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, Servicer
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance
with the related mortgage loan documents.
------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans Servicer
agree with the Servicer's records with respect to an
obligor's unpaid principal balance.
------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an Servicer
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance Servicer
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
the transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained Servicer
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for Servicer
mortgage loans with variable rates are computed based
on the related mortgage loan documents.
------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such Servicer
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related mortgage loans, or such other number of
days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or Servicer
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any Servicer
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of
days specified in the transaction agreements. Servicer
------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts Servicer
are recognized and recorded in accordance with the
transaction agreements.
------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified Securities Administrator
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
----------------------------------------------------------------------------------------------------
EXHIBIT P
ADDITIONAL FORM 10-D DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-------------------------------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Performance Information
-------------------------------------------------------------------------------------------------------------------
Information included in the Monthly Statement Master Servicer
Servicer
Securities Administrator
-------------------------------------------------------------------------------------------------------------------
Any information required by 1121 which is NOT included Depositor
on the Monthly Statement
-------------------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings
Any legal proceeding pending against the following
entities or their respective property, that is material to
Certificateholders, including any proceeding known to be
contemplated by governmental authorities:
--------------------------------------------------------------------------------------------------------------------
|_| Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator and
Depositor
--------------------------------------------------------------------------------------------------------------------
|_| Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
--------------------------------------------------------------------------------------------------------------------
|_| Depositor Depositor
--------------------------------------------------------------------------------------------------------------------
|_| Trustee Trustee
--------------------------------------------------------------------------------------------------------------------
|_| Securities Administrator Securities Administrator
--------------------------------------------------------------------------------------------------------------------
|_| Master Servicer Master Servicer
--------------------------------------------------------------------------------------------------------------------
|_| Custodian Custodian
--------------------------------------------------------------------------------------------------------------------
|_| 1110(b) Originator Depositor
--------------------------------------------------------------------------------------------------------------------
|_| Any 1108(a)(2) Servicer (other than the Master Servicer
Servicer or Securities Administrator)
--------------------------------------------------------------------------------------------------------------------
|_| Any other party contemplated by 1100(d)(1) Depositor
--------------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the sponsor,
depositor or issuing entity, that are backed by the same
asset pool or are otherwise issued by the issuing entity,
whether or not registered, provide the sales and use of
proceeds information in Item 701 of Regulation S-K.
Pricing information can be omitted if securities were not
registered.
-------------------------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
Trustee
Information from Item 3 of Part II of Form 10-Q:
Report the occurrence of any Event of Default (after
expiration of any grace period and provision of any
required notice)
--------------------------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security Securities Administrator
Holders Trustee
Information from Item 4 of Part II of Form 10-Q
--------------------------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
Item 1112(b) - Significant Obligor Financial Information*
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the Form 10-D for
the distribution period in which updated information is
required pursuant to the Item.
-------------------------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Information
Item 1114(b)(2) - Credit Enhancement Provider Financial
Information*
-------------------------------------------------------------------------------------------------------------------
|_| Determining applicable disclosure threshold Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Requesting required financial information (including Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
-------------------------------------------------------------------------------------------------------------------
Item 1115(b) - Derivative Counterparty Financial
Information*
-------------------------------------------------------------------------------------------------------------------
|_| Determining current maximum probable exposure Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Determining current significance percentage Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Requesting required financial information (including Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the Form 10-D for
the distribution period in which updated information is
required pursuant to the Items.
-------------------------------------------------------------------------------------------------------------------
Item 8: Other Information Any party responsible for the applicable Form 8-K
Disclosure item
Disclose any information required to be reported on Form 8-K
during the period covered by the Form 10-D but not reported
-------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits
-------------------------------------------------------------------------------------------------------------------
Monthly Statement to Certificateholders Securities Administrator
-------------------------------------------------------------------------------------------------------------------
Exhibits required by Item 601 of Regulation S-K, such as Depositor
material agreements
-------------------------------------------------------------------------------------------------------------------
EXHIBIT Q
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-------------------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
-------------------------------------------------------------------------------------------------------------------
Item 9B: Other Information
Any party responsible for disclosure items on Form 8-K
Disclose any information required to be reported on Form 8-K
during the fourth quarter covered by the Form 10-K but not
reported
-------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules Securities Administrator
Depositor
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1112(b): Significant
Obligors of Pool Assets
-------------------------------------------------------------------------------------------------------------------
Significant Obligor Financial Information* Depositor
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the Form 10-K if
updated information is required pursuant to the Item.
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1114(b)(2): Credit
Enhancement Provider Financial
Information
-------------------------------------------------------------------------------------------------------------------
|_| Determining applicable disclosure threshold Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Requesting required financial information (including Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the Form 10-K if
updated information is required pursuant to the Item.
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1115(b): Derivative
Counterparty Financial Information
-------------------------------------------------------------------------------------------------------------------
|_| Determining current maximum probable exposure Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Determining current significance percentage Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Requesting required financial information (including Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
-------------------------------------------------------------------------------------------------------------------
*This information need only be reported on the Form 10-K if
updated information is required pursuant to the Item.
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the following entities
or their respective property, that is material to
Certificateholders, including any proceeding known to be
contemplated by governmental authorities:
-------------------------------------------------------------------------------------------------------------------
|_| Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator
and Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Depositor Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Trustee Trustee
-------------------------------------------------------------------------------------------------------------------
|_| Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
|_| Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
|_| Custodian Custodian
-------------------------------------------------------------------------------------------------------------------
|_| 1110(b) Originator Depositor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1108(a)(2) Servicer (other than the Master Servicer
Servicer or Securities Administrator)
-------------------------------------------------------------------------------------------------------------------
|_| Any other party contemplated by 1100(d)(1) Depositor
-------------------------------------------------------------------------------------------------------------------
Reg AB Item 1119: Affiliations and Relationships
-------------------------------------------------------------------------------------------------------------------
Whether (a) the Sponsor (Seller), Depositor or Issuing
Depositor as to (a) Entity is an affiliate of the following
parties, and (b) Sponsor/Seller as to (a) to the extent
known and material, any of the following parties are
affiliated with one another:
-------------------------------------------------------------------------------------------------------------------
|_| Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
|_| Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
|_| Trustee Trustee
-------------------------------------------------------------------------------------------------------------------
|_| Any other 1108(a)(3) servicer Servicer
-------------------------------------------------------------------------------------------------------------------
|_| Any 1110 Originator Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1112(b) Significant Obligor Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1114 Credit Enhancement Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1115 Derivate Counterparty Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any other 1101(d)(1) material party Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
Whether there are any "outside the ordinary course Depositor as to (a)
business arrangements" other than would be obtained in Sponsor/Seller as to (a)
an arm's length transaction between (a) the Sponsor
(Seller), Depositor or Issuing Entity on the one hand, and
(b) any of the following parties (or their affiliates) on
the other hand, that exist currently or within the past two
years and that are material to a Certificateholder's
understanding of the Certificates:
-------------------------------------------------------------------------------------------------------------------
|_| Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
|_| Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
|_| Trustee Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any other 1108(a)(3) servicer Servicer
-------------------------------------------------------------------------------------------------------------------
|_| Any 1110 Originator Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1112(b) Significant Obligor Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1114 Credit Enhancement Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1115 Derivate Counterparty Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any other 1101(d)(1) material party Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
Whether there are any specific relationships involving
Depositor as to (a) the transaction or the pool assets
between (a) the Sponsor/Seller as to (a) Sponsor (Seller),
Depositor or Issuing Entity on the one hand, and (b) any of
the following parties (or their affiliates) on the other
hand, that exist currently or within the past two years and
that are material:
-------------------------------------------------------------------------------------------------------------------
|_| Master Servicer Master Servicer
-------------------------------------------------------------------------------------------------------------------
|_| Securities Administrator Securities Administrator
-------------------------------------------------------------------------------------------------------------------
|_| Trustee Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any other 1108(a)(3) servicer Servicer
-------------------------------------------------------------------------------------------------------------------
|_| Any 1110 Originator Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1112(b) Significant Obligor Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1114 Credit Enhancement Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any 1115 Derivate Counterparty Provider Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
|_| Any other 1101(d)(1) material party Depositor/Sponsor
-------------------------------------------------------------------------------------------------------------------
EXHIBIT R
FORM 8-K DISCLOSURE INFORMATION
-----------------------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-----------------------------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive The party to this Agreement entering into
Agreement such material definitive agreement
-----------------------------------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material Definitive The party to this Agreement requesting
Agreement termination of a material definitive
agreement
-----------------------------------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership (i) All parties to the Agreement (as to
themselves), (ii) the Trustee, the Master
Servicer, the Securities Administrator and the
Servicer (to their respective actual knowledge) as
to the Trust, (iii) the Depositor as to the
sponsor and each Original Loan Seller or any
1100(d)(1) party
-----------------------------------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase a Securities Administrator/Depositor
Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
-----------------------------------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights of Security The party requesting such modification
Holders
-----------------------------------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or Depositor
Bylaws; Change of Fiscal Year
-----------------------------------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Computational Material Depositor
-----------------------------------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer, Securities Administrator or Master Servicer, Servicer, Securities
Trustee Administrator, Trustee (as to the Trustee)
-----------------------------------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External Support Depositor/ Securities Administrator
-----------------------------------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution Securities Administrator
-----------------------------------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
-----------------------------------------------------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure Depositor
-----------------------------------------------------------------------------------------------------------------------
Item 8.01 Depositor
-----------------------------------------------------------------------------------------------------------------------
Item 9.01 - Financial Statements and Exhibits Responsible party for reporting/disclosing the
financial statement or exhibit
-----------------------------------------------------------------------------------------------------------------------
EXHIBIT S
ADDITIONAL DISCLOSURE NOTIFICATION
BCAP LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [_________]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@Xxxxxxxxxx.xxx
Attn: Corporate Trust Services - BCAP 2007-AA5 SEC REPORT PROCESSING
Re: RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 8.15 of the Pooling and Servicing
Agreement, dated as of September 1, 2007, between BCAP LLC, as depositor and
Xxxxx Fargo Bank, National Association, as master servicer, securities
administrator and custodian and HSBC Bank USA, National Association, as trustee.
The undersigned, as [____], hereby notifies you that certain events have come to
our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[____], phone number: [____]; email address: [____].
[NAME OF PARTY],
as [role]
By: ____________________________________
Name:
Title:
EXHIBIT T
REPRESENTATION LETTER
SIDE LETTER
THIS AGREEMENT, dated as of September 21, 2007 (the "Agreement") is
entered into between Barclays Bank PLC ("BBPLC") and BCAP LLC (the "Depositor").
RECITALS
WHEREAS, reference is made to the Pooling and Servicing Agreement,
dated as of September 1, 2007 (the "Pooling and Servicing Agreement"), among the
Depositor,HSBC Bank USA, National Association, as trustee (the "Trustee"), and
Xxxxx Fargo Bank, N. A., as master servicer, securities administrator and
custodian.
WHEREAS, pursuant to the Master Mortgage Loan Purchase Agreement,
dated as of August 30, 2006, between BBPLC, as purchaser, and Countrywide Home
Loans, Inc. ("CHL"), as seller (the "Countrywide August Agreement"), CHL has
made representations and warranties regarding certain Mortgage Loans (as defined
in the Pooling and Servicing Agreement) as of the date specified therein (the
"Countrywide Original Sale Date").
WHEREAS, pursuant to the Master Mortgage Loan Purchase Agreement,
dated as of February 26, 2007, between Xxxxxx, as purchaser, and CHL, as seller
(together with the Countrywide August Agreement, the "Countrywide Agreements"),
CHL has made representations and warranties regarding certain Mortgage Loans (as
defined in the Pooling and Servicing Agreement) as of the Countrywide Original
Sale Date.
WHEREAS, pursuant to the Xxxx of Sale, dated as of September 21,
2007 (the "BPPLC Xxxx of Sale"), between the Depositor and BPPLC and the Xxxx of
Sale, dated as of September 21, 2007 (the "Xxxxxx Xxxx of Sale"), between the
Depositor and Xxxxxx, BPPLC and Xxxxxx sold the Mortgage Loans to the Depositor.
WHEREAS, BBPLC is the administrator of Xxxxxx.
NOW, THEREFORE, the parties hereto agree as follows:
Definitions
-----------
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Pooling and Servicing Agreement.
Representations and Warranties of BBPLC
---------------------------------------
With respect to the Mortgage Loans, BBPLC hereby represents to the
Depositor that, to the best of its knowledge, no event has occurred since the
applicable Countrywide Original Sale Date that would render the representations
and warranties made by CHL in paragraphs (a) through (j), (l), (m), (n), (o),
(aa), (bb) and (mm) of Section 3.02 of the Countrywide Agreements to be untrue
in any material respect as of the Closing Date.
In addition, BBPLC hereby represents to the Depositor that:
(i) No Mortgage Loan is a Mortgage Loan categorized as "High Cost"
or "Covered" pursuant to Appendix E of Standard & Poor's Glossary. No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is governed by the Georgia Fair Lending Act.
(ii) Each loan at the time it was made complied in all material
respects with applicable local, state and federal laws, including, but not
limited to, all applicable predatory and abusive lending laws.
Repurchase of Mortgage Loans
----------------------------
In the event of a breach by BBPLC of its representations and
warranties above that materially and adversely affects Certificateholders, BBPLC
shall repurchase each such Mortgage Loan within 60 days of the earlier of
discovery or receipt of notice of breach with respect to each such Mortgage Loan
at the Repurchase Price set forth in the Pooling and Servicing Agreement.
Third-Party Beneficiary
-----------------------
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The
Trustee and its successors and assigns under the Pooling and Servicing Agreement
shall be a third-party beneficiary to the provisions of this Agreement, and
shall be entitled to rely upon and directly to enforce such provisions of this
Agreement, except as expressly limited by the terms hereof. Except as expressly
stated otherwise herein or in the Pooling and Servicing Agreement, any right of
the Trustee to direct, appoint, consent to, approve of, or take any action under
this Agreement, shall be a right exercised by the Trustee in its sole and
absolute discretion.
Governing Law
-------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Counterparts
------------
This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all of which
counterparts shall together constitute but one and the same instrument.
Amendments
----------
This Agreement may be amended from time to time by BBPLC and the
Depositor, with the prior written consent of the Trustee.
[SIGNATURE PAGE FOLLOWS]
Executed as of the day and year first above written.
BARCLAYS BANK PLC
By: /s/ Xxx Xxx
-------------------------------------
Name: Xxx Xxx
Title: Managing Director
BCAP LLC
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President and Chief
Financial Officer
EXHIBIT U
LOAN LEVEL DATA REPORT
LOAN NUM
NEXT DUE DATE
PMT P&I CONTSTANT
RTE
BEG SCHED BAL
SCHED PRIN
CURTAIL
LIQUIDATED BALANCE
END SCHED BAL
NET INT
NEG AMORT AMOUNT
NEXT RATE CHANGE DATE
ACTION CODE STATUS
DEALID
LOSS ON LIQUIDATED PROP
MODIFICATION DATE
